Constitutional court of south africa



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CONSTITUTIONAL COURT OF SOUTH AFRICA
Cases CCT 38/96

CCT 39/96

CCT 40/96

REBECCA LAWRENCE Appellant in CCT 38/96


RODNEY GORDON NEGAL Appellant in CCT 39/96
MAGDALENA PETRONELLA SOLBERG Appellant in CCT 40/96

versus


THE STATE First Respondent
THE MINISTER OF TRADE AND INDUSTRY Second Respondent

Heard on : 6 May 1997


Decided on : 6 October 1997

JUDGMENT


CHASKALSON P:


The constitutional issues on appeal
[1] The three appellants were each charged in a Magistrates’ Court and convicted of contraventions of the Liquor Act 27 of 1989 (“the Liquor Act”). The appellants, all employees of the Seven Eleven chain store, did not dispute the facts relied upon by the state at their trials. They were charged separately and the defence in each case was that the particular provisions of the Liquor Act under which that appellant was charged were inconsistent with the interim Constitution1 and were accordingly invalid.
[2] Each of the cases was concerned with a contravention of the terms of the grocer’s wine licence authorising the sale of wine at the stores at which the appellants were employed. In terms of the Liquor Act the holder of a grocer’s wine licence is prohibited from selling liquor other than table wine.2 There are also restrictions on the hours and days on which sales may be effected.3 The state’s case against Ms Lawrence was that she sold wine at a Seven Eleven store during a week day but after closing hours; the case against Ms Solberg was that she sold wine at a Seven Eleven store on a Sunday, which is a closed day for sales of wine by holders of grocers’ wine licences; and the case against Mr Negal was that he sold cider and beer at a Seven Eleven store despite the fact that the liquor licence of the store permitted only the sale of table wine.
[3] A Magistrates’ Court has no jurisdiction to declare the provisions of an Act of Parliament to be unconstitutional. At each of the trials the appellant concerned applied in terms of section 103(3) of the interim Constitution for a postponement of the trial to enable the constitutional issue to be referred to this Court for determination.4 On each occasion the application was refused and the trial proceeded. The trials followed the same pattern. The appellants admitted the material allegations made in the charge sheets, indicated that they would challenge the constitutionality of the provisions of the Liquor Act on which the charges were based, and led no evidence. The magistrates, as they were obliged to do in terms of section 103(2) of the interim Constitution, assumed the provisions of the Liquor Act to be valid and convicted the appellants.5
[4] The appellants, who had been represented by the same counsel and attorneys at their trials, appealed to the Cape of Good Hope Provincial Division of the Supreme Court against their convictions. In each case the only ground of appeal was that the relevant provisions of the Liquor Act were inconsistent with the interim Constitution and accordingly invalid. The appeals were set down for hearing on the same day and were dealt with as one matter. The appellants did not ask the Court to refer the constitutional issues to this Court in terms of section 102(1) of the interim Constitution.6 Instead they conceded that the magistrates had correctly convicted them, that the only defence that could be offered was that the provisions were unconstitutional, and that the Provincial Division had no jurisdiction to set the convictions aside on such grounds. The appeals were accordingly dismissed and the appellants then noted an appeal in terms of rule 21(1)7 to this Court.
[5] The scheme of the Liquor Act is to control the sale of liquor through a licensing system. It is an offence under the Act to sell liquor without a licence or a special exemption,8 to fail to comply with a condition of a licence,9 and to sell liquor at a time10 or a place11 at which the sale of liquor is not permitted by the licence. The Act also contains a general prohibition against a liquor business being conducted on the same premises as any other trade or occupation,12 but exceptions are made in respect of businesses conducted in terms of a grocer’s wine licence13 or a sorghum beer licence.14
[6] Sections 87 to 90 of the Liquor Act deal with conditions attaching to grocers’ wine licences. Section 87 provides that:
“The holder of a grocer’s wine licence . . . shall at all times carry on the business of a general dealer (which shall include dealing in groceries and foodstuffs), and may carry on or pursue any other business (excluding a business to which any other licence relates) or trade or occupation, on the licensed premises.”
Section 88(1) prohibits the sale under a grocer’s wine licence of any liquor other than table wine. Section 90(1) deals with the time when the table wine may be sold. The times are:
“(a) on any day, excluding a closed day and Saturday . . . between 08:00 and 20:00;

(b) on any Saturday, excluding a closed day . . . between 08:00 and 17:00.”


A closed day on which sales are not permitted under a grocer’s wine licence are Sundays, Good Friday and Christmas Day.15
[7] The appellants contended that the prohibition imposed by section 90(1)(a) on the selling of wine “after hours” on week days and on closed days, and by section 88(1) on the sale of liquor other than wine, which made the sale of cider and beer unlawful, is inconsistent with the right to economic activity guaranteed by section 26 of the interim Constitution and that the prohibition against selling wine on Sundays was inconsistent with the right to freedom of religion, belief and opinion guaranteed by section 14.



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