One more for the road: makings laws during a pandemic

With the long Easter weekend looming, many people were anxious to know what the restrictions for the long weekend will entail. The rumours were that interprovincial travel will be halted, as will large gatherings, and of course, the always-looming question of alcohol.

I should start with a caveat: I am not invested in transporting alcohol this weekend or not. I am on the water-wagon, as we say in Afrikaans. So, this is not (mainly) a post about alcohol, but rather about the imperative for clear rules during a pandemic.

Covid and the alcohol restrictions

The restriction on the sale of alcohol (so-called alcohol ban) has been discussed during South Africa’s lockdown. And the debates are multi-layered. Many countries have closed or restricted bars, but not the sale of alcohol for off-site consumption. The Western Cape Health Department’s data showed that the “alcohol ban” reduced alcohol-related trauma admissions to hospitals by 40-50%. While it did not necessarily free up Covid beds, it did help that health workers could spend their energy elsewhere.

When the alcohol ban was lifted for the first time last year, the SAMRC advised the government on various options, from limiting the amount of alcohol that can be bought to selling liquor in smaller containers and prohibiting special offers and promotions. This all curtails the likelihood of heavy drinking and an increase in alcohol-related trauma admissions to hospitals. More ways of curbing excessive drinking can be read here.

Prof Parry of SAMRC Tweeted some of his concerns. His one concern is that on-consumption (drinking alcohol at a restaurant, bar, tavern or shebeen) is high-risk for community transmission. In that sense, off-consumption sales are less of a risk for community transmission and the spreading of Covid.

He also indicates that there are perhaps more thoughtful ways to minimise the risk that on-consumption poses, such as only allowing it till 9 pm or with a meal. Other experts weighed in, too, mostly raising concerns about the disjuncture between the restriction on alcohol and the relaxation of the rules on gatherings.

The reason given by the Minister for this decision is that “when people drink at these gatherings, alcohol clouds their judgment, social distancing gets thrown out of the window, and masks are forgotten”. The hope is that establishments will ensure adherence to the Covid regulations – something that is difficult to monitor in private dwellings.

We have often seen the rationale for certain restrictions being the extent to which government can monitor or enforce the rules, such as the exercise regulation. It recently found to be unconstitutional by the Supreme Court of Appeal. We have also seen that government is reluctant to regulate liquor in such a way to ensure that the less-than-a-third of South Africans that do drink develop better drinking habits. Also interesting is watching Lucky Ntimane from the National Liquor Traders Council give a glimpse on how these regulations are negotiated.

But, the regulations

On 30 March 2021, the adjusted level 1 regulations was published. Regulation 81, which previously expressly provided that transportation of liquor is allowed, is now completely silent. Since this regulation 81 replaces the previous regulation 81 in its entirety, and since it is silent on transportation, it means that the default position is applicable: that you are allowed to transport liquor.

This was also, correctly conveyed in the media.

He said, she said

Then on Thursday morning, Minister Dlmani-Zuma, after explaining the regulations and during a question and answer session, stated:

Over the weekend they will not be allowed to carry alcohol. The police will be doing roadblocks and stuff. You’re not allowed to carrying alcohol from one place to the other. Today, yes, you can buy it, you can take it to wherever but as from midnight today until midnight on Monday, they are not allowed to do that.

A deja vu of the hot cooked food saga during lockdown level voetsek (remember that?).

What we sit with here, then, is the problem that the regulations are published and state one thing, and a Minister, in a press release, stating something different (and creating the impression that it is the law).

Rules need to be as clear as a sober person

And while we accept that the rule of law might operate differently during a public health disaster (or emergency), certain basic principles should be adhered to. And top of the list is that there must be legal certainty and clarity in communication. Typically regulations are made in an ad hoc manner, changing in a short period of type (the previous level one regulations were, for instance, published a month ago). We as citizens are already confused (“what level are we on anyway?”)

That is also why we publish laws. Section 13 of the Interpretation Act provides that an enactment (regulation) comes into operation on its publication in the Gazette. The underlying principle is that before a provision can be enforced, it must be made known to those who must observe it. An enactment cannot be promulgated without publication in the Gazette. In terms of section 16A, the President may deviate from this rule if there are circumstances beyond the control of the Government printer – but the section still requires him to publish it in some form.

Publication is thus an essential aspect of just laws. It does not necessarily mean that everyone should read the laws – but it does mean that there must be access to the law. One should be able to know the law.

Oh no you don’t!

The good news is that the Minister’s spokesperson saw the error of their ways and clarified later on Thursday that one may transport alcohol over the Easter long weekend.

I understand that these regulations get debated in the NCCC and cabinet and that the final decision of what should be regulated can be obfuscated by what must be rigorous discussions in the NCCC and elsewhere. I also understand that while science does seem to play a role in the decisions, the ultimate decision is, in the end, a policy one, based on the input and pressure from interest groups. That is how law-making works.

But the cost in these preventable errors – communicating what is not in the regulations, with a threat of roadblocks and police – might add up soon. It influences citizens perceptions of the legitimacy of rules and institutions in what is already a precarious trust situation. This, in turn, might lead to more people simply not following the rules. Not an ideal situation as we anticipate the third wave.

But, if level whatever happens, as a result, I might fall off the water-wagon and stock up, to, in the words of Edgar Allen Poe, “escape from torturing memories, from a sense of insupportable loneliness and a dread of some strange impending doom.”