S v Lawrence; S v Negal; S v Solberg

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 06 October 1997
• Citation: 1997 (4) SA 1176 (CC)
• Docket Number: 38/96, 39/96, 40/96
• Hearing Date: 06 May 1997
• Counsel: P B Hodes (with him A M Breitenbach) for the appellants B Morrison (with him J Slabbert) for the State J L Van Der Merwe (with him S K Hassim) for the second respondent (the Minister of Trade and Industry). L Wessels for the amicus curiae (the South African Liquor Store Association)
• Court: Constitutional Court

Chaskalson P:

The constitutional issues on appeal C

[1] The three appellants were each charged in a magistrate's 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. D 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 Constitution [1] and were accordingly invalid.

[2] Each of the cases was concerned with a contravention of the terms of the grocer's wine E 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 F 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 magistrate's court has no jurisdiction to declare the provisions of an Act of Parliament to G be unconstitutional. At each of the trials the appellant concerned applied in terms of s 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 H the trial proceeded. The trials followed the same pattern. The appellants admitted the material allegations made in

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the charge sheets, indicated that they would challenge the constitutionality of the provisions of A the Liquor Act on which the charges were based, and led no evidence. The magistrates, as they were obliged to do in terms of s 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, B 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 C did not ask the Court to refer the constitutional issues to this Court in terms of s 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 D 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 E comply with a condition of a licence, [9] and to sell liquor at a time [10] or a place [11] at which the sale of

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liquor is not permitted by the licence. The Act also contains a general prohibition against a 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 licence [13] or a sorghum beer licence. [14]

[6] Sections 87 to 90 of the Liquor Act deal with conditions attaching to grocers' wine licences. B 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.' C

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; D

(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 s 90(1)(a) on the selling of wine E 'after hours' on weekdays and on closed days, and by s 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 s 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 F guaranteed by s 14.

Intervening parties

[8] The Minister of Trade and Industry, the Minister responsible for the administration of the Liquor Act, elected to intervene in the appeal in terms of s 102(10) of the interim Constitution G [16] and to present argument to the Court on behalf of the government. Subsequently, the South

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African Liquor Store Association was admitted as an amicus curiae and was given leave in A terms of Rule 9(9) to address oral argument to the Court at the hearing of the appeals which had been set down for hearing before this Court on the same day.

The evidence B

[9] As a result of the procedure followed in the magistrate's court and in the appeals to the Cape of Good Hope Provincial Division the appeal record contained no evidence relevant to the constitutionality of the prohibitions challenged by the appellants. After the appeals had been noted to this Court an agreement was reached between the attorneys for the appellants and a C representative of the Attorney-General that the appellants would lodge affidavits from experts dealing with the issues on appeal, that the Attorney-General would be entitled to lodge affidavits in answer to such contentions, and that the appellants would be entitled to lodge affidavits in reply. D

[10] Claiming to act in pursuance of this agreement the appellants lodged affidavits from three experts in which it was said that the provisions of the Liquor Act limiting the hours and days of sale had no discernible impact on alcohol consumption, that there is no legitimate reason for distinguishing between the types of liquor which may be sold from particular premises, and in E particular no legitimate reason for permitting grocers to sell wine, but not beer and cider. These affidavits referred to statistical information which was said to support these contentions and also contained averments that the legislation which permits grocers to sell wine, but not beer and F cider or other liquor, resulted from political influence exercised by the 'wine lobby' at the time the legislation was passed.

[11] The Attorney-General, purporting to act in terms of Rule 34 of the Constitutional Court Rules, lodged affidavits in which it was said that there is a relationship between the consumption G of alcohol and violent crime, and that if restrictions on the times at which and the types of liquor which could be sold by supermarkets were removed there would be an increase in the consumption of liquor to the prejudice of the community. The Minister of Trade and Industry also lodged affidavits from experts disputing the averments made by the appellants' experts. At H the hearing of the matter counsel for the appellants tendered from the Bar a number of extracts from publications which he said had been relied on by one of the appellants' experts; there was no affidavit from the expert confirming this or explaining why the extracts had not been dealt with in his affidavit.

[12] In their written arguments counsel for the Attorney-General and counsel for the Minister of I Trade and Industry disputed the admissibility

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of the affidavits relied on by the appellants, contending that they went beyond what is A permissible under Rule 34. They also objected to the admission of the extracts from the publications which had been tendered from the Bar by counsel for the appellants.

[13] In response to the averments made in the written arguments as to the admissibility of the B affidavits, the appellants lodged a substantive application, in which it was contended that the affidavits were admissible in terms of Rules 19(1)(a), (b)(ii) and (c)(i) of the Constitutional Court Rules, and Rule 34, but asking, in the event of it being held that the affidavits were not C admissible, that they be admitted by this Court under its general power under Rule 35 to condone non-compliance with its Rules. I deal later with the provisions of these Rules and their application to the present case. [17]

[14] The introduction of new evidence on appeal, even in a criminal case, is ordinarily D permissible only in exceptional circumstances. [18] Counsel for the appellants contended that this principle is not applicable to an appeal in which a constitutional question within the exclusive jurisdiction of the Constitutional Court has to be decided. In such circumstances, so he argued, an accused person does not have the opportunity to tender evidence...