Kgalagadi Breweries Limited (KBL) boss has fired back at the President accusing him of using the Emergency Powers Act (EPA) as a blank cheque to act willy-nilly at the expense of the country.
Diaz, in his replying affidavit following the President's accusations that KBL is motivated by profit and reminded it that he is the Head of State, explained that if the Act was designed as such then there will be no way the courts could scrutinise the lawfulness of the executive action.
"The President contends that the law does not require him to provide reasons for his decision to promulgate the regulations under the EPA. This stance is misconceived and indeed taken to its conclusion it would mean the Court can never exercise its duty to scrutinise the lawfulness of the executive action. I am advised that EPA does not give the President a blank cheque to do as he pleases. He is like everyone constrained to act legally," Diaz said.
The KBL boss argued that the President could not legitimately defend and justify his failure to give affected parties such as KBL a hearing before imposing the alcohol ban decision under the guise that he consulted 'someone' irrespective of that third party's expertise.
He pointed out that Masisi's reason that he could not meet with the brewer was because of his schedule and activities was not an excuse especially that he doesn't even give detailed evidence of such.
"The President is vague as what these engagements entail and why they were so important that he could not afford to give audience to a party that would be adversely affected by the wholesale ban," he said.
He added that even the Presidential COVID-19 Task Force team said to be advising him about the situation, did not discuss the ban as evidenced by his affidavit.
Diaz submitted that as stated elsewhere in Masisi's papers, the Task Force Team did not discuss the present ban at its meetings and that the last meeting held on June 28, by the same Task Force there was no single government official that raised the issue of the ban nor was it ever discussed, yet a few minutes later the President announced the ban.
Furthermore, Diaz argued that what the President has done was not based on any legit and verifiable evidence about the link between alcohol and the spike of COVID-19 cases, noting that there has been an increase in the number of cases since the ban.
He submitted that there was no correlation between the ban and the reduction of either COVID-19 cases or the number of people requesting to be admitted to hospital, but the President chose to rely on undisclosed evidence to make his decision, which he later sought to justify.
"The President alleges that hospitals are full to capacity but no evidence has been presented to support the allegation. Without evidence, the Court cannot assess the cogency of the President's contention. Without that the Court cannot uphold the President's decision given the adverse impact on the constitutional and legal rights of KBL, its employees and stakeholders," Diaz said.
On the rights at play, the brewer's boss said the ban violates constitutional rights such as the right to work and trade, the right to dignity, privacy and liberty while also denying the right to property.
He explained that Masisi's response essentially denied that the rights existed and they were protected under the constitution.
"It shows that the President failed to carefully consider the full spectrum of the rights, which would be adversely affected by the ban, and then considered how much adverse impact could be mitigated. The President's denial that the ban affects constitutional rights speaks volumes," he said.
On accusation by Masisi that KBL was oblivious of the pandemic, Diaz said the President could not accuse the brewer of running only after profits knowing very well that it was one of the biggest employers in the country and that it pays tax.
He rebutted Masisi's accusation that KBL was oblivious of the high number of COVID-19 related deaths explaining that they do accept that the pandemic is a big challenge to the government and that unusual measures are required to meet the challenge.
"This application does not seek to inhibit the government in meeting that challenge. It is specific and narrow to one aspect of the State's response, the outright ban on the sale, distribution and transportation of alcoholic beverages because the decision was not made rationally, reasonably and in compliance with the jurisdictional requirements of the EPA," he explained.
He said the government has been dismissive of the fact that there are a number of people working on the alcohol value chain, who together with their families have been forced into poverty while also failing to see the implications brought by business failures, reduction in investments, which result in less payment of tax needed by the government in meeting the challenge posed by the pandemic such financing hospital capacity and vaccines.
KBL's response came in the wake of Masisi's recent shaming of the brewer legally challenging his decision on the alcohol ban.
Masisi, in his response to the incensed KBL over the alcohol ban, had referred to the application ‘challenging’ his executive decision as unnecessary and without any merit since the brewer’s interest was only driven by the need to ‘maximise profit’.
He also said it was unfortunate that commercial interests drove KBL to challenge him whilst hospitals are full as people continue to die.
“The loss of lives cannot be compared to the pure economic gain that the applicant seeks to protect. The country is in a state of a public health emergency, public safety is key and is the priority,” he said.
The President explained that once a state of public emergency was declared, he was then empowered by the EPA to make regulations as he deemed fit and expedient for securing public safety.
Masisi said he simply exercised the powers vested in him by the EPA to introduce the alcohol ban and closure of liquor stores as a measure to control and limit the transmission of the virus.
“It must be noted that the underlying factor to be considered in a public state of emergency is the safety and health of the nation at large and that was taken into consideration in the promulgation of the regulation,” he had said.
He pointed out that it would not be prudent and in the best interest of the nation to ignore a health emergency such as COVID-19 and give preference to trading and making of profit by the applicant as the results would be catastrophic. He added that would be to the extent that when the country emerges from the scourge it would be left with a depleted and ailing nation from the virus and its side effects.
Masisi explained that the ban was a result of the advice from the Presidential Task Force as to what seems to have led to an increase in the risk of infections.
Minchin and Kelly Attorneys represents KBL while Monthe Marumo and Company (Incorporating Molatlhegi and Associates) represents Masisi and company.
The case is set for arguments on Tuesday.