Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'regan J, Sachs J and Yacoob J
• Judgment Date: 11 March 2003
• Citation: 2003 (1) SACR 425 (CC)
• Docket Number: CCT 20/02
• Hearing Date: 29 August 2002
• Counsel: D Unterhalter SC (with M Chaskalson) for the applicant. No appearance for the respondents.
• Court: Constitutional Court

Yacoob J:

Introduction C

[1] Selling liquor in South Africa is subject to the Liquor Act 27 of 1989 (the Act). The Act states its purpose as being '(t)o provide for control over the sale of liquor; and for matters connected therewith'. It seeks to exercise that control by a licensing system. Liquor may only be sold by holders of liquor licences [1] D which determine the 'rights and privileges' as well as the 'obligations and liabilities' of their holders. [2] Licence holders are therefore bound by their licence conditions and by the provisions of the Act applicable to them. The Act distinguishes between

(a)

on-consumption licences that authorise the sale of liquor to be drunk only at the place at which it is E sold, [3] and

(b)

off-consumption licences in terms of which the liquor is sold for consumption elsewhere.

[2] The Act defines the kinds of on- and off-consumption licences [4] that may be issued. [5] It defines the obligations of licence F holders in considerable detail and sets out the conditions applicable to the various categories of on- and off-consumption licences. [6] The Act seeks also to govern, influence or determine the circumstances and behaviour at places licensed to sell liquor for consumption. This is done by placing a statutory duty on the on-consumption licence holder not to allow certain conduct on the licensed premises [7] on G pain of criminal sanction. [8] One of these provisions, s 160(d), is under attack in this case. The subsection makes it an offence for an on-consumption licence holder to allow a person (i) to perform an offensive, indecent or obscene act or (ii) who is not clothed or not properly clothed to perform or to appear on licensed premises where entertainment is presented or to which the public has access. H

[3] Section 160 provides:

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'160 Offences by holders of on-consumption licences A

The holder of an on-consumption licence who -

(a)

allows drunkenness or licentious conduct on the licensed premises;

(b)

sells or supplies liquor to a person who is in a state of intoxication;

(c)

allows the licensed premises to be used as a brothel or to be frequented by persons who are regarded as prostitutes;

(d)

allows any person - B

(i)

to perform an offensive, indecent or obscene act; or

(ii)

who is not clothed or not properly clothed, to perform or to appear, on a part of the licensed premises where entertainment of any nature is presented or to which the public has access; or

(e)

. . .

shall be guilty of an offence.' C

[4] Mr Phillips, the first applicant, owns all the shares in the second applicant, the holder of a licence that permits liquor to be sold and consumed on certain premises in Midrand. He was charged with the offence of contravening s 160(d) of the Act, probably arising from striptease dancing on the premises. Fearing prosecution, the applicants sought an order in the Witwatersrand High Court D declaring the section constitutionally invalid.

[5] The Director of Public Prosecutions for the Witwatersrand Local Division, the national Minister of Trade and Industry, the national Minister of Safety and Security and the provincial MEC for Finance and E Economic Affairs for the province of Gauteng were all quite properly joined in the proceedings. That they had a material interest in the outcome is beyond doubt but although they gave notice of intention to oppose, they withdrew on the date of hearing. The reasons for this are not apparent. Consequently, the application before the High Court was not opposed. F

[6] The High Court decided the case [9] on the basis of s 16 of the Constitution and ordered:

'(1)

Subject to the confirmation of the Constitutional Court, s 160(d)(i) and (ii) of the Liquor Act 27 of 1989, are G declared unconstitutional with immediate effect.

(2)

The first and fourth respondents are ordered jointly and severally to pay the costs of this application. Such costs are to be taxed on the opposed scale.'

