S v Lawrence; S v Negal; S v Solberg

• Jurisdiction: South Africa

S v Lawrence;
S v Negal;
S v Solberg
1997 (4) SA 1176 (CC)

1997 (4) SA p1176

Citation	1997 (4) SA 1176 (CC)
Case No	38/96, 39/96, 40/96
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J and Sachs J
Heard	May 6, 1997
Judgment	October 6, 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)

Flynote : Sleutelwoorde H

Intoxicating liquor — Licences and authorities — Grocer's wine licence — Provisions of s 88(1) of I Liquor Act 27 of 1989 (prohibiting sale under such licence of any liquor other than table wine) and s 90(1) (prohibiting sale of liquor at times other than those specified in section and on Sundays as 'closed days') not unconstitutional in terms of Constitution of the Republic of South Africa Act 200 of 1993.

Constitutional practice — Evidence — Evidence on constitutional issues — Can be adduced before court of first instance as being relevant to determination J

1997 (4) SA p1177

of constitutional issues raised — Evidence can also be tendered at time of appeal to Supreme/High A Court — Where such evidence relevant to determination of constitutional issues to be referred to Constitutional Court, matter falling within terms of s 102(1) of Constitution of the Republic of South Africa Act 200 of 1993.

Constitutional practice — Appeal — To Constitutional Court — Record on appeal — Rule 19(1)(b) B of Constitutional Court Rules prescribing procedure for circumscribing record — Rule not providing means for introducing new evidence on appeal.

Constitutional practice — Evidence — Evidence on commission in terms of s 7 of Constitutional Court Complementary Act 13 of 1995 — Fact the Court has power in terms of s 7 to appoint C commission to receive evidence not meaning that litigants entitled as of right to introduce new evidence on appeal — Section 7 providing no support for contention that disputed evidence can, by agreement between parties, be allowed on appeal in terms of Rule 19 of Constitutional Court Rules.

Constitutional practice — Evidence — Evidence on affidavit — Affidavits tendered in terms of Rule D 34(1) of Constitutional Court Rules — Facts adduced in such affidavits required in terms of Rule 34(1)(a) to be 'common cause' or 'incontrovertible' or capable of 'easy verification' in terms of Rule 34(1)(b) — Disputed facts not capable of easy verification not admissible under Rule 34(1).

Constitutional practice — Appeal — Evidence on appeal — New evidence on appeal — Constitutional E Court having power under Rule 33 of Constitutional Court Rules to admit new evidence on appeal — Court should not, save in exceptional circumstances, permit disputes of fact or expert opinion to be raised for first time on appeal.

Constitutional practice — Courts — Constitutional Court — Powers of — Court can strike down F unconstitutional legislation and sever or read down provisions of legislation inconsistent with Constitution — Court may have to fashion orders to give effect to rights protected by Constitution — But cannot legislate.

Constitutional law — Human rights — Right freely to engage in economic activity in terms of s 26(1) G in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Implicit in such right is that such participation to be in accordance with law — Section 26 not giving anybody right to break the law or to ignore laws having rational basis dealing with town-planning, zoning, licensing and H regulation of business, trades or professions — Section 26(2) to be construed as permitting legislation curtailing free participation if such legislation designed to serve purpose sanctioned by s 26(2) — On such basis, statutory provisions providing for selling of liquor to be regulated by licences controlling not only right to sell liquor but also where, when and what liquor may be sold (in casu ss 88(1) and 90(1) of Liquor Act 27 of 1989) having rational basis and not infringing right I to engage 'freely' in liquor trade — Section 26(2) requiring only that there be a rational connection between legislation and legislative purpose sanctioned by section — Excessive consumption of alcohol harmful and some control over sale of liquor needed — Means employed by Liquor Act to achieve this, namely system of licensing controlling sale of liquor, prima facie sanctioned by s 26(2). J

1997 (4) SA p1178

Constitutional law — Human rights — Right freely to engage in economic activity in terms of s 26(1) A in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 90(1) read with s 159(a) of Liquor Act 27 of 1989 prohibiting sale of liquor under grocer's wine licence on 'closed days' (Sundays being 'closed days') and outside times specified in s 90(1) — Rational basis B existing for measures designating Sundays as closed days and restricting hours of sale as part of legislative scheme designed to curtail consumption of liquor — Such restrictions not constituting breach of s 26 of Constitution.

