Johannesburg - The Constitutional Court will hear an application on Thursday for confirmation of, and leave to appeal against, a high court ruling relating to the Eastern Cape Liquor Act.
This was after the Eastern Cape Liquor Board granted the applicant, Shoprite Checkers, 27 grocers' wine licences between 1989 and 2003, under the old Liquor Act of 1989.
In terms of the old act, grocers' wine licences permitted the sale of groceries, foodstuffs and table wine on the same premises.
In 2004, this changed with the Eastern Cape Liquor Act coming into force.
This act provides that, from the date of operation, grocers' wine licences in the Eastern Cape are deemed to be “registrations” valid until 2014.
Licence holders could apply for a registration to sell all kinds of liquor on separate premises, five years after the date of the act coming into force.
Shoprite approached the High Court in Grahamstown, challenging the constitutional validity of the provisions. It contends that the grocers' wine licences constitute property under the Constitution.
It argues that the MEC for economic development, environmental affairs and tourism; the provincial government; and the Eastern Cape Liquor Board violated its right not to be arbitrarily deprived of property.
The high court found that the definition of property as envisaged in the Constitution is wide. The grocers' wine licences therefore constitute property.
It held that the respondents had arbitrarily deprived Shoprite of that property through the impugned provisions of the Eastern Cape Liquor Act, and that these provisions were constitutionally invalid.
The high court gave an interim order that Shoprite be allowed to continue operating under the licences, pending confirmation by the Constitutional Court.
Before the Constitutional Court the respondents submit in their application for leave to appeal that it would be in the interests of justice for the court to reconsider the high court's determination of some of the preliminary issues raised.
They contend that grocers' wine licences and registrations are not property and that, even if they did constitute property, there was no arbitrary deprivation.
If the highest court confirmed the high court's order, it would be performing the legislature's functions by creating law. Such a ruling would mean that the court would effectively be creating a new category of registration, which would be acting outside the court's powers.
Sapa