Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs And Tourism, Eastern Cape and Others (CCT 216/14) [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC) (30 June 2015)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 23
|

|

Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs And Tourism, Eastern Cape and Others (CCT 216/14) [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC) (30 June 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case
CCT
216/14
DATE:
30 JUNE 2015
In the matter between:
SHOPRITE CHECKERS (PTY)
LIMITED
..........................................................................
Applicant
And
MEMBER OF THE EXECUTIVE COUNCIL FOR
ECONOMIC DEVELOPMENT, ENVIRONMENTAL
AFFAIRS AND TOURISM, EASTERN
CAPE
.........................................................
First
Respondent
GOVERNMENT OF THE EASTERN CAPE
PROVINCE
.................................
Second
Respondent
EASTERN CAPE LIQUOR
BOARD
.......................................................................
Third
Respondent
Neutral citation:
Shoprite
Checkers (Pty) Limited v Member of the Executive Council for Economic
Development, Environmental Affairs and Tourism: Eastern
Cape and
Others
[2015] ZACC 23
Coram:
Mogoeng CJ,
Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J,
Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and
Tshiqi AJ
Judgments:
Froneman J (main): [1] to [90]
Moseneke
DCJ (concurring): [91] to [130]
Madlanga
J (dissenting): [131] to [169]
Heard
on:
12 March 2015
Decided
on:
30 June 2015
Summary:
Eastern
Cape
Liquor Act 10 of 2003
— confirmation of order of
constitutional invalidity of
section 71(2)
and (5) and Schedule —
constitutional invalidity not confirmed
Grocer’s wine licence under Liquor Act 27 of
1989 terminated — licence to trade commercially —
property —
no arbitrary deprivation by change in regulatory
regime
ORDER
An application for confirmation of the order of
constitutional invalidity of the Eastern Cape Division of the High
Court, Grahamstown,
and an application for leave to appeal against
other orders made by the High Court:
1. The declaration of constitutional invalidity is
not confirmed.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
JUDGMENT
FRONEMAN J (Cameron J, Jappie AJ and
Nkabinde J concurring):
Introduction
[1]
This case raises the question whether a
commercial trading licence that allows selling wine in a grocery
store constitutes property
under section 25 of the Constitution.
[1]
If it does, can it be said that the legislative termination of
the licence, coupled with the opportunity to continue selling
wine
together with other liquor at separate premises but not in grocery
stores, amount to deprivation of property? Lastly, if these
two
hurdles are successfully cleared, what is sufficient reason for the
regulatory change to escape a charge of arbitrariness?
[2]
The applicant (Shoprite) seeks confirmation
of an order made by the Eastern Cape Division of the High Court,
Grahamstown (High Court)
declaring certain provisions of the Eastern
Cape Liquor Act
[2]
(Eastern Cape Act) constitutionally invalid.
[3]
The Eastern Cape Act introduced a new regulatory framework for
the sale of liquor in 2003.  In terms of the pre-existing

legislative framework,
[4]
Shoprite was licensed to sell wine with food in its grocery stores
(grocer’s wine licence).  The transitional provisions
of
the Eastern Cape Act allowed the holder of a grocer’s wine
licence to continue to sell wine with food at the same premises
for a
period of 10 years after the commencement of the Act, now under the
guise of a “registration”.  The holder
could,
however, after five years from the date of commencement of the Act,
apply for registration to sell all kinds of liquor in
separate
premises.
[5]
Absent further registration, the permission to sell wine with
food on the same premises lapsed 10 years after the commencement

of the Act.
[3]
Shoprite contended that this change of
regulatory regime amounted to an arbitrary deprivation of its
property.  The High Court
agreed.  Before us is an
application for confirmation of the High Court order.
[6]
Not only do the respondents oppose the confirmation
application,
[7]
they also seek leave to appeal against the dismissal by the High
Court of certain preliminary objections relating to urgency and

non-joinder of the Minister of Trade and Industry (Minister).  The
dismissal of these preliminary objections opened the door
to deal
with the constitutional challenge in the High Court.  A
determination in their favour in the application for leave
and on the
merits of the appeal would mean that the High Court should not have
reached the constitutional challenge.
[4]
The
question of property is fiercely contested in South African society.
There is, as yet, little common ground on how we
conceive of
property under section 25 of the Constitution, why we should do so,
and what purpose the protection of property should
serve.  This
exposes a potential fault line that may threaten our constitutional
project.  This judgment suggests that
our evolving conversation
on this issue should continue to seek our conception of property
within the framework of values and individual
rights in the
Constitution.  It further asserts that the level of
constitutional protection should depend on the kind of constitutional

interest involved and the core purpose associated with that type of
property interest.
[5]
The
overall effect of the judgments in this case is that the declaration
of invalidity cannot be confirmed.  Broken down, a
majority –
this judgment and that of Madlanga J – holds that grocer’s
wine licences are property under section
25 of the Constitution and
that Shoprite was deprived of this property in terms of the
provisions of the Eastern Cape Act.  Madlanga
J’s judgment
holds that the deprivation was arbitrary.  I hold differently,
namely that the deprivation was not arbitrary.
In his separate
concurrence with this judgment, agreeing that the order of
constitutional invalidity should not be confirmed,
Moseneke DCJ also
holds that the provisions of the Eastern Cape Act are not arbitrary.
On the question of arbitrariness there
is thus also a majority.
Moseneke DCJ disagrees, however, with the holding that the
grocer’s wine licences constitute
property.
Issues
[6]
In
sum, the constitutional issues are these:
(a) Does the entitlement to commercial trade under
state licence or regulation amount to property under section 25?
(b) If it does, do the impugned provisions of the
Eastern Cape Act deprive holders of their property?
(c) If yes, is that
deprivation arbitrary?
[8]
Factual background
[7]
The Liquor Board granted Shoprite grocer’s
wine licences in terms of the 1989 Liquor Act
[9]
for approved supermarkets throughout the Eastern Cape between 1989
and January 2003.
[10]
The holder of a grocer’s wine licence was prohibited from
selling liquor other than wine.
[11]
The 1989 Liquor Act made provision for the lapse or withdrawal
of grocer’s wine licences in certain instances.
[12]
It was common cause, however, that Shoprite’s licences had
neither lapsed nor been withdrawn in accordance with any
of the
relevant provisions.
[8]
The Eastern Cape Act differs from the 1989
Liquor Act in a number of ways.  It does not provide for
separate licences in respect
of different types of liquor.
[13]
Holders of licences are permitted to sell only liquor on the
premises, unless the Premier of the province determines
otherwise.
[14]
However, grocer’s wine licences granted under the 1989
Liquor Act continued to be valid as “registrations”
under
the Eastern Cape Act for 10 years after the latter’s
commencement.  The proviso was that after five years they
could
be converted into proper registrations.
[15]
The Eastern Cape Act came into effect in 2004.  Shoprite did not
convert its grocer’s wine licences into full
scale
registrations to sell liquor at different premises.  The 10 year
period of validity of erstwhile grocer’s wine
licences lapsed
on 14 May 2014 under the Eastern Cape Act’s transitional
provisions.
[9]
In
about September 2013, Shoprite’s representative met with a
representative of the Liquor Board to discuss the imminent lapsing
of
its grocer’s wine licences.  After taking legal advice,
Shoprite also addressed a letter to the Premier of the Eastern
Cape.
Further exchanges bore no fruit and Shoprite launched an
application in the High Court on a semi-urgent basis, seeking
a
declaration that the relevant provisions of the Eastern Cape Act that
replaced its entitlements under the 1989 Liquor Act were

constitutionally invalid.
High Court
[10]
The
Province sought to derail Shoprite’s application on several
preliminary grounds, two of which were persisted in before
us, namely
that the urgency was self created and that the Minister should
have been joined as a party to the proceedings.
The High Court
held that the postponement of the hearing and the time granted to the
respondents to file a supplementary
affidavit cured any prejudice the
respondents may have suffered as a result of the truncated time
periods.  It also held that
the matter was urgent because
Shoprite’s right to sell table wine from its ordinary grocery
stores would have come to an
automatic end on 14 May 2014.
[11]
In
relation to the non-joinder argument, the respondents contended that
the Minister was a necessary party to the proceedings and
should have
been joined.  The High Court found that there was no merit in
this argument, as the regulation of retail sale
of liquor is an area
of provincial competence and falls exclusively within provincial
powers under Schedule 5 of the Constitution.
The Minister had
no direct and substantial interest in the matter.
[12]
On
the merits of Shoprite’s application for a declaration of
constitutional invalidity, the High Court ruled in its favour.
The
Court held that its entitlement under the grocer’s wine licence
constituted property for the purposes of section
25(1) of the
Constitution, that Shoprite was deprived of this property, and that
the deprivation was arbitrary.
[13]
The High Court applied the test set out in
FNB
for
deciding a case where the constitutional validity of deprivation of
property has been challenged.
[16]
The Court found that there have not been any
authoritative pronouncements on these questions insofar as liquor
licences are concerned.
It also found that South African courts
have, however, (a) consistently recognised the inherent commercial
value of liquor
licences; (b) acknowledged the increasing
importance of rights acquired by way of “governmental largesse”
in modern
society; and (c) construed the terms “property”
and “arbitrary” expansively for the purposes of the
protection
afforded by section 25.
[17]
It found that a licence granted by the State to a person or
corporation to trade in a certain commodity – which endures
for
as long as the recipient conducts itself in accordance with the
conditions attaching to the licence, and which entitles the
recipient
to invest substantial sums on the understanding that the relevant
administrative functionary is by law precluded from
arbitrarily
revoking the licence – must be worthy of the protection
afforded by section 25 of the Constitution.
[18]
The Court further found that the commercial value of a licence can be
objectively determined and is not dependent on the
mere subjective
interest in the licence.
[19]
Once the licence is granted, it brings into existence an enforceable
personal incorporeal right which entitles the recipient
to trade in
accordance with the conditions attached.  These rights are also
transferable, subject to approval by the licensing
authority.
[20]
The right to sell liquor is thus, according to the High Court,
clearly definable and identifiable by persons other than the
holder;
has commercial value; is capable of being transferred; and is
sufficiently permanent, in the sense that the holder is,
in terms of
administrative law, protected against arbitrary revocation thereof by
the issuing authority.
[21]
[14]
The effect of the impugned provisions was
to deprive Shoprite of its right to sell table wine at its grocery
stores permanently.
The interference with this right was
substantial and thus resulted in a deprivation of property.
[22]
Relying on
FNB
,
Agri SA
[23]
and
Mkontwana
,
[24]
the High Court found that the licences constituted more than bare
permissions to sell liquor, but commercially valuable rights
to sell
table wine in specified grocery stores.  Those rights had been
terminated by the enactment of the impugned provisions.
[25]
The right to sell table wine at those stores would not be
revived by registrations under the Eastern Cape Act, which would
have
a negative impact on Shoprite’s business and marketing
strategies.
[26]
[15]
The reasons advanced for the deprivation
were based on policy considerations requiring the simplification of
the processes in relation
to applications for and enforcement of
these licences.  This had resulted in a substantial reduction in
the categories of
licences available.  There were also concerns
about the ability of licensees to enforce proper control over the
sale of liquor
in the context of a supermarket as opposed to separate
premises where only liquor is sold.  The open display of liquor
in
a store frequented by young people is undesirable.  The High
Court found these justifications insufficient.  The purported

need for simplification of the system could not justify the
deprivation of the pre-existing rights in respect of which no
applications
would have been required.
[27]
In relation to the alleged difficulties with enforcement, the Court
held that the respondents had failed to provide details
of what those
difficulties were and how they affected regulation during the
transitional period.
[28]
The Court considered it significant that of all the provinces to have
enacted provincial legislation to regulate the retail
sale of liquor,
the Eastern Cape was the only province where the sale of table wine
in grocery stores was prohibited.
[29]
[16]
In light of its findings in the preceding
three stages of the enquiry, the Court did not find it necessary to
consider a section
36 justification.  It considered that the
test for arbitrariness under section 25 was more stringent than the
analysis envisaged
under section 36(1).
[30]
[17]
The
High Court thus declared section 71(2) and (5) of the Eastern Cape
Act, read with the relevant parts of the Schedule, invalid.
It
severed the offending wording from the impugned provisions and the
Schedule.  Pending the confirmation of the order by
this Court,
the High Court ruled that Shoprite could continue to sell wine in
accordance with its existing licences, and that the
Liquor Board was
interdicted from taking any action against Shoprite for doing so.
The respondents were ordered to pay the
costs of the application,
including the costs of two counsel.
In this Court
Shoprite’s submissions
[18]
Shoprite applied to this Court for
confirmation of the declaration of constitutional invalidity.
Shoprite relied on this Court’s
decisions in
Agri
SA
,
[31]
Opperman
[32]
and
Law Society
,
[33]
as well as a number of academic sources and
European Court of Human Rights jurisprudence, for its argument that
the licences in
question do in fact constitute property under section
25 of the Constitution.  In particular, it cited the factors
considered
by this Court in
Opperman
in reaching the conclusion that a claim based on unjustified
enrichment is property under section 25.  These are that the

claim (i) had monetary value; (ii) could be disposed of and
transferred; and (iii) could be counted as an asset in the holder’s

estate.
[34]
It submitted that licences, permits and quotas issued by
administrative functionaries pursuant to statutory powers, which
have
commercial value, and which have vested in the holder, ought to fall
within the ambit of section 25.  Shoprite argued
that the rights
granted to it fall within this category.
[19]
It
was submitted that treating rights of this nature as property will
not make legislative regulation impossible, because only some

deprivations, not all, will give rise to a challenge based on
arbitrariness.  On the other hand, depriving this kind of right

of constitutional protection will substantially devalue the worth of
constitutional property protection in a modern economy where
such
rights are increasingly common.
[20]
Shoprite submitted that the impugned
provisions took away its pre-existing grocer’s wine licences,
which had continued in
force under the transitional provisions of the
Eastern Cape Act.  Their termination was not as a result of an
administrative
decision, but was legislatively imposed and automatic.
No challenge to undo that legislative change lies under the
Promotion
of Administrative Justice Act (PAJA).
[35]
[21]
The
test for arbitrariness, Shoprite argued, is a type of proportionality
analysis, namely whether there is sufficient reason for
the
deprivation, taking into account all the relevant factors such as the
purpose the deprivation seeks to achieve; the nature
of the property
deprived and its holder; and the extent of the deprivation.  The
deprivation was total and, therefore, the
respondents must give
persuasive reasons therefor.  The reasons advanced by the
Province and the Liquor Board for the deprivations
are insufficient
to justify the extinction of the grocer’s wine licences.
Shoprite submitted that it is not enough
for a party seeking to
justify a deprivation to make general statements in support of the
measure.  Evidence is needed and
was not provided.  In the
absence of that evidence, the conclusion must be that there is no
sufficient reason for the deprivation,
hence it is arbitrary.
[22]
Finally, Shoprite contended that section 36
finds no practical application because once it has been determined
that a deprivation
is arbitrary, it cannot be said that it was
reasonable and justifiable in terms of that section.
The respondents’ submissions
[23]
The
Province and Liquor Board contended that the grocer’s wine
licences were converted into registrations under section 20(a)
of the
Eastern Cape Act.  They argued that the inevitable consequence
of this was that Shoprite became the holder of registrations
as
opposed to grocer’s wine licences.  Given that Shoprite’s
case is premised on the argument that the grocer’s
wine
licences constituted property, the respondents argued that the High
Court erred in concluding that the grocer’s wine
licences
remained valid and lapsed on 14 May 2014.  To the extent that
these licences were property and Shoprite was deprived
thereof, the
respondents contended that the deprivation took place on 14 May 2004.
[24]
The
respondents further contended that the order of the High Court has
the effect of creating a category of registration in addition
to
those provided for in section 20 of the Eastern Cape Act and
would render the registration inconsistent with that section.
This
cannot be countenanced because it amounts to legislating for a
category not contemplated by the Legislature.
[25]
It was also submitted that neither the
grocer’s wine licences under the 1989 Liquor Act nor the
registrations under the
Eastern Cape Act are property for the purpose
of section 25.  To hold otherwise would transgress the caution
expressed in
Law Society
that
the “definition of property for purposes of constitutional
protection should not be too wide to make legislative regulation

impracticable”.
[36]
The findings of this Court in
Agri
SA
,
FNB
and
Opperman
do
not serve as authority for the contention that an interest with
commercial value necessarily constitutes property.  Public
law
entitlements and other kinds of government largesse may be withdrawn
unilaterally by administrative authorities, something
which is, so
they contend, not easily compatible with regarding them as property.
[26]
The respondents relied on this Court’s
finding in
Liquor Bill
[37]
that liquor licences are bare permissions.  This kind of
permission is, they contend, part of the framework designed to impose

control by the State over the use of a dangerous substance with
negative socio-economic consequences in balance with the potential

economic benefits of trading in liquor.  The permission is not
freely transferrable.  Shoprite relied on various subjective

interests (like its business model) to support the contention that
the licences were property, despite the fact that this Court
has held
that subjective interests are not determinative.  It was
contended that the Court must consider the meaning of property
in
this case in the context of an interpretive framework that takes into
account the tensions between individual rights and the
State’s
positive social responsibilities.  Viewed in this context, the
grocer’s wine licences did not constitute
property.
[27]
If the Court finds that they did amount to
property, the respondents contended that there was no deprivation as
the application
Shoprite could have made to obtain a registration
under the Eastern Cape Act would have been a mere formality given
that it probably
already complied with all the requirements.  In
any event, in light of the opportunity to convert the licences to
registrations,
any deprivation that there may have been was not
substantial.  If there was a deprivation, the respondents
submitted that
it does not constitute the removal of “all the
incidents of ownership”.
[38]
[28]
Any deprivation was nevertheless justified
on the basis of the reasons set out in evidence on affidavit.
This evidence related
to “legislative facts” that courts
are not in a position to second-guess.
[39]
No basis thus exists for finding that the deprivation was
arbitrary.
Leave to appeal
[29]
The application for leave to appeal by the
Province and the Liquor Board must be dismissed.  It is not in
the interests of
justice for this Court to grant leave in relation to
findings on urgency in the High Court.
[40]
And, for the reasons stated in the High Court judgment, there
are no reasonable prospects of success in relation to either
urgency
or joinder.
[41]
Constitutional challenge
General
[30]
It
is as well to emphasise upfront two aspects that have a material
bearing on the issues to be decided.  The first is that
this is
a frontal “root and branch” challenge to the
constitutional validity of the impugned provisions of the Eastern

Cape Act.  The second is that what is challenged is a
legislative change to the regulatory framework for the sale of
liquor,
not its administrative enforcement.
[31]
The
enquiry into the constitutional invalidity of legislation frontally
challenged is an objective one.  In
Ferreira
v Levin
, this Court emphatically
stated:
“
The answer . .
. is that the enquiry is an objective one.  A statute is either
valid or ‘of no force and effect to the
extent of its
inconsistency’.  The subjective positions in which parties
to a dispute may find themselves cannot have
a bearing on the status
of the provisions of a statute under attack.  The Constitutional
Court, or any other competent Court
for that matter, ought not to
restrict its enquiry to the position of one of the parties to a
dispute in order to determine the
validity of a law.  The
consequence of such a (subjective) approach would be to recognise the
validity of a statute in respect
of one litigant, only to deny it to
another.  Besides resulting in a denial of equal protection of
the law, considerations
of legal certainty, being a central
consideration in a constitutional state, militate against the
adoption of the subjective approach.”
[42]
[32]
What
this means is that it is not only Shoprite’s subjective
entitlement to protection of its property that needs to be examined.

