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[2003] ZACC 1
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Phillips and Another v Director of Public Prosecutions and Others (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC); 2003 (1) SACR 425 (CC) (11 March 2003)
CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 20/02
ANDREW LIONEL PHILLIPS First Applicant
VIVA AFRIKA INVESTMENTS
CC Second Applicant
versus
THE DIRECTOR OF PUBLIC
PROSECUTIONS
(WITWATERSRAND LOCAL DIVISION) First Respondent
THE
MINISTER OF TRADE AND INDUSTRY Second Respondent
THE MINISTER OF SAFETY
AND SECURITY Third Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR
FINANCE AND ECONOMIC AFFAIRS IN THE
PROVINCIAL GOVERNMENT OF
GAUTENG Fourth Respondent
THEODOR WILHELM VAN DEN HEEVER N.O Fifth
Respondent
PHILLIP WARDEL MOORREES REYNOLDS N.O Sixth
Respondent
SWINGING TRADING TWISTER C.C Seventh Respondent
Heard
on : 29 August 2002
Decided on : 11 March 2003
JUDGMENT
YACOOB J:
Introduction
[1]
Selling liquor in South
Africa is subject to the Liquor Act 27 of 1989 (the Act). The Act states its
purpose as being “[t]o
provide for control over the sale of liquor; and
for matters connected therewith.” It seeks to exercise that control by a
licensing system. Liquor may only be sold by holders of liquor
licences
[1]
which determine the
“rights and privileges” as well as the “obligations and
liabilities” of their
holders.
[2]
Licence holders are
therefore bound by their licence conditions and by the provisions of the Act
applicable to them. The Act distinguishes
between–
(a) on-consumption licences that authorise the sale of liquor to be drunk only
at the place at which it is sold,
[3]
and
(b) off-consumption licences in terms of which the liquor is sold for
consumption elsewhere.
[2]
The Act defines the kinds of
on- and off- consumption licences
[4]
that may be issued.
[5]
It defines the
obligations of licence holders in considerable detail and sets out the
conditions applicable to the various categories
of on- and off- consumption
licences.
[6]
The Act seeks also to
govern, influence or determine the circumstances and behaviour at places
licensed to sell liquor for consumption.
This is done by placing a statutory
duty on the on-consumption licence holder not to allow certain conduct on the
licensed premises
[7]
on pain of
criminal sanction.
[8]
One of these
provisions, section 160(d), is under attack in this case. The subsection makes
it an offence for an on-consumption
licence holder to allow a person (i) to
perform an offensive, indecent or obscene act or (ii) who is not clothed or not
properly
clothed to perform or to appear on licensed premises where
entertainment is presented or to which the public has
access.
[3]
Section 160
provides:
“160 Offences by holders of on-consumption licences
The holder of an on-consumption licence
who-
(a) allows drunkenness or licentious conduct on the licensed premises;
(b) sells or supplies liquor to a person who is in a state of intoxication;
(c) allows the licensed premises to be used as a brothel or to be frequented by
persons who are regarded as prostitutes;
(d) allows any person-
(i) to perform
an offensive, indecent or obscene act; or
(ii) who is not clothed or not properly clothed, to perform or to appear,
on a part of the licensed premises where entertainment of any nature is
presented or to which the public has access; or
(e) . . .
shall be guilty of an
offence”.
[4]
Mr Phillips, the first
applicant, owns all the shares in the second applicant, the holder of a licence
that permits liquor to be sold
and consumed on certain premises in Midrand. He
was charged with the offence of contravening section 160(d) of the Act probably
arising from striptease dancing on the premises. Fearing prosecution, the
applicants sought an order in the Witwatersrand High Court
declaring the section
constitutionally invalid.
[5]
The Director of Public
Prosecutions for the Witwatersrand Local Division, the National Minister of
Trade and Industry, the National
Minister of Safety and Security and the
Provincial MEC for Finance and Economic Affairs for the province of Gauteng were
all quite
properly joined in the proceedings. That they had a material interest
in the outcome is beyond doubt but although they gave notice
of intention to
oppose, they withdrew on the date of hearing. The reasons for this are not
apparent. Consequently, the application
before the High Court was not
opposed.
[6]
The High Court decided the
case
[9]
on the basis of section 16 of
the Constitution and ordered:
“(1) Subject to the confirmation of the Constitutional Court, Sections
160(d)(i) and (ii) of the Liquor Act, 27 of 1989, are
declared unconstitutional
with immediate effect.
(2) The first and fourth respondents are ordered jointly and severally to pay
the costs of this application. Such costs are to be
taxed on the opposed
scale.”
The order has been referred to
this Court for confirmation in terms of section 172(2) of the
Constitution.
[10]
[7]
The applicants supported the
High Court judgment and attacked section 160(d) on two additional grounds. It
was contended that the
section-
(a) infringes the rule of law because it is vague and does not convey the
prohibited conduct clearly enough to any licence holder;
and
(b) infringes section 12 of the Constitution because it has the effect of
depriving people of freedom without just cause.
[8]
Section 172(2) confirmation
proceedings are not routine for it does not follow that High Court findings of
constitutional invalidity
will be confirmed as a matter of course. This Court
is empowered to confirm the High Court order of constitutional invalidity only
if it is satisfied that the provision is inconsistent with the Constitution. If
not, there is no alternative but to decline to confirm
the order. It follows
that a finding of constitutional invalidity by a High Court does not relieve
this Court of the duty to evaluate
the provision of the provincial Act or Act of
Parliament in the light of the Constitution. A thorough investigation of the
constitutional
status of a legislative provision is obligatory in confirmation
proceedings. This is so even if the proceedings are not opposed,
or even if
there is an outright concession that the section under attack is invalid. As
the judgments in this case show, the issues
in this case are not
straightforward. Issues that come before this Court seldom
are.
