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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
Constitution[1] 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
time[10] or a
place[11] 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 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. 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.
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 section 102(10) of the interim
Constitution[16] and to present
argument to the Court on behalf of the government. Subsequently, the South
African Liquor Store Association was admitted
as an amicus curiae and was given
leave in 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
[9] As a result of the procedure
followed in the Magistrates’ 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 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.
[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 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 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 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 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 Trade and Industry
disputed the admissibility
of the affidavits relied on by the appellants,
contending that they went beyond what is 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
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 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
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 relevant to the
constitutional issue prior to the appeal. Any attempt to do so
in the present
case would have been met by an objection that the evidence was not relevant to
any issue within the jurisdiction of
the court dealing with the matter. He
contended further that the Constitutional Court is the only court with the
jurisdiction to
receive such evidence, and that it ought therefore to construe
its rules or regulate its process so as to permit such evidence to
be tendered
for the first time on appeal.
[15] The submission that the appellants
could not have placed the relevant evidence on record before noting their
appeals under rule
21 is not correct. There were at least two opportunities
prior to the appeal to this Court when the evidence could have been placed
on
record. First, the appellants could have called the witnesses on whom they rely
to give evidence at their trials indicating that
the evidence was relevant to
the determination of the constitutional issues that they wished to raise as a
defence to the charges
against
them.[19] If this had been refused
the issue could have been raised as a ground of appeal. The appellants could
also have tendered the evidence
on which they now rely at the time of their
appeals to the Cape of Good Hope Provincial Division. The constitutional issues
were
the only defences that the appellants had to the convictions and sentences
imposed by the magistrates and were decisive for the appeals.
The matters
accordingly fell within the terms of section 102(1) of the interim
Constitution.[20] The appellants
should have acted in terms of that section and asked for the matters to be
referred to this Court for its decision,
indicating that evidence was necessary
for the purposes of resolving the constitutional issues. If the Cape Provincial
Division
considered the referral to be in the interests of justice, as it
presumably would have done, it would have been obliged to refer
the matters. It
would also have been obliged to consider the implications of the
appellants’ failure to place the necessary
evidence on record at the time
of their trials. If it took the view that evidence was admissible on appeal, it
would have been obliged
to receive the evidence and make findings thereon before
referring the matter.[21] If it
took the view that evidence was not admissible on appeal, it would have referred
the issues without receiving the evidence.
[16] The appellants did not
avail themselves of either of these opportunities. The first time that they
evinced any intention of
adducing evidence on the constitutional issues was
after an appeal in terms of rule 21 had been noted to this Court. In their
application
to have the new evidence admitted on appeal the appellants did not
suggest that they could not have tendered the evidence prior to
noting their
appeals. They relied in the first instance on a contention that the evidence
was admissible in terms of rules 19 and
34, and in the alternative, on the
Court’s power in terms of section 173 of the 1996 Constitution to regulate
its own process.
Rule 19
[17] Rule 19 deals with the
procedure to be followed in appeals in which leave to appeal is required. Its
provisions are made applicable
to appeals noted under rule 21(1). They require
the appellant to prepare and lodge the appeal record within a period of four
months.
Rule 19(1) deals with the contents of the record. It provides:
“(a) . . .
(b) The appeal record shall consist of –
(i) those portions of the judgment of the court a quo, and all relevant documentation lodged by the parties in the court a quo pertaining to the issues that are to be determined; and
(ii) only such evidence and exhibits or affidavits and annexures as may be relevant for the purpose of the appeal.
(c) (i) The parties shall endeavour to reach agreement on what should be included in the record and, in the absence of such agreement, the appellant shall apply to the President for directions to be given in regard to the compilation of the record.”
[18] The appellants
contended that in terms of rule 19(1)(c)(i) the parties were entitled to agree
that the trial record should be
supplemented by the introduction of new
evidence, that such an agreement was reached in the present case, and that in
the circumstances
the appellants were entitled to rely on the affidavits from
the experts. Counsel for the Attorney General disputed this; he argued
that the
agreement should be construed as one determining the procedure to be followed in
introducing affidavits admissible under
rule 34, and that in the light of the
material dispute of fact that existed on the affidavits, the requirements of
rule 34 had not
been met. I deal later with rule 34.
[19] I shall assume
in favour of the appellants that their version of the agreement should be
accepted. But even if this is so, the
evidence would not be admissible in terms
of rule 19. Rule 19 deals with the preparation of the appeal record, which
according to
the practice of our courts has always been understood to mean a
record of the proceedings in the court against whose decision the
appeal has
been noted. 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 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.
[20] The interim Constitution requires that
evidence relevant to the referral of issues to this Court be dealt with through
procedures
to be completed prior to the referral. This is emphasised in
sections 102(1), 102(3), 102(15) and 103(4) of the interim Constitution.
The
same considerations that underlie these requirements apply to appeals and
applications for direct access. The reason is obvious.
All justices of the
Court who are available to do so are required to deal with matters which are
heard by this Court.[22] It cannot
be expected that eleven judges should sit to hear disputed evidence – a
matter made clear by the judgment in Brink v Kitshoff
NO[23] which was reported prior
to the noting of the appeal in the present matter.
[21] Counsel for the
appellants suggested that the problem of resolving conflicts of fact could be
addressed through section 7 of
the Constitutional Court Complementary Act 13 of
1995 which empowers this Court to appoint commissions to receive evidence
“necessary
for the determination of any issue” in proceedings before
it. The fact that this 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. It is not necessary
in the present case to express any
opinion on the facts that have to be established to justify the appointment of a
commission under
section 7. No application was made for the appointment of such
a commission and all that need be said is that the section provides
no support
for the construction of rule 19 on which the appellants rely. In effect, what
the appellants contend is that the parties
can agree to the introduction of
disputed evidence for the first time on appeal, and require this Court to
resolve the dispute, if
necessary by hearing oral evidence, and that this can be
done against the wishes of the Court and no matter how inconvenient such
a
procedure might be. Much clearer language than that used in rule 19 would be
required to justify a conclusion that so unusual
a procedure was contemplated by
the rules of this Court.
Rule 34
[22] Rule 34
provides:
“(1) Any party to any proceedings before the Court, and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the registrar in terms of these rules, to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record: Provided that such facts –
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature, capable of easy verification.
(2) All other parties shall be entitled, within the time allowed by these rules for responding to such document, to admit, deny, controvert or elaborate upon such facts to the extent necessary and appropriate for a proper decision by the Court.”
[23] Rule 34(1)(a) requires
the facts relied upon to be “common cause” or
“incontrovertible”. The rule has
no application to disputed facts.
Rule 34(1)(b) requires the facts to be of the character contemplated by the rule
and to be capable
of “easy verification”. Factual material in the
affidavits which falls within these parameters is admissible under rule
34; but
disputed facts which are not capable of easy verification are
not.
Regulation of process
[24] Section 173 of the 1996
Constitution confers on this Court, the Supreme Court of Appeal and the High
Courts an “inherent
power to protect and regulate their own process, and
to develop the common law, taking into account the interests of justice.”
Counsel for the appellants contended that if the expert evidence on which they
rely is not admissible under rule 19 or rule 34, this
Court should exercise its
powers under section 173 of the Constitution to admit it. The appellants do
not, however, have to rely
on section 173 which in any event seems not to be
applicable to this case.[24] This
Court has power under its rules to admit new evidence on
appeal.[25] The question is whether
that power should be exercised in the circumstances of the present case. For
the reasons already given
this Court should not, save in exceptional
circumstances, permit disputes of fact or expert opinion to be raised for the
first time
on appeal. Such circumstances have not been established in the
present case.
[25] The introduction of new factual material on appeal to
this Court is regulated by rule
34.[26] In so far as the evidence
tendered by the appellants is not admissible under rule 34, no good reason
exists to depart from the provisions
of the
rules.[27] It follows that only
those portions of the expert evidence that fall within the scope of rule 34 can
be taken into account for the
purposes of deciding these appeals. I will refer
to the evidence relied upon by the appellants when I deal with each of the
constitutional
issues raised by the appeals.
The interpretation of
section 26
[26] Section 26 of the interim Constitution, on which the
appellants rely for their challenge to the provisions under which they were
convicted, provides:
“26. Economic activity
(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.
(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.”
[27] The appellants contend
that section 26(1) should be interpreted expansively to encompass all forms of
economic activity and all
methods of pursuing a livelihood. The only exclusion
that they would allow is in respect of those activities which are
“innately
criminal”. All other economic activities, so they
contend, are protected by section 26(1) unless their curtailment can be
justified under section 26(2).
[28] Relying on this construction of
section 26 the appellants contended that subsection (1) constitutes the right
and subsection
(2) constitutes a special limitations clause which displaces
section 33 as far as the limitation of “free economic activity”
is
concerned.
[29] The construction of section 26 advanced by the
appellants does not give sufficient weight to the wording of the section or to
the structure of chapter 3 of the interim Constitution. The words with which
subsection (2) commences, “[s]ubsection (1) shall
not preclude”,
indicate that the two subsections must be read together to determine the content
of the right. Reading section
26 in this way would also give full effect to the
provisions of section 33 and to the structure of chapter 3 which makes provision
for a general limitations
clause.[28] If the expansive
interpretation of section 26 contended for by the appellants were to be adopted
it would mean that the regulation
of economic activity which cannot be justified
according to the criteria specified in section 26 would be invalid no matter how
reasonable
or even necessary such regulation might be. There seems to me to be
no justification for such a conclusion.
