/ 14 April 2020

Eusebius McKaiser: Why a total ban on selling alcohol is irrational

Swaziland Faces Possible Beer Shortages
At the heart of the body’s challenge of the lockdown alcohol sales ban, is the question of whether a total ban achieves the purpose of flattening the coronavirus curve.


I find it weird that so many people think — complete with lazy laughing emoticons as a substitute for making proper arguments — that the Gauteng Liquor Forum is somehow obviously wrong to challenge the total ban on the sale of alcohol during the national lockdown.

Why are we quarantining our critical faculties?

Here is why, in my view, the Gauteng Liquor Forum is not mad at all.

Firstly, you need to distinguish between two questions. One: Is buying and consuming excessive amounts of alcohol bad (for the individual who does so and for society at large)? And two: Is the total ban on the sale of alcohol as part of the lockdown regulations legally valid?

You can, logically and practically, adopt a range of views in response to these questions. You may, for example, answer both questions with a “Yes!” You could answer both of them with a “No!” You could answer one in the affirmative and one in the negative. And, beyond these options, you may resist a binary response and explain why the most reasonable response might be, “It depends”.

My own view is that question one, whatever your answer to it might be, is being confused with question two. These are not the same questions. And the public debate — or pseudo-debate — on this matter is poor because so many people try to answer “Yes” to question one and then think the explanation for their viewpoint is also an inherent justification for two. That is not the case.

Let me demonstrate. Let’s, for sake of argument, say the answer to one is “Yes”. We can even give good intuitive reasons why that might be so without cashing them fully out for now: drunk men are even more aggressive and abusive than sober ones (an interesting assumption but let’s grant it for now); drunk drivers knock people off the road, killing them, or landing them in emergency rooms, which is bad for both the individuals involved in the accidents, and for society picking up the economic and social costs of such preventable disasters, and so forth.

But here’s the snag. You have not, in the previous paragraph, answered the narrow legal question two. Every single regulation must be rationally connected to the purpose of the lockdown and — this extra bit is crucial — even if there is a putative connection, the least restrictive measures must be implemented by the state. This is to ensure we do not unduly limit rights with total bans when measures falling short of a total ban could achieve the purpose of a lockdown without a wholesale curtailment of the trading right of a business owner.

What the state would have to show is that there is robust — not intuitive, but robust — empirical evidence that a total (not a partial ban) is a precondition for effectively dealing with the pandemic, and flattening the curve. There is no such data that can be taken off the shelf and smuggled into court papers in this case.

Furthermore, the use of the word “total” is important here. What the Gauteng Liquor Forum can and will rightly argue is that even if there is an important marginal benefit during the lockdown of lowering the consumption of alcohol, it does not follow that a total ban is the only mechanism to achieve that. The state would also have to adduce robust — not intuitive — empirical evidence that limited trading hours and a cap on what and how much alcohol you can buy will harm the objective of flattening the curve. If the state cannot discharge this evidential burden then the balancing of rights that the courts are required to do will fall — on an analysis of the purpose of the lockdown, and the effect of a total ban on the sale of alcohol — on the side of the Gauteng Liquor Forum.

Let’s accord substance abuse due seriousness

Here is why many of us are not seeing these arguments clearly: because we are worried, and rightly so, about violence fuelled by alcohol abuse. I am too. I even fear my own capacity for violence fuelled by alcohol, which is one of many reasons why I have cut down by more than 90% and had only one glass of wine in the past six months, and am a supporter of platforms such as World Without Wine. But if we want to deal with the scourge of alcohol abuse and violence, then we need to deal honestly and seriously with the deep social drivers behind the ubiquitous consumption of this drug, and the violence that often accompanies it.

I am not convinced that everyone supporting the ban during the lockdown is seriously invested in this battle against the abuse of this drug. If they were, they would have petitioned for a total ban last year, last decade. What we are seeing playing out here is a kind of moral panic that is piggy-backing on a pandemic that has instilled a range of existential fears in all of us.

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But the court cannot be asked to do the hard work that you, me and the state must do to reduce and even eliminate substance abuse and violence in our society. The public-health and moral-hazard arguments being peddled against the Gauteng Liquor Forum are good arguments produced in the wrong forum.

The legal purpose of the lockdown is not to deal with substance abuse. It is to stop people from becoming infected with Covid-19. The closest you can come to connecting these is with some strained logic: fewer accidents on the road over the weekends mean less pressure on trauma wards, and less pressure on medical staff over weekends. This is a half-decent argument but not enough to meet the legal threshold of proportionality. 

Remember, the state has to show that a total ban is the only way to reduce, even in this sketched example, accidents and contact crimes over the weekend caused by drunken fights at taverns. This won’t wash — you could, for example, keep pubs and clubs and taverns closed, and allow only “off-licence” alcohol purchases, and also cap how much can be bought. There are too many ways of preserving the other freedoms at stake here while not undermining the rational purpose of a lockdown that the state must cogently show are non-starters.

This is why the government is not listening to the moral panic and instead has rightly asked the Gauteng Liquor Forum to give it until end of business on Friday to resolve this. Mark my words — the government, sensibly, will climb down from the total ban and instead will carve out a more rational partial ban (at the most). That is sensible, because it does not undermine the core purpose of the lockdown, while still recognising the freedoms we are constitutionally entitled to.

If we want to talk about eliminating substance abuse, that must happen as a self-standing, irreducibly complex national conversation.

It is important, in our haste to change society permanently for the better, that we do not lose our ability to think carefully through complex problems.