The Eastern Cape Liquor Board (ECLB) is considered a “creature of statute” and is mandated to regulate the issuance of liquor licences for the Eastern Cape Province, including ensuring compliance with the trading conditions in accordance with the provisions of its enabling legislation, the Eastern Cape Liquor Act 10 of 2003 (Act) and Regulations.
In the early hours of June 26, 2022, the whole country woke up to the tragic and heart-breaking news of the sudden and gruesome deaths of 21 young people at the Enyobeni Tavern in Scenery Park, East London. In consequence of the devasting tragedy, the ECLB swiftly invoked Section 55 of the Act, which provides for the owner to cease trading in liquor and close the premises concerned with immediate effect. The Notice was served directly (as required by law) on the licence-holder, Vuyokazi Ndevu, at the premises on June 27, 2022. The ECLB further laid charges of contravention of the Act with the South African Police Services against Siyakhangela and Vuyokazi Ndevu.
The Ndevus were charged following the blatant contravention of Section 38(a) read with Sections 40, 60, and 61 of the Act, which stipulate that no alcohol shall be sold to an underage person. Vuyokazi Ndevu was charged in her capacity as the licence-holder, while Siyakhangela Ndevu was charged in his capacity as a manager.
Following a lengthy trail that took more than 20 months, on February 21, 2024, the East London Regional Court found the two accused guilty of contravening Section 38(a) read with Sections 40, 60, and 61 of the Act.
Section 61 makes provision for the appropriate sanctions to be imposed for contravention of Section 38 and Section 60, which include a fine or imprisonment for a period not exceeding three years or both such fine and imprisonment. Subsequently, on 23 February 2024 Siyakhangela and Vuyokazi Ndevu were sentenced by the East London Regional Court. They each were fined a sum of R5, 000 or a 100-day term of imprisonment.
It is significant to note that the Enyobeni tragedy exposed that the determination of fines as permitted by the Criminal Procedure Act held an admission of guilt fine in the sum of two thousand rand for the contravention of section 38 of the Act (supply of liquor to underage persons). The two employees of the Vuyokayi Ndevu and under the management at the time of the incident, Owen Ndevu, paid admission of guilt fines for supplying alcohol to underage persons (contravention of section 38 of the Act).
The insufficient penalty provided for by the schedule of fines immediately prompted the ECLB to convene a collaborative session with senior members of the National Prosecuting Authority and the South African Police Services which culminated into a proposed revised determination of fine schedule. The proposal was submitted to both the Chief Magistrate for East London/Gqeberha and the Chief Magistrate for Mthatha for consideration and possible approval. The determination is not within the ambit of the ECLB but rather the judiciary in accordance with the provisions of the Criminal Procedure Act. The respective Chief Magistrates favourably approved the proposed determination of fines with minor variations.
Regrettably, there is no uniformity. However, the new determination of fines holds harsher sanctions including the provision that there would be no option of a fine for a charge under section 38 of the Act for selling liquor to a minor. Practically, this would mean all such charges would proceed to criminal prosecution before a court of law.
The ECLB supported the NPA and SAPS in the criminal prosecution of the Ndevus for the contraventions of its Act. However, it is worth noting that this criminal prosecution and conviction are not for the deaths of the minors but for the contravention of the Eastern Cape Liquor Act, which is selling liquor to underage persons.
In respect of the deaths, the SAPS opened an Inquest docket. The will determine what was the actual cause of the deaths and who must be held criminally liable. This process has commenced at Mdantsane Magistrate’s Court, and the ECLB has conveyed to the NPA that it shall avail itself at any time during the inquest proceedings. The next date for the inquest proceedings is February 29th, 2024.
ENDS…
ISSUED BY:
EASTERN CAPE LIQUOR BOARD