The enquiry should be whether the holding of a grocer’s wine
licence could, objectively, be regarded as property and, if
so,
whether the impugned provisions of the Eastern Cape Act arbitrarily
deprived holders of their property.
[33]
The importance of the second feature,
namely that it is a challenge to legislation that seeks to bring
about a new regulatory framework,
is threefold.  The first is
that Shoprite’s complaint here raises a problem of legal
transition from one regulatory
regime to another,
[43]
and does not touch upon or question the State’s competence to
regulate in a particular manner once the validity of the regulatory

regime is accepted.  Put in other words, what Shoprite
challenges is legislative action by the Province, not administrative

action.
[44]
It is no answer to Shoprite’s claim to tell it to seek a
remedy under PAJA, because it does not attack the exercise
of
administrative conduct.  Its challenge must be met at the level
it is directed – at the legislative level.  The
second is
that if the potential number of licensees that may challenge
legislation is at all relevant to determine whether property
warrants
protection, then a frontal challenge to the new regulatory
legislation will not open any floodgates of legislation.  It

will occur only once, when the new legislation’s constitutional
validity is challenged.  The third is, as will be seen
later,
that courts allow considerable latitude to governmental changes to
regulatory frameworks.  There is little danger of
overzealous
interference with the power of other branches of government to
regulate economic life.
[34]
In the introduction to this judgment,
mention was made of the contested nature of our country’s
conversation about the protection
of property and the potential
danger this holds for the success of our constitutional project.  We
need to be open about why
this is so.  The explanation lies in
our history and in the pre-constitutional conception of property,
which entailed exclusive
individual entitlement.  Put simply,
that is largely a history of dispossession of what indigenous people
held, and its transfer
to the colonisers in the form of land and
other property, protected by an economic system that ensured the
continued deprivation
of those benefits on racial and class
lines.
[45]
That history of division probably also explains the concerns
both the previously-advantaged and disadvantaged still have.
The
former fears that they will lose what they have; the latter that they
will not receive what is justly theirs.
[35]
This leads to the constitutional property
clause in the Constitution being regarded with suspicion from
different perspectives.
At opposite ideological extremes is the
view that “property is theft”,
[46]
against the view that the protection of property lies not only at the
heart of atomised individual personal autonomy but also a
truly
efficient free market economic system.
[47]
On less extreme lines lie the contrasting fears that giving too
much protection to private property will inhibit the State’s

role to effect the transformation that the Constitution requires, as
against the view that not giving enough protection will also

undermine transformation by inhibiting economic development.
[36]
Given
our history, these contrasting perspectives are understandable, but
they can only be effectively addressed by seeking a conception
of
property in the Constitution itself, and not by falling back on
preconceived notions of property not rooted in the Constitution.
The
task of all, but especially the courts, is to seek our own
constitutional conception of property within the normative
framework
of the fundamental values and individual rights in the Constitution.
The level of constitutional protection would
then depend on the
kind of constitutional property interest involved and the core
purpose associated with that type of interest.
[37]
The
seminal start in this process was made by this Court in
FNB
.
It saw the interpretation of section 25 as an exercise to be
done in the context of our history and the Constitution as
a whole:
“
The subsections which have specifically
to be interpreted in the present case must not be construed in
isolation, but in the context
of the other provisions of section 25
and their historical context, and indeed in the context of the
Constitution as a whole.
Subsections (4) to (9) all, in one way
or another, underline the need for and aim at redressing one of the
most enduring legacies
of racial discrimination in the past, namely
the grossly unequal distribution of land in South Africa.  The
details of these
provisions are not directly relevant to the present
case, but ought to be borne in mind whenever section 25 is being
construed,
because they emphasise that under the 1996 Constitution
the protection of property as an individual right is not absolute but

subject to societal considerations.
The preamble to the Constitution indicates that one
of the purposes of its adoption was to establish a society based, not
only on
‘democratic values’ and ‘fundamental human
rights’, but also on ‘social justice’.
Moreover
the Bill of Rights places positive obligations on the State
in regard to various social and economic rights.  Van der

Walt (1997) aptly explains the tensions that exist within section 25:
‘
[T]he meaning of section 25 has to be
determined, in each specific case, within an interpretative framework
that takes due cognisance
of the inevitable tensions which
characterize the operation of the property clause.  This tension
between individual rights
and social responsibilities has to be the
guiding principle in terms of which the section is analysed,
interpreted and applied
in every individual case.’
The purpose of
section 25 has to be seen both as protecting existing private
property rights as well as serving the public interest,
mainly in the
sphere of land reform but not limited thereto, and also as striking a
proportionate balance between these two functions.”
[48]
(Footnotes omitted.)
[38]
On
the facts in
FNB
it was not necessary to interrogate the meaning of property under
section 25 in any detail:
“
At this stage
of our constitutional jurisprudence it is, for the reasons given
above, practically impossible to furnish –
and judicially
unwise to attempt – a comprehensive definition of property for
purposes of section 25.  Such difficulties
do not, however,
arise in the present case.  Here it is sufficient to hold that
ownership of a corporeal movable must –
as must ownership of
land – lie at the heart of our constitutional concept of
property, both as regards the nature of the
right involved as well as
the object of the right and must therefore, in principle, enjoy the
protection of section 25.”
[49]
(Footnote omitted.)
[39]
There are a number of reasons why it is
necessary to take the investigation into what conception of property
we hold for the purposes
of section 25 a bit further.  The first
is that
FNB
requires that each individual case must be adjudged within our
constitutional framework.  And, whether articulated or not,
each
decision on whether to protect a particular property interest or not
rests on some assumption as to why it merits, or does
not merit,
constitutional protection.
[50]
Better then to articulate the underlying reasons for the
protection in order to ensure that these often unarticulated premises

fall within the constitutional framework.
[40]
The cases decided under the property clause
in this Court have, in the main, not been concerned with property
issues that push at
the margins of the private law understanding of
property.
[51]
The most recent one of particular relevance to the question
before this Court now,
Opperman
,
extended protection to the personal right of an enrichment claim, but
did so squarely within the parameters of existing private
law:
“
This Court has not specifically found
that personal rights emanating from contract, delict, or enrichment
are indeed
property
under section 25.  Our constitutional jurisprudence accepts that
deprivation of ownership of corporeal property constitutes

deprivation for purposes of section 25.  Without discussing the
specific point, this Court has also accepted a trade mark
to be
property, albeit incorporeal, deserving protection under section 25.
Intellectual property, even though incorporeal,
is of course
different from an enrichment claim.  The right to claim
restitution on the basis of enrichment is a personal
right.  It
can only be enforced against a specific party or parties, in this
case the consumer who received the money.
It is not a real
right in property like, for example, ownership or a usufruct,
enforceable against all.  Section 25 deals
with
property
and not with
ownership
.
But reliance has been placed on the link to ownership in evaluating
whether there is a deprivation or whether section 25
comes into play.
. . .
In the circumstances
of this case, the recognition of the right to restitution of money
paid, based on unjustified enrichment, as
property under section
25(1) is logical and realistic.”
[52]
(Footnotes omitted.)
[41]
What
is at stake here, namely the entitlement to commercial trade under a
state licence or regulation, does not sit comfortably
with private
law notions of property.  In 1985, Wiechers and Carpenter
commented on the pre-Constitution position:
“
[O]ne often finds, in the
administrative-law relationship, a wide variety of rights, powers and
privileges which the subject acquires
by statute or by virtue of the
democratic constitutional system. . . .
It would be very
difficult to explain these rights of private persons and subjects in
the light of a private-law system of rights,
because these rights
differ radically, as regards both character and scope, from private
law rights.  It is possibly in this
regard that one may
justifiably refer to public-law rights.  These public-law rights
are rights which are based on some aspect
of the broader general
interest in which the subject shares, such as the effective
regulation of trade, the realization of constitutional
democracy,
public health and general residential and living conditions, and to
which public law affords legal protection.  However,
the courts
are sometimes reluctant to recognize the statutory rights of
subjects, even though such rights are of material interest
to the
subject.”
[53]
(Footnotes omitted.)
They then continued, with poignant resonance to
the issue before us:
“
This hesitant
approach in the recognition of acquired statutory rights is
particularly apparent in regard to the living and residence
rights of
urban Blacks.  It is as if the courts allow themselves, in the
matter of recognition of these rights, to be unconsciously
influenced
by the socio-political climate; fortunately, these essential rights
of subjects have gained increasing recognition of
late.”
[54]
(Footnote omitted.)
[42]
That hesitant recognition matured into our
constitutional democratic settlement, the Constitution, which
includes a provision that
“a person or community whose tenure
of land is legally insecure as a result of past racially
discriminatory laws or is entitled,
to the extent provided by an Act
of Parliament, either to tenure that is legally secure or to
comparable redress”.
[55]
There are other similar kinds of potential constitutional
entitlements in section 25: to bring about equitable access to
all
South Africa’s natural resources;
[56]
to gain equitable access to land;
[57]
and to land restitution.
[58]
In addition to these land-related entitlements there are
specific provisions dealing with socio-economic rights: access to

adequate housing;
[59]
health care services;
[60]
sufficient food and water;
[61]
and social security.
[62]
Every citizen too, has the right to choose their trade,
occupation or profession freely.
[63]
Subject to the Constitution, the courts must apply customary law
where applicable.
[64]
[43]
More generally, the Constitution envisages
a society based on the fundamental values of dignity, freedom and
equality.
[65]
The Bill of Rights “affirms the democratic values of
human dignity, equality and freedom” and the State must

“respect, protect, promote and fulfil the rights in the Bill of
Rights”.
[66]
The Bill of Rights declares that “everyone has inherent
dignity” and protects the right of all “to have
their
dignity respected and protected”.
[67]
When interpreting the Bill of Rights, a court, tribunal or
forum “must promote the values that underlie an open and

democratic society based on human dignity, equality and freedom”.
[68]
[44]
A conception of property that accords with
those founding values is what should animate the question of
determining the kind of
property that deserves protection.  In
Pillay
,
[69]
Langa CJ quoted with approval this passage of Ackermann J in
Ferreira
v Levin
:
“
Human dignity
has little value without freedom; for without freedom personal
development and fulfilment are not possible.  Without
freedom,
human dignity is little more than an abstraction.  Freedom and
dignity are inseparably linked.  To deny people
their freedom is
to deny them their dignity.”
[70]
[45]
In relation to a citizen’s right to
choose a vocation freely,
[71]
in
Affordable Medicines
[72]
(per Ngcobo J) this Court stated:
“
Freedom to
choose a vocation is intrinsic to the nature of a society based on
human dignity . . . .  One’s work is part
of one’s
identity and is constitutive of one’s dignity.  Every
individual has a right to take up any activity
which he or she
believes himself or herself prepared to undertake as a profession and
to make that activity the very basis of her
or his life.  And
there is a relationship between work and the human personality as a
whole.  ‘It is a relationship
that shapes and completes
the individual over a lifetime of devoted activity; it is the
foundation of a person’s existence’.”
[73]
(Footnote omitted.)
[46]
What flows from this is, first, that to
determine what kind of property deserves protection under the
property clause cannot be
restricted to private law notions of
property.  To do so would exclude other potential constitutional
entitlements that may
deserve protection from the ambit of protection
under the property clause.  It could also inadvertently lead to
a failure
to subject private law notions of property to
constitutional scrutiny in order to ensure that they accord with
constitutional norms.
[74]
Extending our conception of property to embrace constitutional
entitlements beyond the original ambit of private common law
property
will ensure that the property clause does not become an obstacle to
the transformation of our society, but central to
its
achievement.
[75]
In all of this, the fundamental values of dignity, equality and
freedom play a central role.  Our conception of property
must be
derived from the Constitution.
[76]
[47]
This
Court has emphasised that the individual is not an island unto
itself.  In
Pillay
,
the importance of this was explained:
“
The notion
that ‘we are not islands unto ourselves’ is central to
the understanding of the individual in African thought.
It is
often expressed in the phrase
umuntu
ngumuntu ngabantu
which emphasises
‘communality and the interdependence of the members of a
community’ and that every individual is an
extension of
others.”
[77]
(Footnotes omitted.)
[48]
The other building blocks for the proper
conceptualisation of property and the function that its protection
will serve have already
been laid in
FNB
:
(i) the protection of property as an individual right is not absolute
but subject to societal considerations;
[78]
(ii) that property should also serve the public good is an idea by no
means foreign to pre-constitutional property concepts;
[79]
and (iii) neither the subjective interest of the owner in the thing
owned, nor the economic value of the right of ownership, can

determine the characterisation of the right.
[80]
[49]
That section 25 must be interpreted with
the values of dignity, equality and freedom in mind was emphasised in
PE Municipality
.
[81]
That case also foreshadows the recognition of instances of property
not recognised previously in private law:
“
The blatant
disregard manifested by racist statutes for property rights in the
past makes it all the more important that property
rights be fully
respected in the new dispensation, both by the State and private
persons.  Yet such rights have to be understood
in the context
of the need for the orderly opening up or restoration of secure
property rights for those denied access to or deprived
of them in the
past.”
[82]
And later:
“
In sum, the
Constitution imposes new obligations on the courts concerning rights
relating to property not previously recognised
by the common law.
It counterposes to the normal ownership rights of possession, use and
occupation, a new and equally relevant
right not arbitrarily to be
deprived of a home. . . .  The judicial function in these
circumstances is not to establish a
hierarchical arrangement between
the different interests involved, privileging in an abstract and
mechanical way the rights of
ownership over the right not to be
dispossessed of a home, or
vice
versa
.”
[83]
(Footnote omitted.)
[50]
The
objective normative values of the Constitution thus require us to
determine what kind of property deserves protection under
the
property clause, by reference to the Constitution itself.  The
fundamental values of dignity, equality and freedom necessitate
a
conception of property that allows, on the one hand, for individual
self fulfilment in the holding of property, and, on
the other,
the recognition that the holding of property also carries with it a
social obligation not to harm the public good.  The
function
that the protection of holding property must thus, broadly, serve is
the attainment of this socially-situated individual
self-fulfilment.
The function of personal self-fulfilment in this sense is not
primarily to advance economic wealth maximisation
or the satisfaction
of individual preferences, but to secure living a life of dignity in
recognition of the dignity of others.
And where the holding of
property is related to the exercise, protection or advancement of
particular individual rights under the
Bill of Rights, the level of
the protection afforded to that holding will be stronger than where
no relation of that kind exists.
[51]
Acceptance that the constitutional
conception of property may embrace different kinds of entitlements
also brings with it the acceptance
that, when confronted with legal
transitions, the entitlements of the past do not necessarily warrant
protection in perpetuity,
provided that appropriate and reasonable
transitional provisions are made.  This consideration underlay
this Court’s
decision in
Agri
SA.
[84]
[52]
This Court has often gained guidance and
insight from the German Basic Law and the interpretation and
application of that Basic
Law by the
Bundesverfassungsgericht
(Federal Constitutional Court), mindful of the differences between
that Basic Law and our Constitution in historical and social
context
as well as the text.
[85]
Of course the German approach cannot be divorced from its
historical and social context and the textual provisions of the
Basic
Law, which is different in many ways from ours.  Therefore, to
determine whether a similar kind of approach is called
for in our law
we need to consider whether it would fit into the framework of values
of our own Constitution.
[53]
It
is nevertheless instructive that the approach outlined above is not
dissimilar to the German experience.  Early on, in 1954,
in the
Investment Aid Case
the Federal Constitutional Court declared:
“
The image of
humankind in the Basic Law is not that of isolated, sovereign
individuals.  On the contrary, the Basic Law has
resolved the
tension between individual and society in favour of coordination and
interdependence with the community without touching
the intrinsic
value of the person.”
[86]
[54]
That premise later led the Court to
conclude that the core purpose of the constitutional protection of
property was not economic,
but personal and moral,
[87]
where, in the
Hamburg Flood Control
Case
, it stated:
“
Article 14(1)
of the Basic Law guarantees property both as a legal institution and
as a concrete right held by the individual owner.
To hold
property is an elementary constitutional right that must be seen as
sharing a close nexus with the protection of personal
liberty.
Within the general system of constitutional rights its function is to
secure for its holder a sphere of liberty
in the economic field in
which he or she can lead a self-governing life.”
[88]
[55]
The German approach is illuminating in the
sense that it demonstrates that the constitutional protection of the
holding of property
need not be premised on an economic theory of
property that holds that the core purpose of property must be wealth
satisfaction
or the satisfaction of individual preferences.
[89]
The Court has stated:
“
From the
constitutional guarantee of property the owner cannot derive a right
to be permitted to make use precisely that which promises
the
greatest possible economic advantage.”
[90]
[56]
Against
this background, the specific issues of property, deprivation and
arbitrariness must now be assessed.
Property
[57]
The
dispute here is about a liquor licence.  In
Liquor
Bill
, this Court characterised a liquor
licence as—
“
the permission
that a competent authority gives to someone to do something with
regard to liquor that would otherwise be unlawful.
The activity
in question . . . is usually the sale of liquor at specified
premises.  It also seems to me that the term
‘liquor
licences’ in its natural signification encompasses not only the
grant or refusal of the permission concerned,
but also the power to
impose conditions pertinent to that permission, as well as the
collection of revenue that might arise from
or be attached to its
grant.”
[91]
[58]
A liquor licence is thus an entitlement to
do business that would otherwise have been unlawful. The competence
to do this kind of
business originates from state approval and its
continuance is dependent on state powers of amendment, cancellation
and regulation.
This is not the only kind of potential property
interest that stems from state grant.  So do social and welfare
rights.
[92]
The public law origin of these interests is often used as an
argument to deny them protection as property.
[59]
This stems from the difficulty alluded to
earlier, namely that they do not fit easily into a private law
conception of rights and
property.
[93]
In our pre-constitutional law, these kinds of interests were
only recognised once vested.
[94]
That recognition allowed limited procedural protection only
under administrative law, which could be extinguished by the
exercise
of original legislative powers.
[95]
On that approach, Shoprite’s permission to sell food and
wine in its stores would not qualify as property to be protected

