Rebecca Lawrence v The State; Rodney Gordon Negal v The State; Magdalena Petronella Solberg v The State

Three appellants, all employees of Seven Eleven stores, were charged and convicted in Magistrates' Courts of contraventions of the Liquor Act 27 of 1989. Lawrence sold wine after permitted hours on a weekday; Solberg sold wine on a Sunday (a "closed day"); and Negal sold cider and beer despite holding only a grocer's wine licence permitting sale of table wine only. None disputed the facts. Their defence was that the relevant provisions of the Liquor Act were inconsistent with the interim Constitution. The Magistrates convicted them after refusing postponements to refer constitutional issues to the Constitutional Court. Appeals to the Cape Provincial Division were dismissed on concession that only constitutional defences existed and the Provincial Division lacked jurisdiction. Appeals were then noted to the Constitutional Court under rule 21(1). Appellants sought to introduce new expert evidence on appeal through affidavits, which was contested.

• Whether the restrictions on hours and days of sale of liquor under grocers' wine licences infringe the right to economic freedom under section 26 of the interim Constitution
• Whether prohibition on sale of liquor other than wine under grocers' wine licences infringes section 26
• Whether designation of Sunday as a closed day for liquor sales infringes freedom of religion under section 14 of the interim Constitution
• What is the correct interpretation of section 26 (economic activity) of the interim Constitution
• Whether new evidence can be introduced for the first time on appeal to the Constitutional Court
• Whether any limitations are justified under section 33 of the interim Constitution

The appeals in all three matters (Lawrence, Negal, and Solberg) are dismissed. The convictions stand. The majority found no breach of section 26 (economic freedom) in any of the three cases and no breach of section 14 (freedom of religion) in the Solberg case. O'Regan J (minority on Solberg) would have found a breach of section 14 not justified under section 33 and would have declared section 90(1) invalid to the extent it prohibits sales on "closed days." Sachs J found a breach of section 14 but concluded it was justified under section 33, thus agreeing with the majority outcome.

1. Section 26 of the interim Constitution: Subsections (1) and (2) must be read together to determine the content of the right to economic freedom. The right to engage freely in economic activity means participation subject to the inherent and rational constraints of the economic sphere, not absolute freedom from all regulation. 2. Section 26(2) requires a rational basis test: Measures must be designed to promote one of the specified purposes (protection/improvement of quality of life, economic growth, human development, social justice, fair labour practices, equal opportunity) and must be justifiable in an open and democratic society based on freedom and equality. This requires only a rational connection between the legislative measure and the legitimate purpose, not the proportionality analysis required by section 33. 3. Liquor licensing and regulation: A licensing system controlling the sale of liquor (a potentially harmful substance), including restrictions on who may sell, what may be sold, when and where, is rationally connected to the legitimate purpose of curtailing harmful effects of alcohol consumption and therefore does not infringe section 26. 4. Restrictions on hours of sale of liquor have a rational basis in controlling consumption and also serve purposes of economic growth, human development and fair labour practices by allowing small traders to close and protecting employees from overtime pressure. 5. Legislative expansion vs. constitutional challenge: Courts cannot expand statutory exceptions to create new rights; challenges to prohibitions must be directed at the prohibiting provisions, not at exempting provisions. A court cannot legislate by expanding the scope of an exemption. 6. Sunday as closed day - majority ratio: Designation of Sunday (even with Good Friday and Christmas Day) as a closed day for liquor sales does not infringe section 14 where: (a) it does not compel religious observance; (b) it does not prohibit business generally, only sale of one product; (c) Sunday has acquired a secular character as a common day of rest; (d) the restriction is part of the normal constraints of a licensing system applicable to all; and (e) the connection to religious observance is too tenuous to constitute coercion or constraint on freedom of religion. 7. New evidence on appeal to Constitutional Court: Disputed factual and expert evidence will not generally be admitted for the first time on appeal to the Constitutional Court. Rule 19 deals with compilation of the appeal record, not introduction of new evidence. Rule 34 permits only limited additional material. Litigants must use opportunities in lower courts to place evidence on record.