[30] The criteria prescribed by
section 26(2) and section 33 are different. Section 26(2) is directed in the
first instance to the
“design” of the measure. If it is
“designed” to promote the protection or improvement of any of the
matters
referred to in the subsection, and is a measure justifiable in an open
and democratic society based on freedom and equality, it does
not infringe
section 26. Section 33 calls for a proportionality
test[29] which does not form part of
a section 26(2) analysis. If sections 26(1) and (2) are read together as
defining the right effect can
be given to both section 26(2) and section 33.
There is accordingly no reason why section 26 should be construed as excluding
the
operation of section 33.
[31] Section 26 is concerned in the first
instance with “who” may engage in economic activity and pursue a
livelihood,
and “where” this may be done. Section 26(1) lays down
that “[e]very person” may do so “anywhere in
the national
territory.” In the light of our history of job reservation, influx
control and monopolies it is understandable
that there should be such a
provision in the bill of rights.
[32] The meaning of section 26 is,
however, by no means clear. There seem to be two possible approaches to its
interpretation. The
first focuses on the meaning of free participation in
economic activity and in pursuing a livelihood. In a modern democratic society
a right “freely” to engage in economic activity and to earn a
livelihood does not imply a right to do so without any
constraints whatsoever.
As Van Dijkhorst J said in Directory Advertising Cost Cutters v Minister for
Posts, Telecommunications and Broadcasting and
Others:[30]
“Section 26(1) goes no further than to enshrine the right freely to be active in the economic sphere wherever one wants – the economic sphere with all its inherent constraints.”
[33] Certain
occupations call for particular qualifications prescribed by law and one of the
constraints of the economic sphere is
that persons who lack such qualifications
may not engage in such occupations. For instance, nobody is entitled to
practise as a
doctor or as a lawyer unless he or she holds the prescribed
qualifications, and the right to engage “freely” in economic
activity should not be construed as conferring such a right on unqualified
persons; nor should it be construed as entitling persons
to ignore legislation
regulating the manner in which particular activities have to be conducted,
provided always that such regulations
are not arbitrary. Arbitrariness is
inconsistent with “values which underlie an open and democratic society
based on freedom
and equality”, and arbitrary restrictions would not pass
constitutional scrutiny.[31]
[34] On this approach to the interpretation of section 26 the right to
engage in economic activity and to pursue a livelihood anywhere
in the national
territory would entail a right to do so freely with others. Implicit in this is
that the participation should be
in accordance with law. Thus nobody can claim
that section 26 gives him or her the right to deal in stolen property or in
harmful
drugs or to break the law in any other way. Nor can anyone claim that
the right entitles him or her to ignore laws having a rational
basis which deal
with town-planning, zoning, licensing, and other regulation of business, trades
or professions. These are the constraints
of the economic system applicable to
all persons and those who wish to engage in it must do so subject to such
constraints.
[35] If this is the correct approach to the interpretation
of section 26, section 26(2) would then be construed as permitting legislation
which curtails free participation as long as the legislation is designed to
serve a purpose sanctioned by the section. Thus the
right to “be
active” in particular economic activities could be constrained by closed
shop agreements or policies of
affirmative action which are designed to meet the
requirements of section 26(2), or by measures within the purview of section
26(2)
which restrict the market, as for instance is presently the case in
respect of commercial undertakings such as rail and air transport,
telecommunications, and
broadcasting.[32]
[36] On
this approach to the construction of section 26 the objections taken by the
appellants would fail. The appellants would have
to establish that they have
been denied the right to engage “freely” in the selling of liquor.
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. For reasons that are
given later in this judgment,[33]
there is a rational basis for such a regime which is not inappropriate to the
regulation and control of the liquor trade in an open
and democratic society, or
so constraining or inhibiting as to justify the conclusion that their right to
engage “freely”
in such trade has been infringed.
[37] The
alternative approach is to read sections 26(1) and (2) together as indicating
that all constraints upon economic activity
and the earning of a livelihood
which fall outside the purview of section 26(2) will be in breach of section 26.
This construction
is less restrictive of “free economic activity”
and for the purposes of this appeal I am prepared to assume in favour
of the
appellants that it is the correct approach.
The section 26
analysis on the basis of the assumption made
[38] The meaning of the
words “designed to promote” in the context of section 26 are by no
means clear. Counsel for the
appellants contended that these words should be
interpreted to mean: “constructed so as to achieve”.
[39] This is the meaning that Professor Mureinik suggested should be
given to similar words used in section 8(3) of the interim
Constitution.[34] Section 8(3)
deals with the issue of affirmative action in the context of the constitutional
guarantee of equality.[35] In the
passage relied upon by counsel for the appellants Professor Mureinik said (at
47):
“The words ‘designed to achieve’ can mean (a) ‘intended to achieve’, in which case they mean much the same as ‘aimed at’; or (b) they can mean ‘constructed so as to achieve’. In this latter sense, the wording refers to measures which are not only intended to achieve something, but the design of which makes it objectively probable that they will in fact achieve that something; which are structured, in other words, to achieve that thing. In this sense ‘designed to’ embodies much of the ambivalence of ‘calculated to’, which, although it can mean ‘intended to’, the courts often interpret as ‘likely to’; indeed, it incorporates both those meanings.” (Footnote omitted)
Professor Mureinik was dealing with the
interpretation of section 8(3). Counsel for the appellants adopted his
reasoning and sought
to apply it to the interpretation of section 26(2).
[40] According to the Oxford English Dictionary “design”
means “[t]o purpose or intend (a thing) to be or do
(something); to mean (a thing) to serve some purpose . .
.”.[36] In the context of
section 26 of the interim Constitution this seems to me to be the meaning that
should be adopted.
[41] This does not mean that there need be no
connection between the “design” and the “end” sought to
be achieved.
The requirement that the measures be justifiable in an open and
democratic society based on freedom and equality means that there
must be a
rational connection between means and ends. Otherwise the measure is arbitrary
and arbitrariness is incompatible with
such a society.
[42] In the
passage relied upon by the appellants Professor Mureinik argued for a more
stringent test of legislative purpose –
that there be an “objective
probability” that the purpose will be achieved. He was not, however,
dealing there with
“economic freedom”. To apply that test to
economic regulation would require courts to sit in judgment on legislative
policies on economic issues. Courts are ill equipped to do this and in a
democratic society it is not their role to do so. In discussing
legislative
purpose Professor Hogg
says:[37]
“While a court must reach a definite conclusion on the adjudicative facts which are relevant to the disposition of litigation, the court need not be so definite in respect of legislative facts in constitutional cases. The most that the court can ask in respect of legislative facts is whether there is a rational basis for the legislative judgment that the facts exist.
The rational-basis test involves restraint on the part of the court in finding legislative facts. Restraint is often compelled by the nature of the issue: for example, an issue of economics which is disputed by professional economists can hardly be definitively resolved by a court staffed by lawyers. The most that can realistically be expected of a court is a finding that there is, or is not, a rational basis for a particular position on the disputed issue.
The more important reason for restraint, however, is related to the respective roles of court and legislature. A legislature acts not merely on the basis of findings of fact, but upon its judgment as to the public perceptions of a situation and its judgments as to the appropriate policy to meet the situation. These judgments are political, and they often do not coincide with the views of social scientists or other experts. It is not for the court to disturb political judgments, much less to substitute the opinions of experts. In a democracy it would be a serious distortion of the political process if appointed officials (the judges) could veto the policies of elected officials.”
[43] This accords with the approach of the
United States Supreme Court to rational basis review. It has consistently
held:
“This restriction upon the judicial function, in passing on the constitutionality of statutes, is not artificial or irrational. A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.”[38]
[44] Section
26 should not be construed as empowering a court to set aside legislation
expressing social or economic policy as infringing
“economic
freedom” simply because it may consider the legislation to be ineffective
or is of the opinion that there are
other and better ways of dealing with the
problems. If section 26(1) is given the broad meaning for which the appellants
contend,
of encompassing all forms of economic activity and all methods of
pursuing a livelihood, then, if regard is had to the role of the
courts in a
democratic society, section 26(2) should also be given a broad meaning. To
maintain the proper balance between the roles
of the legislature and the courts
section 26(2) should be construed as requiring only that there be a rational
connection between
the legislation and the legislative purpose sanctioned by the
section. I deal later with how, if it be disputed, the legislative
purpose is
to be established.[39]
[45] The rational basis test fits the language of the section which,
unlike section 33, sets as the criterion that the measures must
be justifiable
in an open and democratic society based on freedom and equality, but does not
require in addition to this that the
measure be reasonable. The proportionality
analysis which is required to give effect to the criterion of
“reasonableness”
in section 33 forms no part of a section 26
analysis.
[46] In coming to the conclusion that section 26(2) calls for a
rational basis review I have given consideration to the decision in
Public
Servants’ Association of South Africa and Another v Minister of Justice
and Others.[40] This case deals
with the meaning of the words “designed to achieve” in section 8(3)
of the interim Constitution and
takes an approach that is different to the
approach taken by me in this judgment. I specifically refrain from commenting
in any
way on the correctness of that decision or on the interpretation to be
placed on section 8(3). That section raises difficult issues,
the consideration
of which must be deferred until the occasion arises for this Court to do so. It
is not necessary to express any
view as to whether the test for rational review
under section 26 is in any way different to the test for rational review under
section
8.
The burden of proof
[47] Counsel for the
appellants contended that the state has the burden of establishing that the
provisions of the Liquor Act on which
the prosecutions were based were protected
by section 26(2). In support of this contention they relied on the approach of
the Indian
Supreme Court to the interpretation of article 19 of the Indian
Constitution and in particular to the way in which article 19(6)
is applied by
the Indian courts.
[48] Article 19(1) of the Indian Constitution
provides:
“(1) All citizens shall have the right –
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) . . .
(g) to practice any profession, or to carry on any occupation, trade or business.”