under section 25.
[96]
But even under pre-constitutional common law it was recognised
that this was too narrow a view.  Legal standing to challenge

administrative decisions was gradually extended also to include those
in whom rights had not yet vested, but who had a legitimate

expectation in the outcome of the decision.
[97]
That development is still continuing.
[98]
It would be a retrogressive step to use pre-constitutional
notions of vesting to determine the ambit of property that needs
to
be protected under the Constitution.
[60]
All
property is subject to the law and regulation by the law.  In
that wide sense, the holding of all property is dependent
on state
“largesse”.  The intensity of regulation may depend
on the purpose for which the property is held and
the purpose for
which regulation is considered necessary.  The purpose for which
property is held may have a close relationship
with a person’s
fundamental rights.  That may, in general, require greater
judicial scrutiny of its regulation.  A
more tenuous link may
justify less intrusion.
[61]
As noted earlier, the enquiry in a frontal
challenge to the constitutional invalidity of legislation is an
objective one.  The
important distinction between an objective
enquiry and a subjective one is illustrated by the question whether
Shoprite’s
interest in the grocer’s wine licence is one
that conceivably serves individual self fulfilment, not in the
sense of
mere commercial well-being, but in the sense of running a
business as work that forms part of “one’s identity and
constitutive
of one’s dignity”?
[99]
If it is, then, on the strength of the close correlation
between the holding of the licence and the fundamental right to

choose one’s trade or vocation, a finding that it is property
for the purposes of section 25(1) is likely.  But if Shoprite,

as a commercial corporate entity, does not fit the notion of serving
individual self fulfilment, that is not necessarily the
end of
the matter.  Then we must enquire, further, whether the
legislation, once again objectively, includes persons that
may have
been holders of similar grocer’s wine licences, and who could
conceivably be entitled to the close constitutional
connection.  And
if there are, the constitutionality of the impugned provisions must
be adjudged on that objective basis.
[62]
The right to choose one’s vocation
freely is one given to “citizens” in the Bill of
Rights.
[100]
But in
FNB
,
this Court, in dealing with the contention that legal persons do not
enjoy protection under section 25, stated:
“
In
this regard section 8(4) of the Constitution provides as follows:
‘
A juristic person is entitled to the
rights in the Bill of Rights to the extent required by the nature of
the rights and the nature
of that juristic person.’
. . .
We are here dealing with a public company.  It
is trite that a company is a legal entity altogether separate and
distinct from
its members, that its continued existence is
independent of the continued existence of its members, and that its
assets are its
exclusive property.  Nevertheless, a shareholder
in a company has a financial interest in the dividends paid by the
company
and in its success or failure because she ‘ . . . is
entitled to an
aliquot
share in the distribution of the
surplus assets when the company is wound up’.  No matter
how complex the holding structure
of a company or groups of companies
may be, ultimately – in the vast majority of cases – the
holders of shares are
natural persons.
More important, for present purposes, is the
universal phenomenon that natural persons are increasingly forming
companies and purchasing
shares in companies for a wide variety of
legitimate purposes, including earning a livelihood, making
investments and for structuring
a pension scheme.  The use of
companies has come to be regarded as indispensable for the conduct of
business, whether large
or small.  It is in today’s world
difficult to conceive of meaningful business activity without the
institution and
utilisation of companies.
Even more so than in
relation to the right to privacy, denying companies entitlement to
property rights would ‘ . . . lead
to grave disruptions and
would undermine the very fabric of our democratic State’.
It would have a disastrous impact
on the business world generally, on
creditors of companies and, more especially, on shareholders in
companies.  The property
rights of natural persons can only be
fully and properly realised if such rights are afforded to companies
as well as to natural
persons.  I therefore conclude that FNB is
entitled to the property rights under section 25 of the
Constitution”.
[101]
(Footnotes omitted.)
[63]
We were referred to a number of decisions
of the European Court of Human Rights where commercial licences to
trade were recognised
as property under Protocol 1 to the
European Convention on Human Rights, which provides that “[e]very
natural or legal
person is entitled to the peaceful enjoyment of his
possessions”.
[102]
The Supreme Court of the United States of America has, in
Bell
v Burson
,
[103]
also held that the holder of a state driver’s licence or
business licence has a firmly established property right in that

licence, because “[o]nce licenses are issued . . . their
continued possession may become essential in
the pursuit of a
livelihood”.
[104]
The difficulty in finding too much comfort in these cases is
that the European cases are based on a provision that explicitly

extends protection to legal persons, and that the constitutional
protection in
Bell v Burson
was limited to procedural protection under the due process clause,
not the takings clause,
[105]
of the United States Constitution.
[106]
In the end, as must always be the case, we must determine the
issue on our own understanding of the fundamental values and

protected rights under the Constitution.
[64]
If a natural person had been in the
position of Shoprite, she would have had an easier task of convincing
a court that the grocer’s
wine licence granted by the State
enabled her to conduct a business vocation of her choice that was
essential to her living a life
of dignity in that there was a
“relationship between [her] work and [her] human personality as
a whole”.
[107]
So the correct question to ask, as noted above,
[108]
is whether her interest in the business licence would qualify as
property protected under section 25(1).  This is still an

objective enquiry.  It is not the subjective assertion of the
person involved that determines the outcome, but the court’s

assessment of the objective validity of that assertion.  I do
not find it too difficult to imagine that a person who wishes
to run
a small business might have found the opportunity to run a grocery
store, with the added advantage of selling wine, as the
single chance
to run a business successfully, without which it might otherwise have
been difficult to do so.  But it would,
objectively, be a step
too far to say that it would be impossible to do so.
[65]
Shoprite’s holding of the same
property interest, not as a natural person, but by virtue of legal
corporate personality, cannot
change the objective nature of the
constitutional challenge.
[109]
At most, it might have had a bearing on its standing to bring
the application, but that was not in issue before us.
[66]
The
holding of a grocer’s wine licence at the will of the State by
a natural person under the provisions of the 1989 Liquor
Act, as well
as under the transitional provisions of the Eastern Cape Act, may
well fall within property protected under section
25.  Neither
Act contains anything to suggest that a licence of this kind cannot
be held by a person who needs it to live
a life of individual
self-fulfilment and reciprocal dignity to others.
[67]
A
grocer’s wine licence entitled its holder to carry on the
business of selling wine with other groceries and foodstuffs on
the
same premises.  Under the 1989 Liquor Act the licence
remained in force for an indefinite period; under the transitional

provisions of the Eastern Cape Act, only for a determined period.
The licence could be withdrawn only under certain prescribed

conditions.  The licence was capable of being transferred under
administrative approval.  Subject to compliance with
the
statutory conditions for its issue, continuance and transferral, it
gave rise to a personal legal claim for its enforcement.
[68]
There is much to be said for the High
Court’s finding that once the licence is granted, an
enforceable personal incorporeal
right is vested in the recipient to
trade in accordance with the conditions attached.  These rights
are transferable, subject
to approval by the licensing authority.
The right to sell liquor is thus clearly definable and identifiable
by persons other
than the holder; has value; is capable of being
transferred; and is sufficiently permanent, in the sense that the
holder is, in
terms of administrative law, protected against
arbitrary revocation by the issuing authority.
[110]
This is close to recognition on conventional private law
grounds.  The potential objective link to constitutionally

sanctioned self-fulfilment only strengthens the case for recognition
of it as property.
[69]
The last issue which needs to be addressed
is whether Shoprite’s argument that the claim had much
commercial value plays any
role in determining whether it is property
for the purposes of section 25(1).  Both
Agri
SA
and
FNB
have made it clear that it does not play a determinative role.  The
value lies in the object of the right, not its commercial
value.
[111]
And that would remain the case even if the licence was held by
a natural person.
[70]
I
thus proceed on the finding that the holding of a grocer’s wine
licence in terms of the 1989 Liquor Act and its registration

counterpart in the transitional provisions of the Eastern Cape Act
constitute property for the purposes of section 25(1) of
the
Constitution.
[71]
I have had the pleasure and privilege of
reading the concurrence written by my Brother, the Deputy Chief
Justice.  I remain
unconvinced that the approach in this
judgment will lead to “difficult property jurisprudence”,
as he suggests.  That
we must seek our conception of property in
the Constitution seems to me almost self-evident.  And it is
always an objective
enquiry, not a subjective one.  On the facts
here, vesting in the conventional sense occurred when the grocer’s
wine
licences were originally issued.  We may legitimately
differ on whether a particular instance justifies the constitutional

link in cases that are not covered by existing notions of property,
but if we do not have that standard, individual determination
by the
courts of what constitutes property runs the risk of being labelled
arbitrary.
[112]
[72]
I
have also had the pleasure and privilege of reading the dissent of my
Brother, Madlanga J.  We agree that the grocer’s
wine
licences are property, but he considers the link I make to other
constitutional rights and values to determine the purpose
for the
protection of property as unnecessary and a devaluation of the
independent right to hold property.  It is a powerful
argument,
but I do not see how that approach makes it unnecessary to discern
the purpose for which the holding of property must
be protected under
the Constitution.
Deprivation
[73]
Previous decisions of this Court require
interference with property that is significant enough to have a
legally relevant impact
on the rights of the affected party before
deprivation of property under section 25 is established.
[113]
Once again, in determining the constitutional validity of
legislation, the enquiry is objective: has the holder of a grocer’s

wine licence in the position of Shoprite been deprived of something
legally substantial by the impugned provisions of the Eastern
Cape
Act?
[74]
Under
the 1989 Liquor Act, the constitutional and legal significance for
the holder of a grocer’s wine licence existed at
the following
levels:
(a) for persons whose choice of trade or occupation
depended on trading in liquor, it provided an opportunity to do so;
(b) it allowed holders to sell wine and groceries on
the same premises; and
(c) the permission to do so was for an
indefinite period.
[75]
The transitional provisions of the Eastern
Cape Act affected (b) and (c), but not (a).  Holders of grocer’s
wine licences
finally lost the right to sell wine and groceries on
the same premises 10 years after the commencement of the Eastern Cape
Act.
[114]
But the Eastern Cape Act softened that hurt by allowing them to
apply for a conversion of that right to a registration under
the new
Act to sell all kinds of liquor, albeit not on the same premises as a
grocery business, after five years.
[115]
Even if holders did not take the opportunity to convert within
the 10 year time frame, they still had the same right as anyone
to
apply for registration to trade in liquor, including wine.
[76]
So yes, holders of grocer’s wine
licences in the position of Shoprite lost some legal entitlement,
whether after five years
or 10, but in the greater scheme of things
it was not too much.  But I think it was enough to qualify as
deprivation under
section 25(1).
[116]
Shoprite lost the ability to sell table wine in its existing grocery
stores.  Its use and enjoyment of its licences
has been hampered
by this legislative intervention.
Arbitrariness
[77]
FNB
held
that a deprivation of property is arbitrary when the law does not
provide sufficient reason for the deprivation or when it
is
procedurally unfair.
[117]
A “complexity of relationships” must be considered in
determining whether sufficient reason has been provided.
The
eventual standard can range from rationality to proportionality.
[118]
In
Mkontwana
,
the Court stated that the lighter standard may be applicable if the
nature of the right to property is not strong and the deprivation
not
too heavy.
[119]
[78]
Procedural
unfairness is not in issue.  Further, it is common cause that
there was extensive consultation with stakeholders,
including
Shoprite, before the Eastern Cape Act was adopted.
[79]
The
complexity of relationships between means (deprivation) and ends
(purpose of the law); between the purpose of the law and the
person
holding property; and between the purpose of the law and the nature
of the property and extent of the deprivation, mentioned
in
FNB
,
may now be examined more closely.  That examination must be done
in the context of the normative approach to which the strongest

protection of property will be related where its protection best
enhances or protects fundamental values or rights under the
Constitution.
[80]
And
it is here where the lack of deprivation of any entitlement to other
fundamental rights, or diminution of any interest served
by the
values of the Constitution, may come into play.  If the
deprivation is of property closely connected to fundamental
rights
and constitutional values, then sufficient reason for the deprivation
should approximate proportionality.  If not,
rationality might
suffice.
[81]
Some
analogous guidance for this approach can be found in this Court’s
treatment of the right to choose one’s trade,
occupation and
profession freely under section 22 of the Constitution.  In
Affordable Medicines
the Court stated:
“
Where the
regulation of a practice, viewed objectively, is likely to impact
negatively on the choice of a profession, such regulation
will limit
the right freely to choose a profession . . . and must therefore meet
the test under section 36(1).  Similarly,
where the regulation
of practice, though falling within the purview of section 22, limits
any of the rights in the Bill of Rights,
[it] must meet the section
36(1) standard.”
[120]
And:
“
Where the
regulation, viewed objectively, would have a negative impact on
choice, the regulation must be tested under section 36(1).
In
other cases, the test is one of rationality.”
[121]
[82]
Substitute
“proportionality” for a section 36(1) justification, and
its application in determining arbitrariness in
property deprivation
under section 25, may be to say that where the regulatory legislative
deprivation (viewed objectively) would
extinguish the right of choice
of vocation, or any other fundamental right or constitutional value,
arbitrariness must, in terms
of
FNB
,
be tested against proportionality.  In other cases, rationality
will be sufficient reason.
[83]
Objectively viewed, the change in
regulatory regime brought about by the Eastern Cape Act did not
extinguish any fundamental rights
of holders of grocer’s wine
licences or fundamental constitutional values.  Rationality
would thus be sufficient reason
to avoid a finding of arbitrariness.
And, on the facts on record before us, it is quite rational to
change the regulatory
regime of liquor sales to provide for
simplification in the licensing system.  Some might say the
advantages of simplification
are minimal, but that does not upset the
rationality of the means used to achieve the end of
simplification.
[122]
The same applies to the justification of ensuring that
questions of control and exposure to the sale of liquor in a grocery

store are ameliorated.  It is not too difficult to imagine that
it is easier to keep control of the sale of liquor in premises
where
only liquor is sold, than otherwise.  Opinion may also be
divided on whether children are worse off by being exposed
to the
sale of wine in a grocery store than being in the vicinity of
premises where only liquor is sold.
[84]
But these differences of opinion are not
the kind of issues courts should interfere with too readily.  They
are mostly instances
of legislative facts where courts should not
easily interfere with the choices made by legislatures.
[123]
The fact that the Eastern Cape is the only province in the
country that chose to terminate grocer’s wine licences is
an
instance of democratic choice rather than evidence of irrationality
or unreasonableness.
[85]
The
differences between legislative facts and “adjudicative facts”
is outlined by Hogg when he notes:
“
Adjudicative
facts are facts about the immediate parties to the legislation –
‘who did what, where, when, how, and with
what motive or
intent’; legislative facts are facts of a more general
character concerning the social or economic milieu
which gave rise to
the litigation.  In most litigation only adjudicative facts are
relevant, and no attempt is made to adduce
evidence of legislative
facts. Accordingly, the rules of evidence are nearly all addressed
solely to the finding of adjudicative
facts.”
[124]
(Footnote omitted.)
He notes that when
dealing with legislative facts, the courts must apply a rationality
test which seeks to determine whether there
is a rational basis for
the legislative judgment of whether the facts exist.  This
rationality test ensures that the courts
exercise restraint and do
not interfere with the Legislature’s functions.
[125]
[86]
Lastly,
it should not be forgotten that the deprivation occurred only after
holders of grocer’s wine licences were allowed
to continue
selling wine in their grocery stores for 10 years and were given the
opportunity of making an application to sell wine
in separate liquor
stores within five years of the commencement of the Eastern Cape Act.
That seems eminently reasonable
and non-arbitrary.
Section 36 justification
[87]
The
parties are in agreement that if arbitrariness is found under the
FNB
formulation, justification under
section 36(1) will be difficult to find.  The reason, I think,
should now be clear.  The
nature of any infringement of the
right to protection of property under section 25(1) is dependent on
the substantive constitutional
or other interest affected.  Once
the interest is identified and the
FNB
approach to arbitrariness is applied,
there can be no further independent infringement that would require
further justification
under section 36.
[88]
For
these reasons, confirmation must be withheld.
Costs
[89]
Biowatch
principles
apply to the confirmation application.
[126]
The application for leave to appeal in respect of urgency and joinder
was an attempt to avoid constitutional issues, but
in our discretion
we find it just that each party should pay its own costs.
Order
[90]
The
following order is made:
1. The declaration of constitutional invalidity is
not confirmed.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
MOSENEKE DCJ (Mogoeng CJ, Khampepe J,
Molemela AJ and Theron AJ concurring):
Introduction
[91]
I have profited from reading the strongly
reasoned judgment of my colleague, Froneman J (main judgment).
I am grateful for
and support its narration of the background facts.
I concur in the manner in which the main judgment disposes of the
preliminary
issues and in the final order it makes.  More
precisely, I agree that this Court should not confirm the High
Court’s
order of constitutional invalidity because the impugned
provisions of the Eastern Cape Act
[127]
are not inconsistent with the Constitution and therefore not
invalid.  In sum, I arrive at the same destination but along
a
different path.
[92]
I
have also benefited from reading the dissenting judgment of my
colleague, Madlanga J.  He would have confirmed the declaration

