Shebeen owners must also enjoy the right to trade

Refusal to hand over letters of local authority approval to shebeen traders is based on racist law, and is morally wrong

Section 22 of our Constitution enshrines freedom of trade, occupation and profession. This set of rights is unique among human rights instruments. The Section states, “Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”

These set of rights are extended to all citizens, including shebeen owners or people trading in liquor using shebeen permits – which is a fair number of liquor traders in townships, at least throughout Gauteng.

The Constitution does not only guarantee this right but it affords, thorough the courts, a positive duty upon the state to safeguard this right. Recently, retired constitutional court judge Justice Dikgang Moseneke awarded both common law and constitutional damages in favour of the families of victims of the Life Esidimeni tragedy. This award was groundbreaking in protecting human rights and demonstrating the extent of protection of human rights.

These set of rights are extended to all citizens, including shebeen owners or people trading in liquor using shebeen permits – which is a fair number of liquor traders in townships, at least throughout Gauteng.

Township liquor traders have a unique but very painful past, which continues to be disregarded and violated by our democratically elected government. Early on in our sad history of discrimination and separate development laws, Africans (blacks) were prohibited to consume liquor, let alone sell it. This resulted in the mushrooming of what was then referred to as “shebeens”, an Irish term loosely translated as an illegal liquor outlet.

To date, shebeens are still treated as illegal liquor outlets, and the rights of shebeen owners are non-existent. Shebeen owners, who are predominantly black women, are raided and targeted on a daily basis mainly by members of the South African Police.  

What is worse is that municipalities, especially Johannesburg Metropolitan Council, is hell-bent on closing down what they perceive as illegal shebeens, the same way the apartheid government had undertaken similar operations in the past. The question is, where does this conduct leave the question of human rights violation?

What about Section 22 of the Bill of Rights?

The City of Johannesburg is paying lawyers an exorbitant amount of money to close down shebeens. This comes just after the Yeoville judgement, which declared shebeen permits invalid and unlawful, for at least 24 months. The same City of Johannesburg metro flatly refuses to issue what is termed LAA (local authority approval) letters to shebeen permit holders in residential properties in and around the City of Johannesburg, to assist shebeen permit-holders to apply for liquor licenses.  

One of the challenges or unaddressed challenges of the Yeoville case was its silence on the requirement of the approval of local authorities for liquor licenses. This was a missed opportunity to address the biggest challenge faced by shebeen permit-holders. Local authorities are operating under the old regime of town planning schemes, especially the Black Communities Development Act under annexure F, which precludes the sale of liquor in black residential areas. These town planning schemes – many of which are old and outdated, since they were proclaimed pre-1994 – violate or limit the rights of liquor traders in townships of the protection of Section 22 of the Bill of Rights.

Whether such limitation is constitutionally permissible under the limitation clause is a question which the courts need to pronounce on sooner rather than later. Some municipalities, such as the City of Johannesburg as well as Mogale City, to name just two, limit their rights to choose and practise their trade freely without sufficient reason or a rational basis for such limitations.

A case in point: a 65-year-old lady by the name of Mama Lidia walked into my office. Lidia, a pensioner who has been selling sorghum beer for 30-odd years in Orlando East, was arrested and booked into a holding cell for the entire weekend. Upon her release, she went to the city to apply or request authority to sell sorghum, in the form of an LAA. She was turned back and told that she is in a residential area and as such the city cannot give her authority to ask the Liquor Board to grant and issue her a liquor licence. 

She returned empty-handed and now runs the risk of being arrested over and over again for using her property, for which she has a legal title, to run a business of selling sorghum.

Mama Lidia has supported three generations through selling sorghum. Today she has a criminal record and risks multiple convictions because the City of Johannesburg continues to violate her right to trade freely without sufficient reason or rationality, except to quote an outdated piece of legislation.

Furthermore, the property rights of Mama Lidia are also violated. Her right to use her own property to sell sorghum is also limited. Section 25 of the Constitution clearly states that “no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property".

Annexure F is no law of general application, since annexure F is applicable to a specific race – black communities. This is arbitrary by its nature of unfair discrimination.

