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The National Liquor Act

Ask anyone to nominate a famous jazz trumpeter and the chances are two names will feature quite highly in the survey: Louis ‘Satchmo’ Armstrong and Hugh Masekela. Well, another thing these two share in common is that they have both recorded versions of one of South Africa’s most iconic township jazz tunes – ‘Skokiaan’, made perhaps more famous by the African Jazz Pioneers, along with their other hits such as ‘Hellfire’ and ‘Way Back Fifties’.

Actually, ‘Skokiaan’ is not a South African tune. It was written in 1947 by the leader of the African Dance Band of the Cold Storage Commission of Southern Rhodesia, a Shona by the name of August Musarurwa. His tune went on to feature in cover versions around the world, Louis Armstrong recording his version in 1954.1

Of course, the composition’s title refers to the home-brewed liquor whose name, it is surmised, comes from the Zulu word ‘isikokeyana’ – meaning a small enclosure.2 This was because illicit liquor, such as skokiaan, was hidden in holes in the ground to escape detection. Whether these kinds of home brews were illegal because they – and their drinking – could not be controlled, or because they could not be taxed is a debate for another day.

Today, the manufacture and sale of liquor is tightly regulated – and it is all a bit confusing.3 For present purposes, we go back to the Liquor Act 1989, the aim of which is to regulate and control trade in liquor. Soon afterwards, came the Liquor Products Act 1989, which is concerned mainly with the production of liquor products. Then the Liquor Act 2003 came along, which repealed the Liquor Act 1989, but only in respect of provinces which have promulgated their own provincial legislation to regulate the liquor trade.4

So far, it seems, only Gauteng, Western Cape, Free State, Eastern Cape, Northern Cape, Mpumalanga and KwaZulu-Natal have promulgated legislation. Limpopo has adopted the 1989 Liquor Act, and North West has not promulgated any legislation. Meanwhile, the 2003 Act – referred to as the National Liquor Act – retains a sort of umbrella function.

The short end of it is that:

  • the Liquor Products Act is applicable throughout the Republic;
  • the Liquor Act 1989 is applicable in Limpopo and North West;5
  • provincial legislation applies in the remaining provinces;
  • the 2003 National Liquor Act applies throughout the Republic.

‘Liquor’ is, basically, a fermented or distilled liquid (and, therefore, usually contains alcohol) for drinking. There are various kinds of liquor contemplated by the Liquor Act 1989:

  • beer and sorghum beer;
  • wine;
  • grape-based liquor;
  • spirit-based liquor;
  • spirits (for example, brandy, vodka, gin, whisky);
  • alcoholic Fruit Beverages (for example, apple cider);
  • any mixed drink containing the aforegoing;
  • any sweet containing more than 2% alcohol by mass.

The Liquor Act 1989 falls under the authority of the Minister of Trade and Industry.

As I have described in connection with the Liquor Products Act,6 the scheme for management of the alcoholic beverages industry in South Africa is to retain national control over production and manufacturing, but to make selling (and micromanufacturing) a provincial responsibility. The part relating to selling and micromanufacturing was effected by the introduction of the Liquor Act 2003, which repealed the Liquor Act 1989 for provinces which introduced their own specific legislation.

The 2003 Act can be referred to as the ‘National Liquor Act’. It plays a ‘national’ role in the liquor trade, because it serves a sort of umbrella function by establishing national norms and standards in order to maintain economic unity in the liquor industry, and to provide an aligned framework for harmonised regulation of the industry.

One of the Act’s other main objects is to reduce the socio-economic, and other costs of alcohol abuse and also to promote the development of a responsible and sustainable liquor industry which facilitates the entry of new participants and diversity of ownership.

A. Registration

Any person, except certain specified categories,7 8 may apply to be registered with the Minister of Trade and Industry as a manufacturer, or distributor of liquor, or both.9

  1. It is an offence to manufacture (which includes bottling) or distribute liquor except if you are registered.10

  2. It is an offence if you fail to comply with any condition of registration.11

  3. It is an offence to falsify or alter a registration certificate.12

  4. It is an offence to manufacture or distribute methylated spirits except according to the regulations imposed by the Minister.13

  5. If you are registered as a manufacturer or distributor, you may only conduct the activities in or from the premises referenced in the registration. It is a criminal offence to do otherwise.14

  6. The same applies to the storage of liquor. It may only take place at registered premises and an offence is committed if liquor is stored anywhere else.15

  7. It is an offence to pretend to be the person registered under the Act if you are not.16

B. Inspectors

Inspectors are appointed by the Minister.17 Their function is to investigate complaints, and monitor and enforce compliance with the Act and other relevant laws.18 They have the powers of a peace officer under the Criminal Procedure Act.1920

  1. The following are all offences in connection with an inspector:
    • refusing to allow him access to premises;21
    • obstructing or interfering with him in the performance of duties;22
    • refusing to provide him with any document or information;23
    • furnishing him with false or misleading information;22
    • failing to comply with a ‘Notice to Comply’ issued by an inspector.2425
  2. An offence is also committed if any one (including an inspector):
    • prevents the owner of any premises, or his employee, from entering the premises in order to comply with a requirement under the Act;26
    • falsely pretends to be an inspector;27
    • falsifies a search warrant, or a notice to comply with the Act;28
    • acts contrary to a warrant;29
    • enters premises without a warrant if one is required;30
    • without authority, enters or inspects premises; and31
    • discloses any information acquired in the exercise of duties or powers, relating to the financial or business affairs of any person except if to make a disclosure is required by law.32