There is no
general limitations clause in the Indian Constitution but in terms of section
19(6):
“Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, –
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”
[49] Article 19(6) has been construed as a
limitations clause by the Indian Courts. The section requires laws which limit
article
19(1) rights to be reasonable, and this element – that is,
reasonableness – has to be established by the litigant who
relies on the
limitation.[41] In this regard the
approach of the Indian Courts bears a similarity to that adopted by South
African courts to the application of
section 33 of the interim
Constitution.[42] It is, however,
an approach which is not necessarily applicable to section 26(2) of the interim
Constitution which is not couched
as a limitations
clause.[43]
[50] Indian
jurisprudence is of little assistance to the appellants. The Supreme Court of
India has held that liquor is a harmful
substance and that laws which regulate
and control the sale and production of liquor do not infringe article 19(1)(g)
of the Indian
Constitution and accordingly do not have to be justified in terms
of article 19(6). The constitutional challenges raised by the
appellants in the
present matter would accordingly be dismissed by an Indian
Court.[44]
[51] In the view
that I take of this matter it is not necessary to decide whether, in order to
prove that their constitutional rights
have been infringed, the appellants have
to establish that the constraints imposed on them by the Liquor Act fall outside
of what
is sanctioned by section 26(2) or whether the Attorney General has to
establish that they fall within the terms of section
26(2).[45] I shall assume in favour
of the appellants that in so far as there is any burden it falls upon the
Attorney General.
[52] The purpose of particular legislative provisions
has ordinarily to be established from their context which would include the
language of the statute and its background. Where the purpose is one sanctioned
by section 26(2) the question whether that purpose
is justifiable in an open and
democratic society based on freedom and equality is essentially a question of
law; so too is the question
whether there is a rational basis for the means used
to achieve the legislative purpose. That is not to say that evidence will not
be relevant to these enquiries; it may well
be.[46] The evidence, however, is
more likely than not to consist of “legislative facts”. Professor
Hogg in the article previously
referred to
says:[47]
“The US literature draws a distinction between ‘adjudicative’ facts and ‘legislative’ facts, terminology originally coined by Professor Kenneth Culp Davis, the author of the major US treatise on administrative law. Adjudicative facts are facts about the immediate parties to the litigation – ‘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.”
Legislative facts do not have to be proved
as strictly as adjudicative facts and as Professor Hogg says:
“In constitutional cases in the United States there has been a substantial relaxation of the limits of judicial notice for findings of legislative facts.”
I will return to this issue later in my
judgment.[48] For the moment it is
sufficient to say that the nature of the enquiry that has to be undertaken by a
court for the purpose of deciding
whether or not measures have been designed for
a purpose sanctioned by section 26 and the type of evidence that might be
relevant
to such an enquiry, means that the question of “burden of
proof” is likely to be less important than where adjudicative
facts have
to be established.
[53] The Attorney General contended that legislation
controlling the manner in which the liquor trade is conducted is a measure
“designed”
to promote the protection or the improvement of the
quality of life, economic development and human development and as such is
sanctioned
by section 26.
[54] The excessive consumption of liquor is
universally regarded as a social evil. It is linked to crime, disturbance of
the public
order, impairment of road safety, damage to health, and has other
deleterious social and economic consequences. These are legislative
facts of
which this Court can take judicial
cognisance.[49]
[55] The
Liquor Act describes itself as an Act “[t]o provide for control over the
sale of liquor; and for matters connected
therewith.” The appellants did
not dispute that the excessive consumption of alcohol is harmful and that some
control over
the sale of intoxicating liquor is
needed.[50] This much was common
cause.
[56] The means employed by the Liquor Act to achieve this purpose
is to prescribe a system of licensing under which liquor sales are
controlled.
This is prima facie sanctioned by section 26(2). Measures designed to curtail
some of the harmful effects of trade in
liquor are clearly measures designed to
protect or improve the quality of life. This seems to have been accepted by the
appellants
who did not challenge the constitutionality of the licensing scheme
of the Act, or of section 154(1)(a) which penalises the unlicensed
selling of
liquor. Their challenges were confined to the particular constraints imposed on
them by the licensing system. It is
necessary, therefore, to consider the
particular constraints to which objection was taken in each of the
appeals.
After hours sales – the Lawrence
appeal
[57] Section 90(1) of the Liquor Act fixes the times at which
business may be conducted under a grocer’s wine licence. It does
so as
follows:
“The holder of a grocer’s wine licence may, notwithstanding any law to the contrary –
(a) on any day, excluding a closed day and Saturday, sell or deliver his or her liquor between 08:00 and 20:00;
(b) on any Saturday, excluding a closed day, sell or deliver his or her liquor between 08:00 and 17:00.”
Section 159(a),
which is the section of the Liquor Act which constitutes the offence that the
appellant is alleged to have committed,
provides that the holder of a licence
who
“if it is not otherwise an offence in terms of this Act, refuses or fails to comply with a condition which is attached to the licence . . . shall be guilty of an offence.”
Section 163(1)(a) prescribes the
penalties that may be imposed for a contravention of section 159(a) of the Act.
[58] It is not clear to me why the appellant was charged and convicted
under these sections of the Act. Section 159(c) of the Act
provides that any
holder of a licence who
“keeps the licensed premises open for the sale, supply or consumption of liquor or sells or supplies any liquor at a time when the sale of liquor is not permitted by the licence . . . shall be guilty of an offence.”
and the penalties for a contravention of
section 159(c) are fixed by section 163(1)(b) of the Act.
[59] Since it
is an offence under section 159(c) to sell liquor at a time not permitted by the
licence, section 159(a) would seem
to have no application to the case against
the appellant. The same applies to the charge of selling liquor on a closed
day, on which
the appellant Magdalena Petronella Solberg was
convicted.
[60] That, however, is not an issue which could be raised
before this Court, and for the purposes of this appeal it has to be assumed
that
the appellants were correctly convicted under section 159(a). As the case is a
test case in which the appellants seek to challenge
the constitutionality of the
prohibition against selling wine after hours and on a “closed day”
nothing turns on the
fact that the conviction was entered under section 159(a)
and not 159(c).
[61] The appellant’s objection is that the
restrictions imposed by the Liquor Act on the hours during which the holder of a
grocer’s wine licence may sell table wine during week days interferes with
the freedom of such licence holders to trade lawfully
and with the freedom of
consumers to purchase wine at times most convenient to them.
[62] The
appellant has to establish that the particular constraints to which she objects
infringe her right under section 26.
[63] Freedom to engage in economic
activity in an open and democratic society does not imply a totally
unconstrained freedom. Economic
activity is subject to regulation and a shop
keeper cannot claim to have “an unconstrained right to transact business
whenever
one wishes”.[51]
[64] The out of hours sale for which the appellant was convicted took
place on Monday 22 January 1996. In terms of section 90(1)(a)
of the Liquor Act
the appellant was permitted on that day to effect sales from 8 in the morning
until 8 at night. It is a requirement
which applies not only to sales under
grocers’ wine licences, but also to sales under liquor store
licences.[52] These hours of
trading allow more than sufficient time for the appellant or any “
licensed grocer” to engage “freely”
in the business of selling
wine.
[65] The scheme of the legislation is to effect controls through
licences. The licences control who may sell liquor, what liquor
may be sold,
and when and where sales may take place. It is not necessary to deal with the
different types of licences that may be
given or the conditions attaching to
them. Restriction on the hours of selling apply to all licences though
different selling times
are fixed for different types of licences. The
distinctions drawn between the different types of licences are rationally
related
to the differences in the nature of the businesses and no point was made
of this in argument. The basis of the appellant’s
argument was that
restrictions on the hours of sale do not reduce alcohol related problems, and
that an increase in the hours of
sale would not lead to an increase in alcohol
consumption or alcohol related problems. The restrictions on hours of selling
were
therefore irrational.
[66] The appellant’s argument presumes
that a restriction on the consumption of liquor is the only legitimate basis for
restricting
trading hours. This is not necessarily the case, and the Attorney
General in fact contended that the restriction on trading hours
was also
conducive to economic growth and to human development. The regulation of the
hours of trade allows small traders to close
their shops at the end of a long
day without fearing that they will lose trade to larger undertakings that are
able to employ persons
to work at night; it also frees employees from the
pressure of being required to work overtime or at night. These considerations
are relevant to economic growth, human development and fair labour
practices.[53] The case was,
however, argued on the basis that the control of the supply of liquor was the
main purpose of the legislation and
it is on this basis that I will deal with
the matter.
[67] The appellants sought support for their contentions on
this issue from studies undertaken in other countries which are referred
to in
the affidavit of one of the expert witnesses. The correctness of the
proposition that an increase in selling hours does not
lead to an increase in
consumption or an increase in alcohol related problems is disputed in the
affidavit of the expert, Marcelle
Christian, on whom the Minister of Trade and
Industry relies. In her affidavit she says:
“To this day accumulated research has continued to show that:
– Alcohol-related problems are highly correlated with per capita consumption. This appears to hold over time and in different counties [sic].
– Decreases in per capita consumption produce reductions in alcohol-related problems regardless of whether this was from control measures or not.”
And she goes on to say that:
“a large body of recent research studies (30+) has found that relaxation of controls over availability such as expansion of the type and number of outlets; extended days and hours of operation and lower age restrictions, tends to be positively related to levels of alcohol consumption and indices of alcohol-related problems, not only among moderate drinkers, but also amongst so called heavy drinkers.” (Emphasis omitted)
[68] Counsel
for the appellants sought to persuade us that the views of the appellants’
experts should be accepted rather than
those of the Minister’s expert.
