During these unprecedented times, there have been many legal issues surrounding COVID-19. These extend from mandatory vaccination in the workplace, to lockdowns affecting whole industries such as the liquor industry. Furthermore, some countries have recently introduced laws which are prejudicial to those who have failed and/or refused to take
the vaccine. There have also been some protests worldwide relating to COVID-19 infringing upon people’s rights which seem to be on the rise.
Of keen interest to the liquor industry in past weeks and months are the alcohol restrictions which have intermittently affected their businesses. What is of interest in my view is the government’s use of curfews, full alcohol bans at times, and restrictions on times in which alcohol stores can operate.
The rationale behind such restrictions generally (with similar restrictions having occurred internationally), is that hospitals are over-burdened with patients who have consumed too much alcohol and ended up in hospital due to events relating to such consumption, which in turn fills up capacity for patients affected with COVID-19. This has largely been accepted as a justifiable reason for the government to limit the rights of the liquor industry, with the matter being tested in court previously.
The case of South African Breweries (Pty) Ltd v Minister of Foreign Affairs, Minister of Cooperative Governance and Traditional Affairs and Another and Minister of Trade and Industry was a recent Western Cape High Court case decided in July 2021, in which the liquor industry went against the government’s decision to restrict rights relating to the industry, such as rights relating to the distribution and sale of liquor. The court stated that a lack of inhibition resulting from liquor consumption could cause dangerous behaviour associated with neglect of mask-wearing, distancing and general following of the rules associated with preventing the spread of COVID-19.
The Respondents’ arguments were that the regulations were in place to lessen the effects of COVID-19 throughout society. The court viewed the application brought by SAB as urgent, given the effects on the industry and those within it. The court discussed the process of public engagement prior to passing the regulations, which was reduced from normal time periods, and concluded that given the surrounding circumstances of the matter, the regulations that were passed restricting numerous aspects of the liquor industry’s performance was seen as just by the court and procedurally fair. The Minister was awarded costs of the application due to the success of the application, the size of the Applicant, and seemingly to ward off similar challenges in future. Despite the liquor industry’s pleas, it will be interesting to see what the December festive season will bring in terms of whether the government will limit alcohol consumption, purchases and general access to alcohol once again in light of the fourth wave and the identification of yet another COVID-19 variant.
With regard to mandatory vaccinations in the workplace, this has been a contentious issue both locally and worldwide. Certain companies in the USA have insisted upon mandatory vaccination for those who work within the office. Certain companies in South Africa have also strongly encouraged employees to be vaccinated and to set a strong example to other companies within the industry. At Discovery Health for example, employees can object to the mandatory vaccination policy on religious or other grounds, and there is a process which will be followed internally to reach a conclusion with regard to their objection. It will be interesting from a legal standpoint to assess a case of an employee objecting to taking the vaccine, having their objection dismissed, and subsequently being dismissed themselves. In this regard one would have to take into account the right to freedom of religion espoused in our Constitution, but this can ultimately be balanced against other employees’ rights to be free from bodily harm and their rights to bodily integrity, as espoused in the Constitution.
This balance is particularly interesting given that there is evidence from some medical professionals that people are safer if everyone takes a vaccine (provided that a particular illness is serious enough that a vaccine is warranted), whereas there is a counter-argument in certain circles which states that the vaccine itself ought to provide enough protection to an individual, which should remain effective regardless of whether others are vaccinated or not. There have been some widely-publicised protests worldwide from people who are against COVID-19 lockdowns and vaccinations in countries such as Australia, France and the UK.
Protests have also occurred in smaller countries such as Austria and the Netherlands, the latter having an extremely liberal reputation. This has stoked responses and condemnation from governments. However, there are several people, groups and businesses who have been affected due to COVID lockdowns and feel that their liberties have been unfairly impacted. Local and international governments will keep having to juggle the considerations of businesses and those impacted financially and otherwise by COVID-19 lockdowns with the lives saved due to such lockdowns.