Danie Cronjé Attorneys has drawn up a document explaining the legal aspects of online wine sales to clear up any grey areas.
We confirm that the Stellenbosch Wine Routes requested us to advise whether wine may be sold online during the lockdown (from 26 March at 23h59 to 30 April 2020 at 23h59) provided that it is only delivered to purchasers after the lockdown.
Regulations were published in terms of the Disaster Management Act when the national state of disaster was declared. The regulations were published on 18 March 2020. The regulations were amended on 25 March, 26 March, 2 April, 16 April and 20 April. The amendments which introduced the national lockdown were published 25 March 2020 (“the lockdown amendments”).
Restrictions in terms of the regulations:
In terms of the lockdown amendments persons are confined to their places of residence unless they are performing essential services or obtaining essential goods.
The lockdown amendments determined that all businesses and other entities shall cease operations during the lockdown unless they are involved in providing essential goods or services.
It also stated that any place not involved in the provision of essential goods or services must remain closed to all persons.
In the lockdown amendments “off-consumption premises, including bottle stores, where liquor is sold” were included in the schedule listing “places and premises closed to the public”. “Off-consumption areas in supermarkets where liquor is sold” was also included.
The amendment on the 16th of April added a prohibition against the transportation of liquor except insofar as it is required for the production of hand sanitizers disinfectant soap or industrial or household cleaning products.
Interpretation of the regulations:
It is clear that the restrictions contained in the regulations are aimed at restricting the movement of persons and preventing activities which may cause the virus to spread. It is important to note that the schedule in the lockdown amendments refers to places and premises closed “to the public”.
In our opinion the provision referring to the stoppage of operations should be interpreted against this background i.e. that the regulations are aimed at preventing the movement of persons to their places of work and the movement of members of the public to the places where liquor is sold under normal circumstances.
One of the messages from the Western Cape Government regarding the lockdown is that a business does not have to shut down if its employees are able to work from home. (https://www.westerncape.gov.za/department-of-health/frequently-asked-questions/frequently-asked- questions-employers )
It is common knowledge that the closure of businesses during the lockdown will have a severe negative effect on the SA economy. Common sense dictates that, insofar as persons are able to continue working from home, this should be encouraged.
We submit that the regulation requiring the stoppage of operations should be interpreted restrictively i.e. in that it refers to operations at the normal place of business – where the gathering of staff will increase the risk of being infected or infecting other persons with the virus (against which the lockdown regulations are aimed).
In our opinion this restriction therefore does not mean that, where employees can conduct the administration relating to wine sales from home, this is prohibited.
The restriction in respect of the closure of places to the public is clear – no members of the public may visit the normal place of business i.e. the winery or wine sales office during the lockdown.
The restriction in respect of the transporting of liquor is also clear – no liquor may be transported for purposes of eventual consumption by members of public.
Insofar as activities required in respect of winemaking is permitted at the winery during the lock down – this does not include administration relating to the online sale of wine.
Taking into account all of the above it is our opinion that wineries may receive online orders and process online payments received from members of the public or the trade during the lockdown provided that the administration in this regard is conducted at home and not at the normal business premises of the winery and that the sale is only finalized – by delivery of the liquor to the member of the public or the trade – once the lockdown period is over.
Trading hours after lockdown:
It must be noted that the restrictions in respect of liquor trading hours (as published on 18 March) will again apply from 1 May – unless it is amended before said date. If it is not amended it will apply for the duration of the national state of disaster i.e. 3 months from 15 March (unless this period is shortened or extended).
This means that sales to the public or the trade at the winery or delivery of wine to the public or the trade must only take place during the following hours:
On Monday to Saturday from 09h00 to 18h00
On Sunday and public holidays from 09h00 to 13h00
It is our opinion that it is permissible for employees of wineries to receive and process online orders for wine and payments relating thereto whilst working from home provided that wine is only delivered to members of the public or the trade once the lockdown is over.
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