Liquor Bill: deliberations

Meeting report

JOINT MEETING OF TRADE & INDUSTRY PORTFOLIO COMMITTEE AND ECONOMIC & FOREIGN AFFAIRS SELECT COMMITTEE
16 February 1999
LIQUOR BILL [B131B-98]: DISCUSSION

Documents handed out:
Liquor Bill [B131B-98]
Letter from the Speaker of Parliament to the Chairperson of Portfolio Committee on Trade and Industry
Letter from the President to the Speaker of Parliament (see below)
Chapter 4 of the Constitution of South Africa, 1996

SUMMARY
The committee discussed the process forward on the Liquor Bill [B131B-98], which had been referred back to Parliament. As the President did not specify which clauses needed to be reconsidered, the committee did not know on what to focussed. It was decided that new mandates would be sought from the provinces and the committee would reconvene on Monday, 21 February 1999.

MINUTES
The Minister of Trade and Industry, Mr Alec Irwin, stated that only one of the provinces (Western Cape) had reservations on the constitutionality of the Liquor Bill. He said the Bill should be referred back to the President and then the Constitutional Court could decide on its constitutionality.

The committee chairperson, Dr Davis, mentioned that the Western Cape had sent him a lawyer's letter on policy issues. At this stage, the Western Cape representative was not present in the meeting.

Mr Mahlangu (ANC) said that the ANC supported the view of the Minister.

Mr Surty (North West, ANC) encouraged the members to express their opinion if it differed with the Minister's.

The Minister continued by saying that the Bill was an important piece of legislation and it had to be dealt with as soon as possible.

Mr Eglin (DP) commented that as the President had referred the Bill back to Parliament, the committee should reconsider it. However it was difficult to do so as the President had not specified which clauses should be reconsidered.

The Chairperson of the Portfolio Committee stated that the Bill had been reconsidered at length at national level. There was no certainty whether the Constitutional Court would find it acceptable. However the committee cannot take the form of a constitutional court.

The Minister added that the Bill had been passed by all levels of government, however the problem was that there was no clear jurisprudence on the process. All the provinces support the Bill, except the Western Cape. It would be a better law-making procedure to refer the Bill to the Constitutional Court.

Mr Surty said to send the Bill back to the President was not the problem. There should, however, be some consideration on the Bill.

The Chairperson of the Select Committee on Economic and Foreign Affairs, Mr Lebona, wanted to know if the provinces had any mandates.

All the delegates indicated negatively since they had been informed that the Minister would be merely briefing the committee.

It was decided by the Chairperson of the portfolio committee that the letter from the President must be sent to all the provinces and the delegates should have their mandates regarding the Liquor Bill by Monday, 21 February 1999.

The committee would meet again on Monday, 21 February 1999.

President
Republic of South Africa

22 January 1999

Dr F Ginwala
Speaker of Parliament

Dear Madam Speaker

REFERRAL OF BILL TO PARLIAMENT IN TERMS OF SECTION 79(1) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

As you are aware, if I have reservations concerning the constitutionality of a Bill submitted to me for my assent, I am required to refer the Bill back to the National Assembly for its reconsideration. In respect of the aspects referred to below and for the reasons set out I am referring herewith the Liquor Bill, 1998 to the National Assembly for their reconsideration and, if they believe it appropriate, to deal with in accordance with the joint rules and procedures governing such Bills.

In respect of the Liquor Bill, there is no specific provision as such which casts doubt on the Bill's constitutionality. Rather the framework to be introduced by the Bill deals with liquor licensing in the provinces which the Bill is entitled to do only if it is necessary for any of the purposes listed in section 44(2)(b) - (e) of the Constitution, 1996.

Although it appears to me that there are good reasons for believing that the Bill is warranted, it is not possible for me to determine this question with any certainty. The answer to this question must be determined with reference, not merely to legal issues, but certain factual and policy questions. In this regard constitutional jurisprudence offers little assistance as the courts have not, as yet, offered any guidance on how such a question is to be approached. It appears to me that in this, the first case of its kind, only the Constitutional Court can authoritatively pronounce on the Bill's constitutionality. However, the Constitution does not allow me to refer this Bill to the Constitutional Court until it has been referred back to me after reconsideration by the National Assembly.

The Bill, if assented to, will serve as legal authority for the introduction of a nation-wide system of liquor licencing, as well as the issuing of such licences. Should the Act be subsequently declared unconstitutional, not only the validity of the framework, but the licences issued thereunder, would be subject to uncertainty and revocation - resulting in confusion in this sector.
It is with this in mind that I refer the Bill back to the National Assembly.

R MANDELA