The conflict is not capable of being resolved in this way. The expert evidence
was not placed
before the Court in a proper form and the attempt to cure the
defect by tendering unverified extracts from publications on which
the expert is
said to have relied is unacceptable. The proposition relied upon by the
appellants is, moreover, not “common
cause or otherwise
incontrovertible” nor does it depend on “official, scientific,
technical or statistical” material
that is capable “of easy
verification”. In any event the conflict is not decisive of the case.
The question to be decided
is not whether the policy underlying the Liquor Act
is an effective policy; it is whether there is a rational basis for such policy
related to the purpose of the legislation.
[69] What is clear from the
affidavit of Mr Makan – one of the appellants’ own experts –
is that the control of
the availability of alcohol is a recognised means of
combatting the adverse effects of alcohol consumption. Mr Makan acknowledges
this and says that:
“One of the strongest advocates of the Control of Availability theory is the World Health Organisation (‘WHO’). In 1993 the WHO suggested controls on the availability of alcohol . . . as one of [the] cornerstone[s] of its European Alcohol Action Plan.”
Mr Makan disputes
the efficacy of the control of availability theory and says that few governments
rely on it. The means to be adopted
to control the liquor trade is, however, a
matter for the government and not the courts to decide.
[70] I am
satisfied that even if the burden of proof is on the Attorney General to
establish the rational basis, and not on the appellants
to negative it, it has
been established that there is a rational basis for measures restricting the
hours of sale as part of a legislative
scheme designed to curtail the
consumption of liquor. In the circumstances the restrictions do not in my view
constitute a breach
of section 26 of the interim Constitution.
Beer and cider – the Negal appeal
[71] The
provisions of sections 87 to 90 of the Liquor Act dealing with grocers’
wine licences were introduced in 1962 after
the report of the Malan Commission
which had been appointed to consider possible changes to the Liquor Act. The
Malan Commission
recommended that grocers be licensed to sell beer and wine, and
the appellant contended that the only reason for the failure to implement
this
recommendation was the influence of the “wine lobby”. The appellant
contended further that there is no reason to
distinguish between wine, beer and
cider and that it is irrational to permit grocers to sell wine but not beer and
cider.
[72] It is not clear to me why it would be irrational for the
legislature to facilitate the sale of wine as part of a policy directed
to
encouraging the growth and development of the South African wine industry
– a purpose prima facie sanctioned by section
26(2). It is, however, not
necessary to consider this or the Attorney General’s argument that there
is a rational basis for
the prohibition against the sale by grocers of liquor
other than wine that is related to the legislative policy of curtailing the
consumption of liquor.
[73] The prohibition against the sale of beer and
cider in a grocery store does not arise from sections 87 to 90 of the Liquor
Act.
It arises firstly from the general prohibition against the selling of
liquor without a licence, and secondly from section 40(1)
of the Liquor Act
which provides:
“Subject to sections 87 and 99 and without derogating from section 41,[[54]] the holder of a licence . . . shall not conduct his or her business under the licence on premises on which any other business (including a business to which any other licence relates) or any trade or occupation is carried on or pursued.”[55]
[74] The
appellant does not challenge the constitutionality of the licensing system
imposed by the Act or the provisions of section
40 which restrict the goods that
may be sold on licensed premises. For the purposes of this appeal, therefore,
the constitutionality
of these provisions must be assumed.
[75] Section
87 is one of the two provisions specifically exempted from the provisions of
section 40. It provides:
“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 [liquor] licence relates) or trade or occupation, on the licensed premises.”
The exception
constitutes an extension and not a curtailment of the right to participate in
the liquor trade. It allows grocers the
special concession of being able to
sell wine without being subject to the restrictions of section 40. Having
taken advantage of
that extension the appellant was bound by the terms on which
it was granted.
[76] In his notice of appeal the appellant confined the
constitutional challenge to the provisions of section 88, 159(a) and 163 of
the
Liquor Act. Section 88(1) of the Act provides that :
“The holder of a grocer’s wine licence shall not sell liquor other than table wine.”
Section 88(2) defines “table
wine”. Section 159(a) makes it an offence to refuse or fail to comply
with a condition attached
to a licence and section 163 prescribes the penalties
that can be imposed for a breach of section 159(a).
[77] At the hearing
of the appeal counsel for the appellant did not ask for section 88 to be struck
down. Striking down section 88
would not make it legal for wine and cider to be
sold by grocers; that would still be prohibited by section 154(a) of the Act.
Indeed,
the effect of striking down section 88 might well be to invalidate the
provisions of the Act dealing with grocers’ wine licences,
for without
section 88 there would be no provision dealing with what might be sold under
such licences. If this were to be the result
it would put an end to wine
selling in Seven Eleven stores and make it unlawful for any liquor to be sold
there.
[78] In an attempt to avoid these difficulties counsel for the
appellant asked the Court to order that “to the extent that”
a
grocer’s wine licence prohibits the sale of beer and cider it is
inconsistent with the Constitution and invalid. This, however,
would not solve
the appellant’s problem. The prohibition against the sale of liquor is
contained in section 154(a) which prohibits
the sale of liquor otherwise than
under a licence or an exemption. To be able to sell beer and cider the Seven
Eleven stores must
procure a licence authorising them to do so. And the only
licence in the Liquor Act as presently framed that permits this to be
done,
other than a grocer’s wine licence, is a liquor store licence. But that
precludes the holder of the licence from conducting
a grocery
business.
[79] The fallacy in the appellant’s argument is that it
treats section 88 as the obstacle to grocers selling beer and cider
whereas in
substance the section deals with the scope of the exception to the prohibition
against selling any liquor from a grocery
store. If the appellant wishes to
challenge the constitutionality of prohibiting grocers from selling beer, cider
or any other liquor
the challenge should be directed against section 40 and not
against the exception to the prohibition made by sections 87 and
88.
[80] Instead of doing this, the appellant has approached the Court
for an order that the scope of the exception made by sections 87
and 88 be
enlarged. In effect what the appellant has asked this Court to do is amend the
Liquor Act so as to make provision for
a “grocer’s wine, beer and
cider licence”, as an exception to the prohibition imposed by section 40
of the Act.
A court can strike down legislation that is unconstitutional and
can sever or read down provisions of legislation that are inconsistent
with the
Constitution because they are overbroad. It may have to fashion orders to give
effect to the rights protected by the
Constitution,[56] but what it cannot
do is legislate.
[81] The exception established by section 87 and the
related provisions dealing with grocers’ wine licences do not constitute
an infringement of grocers’ rights to engage “freely” in the
liquor trade. On the contrary they constitute an
enlargement of their rights
under the Liquor Act. If the appellant wishes to challenge the Liquor Act as
such or the licensing system
which restricts the types of business which can be
conducted in association with the sale of liquor, the challenge should be
directed
against those provisions, and not against the exempting provisions of
sections 87 to 90. I express no opinion as to whether a challenge
to section 40
would have any substance; that was not an issue in the present appeals and does
not call for any comment in this judgment.
Sunday trading – the
Solberg appeal
[82] The appellant was convicted of contravening
section 159(a) read with sections 2, 90(1)(a) and 163(1)(a) of the Liquor Act.
Section
2 defines closed day as meaning Sunday, Good Friday and Christmas
Day.
[83] The appellant contends that the prohibition infringes her right
under section 14 of the interim Constitution to freedom of religion
as well as
her right under section 26 to free economic activity.
[84] It will be
convenient to deal first with the arguments addressed to the issue of religious
freedom. The terms of section 14
are as follows:
“14. Religion, belief and opinion
(1) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic freedom in institutions of higher learning.
(2) Without derogating from the generality of subsection (1), religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.
(3) Nothing in this Chapter shall preclude legislation recognising –
(a) a system of personal and family law adhered to by persons professing a particular religion; and
(b) the validity of marriages concluded under a system of religious law subject to specified procedures.”
[85] The
appellant contended that the purpose of prohibiting wine selling by grocers on
“closed day[s]” was “to
induce submission to a sectarian
Christian conception of the proper observance of the Christian sabbath and
Christian holidays or,
perhaps, to compel the observance of the Christian
sabbath and Christian holidays.” This, so the argument went,
“coerced
individuals to affirm or acquiesce in a specific practice solely
for a sectarian Christian purpose”, and was inconsistent with
the freedom
of religion of those persons who do not hold such beliefs and do not wish to
adhere to them.
[86] In support of this contention it was argued that the
history of the legislation showed that closed days were introduced into
the
Liquor Act for a religious purpose. Sunday, Good Friday and Christmas Day,
which are the only days presently covered by the
definition of “closed
day” in section 2 of the Act, are all of particular significance to the
Christian religion. When
the interim Constitution came into force on 27 April
1994 the definition in section 2 included another day of significance to the
Christian religion, Ascension Day, as well as the Day of the Covenant, which was
a day of religious significance to a section of
the community. The reference to
these two days was deleted from the definition in
1995.[57] Counsel for the appellant
argued that the selection of these particular days as closed days showed that
the legislation had a religious
purpose, and that this was sufficient in itself
to constitute an infringement of section 14.
[87] In R v Big M Drug
Mart Ltd,[58] a decision
of the Supreme Court of Canada on which the appellant relied in support of this
argument, Dickson CJC
said:[59]
“If the acknowledged purpose of the Lord’s Day Act, namely, the compulsion of sabbatical observance, offends freedom of religion, it is then unnecessary to consider the actual impact of Sunday closing upon religious freedom. Even if such effects were found inoffensive, as the Attorney-General of Alberta urges, this could not save legislation whose purpose has been found to violate the Charter’s guarantees. In any event, I would find it difficult to conceive of legislation with an unconstitutional purpose, where the effects would not also be unconstitutional.”
[88] The Big M Drug Mart
case concerned the provisions of the Canadian Lord’s Day Act.
