In Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic

Question

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

Answer 1

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.