[9]
Acting on the directions of
the Chief Justice, the Registrar of this Court wrote to the National Director of
Public Prosecutions (the
National Directorate), the Minister of Trade and
Industry and the Minister of Safety and Security to enquire whether any of them
intended to oppose confirmation. The letter reads in
part:
“It appears from the judgment that the application for the declaration of
invalidity was not opposed either by the Director
of Public Prosecutions, or the
Government. The order has been referred to the Constitutional Court for
confirmation in terms of
section 172(2) of the Constitution. Before giving
directions in this matter, the Chief Justice has asked me to establish whether
or not the National Director of Public Prosecutions, or the government intends
to oppose the confirmation of the order. The Chief
Justice contemplates setting
the matter down during the latter part of August 2002, and will be glad,
therefore, if you would respond
to this letter as soon as possible.”
[10]
In its reply, the National
Directorate stated that it had decided not to oppose confirmation. The
Department of Safety and Security
said that the matter had been referred to the
National Commissioner of the South African Police Service, but there was no
further
communication from that department. The letter to the Minister of Trade
and Industry remains unanswered. In the result, we had
no argument or
assistance from any party other than the
applicants.
[11]
This is unsatisfactory.
Under the separation of powers that is fundamental to our Constitution it is the
duty of the executive to
implement laws made by the legislature. If the
constitutionality of a law is challenged, courts and not the executive must
decide
whether the law is valid. If the executive considers that despite its
constitutional duty to do so, it cannot enforce the law because
there is no
valid defence to the constitutional challenge, it should inform the court of its
reasons for that decision.
[12]
A declaration that
legislation is inconsistent with the Constitution and invalid cannot be made by
consent. A declaration in these
terms is a substantial intrusion into the
domain of the legislature and, as has been mentioned, should only be made by a
court after
careful consideration of all relevant issues. Courts are entitled
to the assistance of the executive when they have to consider
these cases. This
assistance is relevant not only to the decision of a court, but also to the
basis upon which the decision is made
and the way the judgment is expressed. It
is regrettable that no assistance was given to the courts that have been
required to decide
the applicants’
challenge.
The freedom of expression
challenge
[13]
Section 16 of the
Constitution provides:
“Freedom of expression
16. (1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm. ”
Subsection (2) is not relevant to the
present enquiry.
[14]
I consider first whether
section 160(d) limits the freedom of expression guaranteed by section 16(1) of
the Constitution. The people
to whom and the circumstances in which subsection
(d) applies must be determined by interpreting it in the context of section 160
as a whole. The section is concerned with conduct on licensed premises and
seeks to control it by criminalising acts or omissions
by the licensee in
relation to conduct by others on the premises. Subsection (a) is aimed at
preventing all drunken conduct by any
person on licensed premises. Its
particular focus is the conduct of patrons. Unlike subsection (d), this
subsection does not concern
itself with appearances or performances of any kind.
Subsection (b) is likewise directed at patrons and seeks to ensure that they
do
not drink too much. Subsection (c) targets
prostitution.
[15]
The offence defined by
subsection (d) penalises the licence holder for allowing on the premises
entertainment that involves the performance
of offensive, indecent or obscene
acts and any performance or appearance by a person who is improperly clothed or
not clothed at
all. The prohibition applies to all entertainment of every
description provided only that the conduct covered by the subsection
is part of
it. It covers dramatic performances including plays and concerts irrespective
of whether they represent serious works
of art or the communication of thoughts
and ideas essential for positive social development. Section 160(d) therefore
limits the
freedom of artistic creativity and the freedom to receive and impart
information and ideas protected by section 16(1)(b) and (c)
of the Constitution.
Even though the performers and audiences themselves are not guilty of any
offence in terms of the subsection,
the inevitable consequence of its
enforcement is to restrict the performance of all entertainment within this
broad category and
to impact negatively on performers and potential audiences
alike.
[16]
The limitation of freedom
of expression as defined in section 16 of our Constitution is apparent. There
is therefore no need to strain
to discover the outer reaches of the freedom of
expression protection afforded by section 16 of our Constitution nor to express
any
view on the High Court’s reasons for the conclusion that section
160(d) is inconsistent with section 16. The justification
enquiry must
accordingly be engaged.
Justification
[17]
Before doing so however, it
is necessary to address an aspect of the High Court judgment that has relevance
for the way in which constitutional
protection of freedom of expression is
understood and perceived. Referring no doubt to section 16 of the Constitution,
the judge
in the High Court concluded
that:
“It is clear, however, that under the new constitutional dispensation in
this country, expressive activity is prima facie protected
no matter how
repulsive, degrading, offensive or unacceptable society, or the majority of
society, might consider it to
be.”
[11]
This
sentence might convey an incorrect understanding of the extent of the protection
afforded by the constitutional scheme. The
right to freedom of expression (as
is the case with all rights in the Bill of Rights) is not and should not be
regarded as absolute.
The section 16(1) right may be limited by a law of
general application that complies with section 36 of the
Constitution.
[12]
In other words,
the Constitution expressly allows the limitation of expression that is
“repulsive, degrading, offensive or
unacceptable” to the extent that
the limitation is justifiable in “an open and democratic society based on
human dignity,
equality and freedom”.