C. Sale and advertising

  1. It is an offence to manufacture, sell or supply any substance as liquor, or methylated spirits, if it is not liquor or methylated spirits, respectively.33

  2. An ‘impotable substance’ means a substance which is unsafe for human consumption. It is a crime to:
    • manufacture, sell, or supply, as liquor, any such substance;34
    • add an impotable substance to liquor;35
    • sell, or supply any liquor to which such a substance has been added.36
  3. It is an offence to advertise:
    • any substance as liquor if it is not liquor;37
    • any substance as methylated spirits if it is not methylated spirits;38
    • any impotable (or other prohibited) substance, at all.39
  4. It is a criminal offence to advertise liquor or methylated spirits in a false or misleading manner.40

D. Employees

  1. Even if the employee agrees, you may not supply liquor, or methylated spirits:
    • as an inducement to employment;41
    • as wages, or remuneration or part thereof,42 and an offence is committed should you do so.43
  2. It is also an offence (even if the employee agrees) to deduct from his wages any amount relating to the cost of liquor, or methylated spirits:44
    • supplied to the employee;45
    • supplied to someone on his behalf;46
    • purchased by the employee, or by someone on his behalf.47

E. Minors

  1. It is an offence to advertise liquor or methylated spirits in a manner intended to target or attract persons under the age of 18 (that is, minors).48

  2. It is against the law to employ someone under the age of 16 in any activity relating to the manufacture or distribution of liquor, or methylated spirits.4950

  3. It is a crime to sell or supply liquor to a minor.5152

  4. It is a crime to sell or supply methylated spirits to a minor.53

  1. Wikipedia – ‘Skokiaan’ https://en.wikipedia.org/wiki/Skokiaan

  2. See www.oxforddictionaries.com

  3. It is also troublesome for law enforcement authorities. An SAPS presentation to the Department of Trade and Industry listed several different reasons why inconsistencies in the provinces’ legislation lead to challenges in enforcement. See https://www.thedti.gov.za/business_regulation/presentations/saps_presentation.pdf - ‘Challenges in Enforcing the Liquor Regulatory Acts’. 

  4. The Constitution establishes that liquor licensing falls within exclusive provincial legislative competence. See Schedule 5 part A. 

  5. As amended; the latest amendment was effected by Act 57 of 1995. 

  6. See the chapter ‘Production of Liquor’ on this Act. 

  7. Minors, insolvents, mental health patients, and convicted offenders of liquor-related legislation. 

  8. Section 11(2)(a)–(e). 

  9. Section 11(1). 

  10. Section 4(2) read with section 34(1)(a). 

  11. Section 34(1)(b). 

  12. Section 14(1) read with 34(1)(g)(i). 

  13. Section 5(1) read with section 34(1)(a). 

  14. Section 7(1) read with section 34(1)(a). 

  15. Section 7(2) read with section 34(1)(a). 

  16. Section 34(1)(f)(i). 

  17. Section 25(1)(a). 

  18. Section 26(1)(a) and (b). 

  19. See the chapter ‘Procedure for Criminal Trials’ on this Act. 

  20. Section 25(3). 

  21. Section 34(2)(a). 

  22. Section 34(2)(b).  2

  23. Section 34(2)(c). 

  24. Section 34(2)(d). 

  25. Such a Notice may be issued if the inspector believes you are not complying with any provision of the Act, or a condition of registration as a manufacturer or distributor. 

  26. Chapter 4 read with section 34(2)(h). 

  27. Section 34(2)(e). 

  28. Chapter 4 read with section 34(2)(g)(ii). 

  29. Chapter 4 read with section 34(2)(j). 

  30. Section 34(2)(i). 

  31. Section 34(2)(k). 

  32. Section 34(2)(l)(i)–(iii). 

  33. Section 6(1) read with section 34(1)(a). 

  34. Section 6(2) read with section 34(1)(a). 

  35. Section 6(2) read with section 34(1)(a). 

  36. Section 6(2) read with section 34(1)(a). 

  37. Section 9(2) read with section 34(1)(a). 

  38. Section 9(2) read with section 34(1)(a). 

  39. Section 9(1)(b) read with section 34(1)(a). 

  40. Section 9(1)(a)(i) read with section 34(1)(a). 

  41. Section 8(2)(a) read with section 34(1)(a). 

  42. Section 8(2)(b) read with section 34(1)(a). 

  43. Section 34(1)(a). 

  44. Section 8(2)(c) read with section 34(1)(a). 

  45. Section 8(2)(i) read with section 34(1)(a). 

  46. Section 8(2)(i) read with section 34(1)(a). 

  47. Section 8(2)(ii) read with section 34(1)(a). 

  48. Section 9(1)(a)(ii). 

  49. This does not apply if the person is a trainee or learner under the Skills Development Act. 

  50. Section 8(1) read with section 34(1)(a). 

  51. This does not apply to the administering of a religious sacrament, such as Holy Communion. It also does not apply if a parent or adult guardian gives to a minor a moderate quantity, on an occasion, for consumption under his supervision and presence. 

  52. Section 10 read with section 34(1)(a). 

  53. Section 10 read with section 34(1)(a).