Its name proclaimed its purpose as did its provisions. It appears
from the
judgment in that case that the Act prohibited any work or commercial activity on
the “Lord’s Day” –
Sunday – as well as any games
or performances where an admission fee was charged, any transportation for
pleasure where a fee
was charged, any advertisement of anything prohibited by
the Act, the shooting of firearms and the sale or distribution of foreign
newspapers. Certain exemptions were made in respect of “work of necessity
or mercy” and the railways were allowed to
operate. There was also a
provision that persons could be exempted from the provisions of some of the
prohibited activities by “provincial
legislation or municipal
charter”. The Canadian courts had previously held that the object of the
Act was to compel the observance
of the Christian sabbath. This led Dickson CJC
to say:[60]
“A finding that the Lord’s Day Act has a secular purpose is, on the authorities, simply not possible. Its religious purpose, in compelling sabbatical observance, has been long-established and consistently maintained by the courts of this country.”
[89] I would have no
difficulty in holding that a law which compels sabbatical observance of
the Christian sabbath offends against the religious freedom of those who do not
hold such beliefs:
“If I am a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to work on a Sunday if I wish. . . . any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom.”[61]
This does not mean that the selection of a Sunday for purposes
which are not purely religious and which do not constrain the practice
of other
religions would be unlawful simply because Sunday is the Christian
sabbath.
[90] The Canadian Lord’s Day Act had a purely religious
purpose and was designed to compel adherence to the Christian sabbath.
The
provisions of the Liquor Act relating to grocers’ wine licences are,
however, materially different in their scope and
effect from the Lord’s
Day Act and I have difficulty in seeing how they can be said to compel
sabbatical observance or to promote
any particular religion. The Liquor Act
permits the selling of liquor on closed days under certain licences but
prohibits selling
under other licences. Thus liquor may be sold under
“on-consumption licences” on Sundays to lodgers and their guests
at
licensed hotels,[62] to persons
eating at licensed restaurants,[63]
to persons eating at licensed wine
houses,[64] and to club members and
their guests at licensed clubs.[65]
The purpose of the closed day provisions seems to be to curtail the selling of
liquor to the general public on such days. Thus
hotel liquor licences do not
permit liquor to be sold on closed days to persons other than lodgers and their
guests, unless such
persons take meals at the
hotel,[66] and restaurant licences
and wine house licences do not permit the sale of liquor on closed days to
persons who do not take meals
at the licensed premises, though this is
permissible on other days.[67]
Consistently with this policy liquor may not be sold on closed days under a
theatre licence,[68] a sportsground
licence,[69] or under
off-consumption licences such as liquor store
licences,[70] wine farmers’
licences,[71] sorghum beer
licences[72] and grocers’ wine
licences. Closed day sales may also not be made under licences which authorise
sales to liquor traders such
as wholesale liquor
licences,[73] and brewers’
licences,[74] or without the
permission of the chairperson of the liquor board, under a producer’s
licence.[75] Special
off-consumption licences can, however, be granted by the liquor board if
“exceptional circumstances warrant the granting
of the
licence”,[76] and these
licences are apparently not subject to any conditions as to the times of doing
business other than those imposed in terms
of section 32(2) of the Act. This
section does not require that sales on closed days be prohibited and it was not
disputed that
special licences have been granted authorising sales on such
days.
[91] In the present case we are concerned with the narrow question
whether section 90 of the Liquor Act, to the extent that it prohibits
the
selling of wine under a grocer’s wine licence on Sundays, infringes
religious freedom by doing so. We are not required
to consider whether other
provisions of the Act which prohibit Sunday selling under different licences
infringe the Constitution,
nor are we required to consider the prohibition
against sales of wine by grocers on Christmas Day or Good
Friday.[77] I will confine myself
to this narrow question.
[92] In the Big M Drug Mart case Dickson
CJC said:
“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”[78]
I
cannot offer a better definition than this of the main attributes of freedom of
religion. But as Dickson CJC went on to say freedom
of religion means more than
this. In particular he stressed that freedom implies an absence of coercion or
constraint and that freedom
of religion may be impaired by measures that force
people to act or refrain from acting in a manner contrary to their religious
beliefs.
This is what the Lord’s Day Act did; it compelled believers and
non-believers to observe the Christian sabbath.
[93] I am not unmindful of
the fact that constraints on the exercise of freedom of religion can be imposed
in subtle ways and that
the choice of Christian holy days for particular
legislative purposes may be perceived to elevate Christian beliefs above others;
and that as a result adherents of other religions may be made to feel that the
state accords less value to their beliefs than it
does to
Christianity.
[94] Section 90 does not, however, prohibit grocery stores
from doing business on Sundays and in fact the Seven Eleven stores are
kept open
for business on such days; nor does it force people to act or refrain from
acting in a manner contrary to their religious
beliefs.
[95] In South
Africa, Sundays have acquired a secular as well as a religious character. This
had happened before the interim Constitution
came into force and before the 1995
amendments were made to the Liquor
Act.[79] Patterns established over
the years by legislation have resulted in Sundays being the most common day of
the week on which people
do not work. Weekends consisting of Saturdays and
Sundays are times at which most South Africans take a rest from work. Many take
a whole weekend, some take Saturday afternoons and Sundays and some (but
probably a minority) take only Sundays or Sunday afternoons.
Shops are open in
many parts of the country on Sunday mornings and sports stadia and places of
entertainment are also open on Sundays.
There are, however, only very few who
work on Sunday afternoons.
[96] These rest days are recorded in labour
agreements, in business practices, in contracts of service and in provincial
legislation.
Amongst those who observe Sundays as rest days, are many who do so
because it has become the most convenient day for such purpose,
and not because
of any wish to observe the Christian sabbath. The secular nature of Sundays is
evidenced by the ways in which many
people spend their Sundays, engaging in
sport and recreation rather than in worship.
[97] No evidence was
placed before this Court as to how, if at all, the provisions of section 90 of
the Liquor Act interfere with
the appellant’s freedom of religion or the
freedom of religion of any other person, or serve any other religious purpose.
It is difficult to discern any coercion or constraint imposed by section 90 of
the Liquor Act on the religious beliefs of holders
of grocers’ wine
licences or any other person, or any religious purpose served by such
prohibition. The section does not compel
licencees or any other persons,
directly or indirectly, to observe the Christian sabbath. It does not in any
way constrain their
right to entertain such religious beliefs as they might
choose, or to declare their religious beliefs openly, or to manifest their
religious beliefs. It does not compel them to open or close their businesses on
a Sunday.
[98] There is also no evidence as to whether, if there has
been an interference with freedom of religion, the legislation would or
would
not be justifiable as a reasonable limitation of such right. This is an issue
which has troubled the Canadian courts since
the decision in the Big M Drug
Mart case[80] and may have to be
considered by this Court at some future time. That is not necessary in the
present case; nor is it necessary
to decide whether this Court should follow the
Canadian approach or the less exacting approach of the United States Supreme
Court[81] to legislation requiring
“Sunday closing”. In view of the decision to which I have come it
would be inappropriate to
comment on such matters in the present case and I
refrain from doing so.
[99] In the judgments of Sachs J and O’Regan
J reference is made to decisions of the United States Supreme Court dealing with
the First Amendment to the United States Constitution. The First Amendment
provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
It is
clear from the United States decisions that although there is an area in which
the “establishment” clause and the
“free exercise
clause” overlap, the two clauses have different concerns. In developing
our own jurisprudence under section
14 of the interim constitution and section
15 of the 1996 Constitution we should be careful not to blur this
distinction.
[100] The primary purpose of the “establishment
clause” in the US Constitution is to prevent the advancement or inhibition
of religion by the state. The primary purpose of the “free
exercise” clause is to permit adherents of different faiths
to pursue
their religious beliefs without being impeded from doing so by state
coercion.[82]. Our Constitution
deals with issues of religion differently to the US Constitution. It does so
under the equality provisions of
section 8, the freedom of religion, belief and
opinion provisions of section 14, and the education provisions of section 32.
[101] The only provision relied on by the appellant in the present case
is section 14. Section 14 does not include an “establishment
clause”
and in my view we ought not to read into its provisions principles pertaining
to the advancement or inhibition of
religion by the state. To do so would have
far reaching implications beyond the apparent scope and purpose of section 14.
If such
obligations on the part of the state are to be read into section 14 does
this mean that Christmas Day and Easter Friday can no longer
be public holidays,
that “Family Day” is suspect because it falls on Easter Monday, that
the SABC as public broadcaster
cannot broadcast church services (as it does
regularly on Sunday mornings, though it does not regularly broadcast Muslim
services
on Fridays or Jewish services on Saturdays or Hindu services on any
particular day of the week), that its daily religious programmes
must be
cancelled, and that state subsidies to denominational schools are prohibited?
These examples can be multiplied by reference
to the extremely complex United
States law which has developed around the “establishment
clause”.
[102] I should add that I can see nothing in the text of
section 14(1) or in the historical background to a constitution which made
no
provision for an establishment clause, which would require such a principle to
be read into its provisions. The Constitution
deals with unequal treatment and
discrimination under section 8. Unequal treatment of religions may well give
rise to issues under
section 8(2), but that section was not relied upon by the
appellant in the present case. To read “equitable considerations”
relating to state action into section 14(1) would give rise to any number of
problems not only in relation to freedom of religion
but also in relation to
freedom of conscience, thought, belief and opinion, which would go far beyond
the difficulties raised by
the “establishment clause” of the US
Constitution.