[18]
The High Court disposed of
the justification analysis on the basis that the state had made no effort to
justify the limitation and
that it was not the function of the court to
determine a basis upon which the section may be justified. The judge added that
“[t]he
necessity for the limitation of freedom of expression in sections
160(d)(i) and (ii) of the Act is anything but
obvious.”
[13]
The approach in
the High Court seems to have been based on the assumption that any limitation of
a right is prima facie without
justification and that the state is obliged to
set out fully the basis upon which the limitation is said to be justified. If
the
state does not do this, so this reasoning implies, a finding that a right
has been limited is automatically transformed into and,
except where the
justification is obvious, becomes a conclusion that the right has been
unjustifiably infringed.
[19]
The nature of the burden
attracted by the state is appropriately described by Somyalo AJ as follows:
“It is also no longer doubted that, once a limitation has been found to
exist, the burden of justification under section 36(1)
rests on the party
asserting that the limitation is saved by the application of the provisions of
the section. The weighing up exercise
is ultimately concerned with the
proportional assessment of competing interests but, to the extent that
justification rests on factual
and/or policy considerations, the party
contending for justification must put such material before the court. It is for
this reason
that the government functionary responsible for legislation that is
being challenged on constitutional grounds must be cited as a
party. If the
government wishes to defend the particular enactment, it then has the
opportunity — indeed an obligation —
to do so. The obligation
includes not only the submission of legal argument but placing before court the
requisite factual material
and policy considerations. Therefore, although the
burden of justification under section 36 is no ordinary onus, failure by
government
to submit such data and argument may in appropriate cases tip the
scales against it and result in the invalidation of the challenged
enactment.”
[14]
[20]
The burden placed upon the
state is no ordinary onus. The state should place before a court evidence and
argument on which it intends
to rely in support of justification. Although
absence of this evidence and argument does not necessarily result in invalidity
of
the challenged provision, it may tip the scales against the state, but in
appropriate cases only. It follows that the absence of
evidence and argument
from the state does not exempt the court from the obligation to conduct the
justification analysis and to apply
what was described by Somyalo AJ as
“the primary criteria enumerated in section 36 of the
Constitution”.
[15]
[21]
These criteria are:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Often
there will be no need for evidence at all in relation to the limitations
analysis. Sometimes, however, evidence will be necessary.
That will depend on
the right and limitation in question.
[22]
The justification exercise
involves an assessment of proportionality. As O’Regan J and Cameron AJ
wrote:
[16]
“The approach to limitation is, therefore, to determine the
proportionality between the extent of the limitation of the right
considering
the nature and importance of the infringed right, on the one hand, and the
purpose, importance and effect of the infringing
provision, taking into account
the availability of less restrictive means available to achieve that
purpose.”
The High Court did not examine whether the
section satisfied the requirements of proportionality mandated by section 36.
This judgment
must embark on that exercise.
Proportionality
Analysis
[23]
The right to freedom of
expression is integral to democracy, to human development and to human life
itself. It must be all the more
zealously guarded because the infringement of
this right was used as an instrument in an effort to achieve the degree of
thought
control conducive to preserve apartheid and to impose a value system
fashioned by a minority on all South Africans. As Langa DCJ
said in the
Islamic Unity
case-
“[26] This Court has held that -
‘ . . . freedom of expression is one of a ‘web of mutually
supporting rights’ in the Constitution. It is closely
related to freedom
of religion, belief and opinion (s 15), the right to dignity (s 10), as well as
the right to freedom of association
(s 18), the right to vote and to stand for
public office (s 19), and the right to assembly (s 17) . . . The rights
implicitly recognise
the importance, both for a democratic society and for
individuals personally, of the ability to form and express opinions, whether
individually or collectively, even where those views are
controversial.’
As to its relevance to a democratic state, the Court has pointed out that
freedom of expression -
‘ . . . lies at the heart of a democracy. It is valuable for many
reasons, including its instrumental functions as a guarantor
of democracy, its
implicit recognition and protection of the moral agency of individuals in our
society and its facilitation of the
search for truth by individuals and society
generally. The Constitution recognises that individuals in our society need to
be able
to hear, form and express opinions and views freely on a wide range of
matters . . . .’ [footnotes
omitted.]
and in
S v Mamabolo (E TV, Business Day and the Freedom of Expression
Institute Intervening)
the following was said -
‘Freedom of expression, especially when gauged in conjunction with its
accompanying fundamental freedoms, is of the utmost
importance in the kind of
open and democratic society the Constitution has set as our aspirational norm.
Having regard to our recent
past of thought control, censorship and enforced
conformity to governmental theories, freedom of expression — the free and
open exchange of ideas — is no less important than it is in the United
States of America. It could actually be contended with
much force that the
public interest in the open market-place of ideas is all the more important to
us in this country because our
democracy is not yet firmly established and must
feel its way. Therefore we should be particularly astute to outlaw any form of
thought control, however respectably
dressed.’
[27] Notwithstanding the fact that the right to freedom of expression and speech
has always been recognised in the South African
common law, we have recently
emerged from a severely restrictive past where expression, especially political
and artistic expression,
was extensively circumscribed by various legislative
enactments. The restrictions that were placed on expression were not only a
denial of democracy itself, but also exacerbated the impact of the systemic
violations of other fundamental human rights in South
Africa. Those
restrictions would be incompatible with South Africa’s present commitment
to a society based on a ‘constitutionally
protected culture of openness
and democracy and universal human rights for South Africans of all ages, classes
and colours’.
As pointed out by Kriegler J in
Mamabolo -
‘. . . freedom to speak one’s mind is now an inherent quality of the
type of society contemplated by the Constitution
as a whole and is specifically
promoted by the freedoms of conscience, expression, assembly, association and
political participation
protected by sections 15 to 19 of the Bill of
Rights.’”