of constitutional invalidity.  I disagree with that outcome and
the reasons that he advances for that result.
[93]
The main judgment concludes that the
holding of a grocer’s wine licence under the impugned Eastern
Cape Act “constitute[s]
property for the purposes of
section 25(1) of the Constitution”.
[128]
It then goes down the route that the impugned provisions
[129]
have deprived Shoprite of its property but that the deprivation was
not arbitrary.
[94]
It
is needless, I think, to characterise Shoprite’s grocer’s
wine licence as constitutional property.  The same
outcome may
be arrived at without deciding the difficult and fluid question
whether it is property.  It should suffice to
test the
challenged provisions for rationality.  In that event, one
simply asks whether the provisions pursue a legitimate
government
purpose, and if so, whether the statutory means resorted to are
arbitrary or reveal naked preference or another illogical
or
irrational trait.  In substance the arbitrariness enquiry here
would, in process and substance, be no different from the

arbitrariness enquiry under section 25(1).
[95]
However,
if one must decide whether a liquor licence is property in the hands
of its holder, I would part ways with the main judgment.
I
would hold that it is not property, and that the High Court was
mistaken when it rendered the impugned provisions invalid for
the
reason that Shoprite had been deprived of property arbitrarily.
What did the statute take away from Shoprite?
[96]
To prosper in my stance, I must first ask:
what has Shoprite been deprived of?  Until 14 May 2014,
Shoprite was the holder
of a liquor licence to sell table wine from
27 supermarkets in the Eastern Cape.  The licence was
granted under the 1989 Liquor Act
[130]
and extended under the Eastern Cape Act.  By operation of
section 71(2) and (5) of the Eastern Cape Act,
[131]
the licence lapsed on 14 May 2014.  It is the effect of
these two provisions that the High Court held amounted to arbitrary

deprivation of the grocer’s wine licences.
[97]
Here are the
original attributes of the licences in issue.  Once granted,
they remained in force for an indefinite duration.
The
licensing authority had the power to suspend or withdraw the licences
under specified and limited circumstances.
[132]
The power was triggered where there had been a report by a
designated police officer based on a contravention by the holder
of
licence obligations or other statutory requirements
[133]
or a complaint relating to licensed premises
[134]
or an objection to a licence.
[135]
Following a request for advice by a member of the
executive council of a province (MEC), an MEC had the power to
suspend or withdraw
a licence where the relevant licensing authority
had recommended that he or she do so.
[136]
The 1989 Liquor Act did not specify the circumstances in
which the MEC could exercise the power.  But it is
self-evident
that its exercise could not be arbitrary.  It had to be for good
reason and properly related to the purpose of
the suspension or
withdrawal.  In any event, a decision of that order would be
fully reviewable under PAJA.
[137]
[98]
The licences could be transferred, although
the transfer required approval.
[138]
A licence could also lapse when abandoned in
writing by the holder; where the holder failed to pay the applicable
licence fees by
the prescribed date; when withdrawn; when set aside
by a competent court; and on a date when it was replaced by another
licence
granted.
[139]
[99]
It
is important that Shoprite’s grocer’s wine licences were
never suspended or withdrawn, nor did they lapse, for the
entire
period from their grant up to 14 May 2014.
[100]
On 11 December 2003 the Eastern Cape Act
replaced the 1989 Liquor Act.  Its date of commencement was
14 May 2004.
For now, what is important are the transitional
arrangements.  Grocer’s wine licences that were in force
at the commencement
of the Act were deemed to be registrations for
the retail sale of wine for consumption off the premises.
[140]
The registrations would be valid for a period of ten years
after 14 May 2004, after which they would lapse.  Holders
of the
registrations were entitled, at any time after the end of five years,
to apply for registration to sell all kinds of liquor,
not just table
wine, on premises other than the same supermarket or grocery store
premises.  Despite the transitional arrangements,
Shoprite
elected not to apply to convert its grocer’s wine licences.
On 14 May 2014, the registrations lapsed
automatically,
compelling the applicant to close the table wine sections in each of
its 27 affected stores.
[101]
The High Court correctly concluded that
“[t]he legal effect of the transitional provisions [was] that a
grocer’s wine
licence, issued in terms of the 1989 Liquor Act,
remained valid until 14 May 2014, after which it . . . automatically

lapse[d]”.
[141]
The impugned provisions that authorised the
lapsing, it thought, amounted to arbitrary deprivation of property
“to the extent
that they provide for the lapsing of grocer’s
wine licences after a period of ten years after the commencement of
the Act”.
[142]
[102]
I think the lapsing caused Shoprite to lose
the entitlement and business opportunity to sell table wine in its
supermarkets alongside
other groceries.  And yet the legislative
transition entitles it to apply for registration to sell all kinds of
liquor, not
just table wine, on separate premises other than the same
supermarket or grocery store.  Its real grievance is not that it

lost the licences and the ability to conduct a liquor business but
that it may no longer pursue a business strategy and model that
it
prefers and cherishes.  Shoprite wants to sell its table wine
alongside groceries.  The lawgiver has ruled that it
be sold in
separate premises.  I ask whether this loss of a preferred
business opportunity or model ranks as property?  I
must also
ask: why would it be constitutionally impermissible for the
provincial legislature to regulate anew the conditions under
which
Shoprite or anyone else may sell liquor to the public?
What is property?
[103]
I
agree with the main judgment that, in assessing whether an interest
constitutes property, we must have regard to the history of
our
country in relation to notions of property and to the property clause
in our Constitution.  It follows that section 25
of the
Constitution must be interpreted against this backdrop.  The
observations of Professor van der Walt in this regard
are apposite:
“
[E]xisting and
new property interests are recognised and protected when and in so
far as it is necessary to establish and uphold
an equitable balance
between individual property interests and the public interest, with
due regard for the historical context
within which property holdings
were established and the constitutional context within which they are
now protected.”
[143]
[104]
There is no comprehensive definition of
constitutional property in South Africa.
[144]
As
FNB
warned,
it would not be judicially prudent to formulate one.  This is so
because “property” is a word of wide and
varied import.
Section 25 does not refer to “real rights” or “ownership”
or “possessions”.
It uses a broader and more
inexact version of “property”.
[145]
Except for the hint that property is not limited to land,
[146]
it does not furnish us with preset notions of property.  For one
reason, the threshold question whether an interest is property
must
be dealt with on a case-by-case basis.  Ordinarily, little
difficulty will be posed when deciding whether vested ownership
of
corporeal and incorporeal things under the common law, or customary
law or legislation, would pass for property under the property

clause.  For this proposition I draw useful guidance from the
following remarks by Roux and Davis:
“
In the absence
of any other obvious starting point, it is submitted that the enquiry
into whether an interest is protected by section
25 should
begin by asking whether the interest is recognised as a property
right at common law, customary law or in terms
of legislation.
Thereafter, the court should consider whether extending
constitutional protection to the interest would be
consistent with
the Bill of Rights, having regard to the values underlying the final
Constitution”.
[147]
(Footnote omitted.)
[105]
Under the common law our courts have always
extended protection to real rights, starting with ownership or other
interests in corporeal
things and in incorporeal personal
rights.
[148]
In turn, customary law recognised a hierarchy of real rights in
physical things like personal effects, house property, family

property and communal property.  It also allowed for personal
rights to delivery of livestock, grain and other goods and services,

and recognised claims for damages and other interests.
[149]
Unsurprisingly, with the advent of section 25 the courts have, case
by case, but cautiously, recognised ownership of or interest
in real
or incorporeal personal rights as protectable under the property
clause.
[150]
[106]
In
Opperman
,
Van der Westhuizen J considered whether an enrichment claim
constituted “property” and held:
“
The right to
claim restitution on the basis of enrichment is a personal right.
It can only be enforced against a specific
party or parties, in this
case the consumer who received the money.  It is not a real
right in property like, for example,
ownership or a usufruct,
enforceable against all.  Section 25 deals with
property
and not with
ownership
.
But reliance has been placed on the link to ownership in
evaluating whether there is a deprivation or whether section 25
comes
into play.”
[151]
(Emphasis in the original and footnote omitted.)
He concluded that the
personal right to restitution of money paid, based on unjustified
enrichment, was property under section 25(1).
[152]
[107]
In
Agri SA
,
Mogoeng CJ, without deciding, proceeded on the basis that a right to
exploit minerals is “property”.
[153]
Later he referred to “property with economic value”.
[154]
He did not refer to a right to mine, but rather to mineral
ownership.  On any approach, he was dealing with a right
or
interest in mining.
[108]
The
difficulty comes in when deciding whether what has been termed “new
property” should be recognised for the purposes
of section 25,
and further, whether a distinction must be made between these various
forms of incorporeal property.
[109]
After acknowledging that the starting point
in this enquiry is our Constitution, the main judgment draws much of
its reasoning from
comparative law.  A brief look at other
jurisdictions should suffice.  The approach of international
jurisdictions towards
the protection of incorporeal property or “new
property” has remained contested.  It includes “public
law
entitlements” like social welfare rights and other kinds of
government “largesse” like licences, quotas and
tenders.
[155]
[110]
Other countries have defined property
variously.  Some have held that a licence constitutes property
and others have not, depending
on their constitution and social
context.  In Ireland, courts have assumed, without deciding,
that certain licences were valuable
property rights.
[156]
In
Hand
and
Hempenstall
the Irish courts made an important qualification that property rights
originating in licences are subject to “legitimate
legal
restraints”
[157]
and as they are creatures of statute, they are subject to changes,
which can result in diminution of those rights.
[158]
[111]
The European Court of Human Rights has
specifically recognised the economic interest in a liquor licence and
held that the threshold
enquiry had been met for that licence to
constitute a “possession” in terms of Article 1 Protocol
1 of the European
Convention on Human Rights.
[159]
In comparison, the Court of Appeal in Trinidad and Tobago has held
that a driving licence does not constitute “property”.
[160]
[112]
The US Supreme Court has extended the
meaning of “property” to include disparate and diverse
interests like driver’s
licences, high school education,
disability benefits, expectation of continued employment, access to
public utility services, welfare
benefits and a prisoner’s good
time credits.
[161]
However, in
Cleveland
v United States
[162]
the US Supreme Court held that in certain
circumstances municipal and state licences, specifically video poker
licences, will not
be “property”.  In particular,
the Court stated that—
“
[
i
]
n
some contexts
, we have held that
individuals have constitutionally protected property interests in
state-issued licences essential to
pursuing an occupation or livelihood
.”
[163]
(Emphasis added.)
[113]
Even if one is inclined to extend
constitutional protection to “new property”, not all
government largesse can be seen
as “property”.  Nor
should it be, where the inherent nature of a right does not contain
characteristics of property
to justify the classification.
[164]
Within each category of government largesse, some rights may be
regarded as property while others may not.  For example,
in
German law, only some welfare claims are recognised as property and
able to attract constitutional protection.  Those welfare
claims
must meet three requirements to attract protection: the interest must
be earned through own effort, the welfare claim must
vest in the
beneficiary and the claim must ensure the beneficiaries
survival.
[165]
Another concern is that even if this Court were to push the
boundaries of our notions of property, liquor licences might
not be
the ideal type of government largesse with which to push the
boundaries, nor the ideal factual matrix within the category
of
“licences”.
[114]
Of these “public entitlements”
or “participation rights”, Roux warns that they are
generally “by their
very nature contingent on mutable
government policies or programmes”.
[166]
Badenhorst et al state that they may be “withdrawn or reduced
unilaterally, by administrative authorities”.
[167]
The learned authors add that the withdrawal of the entitlements,
thereby invoking compensation requirements, would have a
depressing
effect on development of welfare policies and programs, by securing
the position of current beneficiaries at the expense
of the public
interest in policies and programmes that are adaptable according to
changing circumstances.
[168]
They state further that in most other jurisdictions, these types of
interests are not easily accepted as property for purposes
of the
threshold test, although nuanced acknowledgement and protection of
these interests does at times occur.  Welfare payments
and
subsidies generally would not pass the threshold test, but pension
interests may under some circumstances be regarded as property.
[169]
[115]
It cannot be emphasised enough that our
notion of what passes for protectable property must be seen through
the lenses of our history
and constitutional scheme.  Some
jurisdictions have opted for an elastic notion of “property”
in order to protect
interests that are otherwise open to executive or
legislative abuse.  Our Constitution is different.  It
provides us
with the widest possible protection of fundamental rights
and freedoms.  It guarantees an impressive range of
socio-economic
entitlements.  What is more, all laws and conduct
must be consistent with the Constitution and are open to judicial
scrutiny.
We boast of administrative justice protections that
are truly expansive and meant to police and curb executive
excesses.
[170]
Our jurisprudence need not convert every conceivable interest, with
or without commercial value, as a few other jurisdictions
have done,
into protectable property.
[116]
Before I look closer at the liquor licences
in the present dispute let me add that this case is distinguishable
from foreign cases
that characterise licences as property.  In
those instances the licences were revoked or denied.  Courts
tend to afford
greater protection to government largesse when the
interest in issue has been revoked or suspended.
[171]
But that is not what happened here.  Shoprite can still sell
table wine.  It just has to do it next door.
Is a liquor licence property?
[117]
Before us the respondents
[172]
submitted that the rights as may flow from the grant of a liquor
licence under the 1989 Liquor Act do not, and should not, constitute

property for the purposes of the property clause.  A distinction
should be drawn, it contends, between liquor licences and
other forms
of state grants, including regulatory licences, given the
special nature of the subject of regulation, namely
liquor.  I
agree.  No useful purpose will be served by making generic
findings on other forms of state grants.
My immediate
pre-occupation is with liquor licences and whether they pass for
property protectable under section 25(1).
[118]
The
respondents went on to refer us to the Department of Trade and
Industry’s study that recorded:
“
Regulation on
most kinds of consumer products is much lighter than the regulatory
burden on the liquor industry.  This reflects
the special nature
of liquor, which is one of the few addictive psychoactive drugs which
is freely available to the public.”
[173]
[119]
These observations are well in line with
the manner in which this Court has looked at liquor licences as “the
permission that
a competent authority gives to someone to do
something with regard to liquor that would otherwise be
unlawful”.
[174]
And that permission “encompasses not only the grant or refusal
of the permission concerned, but also the power to impose
conditions
pertinent to that permission, as well as the collection of revenue
that might arise from or be attached to its grant”.
[175]
[120]
The permission which the applicant contends
it has been deprived of is a creature of statute and state largesse.
The permission
has at least two important and balanced objectives.
The first is part of a framework which is designed to impose
regulation
and control over the access to and use of a dangerous
substance, with a real potential to cause negative socio-economic
consequences
as well as having direct and indirect effects on
health.  On the other scale are the potential economic benefits
of trading
in liquor for the holders of licences and the State.
Liquor licence holders are often powerful and influential companies
involved in the supply side of the liquor industry.  Maximising
their contributions to the economy must be assessed against
the
negative costs of alcohol use.  Regulation in this industry is
used to curtail these negative side effects and can directly

contribute to improving the society we live in.  If a liquor
licence is seen as “property” then a strong entitlement

is created in the hands of the licence holder.  This would tip
the scales and arguably diminish the ability of the Legislature
to
effectively regulate an industry where regulation is of paramount
importance.  Whether a liquor licence should constitute

