12 January 2021

Raising the bar for all tavern owners at the constitutional court

Submitted by Hlumelo Matshanda

Founder and owner of Ntombi’s Tavern in Tembisa, Ntombi Sibiya, can no longer let her constitutional rights be stripped away and has decided to take a stand for all those who depend on her.  After a hard week’s work the people of Tembisa flock to their favourite local watering hole, Ntombi’s Tavern, to connect with their community and reminisce on the ups and downs of life as we know it.

Or at least they used to as this once thriving small business was again forced to shut down due to the third ban on alcohol sales enforced by the National Command Council (NCCC) on 29 December 2020. Struggling to cling to economic life for herself and all those who financially depend on the income generated by her business, on Tuesday 5 January 2021 owner of Ntombi’s Tavern, Ntombi Sibiya joined forces with the South African Breweries (SAB) to challenge the constitutionality of the alcohol ban.

“At this point I have two options. I can either protect my business by fighting for the rights promised to me by our constitution, or shut down and put everyone who depends on me at risk. I have chosen to take a stand for myself and my family.” contended Sibiya. As her only source of income, Ntombi’s Tavern is more than just a lifeline for Sibiya. “I currently care for 7 dependants including my 6 grandchildren of whom four are still at school. My son was retrenched due to the impact of the lockdown and can no longer provide for his children. It is all up to me and my tavern to support him during this hard time.” Ntombi’s Tavern has been in operation for approximately 35 years.

During this time the business has opened its door to generations of families and established itself as a popular “get together spot” for members of the Tembisa community. This popularity has seen Ntombi’s Tavern grow into a business that, at the beginning of 2020, was able to order and re-sell an approximate average of 2400 cases of beer per month. For Sibiya, the consistency of this revenue has been unduly interrupted, which can only be ascribed to the fluctuating restrictions on the sale of liquor imposed by the Government.

“I have exhausted every option to save myself, my employees and all our families. The financial strain this ban puts on us is too much and we are all quickly running out of time.” Sibiya has even been forced to take several commercial steps including laying off 6 of her 8 employees and delving into her personal savings to keep the business afloat.

“The money will soon run out and I predict that Ntombi’s Tavern will soon be unable to make ends meet. If the current alcohol ban continues, I will be forced to permanently close my life’s work. This will be devastating for my family and my remaining employees. My only option is to fight this.” As a partner in this constitutional challenge, SAB believes this is the last resort available to protect its employees, suppliers, customers, consumers and all the lives it supports.

Although SAB stands behind measures to fight against the Covid-19 pandemic, these must also protect the economy. What constitutional grounds does Sibiya have to stand on? The constitution guarantees all South Africans the right to freely partake in their chosen trade or profession. Legally speaking, the government should not unjustifiably make that choice to trade unlawful, undesirable, difficult, or unprofitable. “Selling beers to my community is my chosen trade and has been for the last 25 years. During this time, I have been able to pursue this trade legally and profitably. The Government’s restrictions on the sale of alcohol changed my world without warning,” contests Sibiya.

By suddenly rendering the sale of alcoholic beverages illegal, the government has rendered Sibiya’s chosen commercial pursuit unprofitable. “Should they wish to continue along this path, they need to prove to us that it is constitutional.” The constitution also states that rights may be limited by a law of general application that is 'reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality'. Further to this, the Constitution guarantees all South Africans the right to human dignity. For Sibiya and tavern owners across the country, this right prevents the Government from unjustifiably destroying the conditions that are essential to their continued survival.

Second to this, it affords citizens the freedom and ability to make their own decisions regarding the way they cultivate those conditions, which are generally essential to their continued survival – as is the case for Sibiya and her business.    “The profits from my tavern business feeds me and my 7 dependents, and by extension, my employees and their families. The continued existence of this business is what will keep me and my family alive in dignity.” In order to fight for her family, and the families of her employees, Sibiya has chosen to take the fight to the courts.

“This third ban on the sale of alcohol constitutes an infringement on my right to freedom of trade and occupation and my right to dignity. To be taken away from me and the thousands of other tavern owners like me is simply unjustifiable and we move for the ban to be declared unconstitutional and our incomes restored,” concludes Sibiya.