Demarcating provincial and local powers regarding liquor retail

Abstract

Local government’s newly acquired status as a fully-fledged sphere of government with constitutionally protected powers is slowly gaining momentum. Now that the dust is slowly settling around the demarcation and establishment of local government institutions, the demarcation of local government powers visà- vis other spheres of government is fast becoming a critical area of academic research and intergovernmental dialogue. As they become aware of their constitutional scope, municipalities will start asserting their institutional integrity with powerful metropolitan municipalities taking the lead. In an earlier article in this journal, the approach to local government powers as set out in the Constitution was outlined.1 This article takes the matter further and presents a case study on the demarcation of local government powers in one specific area, namely the regulation of the liquor retail industry. In the Liquor Bill judgment of 2000 more clarity was provided about national versus provincial powers regarding the liquor retail industry.2 Another important issue is the division between provincial and local powers. Schedule 5A of the Constitution lists ‘Liquor licences’ as a provincial competency. Schedule 5B of the Constitution lists ‘Control of undertakings that sell liquor to the public’ as a local government competency. This apparent overlap in the constitutional regime on provincial and local legislative powers over liquor retail matters raises two demarcation issues. The first demarcation issue is: what is the difference between ‘Liquor licences’ (a provincial competency) and ‘Control of undertakings that sell liquor to the public’ (a local government competency)? This question will be dealt with in sections 2 and 3 of this article.