By a narrow majority, the Constitutional Court decided on Tuesday that a licence to sell wine alongside other groceries was "property" in terms of the Constitution.

The finding was cold comfort for Shoprite Checkers, which lost the case and will not be able to sell wine on its shelves in the Eastern Cape. But the judgment breaks new ground on the Constitution’s property rights — an emotive and highly contested subject.

The 2003 Eastern Cape Liquor Act did away with licences entitling retail grocers to sell wine on their shelves next to food.

They had to apply for a new type of licence, to sell all alcohol on separate premises. They were given 10 years to make the transition.

Shoprite Checkers predicted the closure of 27 of its table wine sections would lead to a loss of about R40m in sales a year, and would negatively affect its business and marketing strategy.

The grocer lost its case because the court decided it had not been "arbitrarily deprived" of the property — a further requirement for constitutional protection.

In the main judgment, Justice Johan Froneman said SA’s constitutional property rights had to be determined "within the normative framework of the fundamental values and individual rights in the Constitution". The property clause should not "become an obstacle to the transformation of our society, but central to its achievement".

Shoprite Checkers may have a harder time persuading a court a grocer’s wine licence was essential to a dignified life, but it was not "too difficult to imagine" that an individual grocer might find it difficult to run her business without being able to sell wine on her shelves.

Deputy Chief Justice Dikgang Moseneke, with four colleagues concurring, disagreed that the grocer’s wine licence was property.

Justice Mbuyiseli Madlanga wrote a dissenting judgment, with Acting Justice Zukisa Tshiqi concurring, saying the licence was property and Shoprite Checkers had been arbitrarily deprived of it.