Definition of 'shebeen' to be discussed in court

The definition of the word “shebeen” will be discussed in the Constitutional Court on Wednesday, court registrar Martie Stander said.

“The court will hear an application for the confirmation of an order of constitutional invalidity made by the Pretoria High Court in respect of the definition of shebeen contained in section 1 of the Gauteng Liquor Act, 2003,” Stander said.

In October last year, the South African Liquor Traders Association (Salta) and 14 other organisations made applications to the high court for an order declaring the definition of shebeen in the Act inconsistent with the Constitution and invalid.

The first applicant, Salta, represents tavern and shebeen owners as well as liquor-store, hotel and nightclub owners in South Africa. The second to fifth applicants are shebeen owners and operators while the sixth to fifteenth applicants are liquor manufacturers and distributors in South Africa.

The Act defines “shebeen” as an unlicensed operation whose main business is selling liquor and sells less than 10 cases of 12x750ml beer bottles.

“The applicants complained that the second part of the definition is vague and possibly meaningless because it does not indicate the period in which the stipulated quantity of beer is to be sold,” said Stander.

“The high court held the definition to be invalid and ordered that the invalidity be cured by severing the second part of the definition, which reads: ...
and sells less than 10 cases of 12x750ml beer bottles.”

Stander said the applicants approached the Constitutional Court for an order confirming the declaration of invalidity made by the high court.

The chairperson of the Gauteng Liquor Board, the Gauteng Liquor Board and the provincial minister of finance and economic affairs, Paul Mashatile, were cited as respondents. They did not file opposing affidavits but merely consented to the declaration of constitutional invalidity.

“The provincial minister and other respondents accept that the definition of shebeen as currently formulated in the Act is vague,” said Stander.

“They [the respondents] oppose the high court order and state that the legitimate government purpose pursued is to phase shebeens into the mainstream economy and to enable government to regulate the amount of liquor that is sold and consumed on such premises.”

The respondents have asked that the court, instead of severing the second part of the definition, add into the definition the words “per week” after “10 cases of 12x750ml beer bottles”.

The respondents said the definition will then distinguish between unlicensed businesses that sell less than 10 cases of beer per week, and are therefore small enough to qualify as shebeens, and those unlicensed businesses that sell more than 10 cases and are therefore large enough to qualify for other types of liquor licences such as those regulating taverns or liquor stores.

“This will enable the government to identify exactly which businesses to accommodate in its phasing-in approach,” said Stander.

She said the applicants argue that the quantities are so small that the majority of shebeens would be driven out of business.

The applicants added that the definition was irrational because it referred only to the sale of beer, leaving it open to the shebeens to sell unlimited quantities of other liquor.

Stander said a judgment on the case could take between two and six months.—Sapa

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