“property” should never be decided in a vacuum.  The
form that the permission and its regulation takes is always

contingent on changing norms and policy positions.
[176]
These norms would include where, when and what alcohol may be
traded.  This Court in
Lawrence
explained this in the following terms:
“
Liquor is a
potentially harmful substance.  It is part of the
normal
environment
in which the liquor trade
is conducted in South Africa, and other countries,
for
selling to be regulated by licences which control not only the right
to sell liquor but also where, when and what liquor may
be
sold
.”
[177]
(Emphasis added.)
[121]
Simply, the objects of the Eastern Cape Act
were to effect socio-economic change and to achieve a more efficient
management of the
liquor industry.
[178]
These objectives explain the inclusion of section 71(5) in the
Eastern Cape Act, a transitional provision that required licence

holders, after a certain period, to sell the wine at
separate
premises.  This is particularly not surprising considering that
one of the leading causes of alcohol abuse is the ease of
its
availability in terms of location, time and cost.
[179]
[122]
The issue is this: an entitlement to
commercial trade under a state licence does not fit comfortably
within the constitutional notions
of property.  A licence is a
bare permission to do something that would otherwise be unlawful.  It
is normally issued
to overcome a statutory prohibition.
Further, licences are subject to administrative withdrawal and
change.  They are
never absolute, often conditional and
frequently time-bound.  They are never there for the taking, but
instead are subject
to specified pre-conditions.
[180]
In time, a licence holder may cease to be suitable to hold the
licence.  And they are also not freely transferable.
[181]
[123]
This brings me to the important
consideration of vesting as part of assessing whether a public law
right acquired by state regulation
ought to be treated as property in
the hands of its holder.  The main judgment also contends that
the vesting of rights and
the impact of state regulation on these
licences are not on their own determinative of the “property”
issue.
[182]
I take a different view.  Vesting is still seen by our courts
and foreign courts as something that prompts the recognition
of a
right.
[183]
The writers, Currie and De Waal, make the point, correctly so in my
view, that “[a]n important qualification of the
expansive
interpretation of property that has been advocated here is that for a
right to constitute property it must be a vested
right”.
[184]
As we have seen, under the statutory scheme a liquor licence does not
vest in its holder and is derived from and open to
legitimate state
regulation.
[124]
Another important consideration is whether
in according a liquor licence recognition as property, one is
rendering its definition
too wide as to make legislative regulation
impracticable.
[185]
I have no idea how many liquor licences provinces issue cumulatively
year after year.  Less still do I know how many
have been issued
and are currently out there.  Least still do I know what other
categories of licences exists and whether
they are aimed at
commercial benefit or not.  Are they all property, and do they
all deserve the protection of section 25?
I would have strong
reservations were these questions ever to be answered in the
affirmative.
[125]
The point is this: the main judgment may
very well create very difficult property jurisprudence.  The
wider the definition
of property, the tighter our understanding of
deprivation and arbitrariness will have to be.  Would every
change in a licensing
law possibly attract a constitutional challenge
based on the property clause like the one now in our hands?
That, it seems
to me, would run afoul of the scheme of our
Constitution that has placed legislative competence to regulate the
sale of liquor
in the provinces.
[186]
It would impermissibly limit the legislative competence of the
provinces.  Also, if a province were to terminate a class
of
licences, would that amount to expropriation that entitled the
holders to compensation?
[187]
[126]
In
reaching the conclusion that liquor licences may be property, the
main judgment invokes the rights to human dignity, equality,
freedom
and to choose trade, occupation or profession freely.  In that
regard it holds:
“
If a natural
person had been in the position of Shoprite, she would have had an
easier task of convincing a court that the grocer’s
wine
licence granted by the State enabled her to conduct a business
vocation of her choice that was essential to her living a life
of
dignity in that there was a ‘relationship between [her] work
and [her] human personality as a whole’.  So the
correct
question to ask, as noted above, is whether her interest in the
business licence would qualify as property protected under

section 25(1).”
[188]
(Footnotes omitted.)
[127]
I
hold differently.  The objective evaluation of whether a liquor
licence is property cannot be premised on a speculative claim
to
other fundamental rights of an individual’s human dignity,
occupation and freedom, particularly on the part of a substantial

corporate trader.  This Court in
FNB
implied that one should look at the
objective inherent
value of the right or interest to determine if it constitutes
“property”.
[189]
If the core nature of a liquor licence is permission, then subjective
interests like economic and commercial value, let alone
human dignity
and vocation of choice and liberty are of little assistance in
themselves.
FNB
made it clear that “[n]either the subjective interest of the
owner in the thing owned, nor the economic value of the right
of
ownership . . . can determine the characterisation of the
right”.
[190]
Economic and commercial interests, whether objective or subjective,
are part and parcel of these permissions.  The inherent

limitation in the core attribute of a liquor licence cannot be played
down and supplanted by other rights in the Constitution in
order to
justify a finding of “property” which otherwise does not
fit the objective enquiry.
[191]
[128]
Lastly,
the main judgment posits:
“
It is no
answer to Shoprite’s claim to tell it to seek a remedy under
PAJA, because it does not attack the exercise of administrative

conduct.  Its challenge must be met at the level it is directed
– at the legislative level.”
[192]
It is so that Shoprite challenged the constitutional
validity of legislation.  The point I make is this.  When
one assesses
whether a liquor licence constitutes property and
whether the Constitution clamours for its protection as property, it
is necessary
to ascertain whether the interest or permission in issue
is open to arbitrary confiscation or material alteration.
Courts,
as some foreign jurisdictions have done, would tend to throw
the property protection wide if there were no other effective
remedies.
Administrative law in this country provides ample
redress against arbitrary executive decisions on whether to grant,
renew, cancel
or alter a liquor licence.  A pre-requisite to
these remedies is not whether a liquor licence is property or not.
This,
in my view, is a powerful consideration in an enquiry whether
our Constitution requires us to extend the meaning of property to

liquor licences.
[129]
There was indeed another route open to the
main judgment in reaching its decision.  The enquiry into
arbitrary deprivation
in substance is no different from the enquiry
into rationality of the impugned statute.  If the impugned
statute had authorised
a wanton and irrational termination of the
liquor licences of Shoprite in a law that was not properly related to
public good, it
would have been constitutionally bad.  The
holder of the permission would have the same substantive
constitutional protection.
Moreover, the approach that some
courts have adopted was to place little emphasis on the threshold
question of “property”.
An example is that of
Transkei Public Servants
Association
[193]
and of
Law Society
,
where the Court stated that “[h]appily, in this case, given the
conclusion I reach, it is unnecessary to resolve the debate
whether a
claim for loss of earning capacity or for loss of support constitutes
‘property’”.
[194]
[130]
In
sum, a mere preference in a business model is not “property”
that requires protection against arbitrary deprivation
as foreseen in
section 25(1) of the Constitution.  I concur in the order of the
main judgment subject to these reservations.
MADLANGA J (Tshiqi AJ concurring):
Introduction
[131]
I
have had the pleasure of reading the main judgment written by my
colleague, Froneman J, and the concurrence by the Deputy Chief

Justice.  Like the Deputy Chief Justice, I am thankful
for the detailed discussion of the facts in the main judgment.
[132]
The
matters that trouble me in the main judgment are threefold:
(a) It places too much emphasis on the relevance of
other fundamental rights contained in the Bill of Rights to the right
to property.
As a result, the potency of the right to property
as a self-standing right protected as such under the Constitution is
watered
down.
(b) The extent of the
deprivation is characterised as being so minor as to only barely make
the cut.  According to the main
judgment, the severity of the
deprivation “was not too much”.
[195]
This finding is made despite Shoprite being wholly divested of its
ability to sell table wine in a grocery store.
(c) Finally, the main judgment concludes that the
deprivation was not arbitrary.  To me, the facts proffered to
show that the
deprivation was not arbitrary are threadbare and thus
unsatisfactory.  That leads me to the conclusion that the
deprivation
was arbitrary.
[133]
But for these issues, I am in agreement
with the main judgment insofar as it recognises: (i) that the
entitlement that one derives
from holding a liquor licence like those
held by Shoprite constitutes property as contemplated in section
25(1) of the Constitution;
and (ii) that a deprivation of that
property has occurred.  I do not agree with the concurring
judgment which holds that this
entitlement is not property.  Nor
do I agree that this matter may be determined by simply testing the
challenged provisions
for rationality without deciding the property
question.
[196]
Let me start with the latter issue.
The approach of testing for rationality
[134]
In
FNB
,
[197]
in the context of the debate whether a deprivation was arbitrary, the
Court dealt with the writings of Chaskalson and Lewis
[198]
and Budlender.
[199]
The Court’s summary is that the two works argued that
arbitrariness meant no more than irrationality and purported
to find
support in
Lawrence
.
[200]
In rejecting this argument, Ackermann J held that
Lawrence
“provides no authority for the
manner in which ‘arbitrary’ should be construed in the
context of the property
provisions of s 25 of the
Constitution”.
[201]
More importantly,
FNB
said
that the test for arbitrariness in a section 25(1) enquiry is on
a sliding scale, depending on the circumstances:
“
In its context ‘arbitrary’,
as used in s 25(1), is not limited to non-rational deprivations, in
the sense of there being
no rational connection between means and
ends.
It refers to a wider concept
and a broader controlling principle that is more demanding than an
enquiry into mere rationality.
At
the same time it is a narrower and less intrusive concept than that
of the proportionality evaluation required by the
limitation
provisions of s 36.  This is so because the standard set in s 36
is ‘reasonableness’ and ‘justifiability’,

whilst the standard set in s 25 is ‘arbitrariness’.
This distinction must be kept in mind when interpreting and
applying
the two sections.
It is important in
every case in which s 25(1) is in issue to have regard to the
legislative context
to which
the prohibition against ‘arbitrary’ deprivation has to be
applied; and also to the nature and extent of the deprivation.
In certain circumstances the legislative
deprivation might be such that no more than a rational connection
between means and ends
would be required, while in others the ends
would have to be more compelling to prevent the deprivation from
being arbitrary.
”
[202]
(Emphasis added, except for “to which”, which is
emphasised in the original.)
The last sentence in the quote provides the
sliding scale.
[135]
The approach of simply testing the
challenged provisions for rationality without deciding the property
question goes against that
of
FNB
.
That, because in an instance where the interest at issue is held to
constitute property and deprivation is found to have
taken place,
arbitrariness would not necessarily be determined at the level of
rationality.  One cannot adjudge this beforehand.
The
nature of the property right informs the deprivation enquiry.
[203]
In turn, the extent of the deprivation colours the level at which the
arbitrariness enquiry will be pitched on the sliding
scale.
[204]
A simple rationality approach does not admit of possible movement in
accordance with the
FNB
sliding
scale: it makes the enquiry static.
[136]
Law Society
,
[205]
which is relied upon for simply testing for rationality,
[206]
is not authority for this approach.  There the Court assumed
that the interest at issue was property.
[207]
It then proceeded to the next steps, namely, the questions of
deprivation and arbitrariness.
[208]
The Court did not purport to concern itself with the simple
rationality analysis outside the three-stage enquiry.
[209]
Likewise,
Transkei Public Servants
Association
, on which the concurring
judgment also relies,
[210]
does not avail the simple rationality test approach.
[211]
[137]
I
proceed to deal with the contested issues outlined above.  As a
crucial preface, let me make this point.  For centuries
after
conquest, ours has been a painfully unequal society; the white
minority not only subjugating the black majority but actively
taking
steps calculated to advantage themselves in diverse human endeavours
and simple existence to the disadvantage of the black
majority.
Of particular significance was the incidence of the dispossession of
the majority of their property, notably land.
Needless to say,
the approach of our courts to the protection of the property right
must bear that context in mind.  The Court’s
words in
FNB
warrant repetition:
“
[O]ne should
never lose sight of the historical context in which the property
clause came into existence.  The background is
one of conquest,
as a consequence of which there was a taking of land in circumstances
which, to this day are a source of pain
and tension. . . .
[T]he purpose of s 25 is not merely to protect private property but
also to advance the public interest
in relation to property.
Thus it is necessary not only to have regard to foreign law, but also
to the peculiar circumstances
of our own history and the provisions
of our Constitution.”
[212]
[138]
And the context is not merely a historical
one.  The centuries of dispossession and disadvantage continue
to have tangible
effects that are yet to be addressed.  So, we
must be wary of overbroad protection of property interests as that
may interfere
with the transformative agenda permeating the
Constitution.  Indeed, section 25 itself may be seen as
“striving for
a just and equitable balance between the
protection of the existing, private property interests and the
promotion of the public
interest in the transformation of the current
property regime”.
[213]
Without derogating from this contextual, and indeed constitutional,
imperative, where an interest is property in terms of
section 25(1)
of the Constitution, we should not shy away from declaring it to be
so.  Is the interest at issue here property?
Property
[139]
The
value of the right to property inheres in the right as a
self-standing unit.  Like any other right in the Bill of Rights,

the right to property is worthy of protection as a stand-alone
right.  For that, it does not need to be closely linked to

another right.  I am not suggesting that there is no
interrelatedness in the nature and content of fundamental rights.  In
Makwanyane
,
Chaskalson P said that the rights to life and human dignity—
“
are the source
of all other rights.  Other rights may be limited, and may even
be withdrawn and then granted again, but their
ultimate limit is to
be found in the preservation of the twin rights of life and dignity.
These twin rights are the essential
content of all rights under the
Constitution.  Take them away, and all other rights cease.”
[214]
This is about the
overarching nature of these “twin rights”.  It is
not about detracting from the essential content
of other rights and
their existence as stand-alone rights.  My concern is the degree
to which the main judgment waters down
the potency of the right to
property to the point where it does little more than ride on the
coat-tails of rights such as human
dignity
[215]
and freedom of trade, occupation and profession.
[216]
[140]
When this Court has previously adverted to
whether a right should be recognised as property for the purposes of
section 25(1), it
has not found that cognisance should be given to
the relationship between the property and other rights.
FNB
is one such example.  In that case, ownership
simpliciter
was recognised as a protectable property interest.
[217]
I am not unmindful of the fact that
FNB
was concerned with corporeal
objects.
[218]
[141]
What
then is property?  In
Law Society
,
Moseneke DCJ aptly said that, for several reasons, this is a vexed
question:
“‘
Property’,
as used in the property clause, is a word of broad and inexact
purport and yet it is not defined.  The common-law
and
indigenous-law traditions conceptualise property and legal
relationships that relate to it in different ways.  Section

25(4)(b) makes it clear that property is not limited to land.
It must follow that both corporeal and incorporeal property
enjoy
protection.  For present purposes let it suffice to state that
the definition of property for purposes of constitutional
protection
should not be too wide to make legislative regulation impracticable
and not too narrow to render the protection of property
of little
worth.”
[219]
Of particular
relevance for present purposes, the Court made the point that
incorporeal property also enjoys protection.
[220]
[142]
What I consider to be an attenuated right
in comparison to the interest at issue in the present matter was
recently held to constitute
property.  In
Opperman
,
this Court recognised an enrichment claim as property.  That,
despite an acknowledgement that it amounted to no more than
a
personal right.
[221]
To my mind, an enrichment claim is somewhat tenuous and at a far
greater remove from readily acceptable property rights
[222]
than a grocer’s wine licence.  An enrichment claim may
only be enforced against a specific party.  When brought
to
court it may be successfully defended, thereby being rendered
completely valueless.  Yet, this Court barely hesitated in

recognising that this was property; it was “logical and
realistic” for it to do so.
[223]
[143]
By comparison, the grocer’s wine
licence is something in hand: it grants the holder an entitlement to
sell wine under certain
specified circumstances.  The licence
may endure indefinitely.  Even though it may be suspended or
cancelled, that may
not be done at whim.
[224]
There are circumscribed grounds; and they must be applied in
accordance with the strictures of just administrative action
as
provided for in PAJA.
[225]
It is not without significance that, from the time they were granted,
Shoprite’s licences were never cancelled.
And Shoprite
has been trading in accordance therewith.  Also, a grocer’s
wine licence holds objective commercial value:
its very
raison
d’être
is to trade in
accordance with its conditions.  The licence is transferable,
albeit subject to that being sanctioned by the
authorities.
[226]
As an item with objective economic value, the transfer may even be
for a valuable consideration (
quid pro
quo
).  Indeed, the value of
Shoprite itself (or that of its individual stores) as a commercial
entity may well be enhanced by
the fact that Shoprite holds grocer’s
wine licences.  All these point to the grocer’s wine
licence being property
for purposes of section 25(1).  If
something as tenuous as a right of action constitutes property,
[227]
it must indeed be so.
[144]
I note that the concurring judgment
observes that “[i]f the core nature of a liquor licence is
permission, then subjective
interests like economic and commercial
value, let alone human dignity and vocation of choice and liberty are
of little assistance
in themselves”.
[228]
My focus is the reference to “commercial value”.
The quoted
dictum
is about “subjective” commercial value, which means the
concurring judgment is not saying objective commercial value
is of
little relevance to the enquiry.  Objective commercial value
definitely does come into the equation when determining
whether the
right in issue is property.
[145]
FNB
concerned
the question whether motor vehicles which First National Bank (FNB)
had leased, or whose ownership it had retained upon
selling them,
were property.
[229]
An argument was advanced that, because FNB was least interested in
the actual ownership of the motor vehicles, its interest
in them did
not qualify as property.
[230]
The Court took a different a view:
“
Neither the
subjective interest of the owner in the thing owned, nor the economic
value of the right of ownership, having regard
to the other terms of
the agreement, can determine the characterisation of the right.
It does not matter that the owner would
rather have the purchase
price than the vehicle, nor that the economic value of the right of
ownership might be small when the
contract term draws to an end.  A
speculator has no less a right of ownership in goods purchased
exclusively for resale merely
because she has no subjective interest
in them but sees them only as objects that will produce money on
resale.  I accordingly
conclude that the right of ownership that
FNB has in the vehicles in question constitutes property for purposes
of s 25.”
[231]
[146]
In
context, what this means – according to the argument –
is: that the economic value of FNB’s interest in the
ownership
of the vehicles may be low, does not, of necessity, translate to the
interest not being property.  In similar vein,
Mogoeng CJ tells
us in
Agri SA
:
“
In [
FNB
],
Ackermann J rejected the argument that a right’s lack of value
also meant its lack of proper content.  That proposition
was, in
his view, an illegitimate conflation of two distinctly different
legal concepts.  I agree.  The argument that
a lack of
value, or indeterminate value, destroyed the existence of the right
to ownership of minerals before the advent of the
[Mineral and
Petroleum Resources Development Act] is also unfounded.”
[232]
(Footnotes omitted.)
This does not mean
the objective economic value of a right can never be of relevance in
deciding whether to characterise the right
as property.  Quite
the contrary is true.  In
Law
Society
this Court said “[i]n
many disputes, courts will readily find that a particular asset
of
value
or resource is recognised and
protected by law as property”.
[233]
[147]
In
sum, whatever the position may be with regard to other types of
licences, the grocer’s wine licence is definitely property.