Constitutional law — Human rights — Right freely to engage in economic activity in terms of s 26(1) C in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 88(1) of Liquor Act 27 of 1989 providing that 'holder of a grocer's wine licence shall not sell liquor other than table wine' — Section 87 of Act exempting such licensee from s 40(1) of Act prohibiting licensees conducting their business on premises on which any other business, trade or occupation carried D on — Exception established by s 87 and related provisions dealing with grocers' wine licences not infringing grocer's rights to engage 'freely' in liquor trade, but enlarging their rights under Liquor Act — Grocer correctly convicted of contravention of Liquor Act by selling beer and cider.

Constitutional law — Human rights — Right to freedom of religion in terms of s 14 in chap 3 of E Constitution of Republic of South Africa Act 200 of 1993 — Section 90(1)(a) read with s 159(a) of Liquor Act 27 of 1989 prohibiting sale of liquor on 'closed day' (Sundays being closed days) — Four Justices of Constitutional Court holding that whatever connection existing between Christian religion and restriction against persons holding grocers' wine licences selling wine on Sundays F when their shops open for other business too tenuous for restriction to be characterised an infringement of religious freedom — Five Justices holding that such provisions involving breach of s 14 of interim Constitution, but two such Justices holding that breach sanctioned by s 33 — Section 90 thus not unconstitutional.

Headnote : Kopnota

The introduction of new evidence on appeal, even in a criminal case, is ordinarily permissible G only in exceptional circumstances. It is not correct that, where the appeal is from a conviction in a magistrate's court and in which a constitutional question within the exclusive jurisdiction of the Constitutional Court has been raised, that an appellant could not have placed the relevant H evidence as to the constitutional issue on record before noting an appeal under Rule 21 of the Constitutional Court Rules against the dismissal of his/her appeal by a Provincial or Local Division of the Supreme/High Court. There are at least two opportunities prior to the appeal to the Constitutional Court when the relevant evidence can be placed on record. First, the I appellant can call the witnesses on whom he/she relies to give evidence at his trial indicating that the evidence was relevant to the determination of the constitutional issue(s) that he/she wished to raise as a defence to the charge(s) against him or her. If this was refused, the issue can be raised as a ground of appeal. Secondly, the appellant can also tender the evidence on which he/she relies at the time of his or her appeal to the Provincial or Local Division. Where, as in casu, the constitutional issues were the only defences that the appellant had to the conviction and sentences imposed by the magistrate and were decisive for the appeal, the J

1997 (4) SA p1179

matter falls within the terms of s 102(1) of the Constitution of the Republic of South Africa Act A 200 of 1993 (the 'interim Constitution'). (Paragraphs [14] and [15] at 1188C/D–E and F/G–I.)

Rule 19 of the Constitutional Court Rules deals with the preparation of the appeal record which, according to the practice of South African Courts, has always been understood to mean a record of the proceedings in the court against whose decision the appeal has been noted. B Rule 19(1)(b) is directed to the exclusion from the record of evidence that may not be relevant to an appeal on constitutional issues only. It prescribes a procedure for circumscribing the record and is not a means for introducing new evidence on appeal. That is apparent not only from the context, but also from the reference in Rule 19(1)(b)(ii) to 'evidence and exhibits', which can only be understood as referring to evidence and exhibits already on record. C (Paragraph [19] at 1190B–D.)

As to the possibility of resolving conflicts of fact in constitutional issues in appeals before the Constitutional Court through s 7 of the Constitutional Court Complementary Act 13 of 1995, which empowers the Constitutional Court to appoint commissions to receive evidence D 'necessary for the determination of any issue' in proceedings before it, the fact that the Court has the power to appoint a commission to receive evidence does not mean that litigants are entitled as of right to introduce new evidence on appeal. Section 7 provides no support for...