Therefore, in order for there to be an infringement, legally two questions need to be answered:

1.       The thing in question must be property

2.       There must be a deprivation; in our case study Mama Lidia is deprived from selling sorghum on her property.    

3.       The deprivation must be arbitrary. Clearly a law which is specifically applied to a certain racial group must be arbitrary on the basis of non-general application.

This test was enunciated in the Constitutional Court in the FNB case.

Going back to Section 22 of the Constitution:

Section 22 comprises two elements: the right to choose a trade, occupation or profession freely, and the proviso that the practice of a trade, occupation or profession may be regulated by law. Though both the “choice” of trade and its “practice” are protected by section 22, the level of constitutional scrutiny that attaches to limitations on each of these aspects differs. If a legislative provision would, if analysed objectively, have a negative impact on choice of trade, occupation or profession, it must be tested in terms of the criterion of reasonableness in section 36(1). If, however, the provision only regulates the practice of that trade and does not negatively affect the choice of trade, occupation or profession, the provision will pass constitutional muster as long as it passes the rationality test and does not violate any other rights in the Bill of Rights. In that case, there is no limitation of Section 22 and no Section 36 analysis is required.

Therefore, the Black Communities Development Act, generally and specifically annexure F, precluding the sale of liquor in black communities' residential areas, has a negative impact on the choice of trade. The commodity or the product is liquor, and not only liquor, but liquor in a black community. On the criterion of reasonableness, it cannot be held to be reasonable to arbitrarily preclude black communities, and specifically black women, not to be granted LAA in order to apply for liquor licenses.

Clearly, then, a law prohibiting certain persons from entering into a specific trade, in this case liquor trading, in what is still termed black communities development, or alternatively, townships, or a legal provision that certain persons (again black communities) may not practice that trade, will limit the choice element of Section 22 of the Bill of Rights.

In the case of Mama Lidia, there is a legal barrier of choice. She cannot exercise her choice to trade in liquor at her own property. Therefore, choosing a trade in liquor in what is still referred to as black development areas, does make the practice of the trade so undesirable, difficult or unprofitable that the choice to enter into it is in fact limited and unconstitutionally so.

The test is one of rationality. The Constitutional Court stated the test as follows:

"The requirement that the measures be justifiable in an open and democratic society based on freedom and equality means that there must be a rational connection between means and ends. Otherwise the measure is arbitrary and arbitrariness is incompatible with such a society.”

It is difficult to ascertain the measures of the Black Communities Act and the means it seeks to achieve in an open and democratic state based on freedom and equality simply because the very piece of legislation was not based on an open and democratic statement, and therefore it cannot be based on equality since it was not a law of general application nor was it based on equality.

The rationality test was also accepted in relation to Section 22 of the Final Constitution in Affordable Medicines, where the Court rejected the suggestion that a reasonableness test applied. The Court held that the standard for determining whether the regulation of the practice of a profession falls within the purview of Section 22 is whether the regulation of the practice of a profession is rationally related to a legitimate government purpose and does not infringe any of the rights in the Bill of Rights.

The application of the Black Communities Development Act cannot and will not be rationally connected or related to a legitimate government purpose, as such it directly infringes Section 22 of the Bill of Rights.

The rationality standard is aimed at achieving a proper balance between the roles of the legislature on the one hand, and the role of the courts on the other.

The role of the legislation must uphold the spirit and the purpose of the Constitution, protect and uphold the Bill of Rights, as done by the former Deputy Chief Justice Moseneke, to give effect to the spirit of the Constitution and at all times up hold the Constitution without fear or favour.

What the municipalities are doing, by refusing to hand over LAA, is to take over from where the apartheid government left off and continue to violate, intimidate and abuse liquor traders’ constitutional rights. Much the same as people like Qedani Mahlangu did with the mentally challenged victims of Life Esidimeni. These patients died a cruel death, rivalled by the deaths of victims at the Marikana massacre, with no consequence to those who exercise public power and public function.  

We do not need to have deaths to realise constitutional protection and damages. However, the plight of shebeen owners and continued violation of their rights to trade freely will be realised and must be realised now!