[103] Section 14(2) does not in my view provide
justification for giving an extended meaning to section 14(1). Compulsory
attendance
at school prayers would infringe freedom of religion. In the context
of a school community and the pervasive peer pressure that
is often present in
such communities, voluntary school prayer could also amount to the coercion of
pupils to participate in the prayers
of the favoured religion. To guard against
this, and at the same time to permit school prayers, section 14(2) makes clear
that there
should be no such coercion. It is in this context that it requires
the regulation of school prayers to be carried out on an equitable
basis. I
doubt whether this means that a school must make provision for prayers for as
many denominations as there may be within
the pupil body; rather it seems to me
to require education authorities to allow schools to offer the prayers that may
be most appropriate
for a particular school, to have that decision taken in an
equitable manner applicable to all schools, and to oblige them to do so
in a way
which does not give rise to indirect coercion of the
“non-believers”. But whatever section 14(2) may mean,
and we have
heard no argument on this, it cannot in my view be elevated to a constitutional
principle incorporating by implication
a requirement into section 14(1) that the
state abstain from action that might advance or inhibit
religion.
[104] There may be circumstances in which endorsement of a
religion or a religious belief by the state would contravene the “freedom
of religion” provisions of section 14. This would be the case if such
endorsement has the effect of coercing persons to observe
the practices of a
particular religion, or of placing constraints on them in relation to the
observance of their own different
religion.[83] The coercion may be
direct or indirect, but it must be established to give rise to an infringement
of the freedom of religion.
It is for the person who alleges that section 14
has been infringed to show that there has been such coercion or constraint. In
my view this has not been established in the present case.
[105] Whatever connection there may be between the
Christian religion and the restriction against grocers selling wine on Sundays
at a time when their shops are open for other business, it is in my view too
tenuous for the restriction to be characterised as an
infringement of religious
freedom. In the circumstances I hold that the appellant has failed to establish
that section 90 of the
Liquor Act is inconsistent with section 14 of the interim
Constitution.
[106] The alleged infringement of section 26 can be dealt
with briefly. The appeal on this ground is no different in substance from
the
Lawrence appeal. Sunday is the day of the week on which most South Africans do
not work. A restriction on the sale of liquor
on Sundays is, therefore, likely
to be more effective in curtailing the consumption of liquor than a restriction
on the sale of liquor
on any other day of the week. For the reasons given in
the Lawrence appeal I am satisfied that the appellant in the present matter
has
failed to establish that the prohibition of the sale of wine by grocers on
Sundays infringes section 26 of the interim Constitution.
[107] It
follows that the appellants have failed to establish that the legislation under
which they were charged and convicted was
inconsistent with the interim
Constitution.
[108] The following order is made: the appeals in the
matters of Rebecca Lawrence v The State, Rodney Gordon Negal v The State, and
Magdalena Petronella Solberg v The State are dismissed.
Langa DP,
Ackermann J, and Kriegler J concur in the judgment of Chaskalson
P.
O’REGAN J:
[109] I have had the opportunity of reading
the judgments prepared in this matter by Chaskalson P and Sachs J. I agree, for
the reasons
given by Chaskalson P, that section
88(1) and section 90(1) of
the Liquor Act 27 of 1989 (“the Liquor Act”) are not in breach of
section 26 of the Constitution
of the Republic of South Africa, 1993 Act 200 of
1993 (“the interim Constitution”), and therefore I agree that the
appeals
of Ms Lawrence and Mr Negal should fail. I cannot, with respect, agree
with the conclusions of Chaskalson P or Sachs J concerning
the challenge arising
from section 14 of the interim Constitution brought by Ms Solberg (“the
appellant”) for the reasons
I give below.
[110] The appellant was
charged with and convicted of selling liquor on a Sunday in breach of the
provisions of the Liquor Act. It
is against that conviction which she now
appeals. Her legal representative argues that the provisions in terms of which
she was
convicted are unconstitutional and therefore invalid and that her
conviction should be set aside. There are two constitutional arguments
raised:
first, that the provisions of section 90(1) read with the definition of closed
day in section 2 of the Liquor Act are in
breach of section 26 of the interim
Constitution. As I agree with the reasoning of Chaskalson P on that score, I
shall say no more
about it. The second constitutional attack raises the
question of the right to freedom of conscience and
religion.
[111] Section 90(1) of the Liquor Act prohibits the selling of
liquor by wine licensees on “closed day[s]”. “Closed
day[s]” are defined in section 2 of the Liquor Act as Sunday, Good Friday
and Christmas Day. The appellant in this case argues
that the purpose of this
prohibition is to “induce submission to a sectarian Christian conception
of the proper observance
of the Christian sabbath and Christian holidays”
and that the prohibition is therefore in breach of section 14 of the interim
Constitution.
[112] This is the first case in which we have had to
consider section 14 which provides:
“(1) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic freedom in institutions of higher learning.
(2) Without derogating from the generality of subsection (1), religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.
(3) Nothing in this Chapter shall preclude legislation recognising -
(a) a system of personal and family law adhered to by persons professing a particular religion; and
(b) the validity of marriages concluded under a system of religious law subject to specified procedures.”
[113] There is
no evidence on the record to establish the appellant’s religious beliefs.
There can be no doubt however that
she has a direct interest in the
constitutionality of the provisions under scrutiny. If they are held to be
unconstitutional on
the grounds she has raised, then her conviction may be set
aside. If they are found not to be inconsistent with the interim Constitution
on those grounds, then the conviction will stand. This interest is clearly
sufficient to found her challenge to the provisions.
[114] Chaskalson P
has found that in prohibiting the sale of liquor on Sundays, Good Fridays and
Christmas Day, section 90(1) of the
Liquor Act does not constitute a breach of
section 14. He acknowledges that constraints upon freedom of religion can be
imposed
in subtle ways (at paragraph 93) but finds that in this case there is no
constraint upon people’s “right to entertain
such religious beliefs
as they might choose, or to declare their religious beliefs openly, or to
manifest their religious beliefs.”
Nor, he finds, is anyone compelled to
open or close a shop on a Sunday (at paragraph 97). He concludes that any
constraint imposed
by the provisions is too “tenuous” to be
characterised as an infringement of religious freedom (at para
105).
[115] Sachs J, in his concurring judgment, finds that while there
has been a breach of section 14, that limitation is justified in
terms of
section 33. He concludes that the provision contains a sectarian message which
constitutes a breach of section 14 (at para
163). He concludes however that
that breach is justified.
[116] I shall commence by considering the
purpose and meaning of section 14 in our Constitution. Unlike the Constitution
of the United
States, our Constitution contains no establishment clause
prohibiting the “establishment” of a religion by the state.
Nevertheless, the interim Constitution contains a range of provisions protecting
religious freedom. In section 8, the interim Constitution
prohibits
“unfair discrimination” on grounds of religion. In section 32(c),
every person is given the right
“to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.”
And, of course,
section 14 protects the freedom of religion. It is not possible to read this
array of constitutional protections
without realising that our Constitution
recognises that adherence to religion is an important and valued aspect of the
lives of many
South Africans and that the Constitution seeks to protect, in
several ways, the rights of South Africans to freedom of
religion.
[117] The provisions of section 14 themselves are instructive
as to the manner in which the right should be developed in our law.
Section
14(1) protects the right to freedom of religion and conscience. Section 14(2)
then provides that religious observances
may be conducted at state or
state-aided institutions provided that they are conducted on an equitable basis
and attendance at them
is free and voluntary. And section 14(3) permits
legislation recognising systems of personal and family law shared by members of
a religion.
[118] It is clear from these provisions, and particularly
sections 14(2) and (3), that the strict approach of the United States Supreme
Court to the provisions of the First Amendment of the Constitution of the United
States of America in relation to the separation
between state and religious
bodies has been avoided. That approach was perhaps most memorably stated by
Black J in Everson v Board of Education of the Township of Ewing:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’.”[84]
This
approach to the First Amendment has led to a jurisprudence which generally
prohibits any state endorsement or funding of religion.
The US Supreme Court
has, for example, held unconstitutional a New York practice recommending the
reading of a non-denominational
prayer in state
schools;[85] has struck down a
Pennsylvania statute requiring that schools commence the day with a reading
without comment of ten verses of the
Bible;[86] and held unconstitutional
a practice whereby public schools permitted the use of their facilities and
released their students for
religious education during school
hours.[87]
[119] The
provisions of section 14(2) of the interim Constitution make it clear that
religious observances at public institutions
will not give rise to
constitutional complaint if the observances meet three requirements: the
observances must be established under
rules made by an appropriate authority;
they must be equitable; and attendance at them must be free and voluntary. It
seems appropriate
to imply from this provision and from the absence of an
express establishment clause that a strict separation between religious
institutions
and the state is not required by our Constitution.
[120] On
the other hand, it also seems plain from the provisions of section 14(2) that
state endorsement of religious practices is
subject to certain qualifications.
First, it should not be coercive. The requirement of free and voluntary
attendance at religious
ceremonies is an explicit recognition of the deep
personal commitment that participation in religious ceremonies reflects and a
recognition
that the freedom of religion requires that the state may never
require such attendance to be compulsory. It protects the rights
to conscience
both of non-believers and of people whose religious beliefs differ from those
which are being observed. Direct coercion,
of course, is only half the problem.
As Black J stated in Engel v Vitale:
“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”[88]
[121] The
stipulation of voluntariness is not the only precondition established by section
14(2). The subsection requires that even
where attendance is voluntary, the
observance of such practices must still be equitable. In my view, this
additional requirement
of fairness or equity reflects an important component of
the conception of freedom of religion contained in our Constitution. Our
society possesses a rich and diverse range of religions. Although the state is
permitted to allow religious observances, it is not
permitted to act
inequitably.