[17]
[footnotes
omitted]
But the right to freedom of expression
has many facets and can be exercised in a myriad different ways. Some of these
facets may
be less important than others to the growth of a democracy and to
human development. The extent to which freedom of expression is
limited by
section 160(d) and the specific facet or manifestation of the right that is
limited are of particular relevance in this
case.
[24]
The High Court held that
the purpose and effect of the section is “obviously to limit freedom of
expression”. That is
no doubt its effect but this must be seen in the
context of the primary purpose of the Act which is to provide for control over
the
sale of liquor and for matters connected therewith. The state has an
interest in the control of liquor consumption. In this context,
the purpose of
section 160 of the Act in particular might be to determine, influence and
control circumstances or behaviour at places
where liquor can legally be bought
and consumed. Liquor notoriously has a negative effect on the behaviour,
feelings and thought
patterns of consumers. It is known to give rise to lapses
in judgment, false courage, lack of discernment, lack of discipline and
a
measure of vulnerability. The state’s interest in minimising the harm
that might result from these negative consequences
is apparent. There could be
no complaint about the prohibition if the extent of the limitation is consonant
with the overall purpose
of reducing, as far as possible, the negative
consequences of liquor being consumed in a public place. But the section
impacts far
beyond that required by any legitimate
purpose.
[25]
Section 160(d) binds all
on-consumption licence holders. On-consumption licences
include
[18]
:
“(i) hotel liquor licences;
(ii) restaurant liquor licences;
(iii) wine-house licences;
(vi) theatre liquor licences;
(v) club liquor licences”
[26]
Each of these licence
holders is obliged to conduct some business on the licensed premises other than
the sale of liquor. What is
more, the sale of liquor at each of these
enterprises may legitimately be described as secondary or ancillary to the
primary business
that the licence holder is obliged to conduct. Thus, for
example, the holder of a:
(a) hotel liquor licence is obliged to maintain a bona fide hotel at which
accommodation and meals are regularly served to
guests;
[19]
(b) theatre liquor licence is obliged at all times to maintain on the licensed
premises a bona fide theatre at which dramatic performances,
plays, concerts or
films are regularly presented or shown to the
public.
[20]
[27]
The section applies to all
establishments described in the Act where liquor may legitimately be sold for
consumption including all
hotels, restaurants, theatres, clubs and sports
grounds. It must be borne in mind that in the case of a theatre licence, an
auditorium
does not fall outside licensed premises. Section 62(1) of the Act
expressly requires a theatre liquor licence holder to maintain
a bona fide
theatre “on the licensed premises”. The application of the section
is not restricted to bars or public houses
at which the primary activity
concerns itself with the sale of liquor for consumption. Had there been a
neatly tailored provision
applicable only to this category of licensed premises,
the position might well have been different.
[28]
That the section applies to
theatres is of particular concern. A theatre liquor licence holder is obliged
to maintain a bona fide
theatre at which dramatic performances, concerts or
plays are presented. The core business of a theatre is to realise protected
freedom of expression by presenting artistic creations that communicate thoughts
and ideas. There seems to be no basis to distinguish,
as the Act purports to
do, between theatres that sell liquor for consumption and those that do not.
This is particularly so if it
is borne in mind that theatres are in effect
restricted to selling liquor only to those to whom access has been granted to
attend
a particular presentation
[21]
and then only for a period that starts half an hour before the show begins and
cannot go beyond half an hour after it
ends.
[22]
Indeed, the provision
controls the kind of entertainment that may be provided at licensed theatres
instead of controlling behaviour
or conduct at these establishments. The
provision is far too wide and also misdirected.
[29]
No ground for this
limitation of free expression has been suggested, nor does one present itself to
me. The limitation is unjustifiable.
There is accordingly an unjustifiable
infringement of the right to freedom of expression. The state was not
represented and we
have had no argument on whether the section can be tailored
to meet a legitimate state interest and, if this can be done, whether
it is
appropriate to craft an order to this effect. Nor can I think of any tailoring
exercise that would produce an appropriate
order. This Court must therefore
confirm that section 160(d) is constitutionally
invalid.
[30]
It is not necessary to
consider any other attack launched by the applicants. In particular, nothing
need be said about the contention
that the nature of the conduct prohibited by
the section
[23]
either defies
definition altogether and is accordingly vague or is overbroad. The contention
raises sensitive, important, complex
and contentious issues which must be left
for determination at some more appropriate future
time.
[31]
Finally, it is necessary to
consider a just and equitable order appropriate to section 160(d) being
invalid.
[24]
It is just and
equitable that the declaration should not apply to a conviction for a
contravention of section 160(d) in relation
to which the time for noting an
appeal has expired, or where condonation for late filing of a notice of appeal
has been refused.
[32]
It is appropriate that the
first four respondents be ordered to pay the costs of the application in this
Court, jointly and severally.
Order
[33]
There will be an order in
the following terms –
(1) Paragraph (1) of the order made by Cloete J in the Witwatersrand High Court
is set aside and replaced by the following
order:
(a)
Section
160(d) of the Liquor Act 27 of 1989 is unconstitutional and of no force or
effect.
(b)
This declaration does not apply to
a conviction for a contravention of section 160(d) in relation to which the time
for noting an
appeal has expired, or where condonation for late filing of a
notice of appeal has been
refused.
(2) The first, second, third and fourth respondents are ordered to pay the
applicants’ costs in these confirmation proceedings
jointly and
severally.
