Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism: Eastern Cape and Others

Shoprite held grocer's wine licences under the Liquor Act 27 of 1989 to sell wine in its grocery stores in the Eastern Cape. The Eastern Cape Liquor Act 10 of 2003 introduced a new regulatory framework. The transitional provisions deemed the grocer's wine licences to be registrations valid for 10 years after commencement (14 May 2004 to 14 May 2014). After 5 years, holders could apply to sell all kinds of liquor at separate premises (not in grocery stores). Shoprite did not convert its licences and they lapsed on 14 May 2014. Shoprite challenged sections 71(2) and (5) of the Eastern Cape Act as arbitrary deprivation of property under section 25(1) of the Constitution. The High Court declared the provisions invalid.

• Whether a grocer's wine licence constitutes 'property' for purposes of section 25(1) of the Constitution
• Whether Shoprite was deprived of property by the Eastern Cape Act
• Whether the deprivation was arbitrary
• Whether the justifications advanced (simplification of licensing, control concerns, exposure of children to liquor) constitute sufficient reason for the deprivation

The declaration of constitutional invalidity was not confirmed. The application for leave to appeal was dismissed. No order as to costs.

A grocer's wine licence, being an enforceable personal incorporeal right with commercial value, transferability and relative permanence, constitutes property under section 25(1) of the Constitution (majority of Froneman J and Madlanga J). However, the legislative termination of such licences with a 10-year transition period and opportunity to convert to licences for selling all liquor at separate premises does not constitute arbitrary deprivation where the regulatory change is rationally related to legitimate government purposes of simplification of licensing regimes and enhanced control over liquor sales (majority of Froneman J and Moseneke DCJ on arbitrariness). The standard of review for arbitrariness varies on a sliding scale: rationality may suffice where the deprivation does not extinguish fundamental rights, while more compelling justification is required for more severe deprivations affecting core constitutional interests.

Froneman J: Constitutional property should be conceptualized within the normative framework of the Constitution's fundamental values (dignity, equality, freedom) rather than solely through private law concepts. Property protection should serve socially-situated individual self-fulfillment, not merely economic wealth maximization. Pre-constitutional notions of vesting should not limit constitutional property. Courts should allow considerable latitude to governmental changes in regulatory frameworks. Moseneke DCJ: Not all government 'largesse' (licences, permits, welfare entitlements) should be recognized as property - this must be determined case-by-case. Liquor licences are 'bare permissions' that do not vest and are subject to legitimate state regulation. South Africa's expansive administrative law protections mean there is less need to extend property protection as widely as some other jurisdictions. Defining property too widely may make legislative regulation impracticable. Madlanga J: Property should be recognized as a self-standing right without needing to be closely linked to other rights. Economic value is relevant to determining whether something is property. The evidentiary burden on the state cannot be avoided by invoking 'legislative facts' - evidence must be contemporaneous, not ex post facto rationalizations.

This judgment significantly develops South African constitutional property jurisprudence by: (1) Extending the concept of 'property' beyond traditional private law notions to include certain commercial licences, emphasizing that constitutional property must be defined from within the Constitution itself, rooted in values of dignity, equality and freedom. (2) Establishing that the level of protection depends on the connection between the property interest and other fundamental rights - stronger protection where closely linked to rights like choice of vocation. (3) Applying a sliding scale for arbitrariness from rationality to proportionality, depending on the nature and extent of deprivation. (4) Clarifying that courts should exercise restraint regarding 'legislative facts' but still require evidence, not bare assertions. (5) The case demonstrates ongoing contestation about property's meaning in post-apartheid South Africa, with different approaches reflecting tensions between individual rights and transformative state responsibilities.