Phillips and Another v Director of Public Prosecutions and Others (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC); 2003 (1) SACR 425 (CC) (11 March 2003)

Phillips and Another v Director of Public Prosecutions and Others (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC); 2003 (1) SACR 425 (CC) (11 March 2003)

Section 160(d) of the Liquor Act 27 of 1989 unjustifiably limits the right to freedom of expression protected by section 16 of the Constitution. The provision is overbroad, applying to all on-consumption licence holders, including theatres, and restricts legitimate artistic performances and communication of ideas. The limitation is not tailored to the legitimate state interest of regulating liquor consumption and preventing harm, as it impacts venues where the sale of liquor is ancillary to the primary business of artistic or cultural presentation. No justification was advanced by the state, and none is apparent. The section's impact extends beyond what is necessary to achieve its...

Citation
[2003] ZACC 1
Parties
Applicant: Andrew Lionel Phillips; Applicant: Viva Afrika Investments CC; Respondent: Director of Public Prosecutions (Witwatersrand Local Division); Respondent: Minister of Trade and Industry; Respondent: Minister of Safety and Security; Respondent: Member of the Executive Council for Finance and Economic Affairs in the Provincial Government of Gauteng; Respondent: Theodor Wilhelm van den Heever N.O.; Respondent: Phillip Wardel Moorrees Reynolds N.O.; Respondent: Swinging Trading Twister CC
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
11 March 2003
Case Number
CCT20/02
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
Section 160(d) of the Liquor Act 27 of 1989 is declared unconstitutional and of no force or effect, except for convictions where the time for noting an appeal has expired or condonation for late filing has been refused. The first four respondents are ordered to pay the applicants' costs jointly and severally.
Judges
Yacoob, Chaskalson, Langa, Goldstone, Kriegler, Mokgoro, Ngcobo, O'Regan, Sachs, Madala
Legal Topics
Freedom of Expression, Limitation of Rights, Liquor Regulation, Vagueness, Rule of Law
Constitutional Law Administrative Law Freedom of Expression Limitation of Rights Liquor Regulation Vagueness Rule of Law

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Andrew Lionel Phillips

Applicant

Viva Afrika Investments CC

Applicant

Director of Public Prosecutions (Witwatersrand Local Division)

Respondent

Minister of Trade and Industry

Respondent

Minister of Safety and Security

Respondent

Member of the Executive Council for Finance and Economic Affairs in the Provincial Government of Gauteng

Respondent

Theodor Wilhelm van den Heever N.O.

Respondent

Phillip Wardel Moorrees Reynolds N.O.

Respondent

Swinging Trading Twister CC

Respondent

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 160(d) of the Liquor Act 27 of 1989 unjustifiably limit the right to freedom of expression under section 16 of the Constitution?
  2. 2 Is section 160(d) unconstitutionally vague and in breach of the rule of law?
  3. 3 Does section 160(d) infringe section 12 of the Constitution by depriving people of freedom without just cause?

Ratio Decidendi

Section 160(d) of the Liquor Act 27 of 1989 unjustifiably limits the right to freedom of expression protected by section 16 of the Constitution. The provision is overbroad, applying to all on-consumption licence holders, including theatres, and restricts legitimate artistic performances and communication of ideas. The limitation is not tailored to the legitimate state interest of regulating liquor consumption and preventing harm, as it impacts venues where the sale of liquor is ancillary to the primary business of artistic or cultural presentation. No justification was advanced by the state, and none is apparent. The section's impact extends beyond what is necessary to achieve its...

Court Disposition

Section 160(d) of the Liquor Act 27 of 1989 is declared unconstitutional and of no force or effect, except for convictions where the time for noting an appeal has expired or condonation for late filing has been refused. The first four respondents are ordered to pay the applicants' costs jointly and severally.

Orders

  • Section 160(d) of the Liquor Act 27 of 1989 is unconstitutional and of no force or effect.
  • This declaration does not apply to a conviction for a contravention of section 160(d) in relation to which the time for noting an appeal has expired, or where condonation for late filing of a notice of appeal has been refused.