Chaskalson CJ, Langa DCJ,
Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J and Sachs J concur
in the judgment of Yacoob
J.
MADALA J:
Introduction
[34]
This matter comes to us as
an application for the confirmation of an order of the Witwatersrand High Court
under section 172(2) of
the Constitution. That court declared certain
provisions of the Liquor Act
[25]
(the Act) to be inconsistent with the Constitution and accordingly
invalid
.
[35]
I have had the benefit of
reading other judgments in this case prepared by Yacoob J as well as the
concurring judgments of Sachs J
and Ngcobo J. I do not agree with the
conclusion which they reach with regard to section 160, the impugned section. I
am however
in full agreement with Yacoob J on his analysis of the nature of
confirmation proceedings and that they should not be taken lightly
by the
parties, least of all the executive whose contribution will often be of
inestimable value in helping the Court to arrive at
a proper decision and in
couching the order to be made. It must always be remembered that in
confirmation proceedings the issue
is the constitutional validity of a
parliamentary or provincial statute or conduct of the President. It will often
have wide and
far-reaching repercussions for the whole country and the conduct
of those who will be affected by the decision of the
Court.
[36]
The application before the
High Court was not opposed. In this Court we have had no assistance from any
party save the applicants.
The case arises out of the performance of striptease
dancing on licensed premises of the applicants. The impugned legislation is
found by the majority to be overbroad in that it not only outlaws serving
alcohol where there is nude dancing, the central purpose
of which is to
titillate, but also encompasses in its wide scope nudity that could be part of a
theatrical production which has objectives
beyond those of erotic
stimulation.
[37]
The applicants attacked the
provisions of section 160(d) on three fronts. They claim that the
section:
(a) is inconsistent with section 16 of the Constitution, invalid and therefore
of no effect;
(b) infringes the rule of law because
it is vague and does not convey clearly enough what conduct is prohibited;
and
(c) contravenes section 12
[26]
of
the Constitution in that it deprives people of freedom without just
cause.
Freedom of Expression
[38]
Everyone has the right to
freedom of expression. The general content of the right includes, among others,
the freedom to hold views
and opinions and to receive and impart information and
ideas, and the freedom of artistic creativity. Section 16 of the Constitution
provides:
“16. Freedom of Expression
(1) Everyone has the right to freedom of expression, which includes –
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement to imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm.”
[39]
Freedom of expression
constitutes one of the essential foundations of a democratic society, and is one
of the basic conditions for
its progress and for the development of every woman
and man. However, the exercise of this freedom carries with it duties and
responsibilities,
and is subject to such limitations as are reasonable and
justifiable in a democratic society based on human dignity, equality and
freedom.
[27]
The
impugned provision
[40]
Section 160
provides:
“160 Offences by holders of on-consumption licences
The holder of an on-consumption licence who
(a) allows drunkenness or licentious conduct on the licensed premises;
(b) sells or supplies liquor to a person who is in a state of intoxication;
(c) allows the licensed premises to be used as a brothel or to be frequented
by persons who are regarded as prostitutes;
(d) allows any person
(i) to perform an offensive, indecent or obscene act; or
(ii) who is not clothed or not properly clothed, to perform or to appear,
on a part of the licensed premises where entertainment
of any nature is
presented or to which the public has access;
. . .
shall be guilty of an offence.”
From an analysis of
the above section one can discern that subsection (a) seeks to prevent drunken
conduct on the licensed premises.
Subsection (b) aims to control patrons and
their excessive drinking. Subsection (c) targets prostitutes and prostitution.
Subsection
(d) deals with performances and appearances that occur when liquor is
served; it is in this context that this section falls to be
interpreted.
The constitutional challenge and the vagueness attack
[41]
In my view, in interpreting
this statute, the majority judgment must move away from the distinction between
nudity expressed through
high art (i.e. theatre) and nudity that occurs at a
strip club, because that is not the heart of the issue at hand. The nexus
between
nudity, offensive, obscene and indecent performances, and the provision
of alcohol is where this Court’s interpretive energies
must be focused.
The majority acknowledges that it is well within the government’s power to
regulate the use of alcohol.
The contention is that, in this case, government
regulation of alcohol inadvertently attenuates the constitutional right to
freedom
of artistic expression. I disagree with this
contention.
[42]
The statute does not outlaw
artistic expression that involves nudity, whether in the form of erotic dancing
or in a theatrical production.
The law merely requires that if people are
performing while “not clothed” or “not properly
clothed”, then
the owner of the liquor licence is to ensure that no liquor
is served that particular day.
[43]
Section 160(d) concerns the
offences committed by holders of on-consumption licences who allow the
prohibited types of performances.
It is logical for on-consumption license
holders to be held responsible in the Act because they are actually the persons
providing
the alcohol, which the state seeks to regulate. Therefore, section
160(d) must be understood to hold the licence holder liable when
he or she
allows persons to perform or appear as stated above on a part of the licensed
premises when alcohol is being served
.
[44]
The section decrees that
provided a licence is issued and the conditions laid down in the Act are
complied with liquor may legitimately
be sold at hotels, restaurants, theatres,
clubs, and sports grounds. However, the relevant subsection is applicable to
that “part
of the licensed premises where entertainment of any nature is
presented or to which the public has access.” Subsections 160(a),
(b) and
(c), on the other hand, apply to any part of the licensed premises. This
difference shows that the purpose of the legislature
was to limit the section
under attack to a narrower category of premises than those contemplated by
section 160(a), (b) and (c).
Again, my central argument is that it is in this
narrow category of premises that theatres must refrain from selling alcohol when
the types of performances described in subsection (d) are
occurring.