Happily, it is not necessary to consider, let alone decide, whether
all possible types of licences constitute property under section

25(1).  That is an issue for another day.  Suffice it to
say, quite conceivably, some types of licences may lack factors
that
lead to a characterisation that they are property.
[148]
The
concurring judgment makes certain observations and raises some
questions:
“
The
point is this: the main judgment may very well create very difficult
property jurisprudence.  The wider the definition
of property,
the tighter our understanding of deprivation and arbitrariness will
have to be.  Would every change in a licensing
law possibly
attract a constitutional challenge based on the property clause like
the one now in our hands?  That, it seems
to me, would run afoul
of the scheme of our Constitution that has placed legislative
competence to regulate the sale of liquor
in the provinces.  It
would impermissibly limit the legislative competence of the
provinces.  Also, if the province were
to terminate a class of
licences, would that amount to expropriation that entitled the
holders to compensation?”
[234]
(Footnotes omitted.)
[149]
A declaration that this single type of
licence – the grocer’s wine licence – is property
does not, of necessity,
mean all manner of licences will be held to
constitute property.  I thus do not see the looming spectre of
difficulty in regulation.
These observations apply equally to
the many apparent imponderables or questions the concurring judgment
poses at [124].
Also, it is not as though day in, day out
provinces are legislating to discontinue various categories of
licences, thus running
the risks that the concurring judgment seems
to see.  Likewise, the termination of licences does not
necessarily amount to
expropriation entitling erstwhile licence
holders to compensation.  We saw in
Agri
SA
that, in a comparable scenario, a
holding that there has been an expropriation is not easy to come by.
Absent that holding,
its concomitant, compensation, does not
arise.
[235]
[150]
I find it difficult to accept that a
grocer’s wine licence, which has all the hallmarks of
property,
[236]
should be adjudged not to be property purely because it is a
licence.  I also find the indiscriminate idea that “licence”

equals not being property conceptually unpalatable.
[237]
I see no reason why, even with licences, we should not follow the
principle that says whether they are property should be
determined on
a case-by-case basis.
[238]
To adopt an
a priori
[239]
position that, because of perceived difficulties, all licences cannot
be property is problematic.
Extent of the deprivation
[151]
The main judgment correctly identifies two
core aspects of the grocer’s wine licence, namely: “it
allowed holders to
sell wine and groceries
on
the same premises
”;
[240]
and “the permission to do so was for an indefinite
period”.
[241]
These aspects of the grocer’s wine licence are both abrogated
by the change in regime from the 1989 Liquor Act to the
Eastern Cape
Act; a fact which the main judgment acknowledges.
[152]
So then, how does the main judgment arrive
at the conclusion that Shoprite’s property right is only
deprived to a limited
extent?  It refers to a third aspect of
the right: “for persons whose choice of trade or occupation
depended on trading
in liquor, it provided an opportunity to do
so”.
[242]
Since Shoprite may apply for an “all kinds” licence to
sell a variety of liquor at separate premises, so the
argument goes,
this aspect of the right is left intact.
[153]
But
the unique essence of the grocer’s wine licence is actually
destroyed by the change in regime.  What sets a grocer’s

wine licence apart from other licences is not that it permits trading
in liquor.  It is the ability to sell wine next to a
loaf of
bread.  To put it in colourful terms, holding this licence
allows Shoprite to engage in the business of “selling
dinner
parties”, whereby a shopper can buy his or her cheese, bread,
dessert ingredients and wine all in one place.
This licence
allows Shoprite to engage in a particular business model.
[154]
If the licence and all that it entitled
Shoprite to engage in have been taken away, the licence has
effectively been revoked.
Then a total deprivation has
occurred.
[243]
It is idle to point to Shoprite’s ability to apply for an “all
kinds” licence as ameliorating the deprivation.
This only
allows Shoprite to engage in a wholly different business model on
totally different premises.  More importantly,
the mere fact
that both licences involve an entitlement to sell wine (plus other
types of liquor, in the case of an “all
kinds” licence)
lends an appearance of similarity between them.  That is, in
fact, illusory.
[155]
To
illustrate, Shoprite was always entitled to apply for an “all
kinds” licence.  But so was any other person with
the urge
to engage in the business of running a liquor store.  So, having
been divested of the grocer’s wine licence,
Shoprite is no
longer able to sell wine in a grocery store: that is lost
completely.  How, then, can it be said that the availability
of
the opportunity to apply for an “all kinds” licence –
which was always there – can cure the specific
deprivation?
To put it bluntly, it is mistaken to suggest that the availability of
an opportunity to apply for an “all
kinds” licence is
giving Shoprite anything, let alone anything new.  Throughout,
it could – upon obtaining an
“all kinds” licence –
have sold all types of liquor elsewhere.  That is not new.
What is new is the
deprivation.  And the opportunity to apply
for an “all kinds” licence cannot cure it.
[156]
Ultimately, I must conclude that not only
has Shoprite been deprived of its property, the deprivation is total
in nature.
This has important implications for determining the
standard by which arbitrariness is judged.
[244]
Arbitrariness
[157]
My dissonance with the main judgment’s
conclusion that there was “sufficient reason” for the
passing of the Eastern
Cape Act, and therefore the deprivation, stems
from the weight which I accord to the evidence provided by the
Province.  While
the main judgment locates the enquiry at the
lower end of the
FNB
scale (i.e. the rationality test),
[245]
the test should be pitched at a higher level.  What is the test?
Appropriate test
[158]
In a different context, I dealt with the
test.
[246]
To recapitulate, on the standard for arbitrariness,
FNB
creates a “sliding scale”.
[247]
At the lower end of the scale is the rationality test.  It
requires no more than that there should be a rational connection

between the means and ends.  Higher up on the scale, the ends
must be compelling.
[248]
Both tests require that there be some proof that the ends are linked
to, or justify, the means.
[249]
Proof is at its lowest, if the test is rationality.
[250]
The degree of proof required is more stringent as the applicable test
gets higher on the scale.
[159]
Shoprite
was deprived of the essential aspect of the grocer’s wine
licence.  Given the extent of the deprivation, which
is total,
and the need to protect the right to property, the standard required
to evaluate whether the deprivation is arbitrary
is elevated, and not
in the realm of mere rationality.  This suggests “sliding
up” the
FNB
scale
toward the higher end of the spectrum; that is, where the ends have
to be more compelling.
“
Legislative facts”
[160]
The main judgment relies on
Lawrence
,
which in turn relies on the Canadian academic Hogg, to conclude that
the reasons for passing the Eastern Cape Act are “legislative

facts” with which courts should not interfere readily.
[251]
Based on this view, the main judgment then concludes that, on
the evidence provided, the test for rationality is met, as
sufficient
reason for the deprivation has been shown.
[161]
Hogg defines legislative facts as “facts
of a more general character concerning the social or economic milieu
which gave rise
to the litigation”.
[252]
Regarding the level of proof of legislative facts, he states that
“the proponent of legislation need show no more than
a rational
basis for legislative facts that are prerequisite to the validity of
the legislation”.
[253]
In essence, he argues that the principle of judicial restraint –
where courts do not stray into the terrain of the
Legislature –
means that judicial scrutiny of the rational basis for legislation is
less strict.
[162]
However, Hogg further states that the
rational basis test is not appropriate in cases dealing with the
Canadian Charter
[254]
(the equivalent of the South African Bill of Rights).  For
Charter cases, the standard of proving legislative facts is a
“preponderance of probability”, a more onerous
standard.
[255]
[163]
The Hogg standard sets the bar too high,
especially in comparison to our own jurisprudence on the adjudication
of legislative facts.
This Court in
Lawrence
,
even though it was dealing with a matter concerning the Bill of
Rights, adopted the less stringent rationality standard.

Whatever the standard,
Lawrence
still requires that legislative facts must be proved by means of
evidence.
[256]
This means the Province must put forth facts in support of the
reasons asserted by it in justification of the deprivation.

Legislative facts are not a magic wand that state parties may wave to
absolve themselves of the evidentiary burden they bear in
defending a
deprivation.
[164]
A close look at the Province’s
submissions and parliamentary discussion evinces a dearth of
underlying reasons and factual
bases for the passing of the Eastern
Cape Act.  The record does reveal some reasons,
[257]
but many of the justifications cited by the respondents are not
substantiated on the record and do not progress beyond bald
assertions.
What is more, the considerations dating to the
relevant time almost exclusively relate to the grave socio-economic
effects due
to the legacy of apartheid and the numerous unlicensed
vendors in the province.
[258]
There is, literally, no mention of the sale of table wine in grocery
stores in any documentation placed before us dating
to the time when
the Legislature was considering the Act.  Such supposed
justification as does exist is only articulated after
the fact in the
litigation, with no factual substantiation.  Nor is there an
analysis of how the means will, in fact, achieve
the end.
[165]
The
legislative facts, or general socio-economic realities informing the
Eastern Cape Act are, on Hogg’s construction, integral
to the
analysis of whether there is a rational basis for the Act.  They
would then need to be proven at the time the decision
to legislate is
taken, and not after.  For it serves no purpose to scrape for
reasons for a decision after it is made.
[166]
“
Evidence”
of the detrimental effects of selling wine in grocery stores –
which supposedly informed the passing of the
Eastern Cape Act –
was only advanced by the respondents in their papers before the High
Court and this Court in this very
litigation.  Not before.
If the evidence existed at the time the legislation was drafted and
discussed, it would have
been a matter of relative ease for the
respondents not only to produce it, but also to refer to its
contemporaneous existence when
the Act was passed.  Put simply,
the reasons should have been central to the discussions at the
Legislature; and evidence
of this should have been proffered.
The supposed ills of selling wine in a grocery store are plainly a
belated
ex post facto
attempt at justification.  And they are not something of which I
can take judicial notice.
[167]
The lack of substantiation extends to the
argument that one of the purposes of the Eastern Cape Act is the
simplification or “rationalisation”
of the liquor
licensing regime in the Eastern Cape.  Brief reference was made
in the record to rationalisation being one of
the purposes of the
1998 Bill,
[259]
although it is not clear to what extent the Eastern Cape Legislature
had regard to or was even aware of the document placed on
record
before us.
[260]
But, regardless of whether the Eastern Cape Legislature had
rationalisation in mind, the problem is that no evidence has
been
placed on record before us to demonstrate the need for
simplification.  It was not shown that there were administrative

or enforcement problems under the previous dispensation.  Nor is
it clear what the nature of the problems was, if they did
exist.
To simply say the discontinuance of existing licences would reduce
the administrative burden and create a simpler
licensing regime does
not mean much in the absence of such antecedent information.
Yet again, that is not something of which
I can take judicial notice.
[168]
Accordingly, it is hard to see a connection
between the methods the respondents have imposed and the alleged ends
they seek to achieve.
The ends come nowhere near being
compelling.
[261]
That is not enough, possibly not even on the basis of a mere
rationality test.
Conclusion
[169]
I
would ultimately have held that Shoprite’s grocer’s wine
licences constitute property for purposes of section 25(1)
of the
Constitution; and that Shoprite was arbitrarily deprived of this
property. In the result, I would have confirmed the order
and
judgment of the High Court declaring section 71(2) and (5) of, and
the relevant parts of the Schedule to, the Eastern Cape
Act
constitutionally invalid.
For the Applicant: J J Gauntlett SC, M W
Janisch and G A Du Toit
Instructed by Werksmans Attorneys.
For the Respondents: E A S Ford SC and J G
Richards
Instructed by the State Attorney.
[1]
Section 25(1) reads:
“
No one may be deprived of property
except in terms of law of general application, and no law may permit
arbitrary deprivation
of property.”
[2]
10 of 2003.
[3]
Section 71(2) and (5) read with the relevant
parts of the Schedule to the Act were declared invalid.
Certain words in the
Second Schedule to the Act, associated with
grocer’s wine licences, were excised and section 71(5) was
excised from the
rest of section 71.
[4]
The now-repealed Liquor Act 27 of 1989 (1989
Liquor Act).  The change from national to provincial
legislation is of no moment
in this case.  In 1997, the
National Assembly commenced the legislative process that resulted in
the national Liquor Bill
[B 131B–98] (1998 Bill), which was
intended to replace the 1989 Liquor Act.  In
Ex
parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000 (1) SA 732
(CC);
2000 (1) BCLR 1
(CC) (
Liquor
Bill
), this Court subsequently found
the Bill to be constitutionally invalid as it constituted an
inadmissible intrusion into the
exclusive provincial legislative
power to regulate retail liquor licensing.  The 1998 Bill was
thus revised and ultimately
resulted in the new
Liquor Act 59 of
2003
.  Several provincial legislatures, including the Eastern
Cape Provincial Legislature, then enacted their own provincial

legislation to regulate the retail sale of liquor.
[5]
Section 71(5) of the Eastern Cape Act.
[6]
Section 167(5) of the Constitution provides:
“
The Constitutional Court makes the
final decision whether an Act of Parliament, a provincial Act or
conduct of the President is
constitutional, and must confirm any
order of invalidity made by the Supreme Court of Appeal, the High
Court of South Africa,
or a court of similar status, before that
order has any force.”
[7]
The first respondent is the Member of the
Executive Council for Economic Development, Environmental Affairs
and Tourism, Eastern
Cape and the second respondent is the
Government of the Eastern Cape Province (collectively, Province).
The third respondent
is the Eastern Cape Liquor Board (Liquor
Board).
[8]
These follow the first three stages of the seven
stage enquiry set out in
First National
Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service and Another; First National Bank of SA
Ltd t/a Wesbank v
Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC); 2002 (7) BCLR (CC) (
FNB
)
at para 46.  The parties agreed that the fourth stage,
justification under section 36(1) of the Constitution, does not