1. The Court expressly refrained from deciding whether section 26 should be interpreted as placing the burden on the state to prove measures fall within section 26(2) or on appellants to prove they fall outside it (para 51). 2. The Court did not express any view on whether a direct challenge to section 40 of the Liquor Act (general prohibition on conducting liquor business with other business) would have substance (para 81). 3. Chaskalson P noted it was not necessary to decide whether section 173 of the 1996 Constitution (inherent power to regulate process) applied to cases to be decided under the interim Constitution per schedule 6 item 17 (para 24). 4. The Court did not decide what section 14(2) means regarding equitable conduct of religious observances at state institutions, though noting it requires regulation in a manner avoiding indirect coercion (para 103). 5. Chaskalson P expressly refrained from commenting on the correctness of the decision in Public Servants' Association v Minister of Justice (interpretation of "designed to achieve" in section 8(3)) or on the interpretation of section 8(3) generally (para 46). 6. The Court did not decide whether the strict US approach to separation of church and state should be followed or whether the less exacting approach should be adopted, noting this was unnecessary given the conclusion reached (para 98). 7. The Court noted that issues of unequal treatment of religions might give rise to section 8(2) equality issues, but that section was not relied upon by appellants (para 102). 8. Sachs J did not decide whether polygyny as such would be contrary to public policy as developed in light of constitutional values, as that issue was not before the Court (para 36, footnote 36). 9. Sachs J did not decide whether severance of Good Friday and Christmas Day from the definition of "closed day" would be appropriate or competent, as it was not argued and the prosecution related only to Sunday sales (para 164). 10. O'Regan J did not express a view on whether section 90 would constitute a breach of section 8(2) (unfair discrimination on grounds of religion), as this was not fully argued (para 129, footnote 48). 11. Multiple justices emphasized the importance of developing constitutional doctrine slowly and incrementally on a case-by-case basis with emphasis on actual context, rather than laying down sweeping principles prematurely (following Prinsloo v Van der Linde). 12. Sachs J provided extensive historical context regarding pre-constitutional religious favoritism and marginalization of non-Christian religions, particularly regarding non-recognition of Hindu and Muslim marriages, though this was not strictly necessary to the decision (paras 148-152). 13. Discussion of the meaning and application of the de minimis principle in the context of freedom of religion and conscience, with Sachs J noting it should be used with extreme caution in this sensitive area (paras 139-140, 160, 165). 14. Extensive comparative law discussion of US and Canadian jurisprudence on religion clauses, with repeated cautions that foreign jurisprudence provides assistance but South African courts must develop doctrine based on the text and context of the South African Constitution (throughout all judgments).

This is a foundational case on the interpretation of section 26 (economic freedom) and section 14 (freedom of religion) of the interim Constitution (later sections 22 and 15 of the 1996 Constitution). Section 26 - Economic Freedom: - Established that section 26(1) and (2) must be read together to determine the content of the right - Freedom to engage in economic activity means freedom subject to the inherent constraints of the economic sphere, not absolute freedom - Section 26(2) requires a rational basis test, not the proportionality test of section 33 - Measures designed to promote purposes in section 26(2) need only have a rational connection to that purpose; courts will not second-guess legislative policy on economic matters - Regulation of harmful substances like liquor, including licensing systems and restrictions on sale, do not infringe economic freedom if rationally connected to legitimate purposes - Emphasized judicial restraint in reviewing economic and social policy Section 14 - Freedom of Religion: - No establishment clause in SA Constitution; different from US First Amendment approach - Freedom of religion protects against coercion and constraint of religious belief and practice - Majority: state endorsement of religion only violates section 14 if it coerces observance or constrains religious practice - Minority (O'Regan and Sachs JJ): section 14 also requires state even-handedness between religions; state endorsement of one religion over others breaches section 14 even without coercion - Competing approaches to symbolic endorsement and the "message" sent by legislation - Recognition that secular purpose and religious origins can coexist in legislation - Section 14 does not require strict separation of religion and state; accommodation of religion is permitted Evidence on Appeal: - Constitutional Court will not generally permit new evidence, particularly disputed expert evidence, to be introduced for the first time on appeal - Rule 19 governs compilation of appeal record, not introduction of new evidence - Rule 34 permits only limited additional factual material (common cause, incontrovertible, or easily verifiable) - Litigants must use opportunities in lower courts to place relevant evidence on record Limitations Analysis (Section 33): - Even core rights subject to heightened scrutiny ("necessary" standard) can be limited if justification is strong - Context and proportionality are critical: slight invasion may be more easily justified; severe invasion requires compelling justification - Degree/intensity of infringement is relevant to whether limitation is justified - Courts can take judicial notice of matters of common knowledge in assessing justification The case illustrates the Court's careful, contextual approach to developing constitutional doctrine incrementally rather than laying down sweeping principles, particularly in areas touching on sensitive matters of religion and belief in South Africa's multi-faith society.