[45]
Furthermore there can be no
vagueness as to what the phrases “not clothed” or “not
properly clothed” connote
for purposes of this section. “Not
clothed” means in the context of this section to be in the nude or totally
exposed;
“not properly clothed” means scantily dressed or
insufficiently dressed, so that a portion or portions of the private
parts of a
female or male or breasts of a female are
exposed.
Limitations analysis
[46]
The core business of a
theatre licence holder is to offer entertainment which amounts to artistic
creativity and is protected by section
16 of the Constitution. The presentation
of these forms of entertainment in a bona fide theatre could legitimately
involve the performance
of section 160(d) acts. Given the potential dangers
that arise when drunkenness and nudity are combined, it is both reasonable and
justifiable for the legislature to require theatres to refrain from selling
liquor on the days when such performances are being
held.
[47]
Section 36(1) of our
Constitution concerns the limitation of rights. It
states:
“The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
[48]
In my view, the High Court
erred in holding that the purpose of the section is “obviously to limit
freedom of expression”.
[28]
The statute, as stated earlier, aims at regulating the sale of liquor at a place
where there is nudity because alcohol can give
rise to unrestrained and unruly
behaviour. The statute must be understood to prevent the sale of alcohol on the
days when there
is a performance where people are “not clothed or not
properly clothed”. Thus, the purpose of the limitation is reasonable,
legitimate and important.
[49]
The combination of alcohol,
intoxicated men and provocative nude dancing is potentially disastrous. From
the face of the impugned
section, it is obvious that the state is attempting to
regulate and control the adversity that results from the convergence of these
three elements. It is not an unduly onerous limitation for the government to
require liquor license owners to refrain from selling
alcohol on the days where
there will be a performance with people “not clothed or not properly
clothed”. The above interpretation
is reasonable and comports with the
section’s intent.
[50]
There is no substance in
the contention that the purpose of the provision is to force the morals of the
majority onto the minority.
If this were so, Parliament may have tried to
prohibit erotic dancing all together. The fact is that the conduct described in
subsection
(d) is prohibited
only on that part of the licensed premises
where entertainment of any nature is presented or to which the public has
access, and
only on the days
that liquor is being consumed. This is
narrowly tailored to address the subsection’s valid intent, which is to
control the
potentially detrimental consequences that arise from the mixture of
alcohol and nudity or offensive, indecent or obscene
performances.
[51]
The right to freedom of
artistic creativity cannot be said to have been limited substantially. The
section applies only to entertainment
presented at hotels, restaurants, clubs,
theatres and sports grounds at which liquor is being served contemporaneously
with the prohibited
types of performances and only when the general public have
access to these establishments. The section has some minimal impact
on the
freedom to receive or impart ideas and on the freedom of artistic creativity.
However, it must be remembered that the impugned
section does not prevent
entertainers and performers from expressing their artistic creativity or
communicating their ideas nor are
citizens restricted in their ability to
receive these communications everywhere outside the limited area to which the
section applies.
In terms of section 36 of the Constitution, the limitation on
the right to freedom of artistic creativity must be reasonable and
justifiable,
and in my opinion it is. The limitation is strictly tailored to meet the
limited purpose. The section is not nearly
as wide as the applicants would have
it. There is no less restrictive means of preventing the potentially disastrous
consequences
that arise from the combination of drunkenness and nudity in public
places. In all the circumstances the limitation is reasonable
and justifiable.
There is accordingly no infringement of the right to freedom of
expression.
Rule of law and the section 12
attack
[52]
These two attacks can now
be disposed of briefly. The finding that the conduct sought to be prevented is
defined clearly enough is
a complete answer to the rule of law argument. The
contention related to the section 12 argument was that the challenged provision
limits the right created by section 12(1) of the Constitution because it does
not constitute just cause for the deprivation of freedom.
Two bases are
advanced. The first, that the provision is too vague, has been rejected. It is
contended secondly that the cause
is unacceptable because it is concerned with
“promoting a particular religious morality”. As discussed earlier,
there
is no substance in this contention. The purpose of the prohibition is to
control behaviour and circumstances at licensed premises
where liquor is bought
and consumed in order to prevent harm, motivated by the notorious fact that the
consumption of liquor has
the potential to affect human behaviour
negatively.
[53]
In the circumstances I find
that the impugned provision is not inconsistent with the Constitution and would
make the following order:
The order of the High
Court is not confirmed.
NGCOBO J:
Introduction
[54]
I have grave doubts whether
there is any connection between the striptease dancing involved in this case and
the constitutional right
to freedom of expression. It is true that the freedom
of artistic creativity is an incident of freedom of expression. Section
16(1)(c)
of the Constitution says so. Whether the striptease dancing with which
we are concerned in this case can be said to be a form of
artistic creativity
is, in my view, not free from doubt. That doubt is compounded by the context in
which the striptease dancing
occurs. It occurs at premises to which the public
is invited to consume liquor.
[55]
There is much to be said
for the view that what is being asserted in this case is the right of striptease
dancers to expose themselves
to those who are consuming liquor on the licensed
premises for the purpose of enhancing sales of liquor. Whether freedom of
artistic
creativity guaranteed by our Constitution includes nude dancing for the
primary purpose of stimulating liquor sales is not free from
doubt.
[29]
Even if artistic
creativity went that far, it may well be that a statute which limits it in such
circumstances would be justifiable
in terms of section
36.
[56]
The purpose of the Act is
to regulate the sale of liquor and matters connected with the sale of liquor.