arise.  The last three stages deal with expropriation, which is
not at issue here.
[9]
Section 20(b)(iv).
[10]
Section 87.
[11]
Section 88.
[12]
Section 107 dealt with the lapse of licences and
section 120 provided for the removal of licences.
[13]
Section 20 of the 1989
Liquor Act provided
for 18
licences whereas section 20 of the Eastern Cape Act provides for
five categories of registration.
[14]
Section 43(1) of the Eastern Cape Act reads:
“
Despite any other law, a registered
person may also sell such goods on the registered premises or
conduct the business thereon,
that the Premier may prescribe.”
[15]
Id section 71(5), which reads:
“
The holder of a grocer’s wine
licence in terms of the Liquor Act, 1989, who is deemed to be
registered to sell wine by virtue
of the conversion contemplated in
subsection (2), must be entitled to sell wine as defined in
section
1
of the
Liquor Products Act, 1989
, for a period of ten years after
the commencement of this Act: Provided that the holder of such
registration may, at any stage
after expiry of a period of five
years from the date of commencement of this Act, apply for
registration to sell all kinds of
liquor in separate premises as
prescribed.”
[16]
FNB
above n 8.
[17]
Shoprite Checkers (Pty) Ltd v MEC for Economic
Development, Environmental Affairs and Tourism: Eastern Cape and
Others
[2014] ZAECGHC 106;
2015 (1)
BCLR 102
(ECG) (High Court judgment) at para 40.
[18]
Id at para 47.
[19]
Id at para 60.
[20]
Id at para 61.
[21]
Id at para 62.
[22]
Id at paras 71-2.
[23]
Agri SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC) (
Agri
SA
).
[24]
Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bissett and Others v Buffalo City
Municipality and Others;
Transfer Rights Action
Campaign and Others v MEC, Local Government
and Housing, Gauteng, and Others
[2004]
ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) (
Mkontwana
).
[25]
High Court judgment at para 68.
[26]
Id at para 69.
[27]
Id at para 83.
[28]
Id at para 84.
[29]
Id at para 86.
[30]
Id at para 88.
[31]
Above n 23 at para 44.
[32]
National Credit Regulator v Opperman and
Others
[2012] ZACC 29
;
2013 (2) SA 1
(CC);
(2013) (2) BCLR 170
(CC) (
Opperman
)
at para 63.
[33]
Law Society of South Africa and Others v
Minister for Transport and Another
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) (
Law
Society
) at paras 83-4.
[34]
Opperman
above n
32 at para 58.
[35]
3 of 2000.
[36]
Law Society
above
n 33 at para 83.
[37]
Above n 4.
[38]
FNB
above n 8 at
para 100.
[39]
S v Lawrence; S v Negal; S v Solberg
[1997]
ZACC 11
;
1997 (4) SA 1176
(CC);
1997 (10) BCLR 1348
(CC) (
Lawrence
)
at paras 52-4.
[40]
In
City of Cape Town
and Another v
Robertson
and Another
[2004] ZACC 21
;
2005 (2)
SA 323
(CC);
2005 (3) BCLR 199
(CC) at para 2, this Court found that
it can consider issues arising from orders other than those dealing
with the declaration
of constitutional invalidity if they are
related to constitutional matters and it is in the interests of
justice to do so.
The finding of the High Court in this case
does not raise a constitutional issue nor does it implicate an
arguable point of law
of general public importance.
[41]
See [10] and [11].
[42]
Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) (
Ferreira
v Levin
) at para 26.
[43]
Alexander “Property as a Fundamental
Constitutional Right – The German Example” (2003) 88
Cornell Law Review
733
at 761-2.
[44]
See
Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at paras
21-6, 32-3 and 40-1.
[45]
Compare
Agri SA
above n 23 at para 1;
Tongoane and
Others v Minister of Agriculture and Land Affairs
and Others
[2010] ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC) at
paras 10-29; and
Port Elizabeth
Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC)
(
PE Municipality
)
at paras 16-23.
[46]
Guérin (ed)
No
Gods, No Masters: An Anthology of Anarchism
(AK
Press, Oakland 2005) at 48 and 55 and Proudhon
What
is Property? An Inquiry into the Principle of Right and of
Government
(Humboldt Publishing
Company, New York 1840).
[47]
See generally Posner
Economic
Analysis of Law
8
ed
(Aspen Publishers, New York 2011).
[48]
FNB
above n 8 at
paras 49-50.
[49]
Id at para 51.
[50]
Compare Alexander above n 43 at 737-9.
[51]
In the most recent judgment of this Court decided
under the property clause,
Chevron SA
(Pty) Limited v Wilson t/a Wilson’s Transport and Others
[2015] ZACC 15
at para 16, the Court was concerned with “money
in hand”.
Agri SA
above
n 23 dealt with mineral rights and
Du
Toit v Minister of Transport
[2005]
ZACC 9
;
2006 (1) SA 297
(CC);
2005 (11) BCLR 1053
(CC) dealt with
gravel on land.
Law Society
above
n 33 at paras 83-4, stated:
“
For present purposes let it suffice to
state that the definition of property for purposes of constitutional
protection should
not be too wide to make legislative regulation
impracticable and not too narrow to render the protection of
property of little
worth.  In many disputes, courts will
readily find that a particular asset of value or resource is
recognised and protected
by law as property.  In other
instances, determinations will be contested or prove elusive.
Happily, in this case, given the conclusion I reach,
it is unnecessary to resolve the debate whether a claim for loss of
earning
capacity or for loss of support constitutes ‘property’.
I will assume without deciding in favour of the applicants
that a
claim for loss of earning capacity or of support is ‘property’.”
Previously, in
Offit Enterprises (Pty) Ltd and
Another v Coega Development Corporation (Pty) Ltd and Others
[2010] ZACC 20
;
2011 (1) SA 293
(CC);
2011 (2) BCLR 189
(CC) (
Offit
Enterprises
) at para 46, when dealing with immovable property,
this Court found:
“
To my mind, the conduct the applicants
complained of is not what was envisaged by the protection afforded
in the property clause
of the Constitution.  One must not
forget that property rights are not absolute.  It is inevitable
that, with a scheme
like the Coega IDZ, landowners in the designated
area will be affected.  In this case, however, at no time has
that scheme
disabled the applicants from using or exploiting their
land.  The applicants are still free to sell, develop, or make
reasonable
use of their land.”  (Footnote omitted.)
In
Phumelela Gaming and Leisure Ltd v Gründlingh
and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR
883
(CC), this Court accepted that loss of goodwill is protected by
section 25 of the Constitution in order to make the submission
that
goodwill is to a legal person what earning capacity is for a natural
person.
In another case dealing with immovable property,
Reflect-All 1025 CC and Others v MEC for Public Transport, Roads
and Works, Gauteng Provincial Government, and Another
[2009]
ZACC 24
;
2009 (6) SA 391
(CC);
2010 (1) BCLR 61
(CC) (
Reflect-All
)
at para 38, this Court stated:
“
I accordingly agree with the conclusion
by the High Court that sections 10(1) and 10(3) of the
Infrastructure Act deprive the
applicants in some respects of the
use, enjoyment and exploitation of their properties.”
In
Mkontwana
above n 24 at para 33, another
case concerning immovable property, the Court stated:
“
Alienation of immovable property is
ordinarily completed by transfer to the new owner in the office of
the registrar of deeds.
The right to alienate property is an
important incident of its use and enjoyment.”
[52]
Opperman
above n
32 at paras 61-3.
[53]
Wiechers and Carpenter
Administrative
Law
(Butterworths, Durban 1985) at
73-5.
[54]
Id at 75.
[55]
Section 25(6).
[56]
Section 25(4)(a).
[57]
Section 25(5).
[58]
Section 25(7).
[59]
Section 26(1).
[60]
Section 27(1)(a).
[61]
Section 27(1)(b).
[62]
Section 27(1)(c).
[63]
Section 22.
[64]
Section 211(3).
[65]
Section 1(a).
[66]
Section 7(1) and (2).
[67]
Section 10.
[68]
Section 39(1)(a).
[69]
MEC for Education, KwaZulu-Natal, and Others v
Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) (
Pillay
)
at para 63.
[70]
Ferreira v Levin
above n 42 at para 49.
[71]
Section 22 provides:
“
Every citizen has the right to choose
their trade, occupation or profession freely.  The practice of
a trade, occupation
or profession may be regulated by law.”
[72]
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines
).
[73]
Id at para 59, taking the translation of the
Bundesverfassungsgericht
(Federal Constitutional Court) decision in the
Pharmacy
Case
7 BVerfGE 377 from Kommers
The
Constitutional Jurisprudence of the Federal Republic of Germany
2
ed (Duke University Press, Durham and London 1997) at 274.
[74]
Section 39(2) requires that the development of
the common law “must promote the spirit, purport and objects
of the Bill
of Rights”.  See also section 39(1)(a) above
n 68.
[75]
Compare Van der Walt
Constitutional
Property Law
3 ed (Juta & Co Ltd,
Cape Town 2011) at 185-6.
[76]
In the
Groundwater
Case
(1981) 58 BVerfGE 300,
(translated in Kommers and Miller
The
Constitutional Jurisprudence of the Federal Republic of Germany
3 ed (Duke University Press, Durham and London 2012) at 642)
the
Bundesverfassungsgericht
held:
“
The concept of property as guaranteed
by the constitution must be derived from the constitution itself.
This concept of
property in the constitutional sense cannot be
derived from legal norms [ordinary statutes] lower in rank than the
constitution,
nor can the scope of the concrete property guarantee
be determined on the basis of private-law regulations.”
In view of the supremacy of the Constitution in our
law, it seems eminently sensible to adopt the same approach to our
property
clause.
[77]
Above n 69 at para 53.  See also Ackermann
Human Dignity: Lodestar for Equality in
South Africa
(Juta & Co Ltd, Cape
Town 2012) at 109-15 and Cornell and Muvangua (eds)
Ubuntu
and the Law, African Ideals and Postapartheid Jurisprudence
(Fordham University Press, New York 2012) at 285-300.
[78]
FNB
above n 8 at
para 49.
[79]
Id at para 52.
[80]
Id at para 56.
[81]
Above n 45 at para 15.
[82]
Id.
[83]
Id at para 23.
[84]
Above n 23 at paras 73-4 (judgment of Mogoeng CJ)
and 86-9 (judgment of Froneman J).
[85]
See, for example,
H
v Fetal Assessment
Centre
[2014] ZACC 34
;
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC) (
H
)
at paras 28-32.  In Van der Walt and Kleyn “Duplex
Dominium: The History and Significance of the Concept of Divided

Ownership” in Visser (ed)
Essays
on the History of Law
(Juta & Co
Ltd, Cape Town 1989) at 235-43 the differences between the German
and South African positions in regard to property
as an institution
are noted.
[86]
Investment Aid Case
(1954)
4 BVerfGE 7 (translated in Kommers and Miller above n 76 at 625).
[87]
Alexander above n 43 at 746.
[88]
Hamburg Flood Control Case
(1968) 24 BVerfGE 367 (translated in Kommers and Miller above n 76
at 632).
[89]
Alexander above n 43 at 745.
[90]
Groundwater Case
above
n 76 at 345
(translated in
Alexander id at 756).
[91]
Liquor Bill
above n 4 at para 56.
[92]
The socio-economic rights under our Constitution
fall within this category, but they are not at issue here.  We
need not
consider whether, because of their constitutional pedigree,
they may deserve stronger protection as property under section 25.

Compare
Transkei Public Servants
Association v Government of The Republic of South Africa and Others
1995 (9) BCLR 1235
(Tk) (
Transkei
Public Servants Association
) at
1246-7.
[93]
At [41].
[94]
See, for example,
Natal
Bottle Store-Keepers and Off-Sales Licenses Association v Liquor
Licensing Board for Area 31 and Others
1965 (2) SA 11
(D) at 16H-17A.
[95]
Brown v Cape Divisional Council and Another
1979 (1) SA 589
(A) at 602D.
[96]
This kind of interest was not protected in the
pre-1994 application of the Expropriation Act 63 of 1975, as far as
I could ascertain.
[97]
Administrator, Transvaal and Others v Traub
and Others
[1989] ZASCA 90
;
1989 (4)
SA 731
(A) at 761D-F.
[98]
See
Zulu and Others
v eThekwini Municipality and Others
[2014] ZACC 17
;
2014 (4) SA 590
(CC);
2014 (8) BCLR 971
(CC) at
paras 26-9 (judgment of Zondo J) and para 53 (judgment of Van der
Westhuizen J) and
Ferreira v Levin
above n 42.  Compare
KwaZulu-Natal
Joint Liaison Committee v MEC for Education, KwaZulu-Natal and
Others
[2013] ZACC 10
;
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC) and Hoexter “The Enforcement of
an Official Promise: Form, Substance and the Constitutional Court”
(2015) 132
SALJ
207.
[99]
Affordable Medicines
above n 72 at para 59 (judgment of Ngcobo J), as quoted in [45].
[100]
Above n 71.
[101]
FNB
above n 8 at
paras 41-5.
[102]
Article 1 of Protocol 1 to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, 4 November 1950
(European Convention on Human Rights),
which reads in full:
“
Every natural or legal person is
entitled to the peaceful enjoyment of his possessions.  No one
shall be deprived of his
possessions except in the public interest
and subject to the conditions provided for by law and by the general
principles of
international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws as it deems
necessary
to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions
or penalties.”
[103]
Bell v Burson, Director, Georgia Department of
Public Safety
[1971] USSC 98
;
402 US 535
(1971) (
Bell
v Burson
).
[104]
Id at 539.
[105]
The takings clause requires that just
compensation be paid where private property is taken for public
use.  It is the equivalent
of our expropriation clause found at
section 25(2) of the Constitution.
[106]
See the discussion of the reaction of the United
States courts to the by-now famous article by Reich “The New
Property”
(1964) 73
Yale LJ
733
in Van der Walt (2011) above n 75 at 165-7 and Alexander above n 43
at 766-7.
[107]
At [61].
[108]
At [62].
[109]
Section 8(4) of the Constitution provides:
“
A juristic person is entitled to the
rights in the Bill of Rights to the extent required by the nature of
the rights and the nature
of that juristic person.”
[110]
High Court judgment at para 62.
[111]
Agri SA
above n
23 at para 42 and
FNB
above n 8 at para 56.
[112]
Compare Van der Walt
“
Retreating
from the FNB Arbitrariness Test Already?  Mkontwana v Nelson
Mandela Metropolitan Municipality;
Bissett
v Buffalo City Municipality; Transfer Rights Action
Campaign v MEC for Local Government and Housing,
Gauteng
”
(2005) 122
SALJ
75
at 89.
[113]
See
Reflect-All
above n 51 at paras 35-6:
“
In determining whether sections 10(1)
or 10(3) amount to deprivations of property, regard must be had to
what the Court said in
[
FNB
],
the leading judgment regarding the property clause in the
Constitution.  This Court held per Ackermann J that ‘in
a
certain sense any interference with the use, enjoyment or
exploitation of private property involves some deprivation’.

In
Mkontwana
,
this Court expanded the notion of deprivation of property for the
purposes of section 25.  This Court remarked, per Yacoob
J:
‘
Whether there
has been a deprivation depends on the extent of the interference
with or limitation of use, enjoyment or exploitation.
. . .
[S]ubstantial interference or limitation that goes beyond the normal
restrictions on property use or enjoyment found
in an open and
democratic society would amount to deprivation.’
And in her concurring judgment, O’Regan J
remarked:
‘
[S]ome
deprivations of property rights, although not depriving an owner of
the property in its entirety, or depriving the holder
of a real
right of that real right, could nevertheless constitute a
significant impairment in the interest that the owner or
real right
holder has in the property.  The value of the property in
material and non-material terms to the owner may be
significantly
harmed by a limitation of the rights of use or enjoyment of the
property.
If one of the purposes
of section 25(1) is to recognise both material and the non-material
value of property to owners, it would
defeat that purpose were,
‘deprivation’ to be read narrowly.
’
(Emphasis added.)”  (Footnotes omitted.)
[114]
Section 71(5) of the Eastern Cape Act, as quoted
above at n 15.
[115]
Id.
[116]
See
Agri SA
above n 23 at paras 50-3.  In
Offit
Enterprises
above n 51 at para 41,
this Court stated:
“
Our jurisprudence is clear that the
physical taking of property is not required to constitute a
deprivation, and it suffices for
one or more of the entitlements of
ownership to be impacted upon.  Whilst direct or physical
interference is not necessary,
the impact must be of sufficient
magnitude to warrant constitutional engagement.  A court must
give consideration to the
extent to which the use and enjoyment of
the land has been diminished.  As stated by the Appellate
Division in a different
context, ‘[s]ubstantial interference
is a matter of duration and degree.’”  (Footnotes
omitted.)
See also the judgment of O’Regan J in
Mkontwana
above n 24 at para 89, quoted above in n 113.
[117]
FNB
above n 8 at
para 100.
[118]
Id.
[119]
Above n 24 at paras 34-5.
[120]
Affordable Medicines
above n 72 at para 80.
[121]
Id at para 92.
[122]
In
Albutt v Centre
for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
51, this Court stated:
“
The executive has a wide discretion in
selecting the means to achieve its constitutionally permissible
objectives.  Courts
may not interfere with the means selected
simply because they do not like them, or because there are other
more appropriate means
that could have been selected.  But,
where the decision is challenged on the grounds of rationality,
courts are obliged
to examine the means selected to determine
whether they are rationally related to the objective sought to be
achieved.
What must be stressed is that the purpose of the
enquiry is to determine not whether there are other means that could
have been
used, but whether the means selected are rationally
related to the objective sought to be achieved.  And if,
objectively
speaking, they are not, they fall short of the standard
demanded by the Constitution.  This is true of the exercise of
the
power to pardon under section 84(2)(j).”
In
Democratic Alliance v President of the
Republic of South Africa and Others
[2012] ZACC 24
;
2013 (1) SA
248
(CC);
2012 (12) BCLR 1297
(CC) at para 32, this Court found:
“
The reasoning in these cases shows that
rationality review is really concerned with the evaluation of a
relationship between means
and ends: the relationship, connection or
link (as it is variously referred to) between the means employed to
achieve a particular
purpose on the one hand and the purpose or end
itself.  The aim of the evaluation of the relationship is not
to determine
whether some means will achieve the purpose better than
others but only whether the means employed are rationally related to

the purpose for which the power was conferred.  Once there is a
rational relationship, an executive decision of the kind with
which
we are here concerned is constitutional.”
[123]
See
Lawrence
above n 39 at paras 52-4 and 67-70.
[124]
Hogg “Proof of Facts in Constitutional
Cases” (1976) 26
University of
Toronto Law Journal
386 at 395.
[125]
Id at 397.
[126]
Biowatch Trust v Registrar, Genetic Resources,
and Others
[2009] ZACC 14
;
2009 (6) SA
232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[127]
Above n 2.
[128]
Main judgment at [70].
[129]
Section 71(2) of the Eastern Cape Act provides:
“
Every
exemption, licence or approval referred to in the first column of
the Schedule hereto and in force immediately before the
date of
commencement of this Act, must be deemed from that date to be a
registration in the category referred to in the second
column of
that Schedule.”
Section 71(5) of the Eastern Cape Act provides:
“
The holder of a grocer’s wine
licence in terms of the Liquor Act, 1989, who is deemed to be
registered to sell wine by virtue
of the conversion contemplated in
the subsection (2), must be entitled to sell wine as defined in
section 1
of the
Liquor Products Act, 1989
, for a period of ten
years after the commencement of this Act: Provided that the holder
of such registration may, at any stage
after the expiry of a period
of five years from the date of commencement of this Act, apply for
registration to sell all kinds
of liquor in separate premises as
prescribed.”
[130]
Above n 4.
[131]
Read with the relevant part of the Schedule.
[132]
Section 15(1) of the 1989 Liquor Act provides:
“
The Board may, after the consideration
by it of—
. . .
(b) a matter contemplated in section 11(3)(b), (c)
or (d)—
(i) suspend for an indefinite time or for such
period as it may determine or withdraw from such dates as it may
determine, a licence
. . . which is the subject of the report,
complaint or objection concerned, or any right or privilege which is
attached thereto;
(ii) declare the licence concerned to be subject to
such conditions or further conditions as it may in its discretion
impose;
or
(iii) take such other steps as it may think fit”.
[133]
Section 15(1)(b)(i) read with section 11(3)(b)
and sections 141 and 142 of the 1989 Liquor Act.
[134]
Section 15(1)(b)(i) read with section 11(3)(c) of
the 1989 Liquor Act.
[135]
Section 15(1)(b)(i) read with section 11(3)(d) of
the 1989 Liquor Act.
[136]
Section 125(b) read with sections 15(2),
15(1)(e)(ii) and 11(3)(g) of the 1989 Liquor Act.
[137]
Above n 35.
[138]
Chapter 10 of the 1989 Liquor Act.  An
application for the transfer of a licence involved a substantive
application by the
transferee, which was broadly similar to a new
application.
[139]
Sections 32A and 107 of the 1989 Liquor Act.
Section 32A(1) provides:
“
The chairperson may at any time after
the issue of a licence . . . and with the concurrence of the holder
thereof, replace such
licence by the issue of another licence of the
same kind in respect of the premises concerned free of charge to the
holder thereof.”
[140]
See section 20(a) of the Eastern Cape Act:
“
An application for registration in
terms of this Act may be made in respect of . . . the retail sale of
liquor for consumption
off the premises where the liquor is being
sold”.
[141]
High Court judgment at para 29.
[142]
Id at para 94(b).
[143]
Van der Walt (2011) above n 75 at 189.
[144]
See
FNB
above n 8 at para 51, where this Court held that it is judicially
unwise to formulate a comprehensive definition of constitutional

