The Northern Cape’s gambling and liquor law is heading to the Constitutional Court to confirm that it is unconstitutional because the legislature didn’t hold a proper public consultation process.
In addition, the Kimberley court stated that the notice of a hybrid consultative meeting was sent just six days prior, while the ruling also noted that the provision in 2024’s Northern Cape Gambling and Liquor Act for longer trading hours was problematic.
“Needless to say, the respondents must be acutely aware of the harmful effects of alcohol abuse. They do not dispute this,” said the ruling.
The Act made provision for selling alcohol between 10:00 and 02:00, Monday to Sunday.
List of respondents
The case was brought by the DG Murray Trust, which challenged both the process followed in passing the law and aspects of its content.
It took several entities to court, including the speaker of the Northern Cape Provincial Legislature, the gambling and liquor board, the premier, as well as other politicians at both provincial and national levels. In total, 22 parties were cited as respondents.
In declaring the law unconstitutional, the judge said that there wasn’t enough public consultation. “It is declared that the Northern Cape Provincial Legislature failed to comply with its constitutional obligation to facilitate public involvement,” the court found.
The ruling added that “public participation constitutes a fundamental component of participatory democracy and the legislative process. It serves to enhance the legitimacy of legislation by ensuring that the voices and interests of the public are duly considered.”
Flawed process
At the centre of the ruling was how the legislation was adopted.
The court found that a revised version of the Bill, which contained significant changes, was never properly published for public comment. Instead, it was circulated only to selected stakeholders.
Public participation was also limited. The key public hearing that was held with just six working days’ notice was conducted largely online, effectively excluding many rural and vulnerable communities without reliable internet access.
The legislature also failed to widely advertise the process through mainstream channels such as radio, social media or newspapers. Even the respondents acknowledged shortcomings in the process, conceding that they could not say with certainty whether it met constitutional standards.
The court found these failures undermined the principles of transparency, openness and inclusivity required in a constitutional democracy.
Irrational provisions
Beyond procedural flaws, parts of the law itself also came under scrutiny. The court found that one provision relating to traditional beer licences was so poorly drafted that it effectively allowed trading outside prescribed limits.
The clause “defies logic,” the court said, noting that it appeared to permit trading beyond regulated hours and did not provide reasonable certainty to those affected. This lack of clarity meant the provision failed to meet constitutional standards.
Citing other case law, the judge said “the doctrine of vagueness is founded on the rule of law, which, as pointed out earlier, is a foundational value of our constitutional democracy. It requires that laws must be written in a clear and accessible manner. What is required is reasonable certainty and not perfect lucidity”.
Other sections of the law were also found to be irrational, particularly where trading hours deviated from national norms without clear justification.
Off to the ConCourt
While the court found that regulating alcohol sales is a legitimate function of government, it emphasised that laws must still be passed in a constitutionally compliant manner and be rational in their design.
The judgment and order will now be referred to the Constitutional Court for confirmation, as required in cases involving declarations of invalidity. “It follows that any declaration of constitutional invalidity made by a court other than the Constitutional Court does not take effect unless and until it has been confirmed by that Court,” the judge said.
The judge added that “in these circumstances, a suspension order would serve no purpose. For that reason, such an order is not only unnecessary but also incompetent”.
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Nicola Mawson
iol.co.za