The authority of the state
to grant a liquor licence encompasses not only the
authority to grant or refuse the permission to sell liquor, “but also the
power to impose conditions pertinent to that
permission.”
[30]
[57]
As Yacoob J holds, the
state has an interest in the control of liquor consumption. I would like to add
that the overall purpose of
section 160 is to reduce, as far as possible, the
negative consequences of liquor being consumed in a public place. This limited
purpose is reasonable, legitimate and
important.
[58]
In my view there may have
been no constitutional difficulty with the subsection if it had not included
theatres within its reach.
In that event, if freedom of expression had been
limited at all, it would probably have been limited to a very small extent. All
that may have been prohibited then is sexually explicit conduct – a
prohibition regarded by a reasonable person inspired by
constitutional values as
being unacceptable. All other areas of freedom of expression would have been
left untouched. The right
may not have been interfered with at its core. The
section would have applied only to entertainment presented at hotels,
restaurants,
clubs and sports grounds at which liquor is sold for consumption
and only when the general public have access to these establishments.
The
section would probably have had no impact on the freedom of the press and other
media or on academic freedom and freedom of
scientific research. It may well
have had some minimal impact on the freedom to receive or impart ideas and on
the freedom of artistic
creativity.
[59]
That said, it is not
necessary on this occasion to reach any firm conclusion on any of these
issues.
[60]
The trouble with the
impugned provision is that it goes too far. It brings within its reach premises
whose very purpose is theatrical
performances. As Yacoob J holds, the
prohibition applies to all establishments identified by the Act which include
theatres.
[31]
It applies to
“licensed premises” and licensed premises include an auditorium
where performances are staged. For this
reason, it is
bad.
[61]
Save for the observations
set out above, I concur in the judgment of Yacoob
J.
SACHS J:
[62]
I support the cautious
approach adopted in this matter by Yacoob J. I agree fully that the provisions
impermissibly trench upon freedom
of expression by including theatrical
performances. My concerns, however, go further. Even if only bars and not
theatres were affected,
even if it were constitutionally appropriate to
distinguish between the high art of theatre and cabaret and the potentially
coarser
entertainment provided by night-clubs and pubs, even if one could, with
any degree of constitutional confidence, draw bright lines
between the erotic
exposure of indlamu,
[32]
can-can
[33]
and striptease, and even
if from the words of the provision exact operationally manageable standards of
permissible cleavage in or
transparency of dress could be divined, the
substantive questions would remain: to what extent and in what way may the state
dictate
dress and undress in off-the-street places to which the public has
access?
[63]
International experience
suggests that this is an area where all those concerned with interpreting and
enforcing the law should look
with particular care before they
leap.
[34]
Thus, although the
National Director of Public Prosecutions stands to be faulted for a lack of
candour, he cannot be criticised
for a failure to see the obvious. In cases
involving what is objectionable in the eyes of the law, rather than what lies
unbeautifully
to the eye of the beholder, nothing is obvious. While nudity may
be self-evident, what amounts to near-nudity is not. The legislation
deals
separately with rowdy behaviour. The harm or offence that either nakedness or
near-nakedness may in themselves cause to consenting
adult eyes in places
secluded from the unsuspecting public, is far from
axiomatic.
[35]
Lust, intensified by
inebriation, may be one of the seven deadly sins. But it is for religious
bodies, civil society and public opinion
to deal with sinful and immoral
behaviour, not necessarily for the
law.
[36]
[64]
The problem of whether it
is constitutionally permissible to prohibit the combination of tipples and
nipples has divided judicial
minds in many open and democratic societies. In
Canada, Dickson CJ pointed out that:
“The cases all emphasize that it is a standard of
tolerance
, not
taste that is relevant. What matters is not what Canadians think is right for
themselves to see. What matters is what Canadians
would not abide other
Canadians seeing because it would be beyond the contemporary Canadian standard
of tolerance to allow them to
see it ...[I]t is quite conceivable that the
Canadian community would tolerate varying degrees of explicitness depending upon
the
audience and the
circumstances.”
[37]
The
cases that followed indicated that the furnishing of massive quantities of
evidence on a case by case basis did little to simplify
the judicial task of
determining the exact borderline between what the Canadian community would abide
and what it would not.
[38]
[65]
The United States Supreme
Court remained divided for years on the question of whether strip-teasing could
be prohibited, and if so,
how.
[39]
After battling for decades to establish a workable definition of obscenity,
Brennan J finally decided that the quest was
futile.
[40]
By a narrow majority,
the Supreme Court eventually held, however, that nude dancing in a tavern could
be prohibited so as to protect
strangers in public places, provided that the
prohibition was narrowly tailored. As Rehnquist CJ put
it:
“It is without cavil that the public indecency statute is ‘narrowly
tailored’; Indiana’s requirements that
the dancers wear at least
pasties and a G-string is modest, and the bare minimum necessary to achieve the
State’s
purpose.”
[41]
[66]
It is not obvious to me
what degree of tailoring would establish the bare minimum that the South African
community would tolerate
in a bar which customers entered knowing full well what
they were going to see, or even if this would be the test. Without further
evidence or argument it is possible to have clear views on the propriety or
otherwise of employing women to disport their bodies
in an erotic manner so as
to encourage the sale of liquor. The issue in this case, however, is not the
propriety of such conduct,
but the constitutionality of its prohibition. This
is something on which this Court has heard but the skimpiest of argument and
received barely a tittle of evidence.
[67]
In my view, the judgment of
Yacoob J appropriately leaves such perplexities to be resolved on another day,
and, subject to the matters
emphasised above, I
concur.
For the applicant: D. Unterhalter SC and M. Chaskalson instructed by
Shannon Little Attorneys, Johannesburg.