[122] In determining what is meant by inequity in this context,
it must be remembered that the question of voluntary participation
is a
consideration separately identified in section 14(2). The requirement of equity
must therefore be something in addition to
the requirement of voluntariness. It
seems to me that, at the least, the requirement of equity demands the state act
even-handedly
in relation to different religions. As Brennan J held in
Larson v Valente:
“This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause . . . Madison’s vision – freedom for all religion being guaranteed by free competition between religions – naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators – and voters – are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations.”[89]
It
is important to emphasise that Brennan J is concerned here not with the
establishment clause of the US Constitution but with the
free exercise clause
which provides that Congress shall make no law prohibiting the free exercise of
religion. Requiring that the
government act even-handedly does not demand a
commitment to a scrupulous secularism, or a commitment to complete neutrality.
Indeed,
at times giving full protection to freedom of religion will require
specific provisions to protect the adherents of particular religions
as has been
recognised in both Canada and the United States of
America.[90] The requirement of
even-handedness too may produce different results depending upon the context
which is under scrutiny. For example,
in the context of religious observances
at local schools, the requirement of equity may dictate that the religious
observances held
should reflect, if possible, the religious beliefs of that
particular community or group. But for religious observances at national
level,
however, the effect of the requirement is to demand that such observances should
not favour one religion to the exclusion
of others.
[123] The
requirement of equity in the conception of freedom of religion as expressed in
the interim Constitution is a rejection of
our history, in which Christianity
was given favoured status by government in many areas of life regardless of the
wide range of
religions observed in our society. Sachs J in his judgment in
this case has provided a valuable account of the ways in which Christian
principles were endorsed by legislation and its practices often imposed upon all
South Africans regardless of their beliefs (see
paragraphs 148 – 152).
The explicit endorsement of one religion over others would not be permitted in
our new constitutional
order. It would not be permitted, first, because it
would result in the indirect coercion that Black J adverted to in Engel v
Vitale. And secondly because such public endorsement of one religion over
another is in itself a threat to the free exercise of religion,
particularly in
a society in which there is a wide diversity of religions. Accordingly, it is
not sufficient for us to be satisfied
in a particular case that there is no
direct coercion of religious belief. We will also have to be satisfied that
there has been
no inequitable or unfair preference of one religion over
others.
[124] I return now to the facts of this case. Under section 90
of the Liquor Act, stores holding grocers’ wine licences are
not required
to close on Sundays, Good Friday and Christmas Day, but are merely prohibited
from selling wine, the alcoholic beverage
which their grocer’s wine
licence permits them to sell.
[125] In my view, it is not possible to
read the inclusion of Sundays in the definition of “closed day” in
the abstract.
The inclusion of Sundays is accompanied, and ineluctably
coloured, by the inclusion of Good Friday and Christmas Day. Good Friday
and
Christmas Day are, without doubt, important days in the Christian calendar. In
addition, many Christian denominations consider,
as a central tenet of their
religion, that Sundays should be observed as a day of rest and religious
observance. It is true that
both Good Friday and Christmas Day are days which
have been declared as public holidays. However they are only two of twelve
statutorily
recognised public holidays. And they are the two days of the twelve
which have a direct foundation in the practice and observance
of Christianity.
It seems an unavoidable conclusion, that these two days together with Sundays
were selected to comprise the definition
of closed day because of their
religious significance for Christians. If the purpose had been to provide for
days of rest, the days
selected would have been all days recognised as public
holidays. The inevitable effect of choosing these days was to give a
legislative
endorsement to Christianity, but not to other
religions.
[126] It is true that the recognition of these days is, in all
likelihood, a relic from a former era when almost all trading activities
and
public sport and entertainment were prohibited on Sundays and religious holidays
for express religious purposes.[91]
For all that it may be an anachronism, it is important to note that the
definition of “closed day” was amended in 1995
by the deletion of
Ascension Day and the Day of the Vow (16 December), but Christmas Day, Good
Friday and Sundays were retained in
the
definition.[92] Whatever the
historical provenance of the provision, its current purpose and effect are to
give special recognition to the holy
days of one religion and not others. That
contravenes the requirement in section 14 that the legislature should act
even-handedly
in relation to religion and not prefer one to the exclusion of
others.
[127] I cannot accept that the legislature’s purpose in
enacting the definition of closed day is a secular one. Even if it
were that
would not necessarily be the end of the matter. In my view, the question in
each case will not be the question of purpose
alone, but the question of whether
the overall purpose and effect of the provision constitutes a breach of freedom
of religion.
[128] I also cannot agree with Chaskalson P when he
concludes that because the provisions do not constrain individuals’
“right
to entertain such religious beliefs as they might choose, or to
declare their religious beliefs openly, or to manifest their religious
beliefs”, there is no infringement of section 14 (at para 97). In my
view, the requirements of the Constitution require more
of the legislature than
that it refrain from coercion. It requires in addition that the legislature
refrain from favouring one religion
over others. Fairness and even-handedness
in relation to diverse religions is a necessary component of freedom of
religion.
[129] In sum, it is my view that the focus of section 14 is
both purpose and effect. In interpreting section 14, we must recognise
first,
the value accorded to religious beliefs and the diversity of such beliefs in our
society by our Constitution; and secondly,
the fact that religious beliefs are a
matter of personal faith and commitment which should not be the subject of
coercion, whether
direct or indirect, by the state. In this case, the
legislation results in a breach of section 14 of the interim Constitution in
that it results in the favouring of one religion over others. The appellant did
not argue that the provision was in breach of section
8(2), the right not to be
discriminated against unfairly on the grounds of religion. It is not necessary,
in view of my conclusion,
to consider whether section 90 would constitute a
breach of that constitutional provision as well.
[130] The question that
remains for consideration is whether that breach is justified in terms of
section 33 of the Constitution.
It is now well established in our jurisprudence
that to pass that hurdle, we must be persuaded that the legitimate purpose and
effect
of the infringing legislation outweigh the extent of the infringement
caused.[93] In this case, we are
concerned with an infringement of section 14(1) of the interim Constitution.
Where there is an infringement
of that right, the infringement must be shown not
only to be reasonable and justifiable in an open and democratic society based on
freedom and equality, but also necessary in such a society. In S v
Makwanyane, the following was said of the different standards of
justification:
“What is clear is that s 33 introduces different levels of scrutiny for laws which cause an infringement of rights. The requirement of reasonableness and justifiability . . . clearly envisages a less stringent constitutional standard than does the requirement of necessity. In both cases, the enquiry concerns proportionality: to measure the purpose, effects and importance of the infringing legislation against the infringement caused. In addition, it will need to be shown that the ends sought by the legislation cannot be achieved sufficiently and realistically by other means which would be less destructive of entrenched rights. Where the constitutional standard is necessity, the considerations are similar, but the standard is more stringent.”[94]
Unfortunately,
in this case, little evidence was placed before us by government of the precise
purpose and effect of the provisions.
It is not the first time that this Court
has been left with little assistance in this regard. Inevitably, the absence of
such evidence
is an obstacle to the exercise we have to conduct in terms of
section 33. It makes it far less likely that we will conclude that
the
infringement is justified.
[131] I accept that if the purpose of section
90 were to provide a uniform day of rest for all South Africans, that would be
an important
legislative purpose for the purposes of section 33. Indeed, it may
well be that the purpose and effect of the definition of “closed
day” in relation to provisions in the Liquor Act other than section 90 is
to achieve a day of rest. That is because other
provisions require the closure
of liquor outlets on closed days. However, section 90 does not require that
grocery stores close
on “closed day[s]”, it merely prohibits the
sale of alcoholic beverages on such days.
[132] It is not clear to me
precisely what the purpose of the challenged provision is, but I am willing to
accept that at least one
of its purposes is to restrict the availability of
liquor on closed days in order to restrict consumption. Such a purpose or
effect
is sufficient to ensure that there is no breach of section 26 of the
interim Constitution, but it is far less persuasive in relation
to the breach of
section 14. This is so because even if one of its purposes is the restriction
of supply to restrict consumption,
it is hard to conclude that this is the
primary purpose of the definition of closed day in section 90(1). First,
because the Liquor
Act does not prohibit the sale of all liquor on closed days,
only certain types of sale. In addition, it does not prohibit sale
on
non-religious public holidays, such as the Day of Goodwill (26 December), New
Year’s Day or Family Day (the day after Easter
Sunday), when the roads are
particularly full and the restriction of consumption would appear to be
particularly desirable. To the
extent, therefore, that this is a purpose of the
legislation I cannot consider it to weigh heavily for the purposes of
proportionality
in the context of a breach of section 14. Nor am I satisfied
that this purpose of the legislation is effectively achieved. To the
extent
that the Liquor Act permits the consumption of liquor in a variety of
circumstances on closed days, it is not clear at all
how effective it is in
achieving a restriction of consumption by prohibiting sales from grocery stores
and liquor stores. On the
other hand, in identifying as closed days, days of
Christian significance, the legislature displays an endorsement of Christianity
in conflict with the Constitution. It is true that the scope of the
infringement of section 14 is not severe or egregious, but in
my view, the
purpose and the effect of the legislation is not sufficient to meet the test of
justification required by section 33.
[133] In terms of section 98(5) of
the interim Constitution, when this Court finds that a provision in a law is
unconstitutional it
must declare it to be invalid to the extent of its
unconstitutionality. In this case, I have found that the prohibition on trading
upon closed days contained in section 90(1) of the Liquor Act is
unconstitutional. Section 90(1) provides as follows:
“The holder of a grocer’s wine licence may, notwithstanding any law to the contrary –
(a) on any day, excluding a closed day and Saturday, sell or deliver his or her liquor between 08:00 and 20:00;
(b) on any Saturday, excluding a closed day, sell or deliver his or her liquor between 08:00 and 17:00.”
