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

Shoprite Checkers held grocer’s wine licences under the Liquor Act 27 of 1989, allowing it to sell wine in its grocery stores in the Eastern Cape. These licences were neither withdrawn nor lapsed under the old Act. The Eastern Cape Liquor Act 10 of 2003 introduced a new regulatory framework. Its transitional provisions deemed existing grocer’s wine licences to be registrations for a period of ten years from commencement (2004), after which the entitlement to sell wine in grocery stores would lapse unless converted into registrations to sell all liquor at separate premises. Shoprite did not convert its licences. When the ten-year period expired in May 2014, Shoprite challenged sections 71(2) and (5) and parts of the Schedule to the Eastern Cape Act, arguing that the legislative termination of its entitlement amounted to an arbitrary deprivation of property under section 25(1) of the Constitution. The High Court upheld the challenge and declared the provisions invalid, prompting an application to the Constitutional Court for confirmation of that order.

The declaration of constitutional invalidity made by the High Court was not confirmed. The application for leave to appeal was dismissed. No order as to costs was made.

This case is a leading Constitutional Court authority on whether and when state-issued commercial licences constitute ‘property’ under section 25 of the Constitution. It clarifies that regulatory entitlements with commercial value can qualify as property, but that their termination through legislative reform will not necessarily amount to an arbitrary deprivation. The judgment develops the application of the FNB arbitrariness test in the context of regulatory change and balances property protection with the State’s power to restructure regulatory regimes in the public interest.