For the respondents: No
appearance.
[1]
Section 154(a) of the Act.
[2]
Section 21 of the Act.
[3]
The definition of
on-consumption licence in Section 2 and Section 20(a).
[4]
Section 20(a) and (b) of the
Act respectively.
[5]
Section 32 of the Act.
[6]
Chapters 7 and 8 of the Act
respectively.
[7]
Section 160 of the Act.
[8]
Section 163 of the Act.
[9]
Phillips Andrew Lionel and
Another v The Director of Public Prosecutions and Others
(WLD) Case No
02/6168, 14 June 2002, unreported.
[10]
Section 172(2)(a)
provides:
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional
Court.”
[11]
Above n9 at para 14.
[12]
Section 36, to the extent
relevant, provides:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, . .
.”
[13]
Above
n9 at para 18.
[14]
Moise v Greater Germiston
Transitional Local Council: Minister of Justice and Constitutional Development
Intervening (Women's Legal
Centre as Amicus Curiae)
[2001] ZACC 21
;
2001 (4) SA 491
(CC) ;
2001 (8) BCLR 765
(CC) at para 19.
[15]
Above n14 at para 24.
[16]
S v Manamela And Another
(Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR
491
(CC) at para 66.
[17]
Islamic Unity Convention
v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002
(5) BCLR 433
(CC) at paras 26 and 27.
[18]
Section 2 read with section
20(a) of the Act.
[19]
Section 53(1) of the
Act.
[20]
Section 62(1) of the
Act.
[21]
Section 62(2) of the
Act.
[22]
Section 63(1) of the
Act.
[23]
Offensive, obscene or
indecent acts or appearance or performance while improperly clothed or not
clothed at all.
[24]
Section 172(1) of the
Constitution.
[25]
Act 27 of 1989.
[26]
See below para 52.
[27]
Section 36 of the
Constitution.
[28]
Phillips v Director of
Public Prosecutions
2002 (5) SA 556
at para 18.
[29]
Compare
Re Koumoudouros
et al and Municipality of Metropolitan Toronto
6 DLR (4th) 523 at 533 where
Erbele J said:
“Therefore assuming, without deciding, that ‘expression’, in
the Charter includes ‘artistic’ expression,
the conclusion from the
evidence is clear that the right claimed in these cases is not a right to
freedom of artistic expression
but the right to expose performers’ pubic
areas for the purpose of stimulating liquor sales. I find it difficult to
accept
that the framers of the Charter had any such right in mind and the whole
tenor and effect of the language of the Charter belies such
a right.
“The question to be decided is a question of constitutionality, not of
taste, and I am satisfied that the ‘freedom of
expression’
guaranteed by the Charter does not include the public exposure of female pubic
areas for the primary purpose of
selling larger quantities of liquor.
Accordingly the requirement of opaque clothing in cl. 28(2) of the by-law does
not infringe
upon the ‘freedom of expression’ guaranteed by para.
2(
b
) of the
Charter.”
[30]
Ex Parte President of the Republic of South Africa: Constitutionality of
Liquor Bill
[1999] ZACC 15
;
2000 (1) SA 732
(CC);
2000 (1) BCLR 1
(CC) at para 56.
[31]
See para 28 of Yacoob
J’s judgment.
[32]
A traditional Zulu dance
involving high kicks during which dancers wear outfits which do not cover their
tops. Today indlamu is incorporated
in various forms into contemporary
choreography, both popular and high art.
[33]
A dance involving high kicks
and raised petticoats originally developed in Parisian nightclubs.
[34]
See para 64 and 65
below.
[35]
Tribe states, “the
effort to separate unprotected obscenity from other sexually oriented but
constitutionally protected expression
had ‘produced a variety of views
among the members of the Court unmatched in any other course of constitutional
adjudication.’
” Tribe
American Constitutional Law
2 ed
(Foundation Press, Mineola 1988) 904-5. His own view on the issue
is that expression is subject “to regulation in
the interests of unwilling
viewers, captive audiences, young children, and beleaguered neighborhoods
– but
not
in the interest of a uniform vision of how human
sexuality should be regarded and portrayed.” Id 909-10.
[36]
See discussion in
S v
Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as
Amici Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117(CC)
at para
104-5.
[37]
Towne Cinema Theatres Ltd
v The Queen
[1985] 1 S.C.R. 494
at 508-9.
[38]
Compare
R v Tremblay
[1993] 2 S.C.R. 932
;
R v Hawkins
(1993) 15 O.R. (3d) 549; and
R v
Mara
(1997) 148 D.L.R. (4
th
). If I read these cases correctly,
they boil down to saying that Canadians would tolerate the notion that you may
look, but you
may not touch.
[39]
See above n5 at 904-919 for
discussion of cases dealing with legislation aimed at suppressing obscenity in
the United States.
[40]
Paris Adult Theatre I v
Slaton
413 U.S. 49
(1973) at 86 n9 Brennan J says:
“Whether or not a class of ‘obscene’ and thus entirely
unprotected speech does exist, I am forced to conclude that
the class is
incapable of definition with sufficient clarity to withstand attack on vagueness
grounds.”
[41]
Barnes v Glen Theatre, Inc
.
[1991] USSC 109
;
501 U.S. 560
(1991) at 572. The Court was
divided on whether or not the particular statute in question ought to be struck
down. The Chief Justice
was supported by four members who favoured upholding
the legislation, albeit for different reasons. A dissenting opinion, reflecting
the views of the remaining four members, called for a striking down of the
legislation on the ground that it violated the First Amendment.