## Facts

- Parliament passed a Liquor Bill using the constitutional procedure for legislation affecting provinces.
- The Bill reorganized the liquor industry into manufacture, wholesale distribution, and retail sale; restricted cross-holdings among these tiers; and created national registration for manufacturers and wholesalers.
- The Bill left retail licensing to provincial authorities but within a detailed national framework, and also regulated micro-manufacturers.
- The President declined to assent, returned the Bill to the National Assembly with constitutional reservations, and after the Bill was returned unchanged, referred it to the Constitutional Court under the Constitution’s pre-assent referral procedure.
- The President’s concern was that the Bill’s licensing/registration provisions intruded on provinces’ exclusive legislative competence over “liquor licences.”

## Issues

1. In a presidential pre-assent referral, is the Court’s inquiry confined to the President’s stated reservations or must it assess the Bill’s constitutionality as a whole?
2. Does a pre-assent referral decision bar or limit later constitutional challenges after enactment?
3. What is the scope of provinces’ exclusive competence over “liquor licences,” and how should the Bill be characterized for division-of-powers purposes?
4. If the Bill encroaches on exclusive provincial competence, has the national legislature shown that intervention is constitutionally permitted under the necessity standard for national legislation in exclusive provincial fields?

## Decision

- The Court issued a unanimous judgment.
- The Court held that its review on a presidential referral is limited to the matters identified in the President’s reservations and does not require full certification of the Bill.
- The Court held that a decision on a pre-assent referral does not preclude later constitutional challenges once the Bill becomes law.
- On the merits, the Court upheld national provisions establishing registration for manufacturers and wholesale distributors.
- The Court declared unconstitutional the provisions regulating retail liquor sales and micro-manufacturers, finding inadequate constitutional justification for national intrusion into exclusive provincial competence.

## Legal Principles

- In a presidential referral before assent, the Court decides only the constitutional questions tied to the President’s stated reservations; it need not pronounce on unrelated provisions.
- A pre-assent referral ruling does not immunize the resulting statute from later constitutional attack after enactment.
- Division-of-powers analysis requires characterizing the impugned provisions and interpreting the scope of the functional area assigned to exclusive provincial competence (“liquor licences”).
- National legislation may operate in an exclusive provincial field only if the Constitution permits intervention and the national government shows the specified threshold (including necessity to maintain economic unity) is met.
- National regulation may be sustained where evidence shows strong cross-border or economy-wide effects (here, manufacture and wholesale distribution), but not where the activity is essentially provincial and necessity for national control is not demonstrated (here, retail sales and micro-manufacturing).

## Conclusion

The Court clarified that presidential pre-assent referrals are confined to the President’s articulated constitutional reservations and do not foreclose later challenges, and it drew a constitutional line between nationally regulable liquor manufacture/wholesale distribution and provincially protected retail licensing and micro-manufacturing absent a demonstrated constitutional basis for national intervention.


Ex parte President of the Republic of S. Afr. (In re Constitutionality of the Liquor Bill), 2000 (1) S. Afr. L. Rep. 732 (S. Afr. Const. Ct. 1999)