Why Bheki Cele could face a legal challenge for confiscating alcohol

Alert Level 3 regulations gave citizens the green light to start purchasing alcohol, but some motorists were unable to enjoy their booze after it was confiscated during a roadblock in Gauteng.

Footage of Minister of Police Bheki Cele at one of the roadblocks last weekend, during the Okae Molao operation in Gauteng, showed the minister and police officers questioning motorists about the alcohol found in their vehicles.

It drew the ire of social media users, with many questioning whether the actions of the authorities were aligned to the Disaster Management Act, which sets out the regulations during lockdown.

Had the minister and the police overstepped their powers by confiscating alcohol and arresting motorists?

A law expert to believes that Cele is overreaching and could possibly face a legal challenge for confiscating alcohol found in possession of motorists.

The sale of alcohol was banned under lockdown Level 5, which was enforced on 27 March, and it remained in place during Level 4. However, the ban was lifted on 1 June when Level 3 regulations came into effect. Regulation 44 does not state that the transportation of alcohol on weekends is prohibited.

National police spokesperson Brigadier Vish Naidoo had previously warned that, if citizens were found travelling with alcohol outside of the stipulated days and hours, they would be arrested, Eyewitness News reported.

According to TimesLive, Naidoo quickly retracted his statement, saying it is not an offence to transport alcohol but citizens were discouraged to do so outside the stipulated time.

However, Johannesburg metro police spokesperson Chief Superintendent Wayne Minnaar told News24 the transportation of alcohol is only allowed during the stipulated time, not on weekends.

He said during the roadblock on Saturday, 13 June, officers stopped a vehicle transporting three boxes of liquor and a six pack, which was opened and consumed.

“The question is where did they get these beers? If you purchase these beers, surely you would have a receipt. He couldn’t produce a receipt at that point.”

The liquor was confiscated.

“What we are trying to stop is people buying liquor outside the required time. If you have liquor in your possession, you must provide a receipt as well.”

But law expert advocate Deon Pool told News24 that nothing in Level 3 regulations stipulates that alcohol should not be transported. He said confiscating alcohol was tantamount to theft.

“The problem here is that the regulation does not say you aren’t allowed to transport alcohol. There is no indication in the regulations that you can’t transport alcohol.

“The minister is overreaching by taking people’s private property without having good cause. If it is part of the regulations, then it must be made clear to citizens.

“The minister is overreaching and can face a legal challenge. He can’t make up the rules as he goes by,” he said.

Pool said he had a client who was arrested for transporting alcohol earlier this month. His client bought the alcohol before the lockdown and left it in her office. When the ban was lifted, she transported the alcohol to her house. But officers stopped her and arrested her for transporting liquor.

“Why are they arresting people and opening dockets? They should not make rules as they go along.”

Criminal law expert Tyrone Maseko told News24 that Cele had no right to be enforcing the law himself, adding that the minister and officers should act within the law.

“He must say which act empowers him to [confiscate alcohol]. He doesn’t have a badge or anything,” Maseko said.

“He [Cele] could face a legal challenge, but most of the time they abuse their powers because they take on people who are powerless on the streets.”

Maseko said it would cost a lot of money to sue a minister and, in the end, people end up not suing.

“If we [are] all rich people, then you would see a lot of litigation on the basis of principle to say what you are doing is wrong. It costs a lot of money to go litigating, it is not a small thing.”

Asked for comment, Naidoo said: “I cannot interpret the regulations for you. You need to interpret it yourself.”

Cele’s spokesperson Lirandzu Themba did not respond to questions sent to her.

– News24 Wire 

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