property.
[145]
Currie and De Waal
The
Bill of Rights Handbook
5 ed (Juta &
Co Ltd, Cape Town 2005) at 536.
[146]
Section 25(4)(b) of the Constitution.
[147]
Roux and Davis “Property” in Cheadle
et al (eds)
South African
Constitutional Law: The Bill of Rights
Issue 17
(2014) at 20-15.
[148]
See
Agri SA
above n 23 and
Opperman
above n 32.
[149]
See Bekker
Seymour’s
Customary Law in Southern Africa
5 ed
(Juta & Co Ltd, Cape Town 1989) at 71 and Bennett
Customary
Law in South Africa
(Juta & Co
Ltd, Cape Town 2004) at 420-21.
[150]
See
Law Society
above n 33;
Reflect-All
above n 51; and
Laugh It Off Promotions
CC v SAB International (Finance) BV t/a Sabmark International
(Freedom of Expression Institute as Amicus
Curiae)
[2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC).
[151]
Opperman
above n
32 at para 61.
[152]
Id at paras 63-4.
[153]
Agri SA
above n
23 at paras 38-46.
[154]
Id at para 44.
[155]
See Van der Walt
The
Constitutional Property Clause: A Comparative Analysis of Section 25
of the South African Constitution of 1996
(Juta & Co Ltd, Cape Town 1997) at 40-1 and Roux “Property”
in Woolman et al (eds)
Constitutional
Law of South Africa
Service 6 (2014)
vol 3 at 46-16.
[156]
See
Hempenstall and
Others v The Minister for the Environment
[1994] 2 IR 20
(
Hempenstall
).
This matter was about a change in regulations which resulted in
hackney (the other form of public service vehicle) licences
becoming
unlimited.  Taxi operators contended that this was an unjust
attack on their taxi licences which are valuable property
rights.
See also
Hand v Dublin Corporation
[1991] IESC 1
;
[1991] 1 IR 409
(
Hand
).
In this matter, the renewal of a trading licence was denied due to
the criminal behaviour of the licence holder.
However, the
Court held that even if the right to earn a livelihood constituted
property, it is subject to legitimate regulation
and cannot be
unqualified.
[157]
Hand
id at 419
quoting Costello J in
Attorney General
v Paperlink Ltd
[1983] IEHC 1
;
[1984] ILRM 373
at
384.
[158]
Hempenstall
above
n 156 at 28.
[159]
Tre Traktörer AB v Sweden
,
no 10873/84, ECHR 1989.  This matter concerned revocation of a
licence to sell alcoholic beverages for failure to comply
with
regulations.  The Court held that the revocation did not
deprive the complainant of their property as the regulations
are a
measure of control.  However, the Court did find that the
licence was an economic interest that constitutes “possession”

in terms of Article 1 of Protocol 1 of the European Convention on
Human Rights.  Protocol 1 states the following:
“
Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall
be deprived of his possessions
except in the public interest and
subject to the conditions provided for by law and by the general
principles of international
law.”
[160]
Bahadur v Attorney General
1989 LRC (Const) 632
(CA).  However, the Court noted that
improper withdrawal may constitute an unconstitutional infringement
of the enjoyment
of property.
[161]
See
Memphis Light,
Gas
and
Water
Division v Craft
436 US 1
(1978) at 7
and 9, for access to public utility services;
Bishop
v Wood
[1976] USSC 108
;
426 US 341
(1976) at 344, for
expectation of continued employment;
Mathews
v Eldridge
[1976] USSC 20
;
424 US 319
(1976) at 332,
for disability benefits;
Goss v Lopez
[1821] USSC 28
;
419 US 565
(1975) at 574, for high school education;
Wolff
v McDonnell
[1974] USSC 157
;
418 US 539
(1974) at 558,
for prisoner’s good time credits;
Bell
v Burson
above n 103 at 539, for
driver’s licences; and
Goldberg v
Kelly
397 US 254 (1970) at 262-3,
for welfare benefits.
[162]
Cleveland v United States
531 US 12
(2000) at 25-6.
[163]
Id at 26 fn 4.  See id at 25-7 where
the Court went on to say that a video poker
licence in the State’s hands is not “property”
under 18 U.S.C. §
1341, which prohibited the use of mail in
furtherance of any scheme or artifice to defraud, or for obtaining
money or property
by means of false or fraudulent pretences,
representations or promises.
[164]
For example, purely gratuitous payments are
generally not regarded as “property”.
[165]
See (1989) BverfGE 69, 272 (Eigenleistung)
(translated in Van der Walt (2011) above n 75 at 163).
[166]
Roux above n 155 at 46-16.
[167]
Badenhorst et al
Silberberg
and Schoeman’s The Law of Property
5 ed (LexisNexis Butterworths, Durban 2006) at 540.
[168]
Id at 539-40, in which it was pointed out that
participation rights giving rise to claims against the State not
based on contract
(sometimes referred to as “new property”)
including welfare rights and forms of state “largesse”
like
licences, franchises, permits, contracts, subsidies, use of
public resources and quotas have been approached with judicial
caution
probably because the interests are frequently contingent,
being allocated by government on its own terms and policies and held

by recipients subject to the “public interest”.
[169]
Id.
[170]
Indeed, it has been said that our administrative
justice system, and its “guarantee of fair process at the
highest judicial
level is probably matched in only one other common
law jurisdiction” namely Australia.  (Footnote omitted).

See Creyke “The Performance of Administrative Law in
Protecting Rights” in Campbell et al (eds)
Protecting
Rights Without a Bill of Rights: Institutional Performance and
Reform in Australia
(Ashgate
Publishing Ltd, Cornwall 2006) at 112.
[171]
Reich above n 106 at 744.
[172]
MEC for the Economic Development, Environmental
Affairs and Tourism of the Eastern Cape; the Government of the
Eastern Cape Province;
and the Eastern Cape Liquor Board.
[173]
Department of Trade and Industry
Baseline
Study of the National
Liquor Act 59 of
2003
, annexure JB8 of the founding
affidavit filed in this Court.
[174]
Liquor Bill
above n 4 at para 56.
[175]
Id.
[176]
See
Lawrence
above n 39 at paras 42-4 and 51-6.
[177]
Id at para 36.
[178]
The objects of the Eastern Cape Act are outlined
in Chapter 1:
“
The objects of this Act are to make
provision for the regulation of retail sales and micro manufacturing
of liquor in the
Province, to encourage and support the liquor
industry and to manage and reduce the socio-economic and other costs
of excessive
alcohol consumption by creating an environment in
which—
(a) the entry of new participants into the liquor
industry is facilitated;
(b) appropriate steps are taken against those
selling liquor outside the administrative and regulatory framework
established in
terms of the Act;
(c) those involved in the liquor industry may attain
and maintain adequate standards of service delivery;
(d) community considerations on the registration of
retail premises are taken into account; and
(e) the particular realities confronting the liquor
industry in the Province can be addressed.”
[179]
Setlalentoa et al “The Social Aspects of
Alcohol Misuse/Abuse in South Africa” (2010) 23
South
African Journal of Clinical Nutrition
11
at 12.
[180]
See
Liquor Bill
above n 4 at para 56.
[181]
See sections 113 and 114 of the 1989
Liquor Act,
as
well as section 25(4) of the Eastern Cape Act, that make transfer
of licences subject to board approval.  Specifically, section

114(2) of the 1989
Liquor Act provided
for instances where the Board
would not grant transfer.
[182]
See main judgment at [59].
[183]
See
Agri SA
above
n 23 and
Transkei Public Servants
Association
above n 92.  For
foreign law see Van der Walt (2011) above n 75 at 165 in fns 294-5,
citing
Marckx
v Belgium
[1979] ECHR Series A vol 31;
De Napoles
Pacheco v Belgium
[1977] 15 DR 143;
X
v Italy
[1977] 11 DR 114;
Müller
v Austria
[1976] 3 DR 25;
X v Sweden
[1974] 2 DR 123;
X v The Netherlands
[1971] YB 14 224; and
X v United
Kingdom
[1970] YB 13 892.
[184]
See Currie and De Waal above n 145 at 540.
[185]
Law Society
above n 33 at para 83.
[186]
See
Liquor Bill
above n 4 at para 80.  See also
Schedule 5 of the Constitution.
[187]
See Reich above n 106 at 745: “But when
largesse is revoked in the public interest, the holder ordinarily
receives no compensation.”
[188]
Main judgment at [64].
[189]
First National Bank sold and leased vehicles.
Three of these vehicles were detained under section 114 of the
Customs and
Excise Act 91 of 1964.  The Minister of Finance and
the Commissioner of South African Revenue Services contended that
First
National Bank could not rely on section 25 as the vehicles
were not used for driving purposes.  However, this Court held
that the argument conflated the legal right with a commercial
interest.
[190]
FNB
above n 8 at
para 56.
[191]
Shoprite contends that licences, permits and
quotas should be recognised as “property” if they have
commercial value
and have vested in the holder, or have been
acquired according to statutory or regulatory requirements.
[192]
Main judgment at [33].
[193]
Transkei Public Servants Association
above n 92 at 1246J-1247A.
[194]
Law Society
above
n 33 at para 84.
[195]
Main judgment at [76].
[196]
Concurring judgment at [94], which then
continues:
“
In that
event, one simply asks whether the provisions pursue a legitimate
government purpose, and if so, whether the statutory
means resorted
to are arbitrary or reveal naked preference or another illogical or
irrational trait.  In substance the arbitrariness
enquiry here
would, in process and substance, be no different from the
arbitrariness enquiry under section 25(1).”
See also [129] of the concurring judgment.
[197]
FNB
above n 8.
[198]
Chaskalson and Lewis “Property” in
Woolman et al (eds)
Constitutional Law
of South Africa
Service 2 (1998) at
31-13,14, cited id at para 47 fn 79 (note that this section has been
revised, the citation is of the writing
as it was cited in
FNB
)
.
[199]
Budlender et al
Juta’s
New Land Law
(Juta & Co Ltd, Cape
Town 1998) at 1-34 and 1-36, cited in
FNB
id.
[200]
FNB
above n 8 at
para 68 referring to
Lawrence
above n 39.
[201]
FNB
id at para
69.
[202]
Id at paras 65-6.
[203]
FNB
above n 8 at
para 100(d).
[204]
Id at para 100(g); see also para 54.
[205]
Law Society
above n 33.
[206]
Concurring judgment at [129].
[207]
Law Society
above
n 33 at para 84.
[208]
Id at paras 85-6.
[209]
Three in this sense: (i) whether the interest at
issue is property; (ii) if it is, whether the person enjoying it has
been deprived;
and (iii) if the individual was deprived, whether the
deprivation was arbitrary.
[210]
Concurring judgment at [129].
[211]
Transkei Public Servants Association
above n 92 at 1246J-1247H.  In this case, Pickering J noted
that “the meaning of ‘property’ in section
28 of
the [interim] Constitution may well be sufficiently wide to
encompass a State housing subsidy” and appears to proceed
from
the assumption that such an entitlement would be considered
property.  What he then goes on to state is that even if
the
entitlement is “property”, section 236(5) of the interim
Constitution, in expressly recognising the continuance
of pension
rights and remaining silent on housing subsidies, was deliberately
crafted with the purpose of not protecting housing
subsidies (and
other similar rights) during the transitional period.  From
this it follows, according to the Court, that
there is no
protectable entitlement.  It is apparent that this had nothing
to do with the simple rationality analysis.
[212]
FNB
above n 8 at
para 64.
[213]
Van der Walt (2011) above n 75 at 33; see also
Currie and De Waal
The Bill of Rights
Handbook
6 ed (Juta & Co Ltd, Cape
Town 2013) at 532-4.
[214]
S v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 84.
[215]
Section 10 of the Constitution.
[216]
Section 22 of the Constitution.
[217]
FNB
above n 8 at
paras 53-4.
[218]
In
FNB
above n 8 at para 51, this Court said it is easier to determine that
corporeal objects are property. It stated:
“
Here it is sufficient to hold that
ownership of a corporeal movable must – as must ownership of
land – lie at the
heart of our constitutional concept of
property, both as regards the nature of the right involved as well
as the object of the
right and must therefore, in principle, enjoy
the protection of section 25.”
[219]
Law Society
above
n 33 at para 83.
[220]
Id.
[221]
Opperman
above n
32 at paras 61-3.
[222]
Compare
FNB
above
n 8 at paras 51 and 54.
[223]
Opperman
above n
32 at para 63.
[224]
Circumstances under which suspensions or
withdrawals of liquor licences may occur are extensively dealt with
in [97] of the concurring
judgment.  Also, sections 9(b) and 29
read with section 28 of the Eastern Cape Act, the impugned Act,
provide for the circumstances
in which cancellation may take place.
[225]
Above n 35.
[226]
Section 113 of the 1989
Liquor Act above
n 4
provides:
“
The holder of a licence (excluding a
temporary liquor licence and occasional licence) may at any time
make application for the
transfer thereof to another person.”
See also sections 114-8 of the 1989
Liquor Act,
which
regulate the transfer process.
[227]
Opperman
above n
32 at para 63.
[228]
Concurring judgment at [127].
[229]
FNB
above n 8 at
para 53, read with paras 2 and 7.
[230]
Id at para 53.
[231]
Id at para 56.
[232]
Agri SA
above n
23 at para 42.
[233]
Law Society
above
n 33 at para 83 (emphasis added).
[234]
Concurring judgment at [125].
[235]
Agri SA
above n
23 at paras 54-72.
[236]
At [143].
[237]
Concurring judgment at [127].
[238]
Law Society
above
n 33 at para 83.
[239]
Formed or conceived beforehand.
[240]
Main judgment at [74](b) (emphasis added).
[241]
Id at [74](c).
[242]
Id at [74](a).
[243]
In
FNB
above n 8 at para 56, this Court identified that there will not be
deprivation where the mere “subjective” interest
of a
person is diminished.  However, I would not read that judgment
to say that Shoprite’s choice of business model
– that
is, selling wine next to a loaf of bread – is a subjective
interest.  This cannot be so, for the very
purpose of this sort
of licence is to enable or facilitate the implementation of this
business model.  To posit this as
a “subjective”
interest, when it flows from the very function of the licence, would
be an absurdity.
[244]
See
FNB
above n 8 at para 100(d), which states that “regard must be
had to the relationship between the purpose of the deprivation
and
the nature of the property as well as the extent of the deprivation
in respect of such property”.
[245]
Main judgment at [83].
[246]
At [134] to [136].
[247]
FNB
above n 8 at
para 66.
[248]
Id at paras 65-6.
[249]
Id at 65-7.
[250]
Id.
[251]
See main judgment at [84] and [85] citing
Lawrence
above
n 39 at paras 52-4 and 67-70.  The majority judgment in
Lawrence
relies
on Hogg (1976) above n 124.  Hogg embarks on a more detailed
discussion of the concept of legislative facts in Hogg
Constitutional Law of Canada
5 ed (Thomson Carswell, Scarborough 2007) at 60.2, to which the
majority judgment in
Lawrence
did
not have regard (although the judgment of Sachs J does have regard
to a previous edition thereof).
[252]
Hogg (1976) id at 395.
[253]
Hogg (2007) above n 251 at 60.2(f).
[254]
Canadian Charter of Rights and Freedoms.
Like our Bill of Rights, it is contained in the Canadian
Constitution itself.
[255]
Hogg (2007) above n 251 at 60.2(f).
[256]
Lawrence
above n
39 at para 52.  Hogg says the evidence may take the form of
“opinion testimony of persons expert in the relevant
field of
knowledge”.  Hogg (2007) id at 60.2(a).
[257]
If one looks at the transcript of the
“Proceedings of the Legislature of the Province of the Eastern
Cape” when considering
the Eastern Cape Act (when it was still
a Bill), it is apparent that the headline objective of the Act was
to legalise informal
and illegal traders and create greater access
to the economic benefits of the liquor trade.  The following
statements by
Members of the Provincial Legislature representing
various political parties, excerpted from the transcript, are
particularly
illuminating:
(a) “The illegal operators were saying give us
an opportunity to become legal.  That has been addressed in
this Bill.”
(I note that this statement was made by Mr
De Wet, who was presenting the Bill on behalf of the relevant
portfolio committee.)
(b) “I believe that the reason this Bill was
introduced in the form that it was, it was trying to marry laws from
the old
South Africa, which were inappropriate to the situation
which we faced, with the situation which was not acceptable, i.e.
the
sale, uncontrolled sale of liquor with no regulation.  We
support that one hundred percent.”
(c) “What I am saying is I believe that this
Bill go a long, long way to addressing the problem that the
Honourable MEC
is faced with and that is to bring unlicensed,
illegal businesses into the net and to get control and regulation
over those businesses
because we are, as I said, dealing with a
potentially dangerous substance.”
(d) “The [New National Party] is extremely
grateful that it is now going to be possible for people to be
licensed where
in the past they had problems.  It is also good
for shebeens to be properly organised and properly licensed.
We hope
that the identification and the monitoring would be made
much easier by this Bill.”
(e) “This Bill seeks to address, as you know,
the difficulties that our people used to be faced with during the
olden times.”
(f) “One of the constraints that is going to
hit us hard is once we pass the regulations and people come in for
the transition,
we is going to be flocked by shebeeners, that is
going to be the pe[a]k once we have done everything after that.  I
think
that I am quite happy that we will be able to meet that
challenge.”
[258]
See id.
[259]
See above n 4.
[260]
A document entitled “Memorandum on the
Objects of the Liquor Bill” was placed on record before us.
This document
states that “[t]he Bill allows for the
manufacturers, wholesalers and retailers to apply for registration
to sell liquor
through a
much
simplified procedure
compared to that
of the Liquor Act, 1989” (emphasis added).  The
respondents have placed no virtually evidence on
record relating to
the Eastern Cape Act itself.  They place much reliance on
documents prepared in respect of the 1998 Bill,
doing little to
dispel the notion that the Eastern Cape Legislature somewhat
mechanically adopted large sections of that Bill
without applying
its own mind to the ends sought and the means being used to achieve
those ends.  Crucially, the information
relating to the 1998
Bill hardly sheds any light on the relevant issues.
[261]
See
FNB
above
n 8 at para 66.