South African Liquor Traders Association v Chairperson, Gauteng Liquor Board

The applicants challenged the definition of "shebeen" in section 1 of the Gauteng Liquor Act 2 of 2003. The definition read: "'shebeen' means any unlicensed operation whose main business is liquor and is selling less than ten (10) cases consisting of 12 x 750ml of beer bottles". The definition did not stipulate a period within which the specified quantity must be sold. The Pretoria High Court made an unopposed order of constitutional invalidity severing the portion relating to the quantity of beer. The applicants included SALTA (representing 200,000 liquor traders), individual shebeen owners with permits, and liquor manufacturers/distributors. Permits issued under Regulation 21 limited owners to selling not more than ten cases of beer per week, making profitable operation impossible. The respondents initially did not oppose the application in the High Court or file answering papers in the Constitutional Court, requiring the Court to issue directions compelling participation.

• Whether the definition of 'shebeen' in section 1 of the Gauteng Liquor Act 2 of 2003 is unconstitutionally vague
• Whether the severance order made by the High Court was appropriate
• What the appropriate remedy for the constitutional invalidity should be
• Whether costs should be awarded on an attorney and client scale
• Whether costs de bonis propriis should be awarded against the State Attorney

1. Application for condonation for late filing granted. 2. The definition of "shebeen" in section 1 of the Gauteng Liquor Act 2 of 2003 declared unconstitutional and invalid. 3. Order of invalidity suspended for six months. 4. During suspension, definition read as: "'shebeen' means any unlicensed operation whose main business is liquor and is selling less than sixty (60) cases consisting of 12 x 750ml of beer bottles per week." 5. Conditions in permits restricting type of liquor declared ultra vires. 6. Conditions limiting sale to ten cases per week declared ultra vires. 7. During suspension, permits subject to maximum of sixty cases per week. 8. State Attorney ordered to pay applicants' wasted costs of 2 March 2006 hearing on attorney and client scale. 9. Third Respondent (MEC) ordered to pay applicants' costs in Constitutional Court and High Court on attorney and client scale.

A law or legal provision that is impermissibly vague violates the rule of law, a foundational value of the Constitution. The rule of law requires that laws be written with reasonable certainty so that those bound by them can regulate their conduct accordingly. A definition that cannot be applied with any precision because it omits essential elements (such as a time period for measuring quantity) is unconstitutionally vague. When considering remedies for constitutional invalidity, severance is inappropriate where the resulting provision would be so broad as to conflict with the overall purpose of the legislation. Where legislative intent is unclear and neither severance nor reading-in can be determined with sufficient precision to be faithful to the legislative scheme, a court should declare the provision invalid and suspend the order to allow the legislature to remedy the defect, while crafting just and equitable interim relief based on available evidence.

O'Regan J made several non-binding observations: (1) It is undesirable practice for a court not to give reasons where an order is made declaring legislation unconstitutional, even in unopposed matters, both because of accountability concerns and to assist the Constitutional Court in confirmation proceedings. (2) The Court preferred not to consider whether it would be permissible to consult Hansard debates to determine legislative intent, and noted that even if permissible, the debates in this case provided no assistance. (3) The Court expressed grave concern about the lapse in the State Attorney's office, noting that given government's constitutional responsibility to assist courts, such failures are particularly serious. (4) While the costs de bonis propriis order was made against the State Attorney's office rather than the individual attorney, the Court noted the young attorney's conduct reflected "lamentable want of professional responsibility" and that this also reflected poorly on her supervisors who left her inadequately supervised and trained. (5) The Court emphasized that if the Gauteng Legislature was dissatisfied with the interim arrangement, it could amend the definition as soon as it wished.

This case is significant in South African constitutional law for several reasons: (1) It reinforces the doctrine of vagueness as founded on the rule of law, a foundational constitutional value, requiring laws to provide reasonable certainty to those bound by them. (2) It establishes important principles regarding the appropriateness of severance versus reading-in remedies, holding that severance is inappropriate where the resulting provision would conflict with the overall legislative purpose. (3) It demonstrates the Court's willingness to craft interim remedies based on evidence where legislative intent is unclear, balancing respect for separation of powers with the need to provide effective relief. (4) It emphasizes organs of state's constitutional duty under section 165(4) to assist courts and imposes attorney and client costs to mark displeasure at dilatory conduct. (5) It affirms that costs de bonis propriis may be awarded against attorneys for serious negligence amounting to a want of professional responsibility. (6) The case contributed to the normalization and regulation of shebeens, historically informal and marginalized liquor traders in townships, bringing them within the formal regulatory framework.