Saai court actions result in annulment of Level 3

Pressure exerted by several court cases on the irrational regulations proclaimed by Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Government and Traditional Affairs (Cogta), under Levels 4 and 3 of the state of disaster forced her to abolish Level 3 in its entirety in an unusual step on 17 August 2020. This follows after Saai had fought on several fronts against the draconian lockdown regulations, including the ban on the sale of tobacco and alcohol and the restrictions on hunting.

The decision by Dlamini-Zuma came after Saai in its court documents had pointed out that the decision to ban the sale of alcohol was based on obsolete data, poor argumentation and incorrect predictions, as was also shown in the court case brought by Saai and BATSA against the ban on tobacco products on 3 August 2020. In her court documents concerning the ban on the sale of wine the Minister also seriously floundered, not taking into account the legislation distinguishing between wine and other alcohol products. The Minister also complained about the logistics involved in possibly allowing the sale of liquor in some provinces. In this regard, Saai pointed out that the normal structure of liquor regulations in accordance with the Constitution was already being dealt with at provincial level. Acting Deputy Judge President Sulet Potterill on Friday decided to postpone Saai’s urgent application to save about 240 family wine estates and 21 000 job opportunities on them to 24 August 2020 to serve before a full bench.

Prior to promulgation of the new Level 2 regulations, the Minister’s legal team requested Saai on 16 August to withdraw the case against the ban on wine following the speech by President Cyril Ramaphosa. Saai refused to have the case removed from the roll in view of the Minister’s previous promulgation of regulations in contrast with the President’s speeches. To Saai it was of cardinal importance to have the wording of the Level 2 regulations studied by its legal team before making any decision. On Monday the Minister shocked the country by annulling Level 3 in its entirety. This means that she cannot, as she had done previously and as was generally feared, return to Level 3 regulations, except if a system for Level 3 is again promulgated. In the switch from Level 5 to Level 4, and from Level 4 to Level 3, the regulations were simply amended without annulling the previous level. Therefore, the Minister’s action is in direct contrast with the government’s policy to have levels of regulation in place and that upward or downward movement between levels is possible.

Saai views this drastic action as a cowardly effort to escape the spotlight of the courts on the rationality of her excessively restrictive measures, especially seen against the background of growing public resistance, increasingly critical reporting in the international media and especially the devastating effect this has had on job opportunities, businesses, state revenue and the economy as a whole. It is an admission of a blunder that will be haunting South Africa for generations.

The game and hunting industry, the wine and tobacco value chains and ostrich farms resemble a battlefield of unintended consequences that have left hundreds of thousands of families without a job or income and have crippled an already shaky economy where South Africa can least afford it – in the rural areas. While the ANC government is going to find it difficult to rebuild trust and respect among producers, large and small, rich and poor and black and white, the Minister’s extraordinary decision to annul Level 3 has shown that confrontation by means of court action is much more efficient than talking to the government. Integrity, rationality and a corruption-free government are prerequisites for negotiated influencing of policy. It is particularly shocking that the Minister during the battle in court went as low as to insinuate that Saai intended creating an apartheid system by possibly allowing the selling of wine on a regional basis. This while the Minister herself earlier had created the system that provided for differentiated regulation on the basis of regions and municipal areas.

Meanwhile, Saai and several of its network partners who also value the interests of family farmers are working on an extensive strategy: “Rebuild now better”. It is aimed at reducing agriculture’s dependence on the state and replacing the absence of services and state aid from private sources. Alternative forms of disaster relief, cooperative financing, agricultural technical advisory services (especially for emerging farmers) and innovative campaigns such as Boer-tot-bord and The Wine farmer form part of an integrated endeavour to assist as many family farmers as possible to survive and to keep them on their farms. Ample use is made of international examples and assistance in order to bargain for greater benefits for both producers and consumers by means of shorter value chains and direct marketing.

In light of the lifting of the draconian ban on wine sales, Saai will postpone its application against Dlamini-Zuma sine die.