The order has been referred to this Court for confirmation in terms of s 172(2) of the Constitution. [10]

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[7] The applicants supported the High Court judgment and attacked A s 160(d) on two additional grounds. It was contended that the section

(a)

infringes the rule of law because it is vague and does not convey the prohibited conduct clearly enough to any licence holder; and

(b)

infringes s 12 of the Constitution because it has the effect of depriving people of freedom without just cause. B

[8] Section 172(2) confirmation proceedings are not routine, for it does not follow that High Court findings of constitutional invalidity will be confirmed as a matter of course. This Court is empowered to confirm the High Court order of constitutional invalidity only if it is satisfied that the provision is inconsistent with the C Constitution. If not, there is no alternative but to decline to confirm the order. It follows that a finding of constitutional invalidity by a High Court does not relieve this Court of the duty to evaluate the provision of the provincial Act or Act of Parliament in the light of the Constitution. A thorough investigation of the constitutional status of a legislative provision is obligatory in confirmation D proceedings. This is so even if the proceedings are not opposed, or even if there is an outright concession that the section under attack is invalid. As the judgments in this case show, the issues in this case are not straightforward. Issues that come before this Court seldom are. E

[9] Acting on the directions of the Chief Justice, the Registrar of this Court wrote to the National Director of Public Prosecutions (the National Directorate), the Minister of Trade and Industry and the Minister of Safety and Security to enquire whether any of them intended to oppose confirmation. The letter reads in part: F

'It appears from the judgment that the application for the declaration of invalidity was not opposed either by the Director of Public Prosecutions, or the government. The order has been referred to the Constitutional Court for confirmation in terms of s 172(2) of the Constitution. Before giving directions in this matter, the Chief Justice has asked me to establish whether or not the National Director of Public Prosecutions, or the government intends to oppose the G confirmation of the order. The Chief Justice contemplates setting the matter down during the latter part of August 2002, and will be glad, therefore, if you would respond to this letter as soon as possible.'

[10] In its reply, the National Directorate stated that it had decided not to oppose confirmation. The Department of Safety and H Security said that the matter had been referred to the National Commissioner of the South African Police Service, but there was no further communication from that department. The letter to the Minister of Trade and Industry remains unanswered. In the result, we had no argument or assistance from any party other than the applicants. I

[11] This is unsatisfactory. Under the separation of powers that is fundamental to our Constitution it is the duty of the Executive to implement laws made by the Legislature. If the constitutionality of a law is challenged, Courts and not the Executive must decide whether the law is valid. If the Executive considers that despite its constitutional duty to J

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do so, it cannot enforce the law because there is no valid defence to the constitutional challenge, it should inform A the Court of its reasons for that decision.

[12] A declaration that legislation is inconsistent with the Constitution and invalid cannot be made by consent. A declaration in these terms is a substantial intrusion into the domain of the Legislature and, as has been mentioned, should only be made by a Court after careful consideration of all relevant issues. Courts are entitled B to the assistance of the Executive when they have to consider these cases. This assistance is relevant not only to the decision of a Court, but also to the basis upon which the decision is made and the way the judgment is expressed. It is regrettable that no assistance was given to the Courts that have been required to decide the applicants' challenge. C

The freedom of expression challenge

[13] Section 16 of the Constitution provides:

'16 Freedom of expression D

(1) Everyone has the right to freedom of expression, which includes -

(a)

freedom of the press and other media;

(b)

freedom to receive or impart information or ideas;

(c)

freedom of artistic creativity; and

(d)

academic freedom and freedom of scientific research. E

(2) The right in ss (1) does not extend to -

(a)

propaganda for war;

(b)

incitement of imminent violence; or

(c)

advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.'

Subsection (2) is not relevant to the present enquiry. F

[14] I consider first whether s 160(d) limits the freedom of expression guaranteed by s 16(1) of the Constitution. The people to whom and the circumstances in which ss (d) applies must be determined by interpreting it in the context of s 160 as a whole. The section is concerned with conduct on licensed premises G and seeks to control it by criminalising acts or omissions by the licensee in relation to conduct by others on the premises. Subsection (a) is aimed at preventing all drunken conduct by any person on licensed premises. Its particular focus is the conduct of patrons. Unlike ss (d), this paragraph does not concern itself with appearances or performances of any kind. Subsection (b) is H likewise directed at patrons and seeks to ensure that they do not drink too much. Subsection (c) targets prostitution.

[15] The offence defined by ss (d) penalises the...