In Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic
Development, Environmental Affairs and Tourism Eastern Cape 2015 ZACC 23,
Justice Froneman adopted a value-based approach to the question of what constitutes
constitutional of property. Critically review Justice Froneman’s reasons for
concluding that a grocer’s liquor licence qualifies as constitutional property
In Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism Eastern Cape 2015 ZACC 23, the question before the court was whether a grocer's liquor license could be considered as constitutional property. Justice Froneman adopted a value-based approach to answering this question, which is a departure from the previous approach of considering property as an objective and quantifiable right that is protected by the Constitution.
In his reasoning, Justice Froneman emphasized that property rights must be viewed in the context of the constitutional values of dignity, equality, and freedom. He noted that the concept of property is not just about ownership or possession of things but also includes the ability to use those things for the realization of fundamental human rights and freedoms. Therefore, property rights must be evaluated in terms of their contribution to the public good and the promotion of social justice.
Justice Froneman also considered the historical and political context in which the licensing system for liquor sales was established. He noted that the licensing system was introduced as a means of regulating liquor sales and reducing the harmful effects of alcohol abuse on individuals and society as a whole. The liquor license, therefore, has a public interest dimension that must be taken into account when assessing its value as constitutional property.
Based on these considerations, Justice Froneman concluded that a grocer's liquor license should be considered as constitutional property. He argued that the liquor license contributes to the grocer's ability to carry on their lawful business and serve the public interest. It also reflects a significant investment of time, money, and effort on the part of the grocer. Therefore, the liquor license has both economic and noneconomic value that qualifies it as constitutional property.
Overall, Justice Froneman's approach represents a shift away from a traditional view of property as an objective and quantifiable right towards a more contextual and value-based approach that focuses on the contribution of property rights to the achievement of constitutional values. While this approach may raise some practical difficulties in terms of defining and protecting property rights, it emphasizes the importance of balancing private interests with the public interest and promoting social justice through property law.
Justice Froneman's reasoning in the Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism Eastern Cape 2015 ZACC 23 case is a value-based approach to determining whether a grocer's liquor license qualifies as constitutional property. Let's review his reasons critically:
1. Historical Context: Justice Froneman starts his analysis by reviewing the historical context of property rights in South Africa. He emphasizes that property rights are not absolute and have evolved over time, becoming subject to various limitations and regulations.
Critique: While it is essential to consider historical context, Justice Froneman could have provided a more comprehensive analysis of how property rights have evolved specifically in relation to licenses, such as liquor licenses. This would have helped establish a stronger basis for his argument.
2. Benefits and Burdens: Froneman argues that property rights encompass not only the benefits associated with ownership but also the burdens that may be imposed by the state. He recognizes that property rights are not absolute and can be limited by reasonable regulations for the public good.
Critique: This argument seems valid on its face, as property rights do not exist in a vacuum and must be balanced with the overall public interest. However, Justice Froneman does not delve into the specifics of how a grocer's liquor license should be treated under this framework, leaving room for ambiguity.
3. Economic Value: Froneman acknowledges that a grocer's liquor license holds significant economic value as it allows the licensee to engage in a lucrative business. He argues that because the state bestows the license, subject to appropriate regulations, it should be considered as constitutional property.
Critique: Justice Froneman's argument regarding economic value is logically sound. However, he fails to address whether economic value alone is sufficient to establish something as constitutional property. The economic value of a license may be important, but it does not automatically grant it constitutional protection.
4. Reliance and Legitimate Expectations: Froneman points out that the holders of grocer's liquor licenses rely on the license to establish their businesses and make investments. He argues that the legitimate expectations generated by this reliance should be considered in determining whether the license constitutes constitutional property.
Critique: This reasoning aligns with the principle of legitimate expectations, where individuals can expect certain rights and protections based on established practices. However, Justice Froneman does not adequately assess the nature and extent of the reliance on grocer's liquor licenses, which would have strengthened his argument.
Overall, Justice Froneman's value-based approach to determining whether a grocer's liquor license qualifies as constitutional property offers some important insights. However, it lacks a comprehensive analysis of the specific nature of such licenses and their relationship to property rights.