In
my view, the constitutionality of section 90(1) could be cured by the excision
of the words “closed day and” from section
90(1)(a) and the phrase
“excluding a closed day” in section 90(1)(b).
[134] For these
reasons, I cannot concur in the order of Chaskalson P concerning the appeal of
Ms Solberg.
Goldstone J and Madala J concur in the judgment of
O’Regan J.
SACHS J:
[135] The relevant facts of the
case are set out in the judgment of Chaskalson P at paragraphs 1 to 4. My
judgment deals only with
the challenge based on the conviction for selling wine
on a Sunday.
[136] On the face of it, the prohibition of the sale of
liquor by grocery stores on Sundays has nothing to do with freedom of religion.
It applies equally to all sellers and purchasers of liquor, operating
independently of their religious persuasion, and making no
distinction between
believers and non-believers. It in no way interferes with the practice of
religion as internationally
understood.[95] I am unaware
of any form of worship, observance, practice or teaching that actually requires
the sale of liquor on Sunday or that
is directly inhibited by its not being sold
on that day.[96]
The
problems
[137] There are two ways, however, in which the
determination of Sundays as closed days for the sale of liquor by grocery stores
might
involve violations of section 14 of the interim
Constitution.[97] The first relates
to the impact that the choice by the state of the Christian sabbath as a closed
day might have on non-Christian
liquor sellers who, because their religion
obliges them to cease trading on a different sabbath on top of the statutory
limit on
trading on the closed day, are placed at a competitive disadvantage.
In the trenchant words of Stewart J of the US Supreme Court
(dissenting):
“Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.”[98]
[138] The
second way in which section 14 might be involved is through the negative
radiating symbolic effect that state endorsement
of the Christian sabbath might
have. The manner in which this might happen is well brought out in a passage
from a judgment by O’Connor
J of the US Supreme Court:
“The Establishment Clause[[99]] prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”[100]
The
question in the present case is whether the prohibition of the sale of liquor by
grocery stores on Sundays amounts to such an
endorsement, thereby sending out a
message that is inclusionary for some and exclusionary for others in violation
of section 14.
It should be emphasised that the constitutional enquiry in the
present matter in no way relates to the rights of Christians to observe
Sunday
as a day of special religious
significance.[101] There can
indeed be no doubt that such rights are firmly protected by section 14. What is
in issue is the authority of the state
to impose a particular religious view on
the whole of society.
The difficulties
[139] In
responding to the question in the context of the facts of the present case, I
have encountered two major difficulties. The
first relates to the scope that
should be granted to the operation of the maxim that the law does not concern
itself with trifles
(de minimis non curat lex) in the area of belief and
conscience. The second concerns whether or not it is appropriate or even
possible to apply objective criteria
when determining the significance law has
in respect of something as subjective and personal as religious belief. The
problem that
faces a court in a multi-faith country is to decide whose viewpoint
or frame of reference should be adopted when such an evaluation
is made.
[140] To complicate the matter further, the challenge based on section
14 came not from believers whose faith was being threatened,
but from grocers
whose profits were being limited. The applicants were, of course, quite
entitled to raise the issue of the constitutionality,
in terms of section 14, of
a law which placed restrictions on their commercial activities. Yet, the result
was an air of artificiality
in relation to this aspect of the
case,[102] and a lack of evidence,
from the side both of the applicants and of the state, on the question of the
purpose and impact of closed
days. If ever there was a case which required
close contextual rather than purely abstract analysis, it was this one, and if
ever
a cupboard was bare of concrete contextual information it was the one in
the present matter.
The text and context of the interim
Constitution
[141] Our solutions to all these problems and
difficulties will, of course, be found not in the complex and often
contradictory[103] North American
jurisprudence on the subject but in the text and context of our own
Constitution. In Prinsloo v Van der Linde and
Another[104] this Court
cautioned against simplistic transplantation into our jurisprudence of formulae,
modes of classification and legal doctrine
developed in other countries where
the constitutional texts and socio-historical situations were different from
ours.[105] At the same time we
stated that in developing doctrine we had to take account both of our specific
situation and of problems which
we shared with all
humanity.[106] Furthermore,
section 35(1)[107] required us
when interpreting the bill of rights to promote the values of an open and
democratic society based on freedom and equality.
We emphasized that we should
be astute not to lay down sweeping interpretations at this stage but should
allow doctrine to develop
slowly and, hopefully, surely, on a case by case basis
with special emphasis on the actual context in which each problem
arose.[108] Although our
observations in that case were specially directed towards the interpretation of
section 8 equality rights in our country,
they can, in my view, be applied with
profit to the interpretation of section 14 as well. It is with these
considerations in mind
that my analysis proceeds. If I draw on statements by
certain United States Supreme Court justices, I do so not because I treat
their
decisions as precedents to be applied in our courts, but because their dicta
articulate in an elegant and helpful manner problems
which face any modern court
dealing with what has loosely been called church/state relations. Thus, though
drawn from another legal
culture they express values and dilemmas in a way which
I find most helpful in elucidating the meaning of our own constitutional
text.
[142] The principal provision in our Constitution we have to consider is
section 14. Headed “Religion, belief and opinion”,
its first
subsection reads as follows:
“14(1) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic freedom in institutions of higher learning.”
This is
the central provision as far as our enquiry is concerned, but it by no means
exhausts the text with regard to questions of
religion, belief and opinion. In
the first place, the drafters of the interim Constitution emphasized the
importance of section
14 rights by providing that they could not be derogated
from during a state of emergency (section 34(5)(c)), and furthermore, that
they
should be amongst the relatively small number of rights which could only be
limited (in terms of section
33(1)(b)(aa))[109] on the
condition that such limitation was not only reasonable but also
“necessary”. Secondly, section 8 complements
section 14 by
identifying discrimination on the grounds of religion, conscience and belief as
presumptively constituting unfair discrimination.
Thirdly, section 17
guarantees that everyone shall have the right to freedom of association, which
clearly includes the right of religious
bodies to function freely as part of
civil society.[110]
[143] Fourthly, section 14(2) provides that:
“Without derogating from the generality of subsection (1), religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.”
This subsection has been
referred to as “a prime example of a provision attesting to the
negotiators’ unwillingness to
erect walls of separation between church and
state”,[111] allowing for
the conduct of religious observances at state or state-aided institutions,
which, subject to certain conditions to be
strictly adhered to, would include
educational institutions, prisons, and state hospitals.
Fifthly, section
14(3) opens the way to the possible recognition of religiously based family law
by providing:
“(3) Nothing in this Chapter shall preclude legislation recognising –
(a) a system of personal and family law adhered to by persons professing a particular religion; and
(b) the validity of marriages concluded under a system of religious law subject to specified procedures.”
[144] Sixthly,
the language provisions also testify to the importance which the interim
Constitution attributes to religion as part
of national life and culture.
Section 3(10)(c) provides that:
“The Pan South African Language Board shall be responsible for promoting respect for and the development of German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu and other languages used by communities in South Africa, as well as Arabic, Hebrew and Sanskrit and other languages used for religious purposes.” (My emphasis)
Seventhly, section 32(c)
provides that every person shall have the right:
“to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.”
And, eighthly,
persons taking official oaths are offered the choice either of swearing the oath
and adding the words “So help
me God”, or else of making a solemn
affirmation without reference to
God.[112]
[145] There are
other provisions which, although not directly concerned with religion and
belief, have an important bearing on how
section 14 should be interpreted. It
is noteworthy, for example, that section 15(1) provides inter alia that every
person shall
have the right to freedom of expression and freedom of artistic
creativity and scientific research, while section 15(2) requires
that all media
financed by or under the control of the state shall be regulated in a manner
which ensures impartiality and the expression
of a diversity of opinion.
Freedom of opinion and freedom of expression go hand in hand, and this section
testifies to a strong
constitutional concern for openness and
diversity.
[146] The same theme is adverted to in the limitations
clause[113] and the interpretation
clause,[114] both of which
establish the notions of an open and democratic society as a primary
point of reference for evaluating the bill of rights. The concept of an open
society must indeed
be regarded as one of the central features of the bill of
rights and a key element in the interpretation of section 14. Such a society
is
a pluralistic one in which there is no official orthodoxy or faith. In the
ringing words of the US Supreme Court:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[115]
[147] Further
evidence of the importance attributed by our Constitution to the respect for
diversity is contained in the
postscript,[116] where the
emphasis on reconciliation so as to overcome the strife and division of the
past, underlines the importance of tolerance
and mutual accommodation as one of
the underpinnings of our new constitutional order. Openness coupled with
diversity presupposes
that persons may on their own, or in community with
others, express the right to be different in belief or behaviour, without
sacrificing
any of the entitlements of the right to be the same in terms of
common citizenship.
[148] To my mind, read in the context of all of the
above provisions and of the Constitution as a whole, section 14 was intended at
least to uphold the following principles and values: South Africa is an open and
democratic society with a non-sectarian state that
guarantees freedom of
worship; is respectful of and accommodatory towards, rather than hostile to or
walled-off from, religion; acknowledges
the multi-faith and multi-belief nature
of the country; does not favour one religious creed or doctrinal truth above
another; accepts
the intensely personal nature of individual conscience and
affirms the intrinsically voluntary and non-coerced character of belief;
respects the rights of non-believers; and does not impose orthodoxies of thought
or require conformity of conduct in terms of any
particular
world-view.[117] The
Constitution, then, is very much about the acknowledgement by the state of
different belief systems and their accommodation
within a non-hierarchical
framework of equality and non-discrimination. It follows that the state does
not take sides on questions
of religion. It does not impose belief, grant
privileges to or impose disadvantages on adherents of any particular belief,
require
conformity in matters simply of belief, involve itself in purely
religious controversies,