Victoria & Alfred Waterfront (PTY) Ltd and Another v Police Commissioner of the Western Cape and Others (4543/03) [2003] ZAWCHC 75; [2004] 1 All SA 579 (C); 2004 (5) BCLR 538 (C); 2004 (4) SA 444 (C) (23 December 2003)

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[2003] ZAWCHC 75
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Victoria & Alfred Waterfront (PTY) Ltd and Another v Police Commissioner of the Western Cape and Others (4543/03) [2003] ZAWCHC 75; [2004] 1 All SA 579 (C); 2004 (5) BCLR 538 (C); 2004 (4) SA 444 (C) (23 December 2003)

Republic of South
Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(Cape
of Good Hope Provincial Division)
Case
No:
4543/03
In
the matter between
Victoria & Alfred Waterfront (Pty) Ltd First Applicant
V & A Waterfront Properties Ltd Second Applicant
and
The Police Commissioner of the
Western Cape First Respondent
Patrick
Smith Second Respondent
Ganief
Benjamin Third Respondent
(Legal
Resources Centre
as
amicus curiae
)
JUDGMENT DELIVERED on 23 December 2003
DESAI,
J:
This
is the extended return day of a rule
nisi
and interim interdict. The applicants are the managers and owners,
respectively, of the Victoria and Alfred Waterfront (“the
Waterfront”).
The Police Commissioner of the Western Cape is cited on the papers
as the first respondent. No relief is sought
against him because of
certain negotiations between the parties which are currently in
progress. The applicants refer to the second
and third respondents
as “homeless persons”. That designation is not entirely correct
as third respondent seems to have a permanent
address in Mitchells
Plain. In any event, on 8 July 2003, the applicants sought and
obtained against the latter two respondents
an
ex
parte
order from Davis J in the following terms:
“
1. A rule nisi is hereby
issued calling upon Second and Third Respondents to show cause (if
any) on Monday 11 August 2003 at 10h00
or so soon thereafter as
Counsel may be heard, why and Order should not be made in the
following terms:
That Second and Third
Respondents be interdicted and restrained from entering the
premises of the Victoria & Alfred Waterfront,
Cape Town (“the
Waterfront”);
That Second and Third
Respondents be interdicted and restrained from interfering,
harassing and causing harm to visitors and businesses
situate at
the Waterfront;
That Second and Third
Respondents be interdicted and restrained from assaulting,
harassing, intimidating or threatening any employee
and/or official
of the First Applicant;
That the Applicants be
granted leave, in the event of the Second and/or Third Respondents,
as the case may be, failing to comply
with the provisions of
sub-paragraphs 1.1, 1.2 and/or 1.3 of this Order to apply on the
same papers, duly supplemented for an
Order convicting the Second
and/or Third Respondents, as the case may be, of contempt
of court and imposing such
sentence, of imprisonment or otherwise, as this Honourable Court may
deem meet.
That the relief contained in
sub-paragraphs 1.1 to 1.4 hereof, operate as an interim interdict
pending the return day;
A copy of this Order shall be
served personally upon the Second and Third Respondents by the
Sheriff of this Honourable Court.”
When
the matter initially came before me on 30 October 2003, Mr
B
David
appeared on behalf of the applicants. The second respondent appeared
in person. There was no appearance on behalf of the third
respondent. As this matter involves an evaluation of fundamental
liberties and constitutional rights, I suggested the appointment
of
an
amicus
curiae
to assist the Court. The parties did not object to that procedure
being followed. The hearing was accordingly adjourned, and the
rule
extended, until 27 November 2003.
Before
the court adjourned the second respondent complained that the
extension of the rule meant that he could not go on legitimate
business to the police charge office located at the Waterfront.
After consulting with his clients,
David
agreed that the rule should be relaxed to enable him to do so. I
amended the rule accordingly.
On
27 November 2003 Mr
H
J De Waal
appeared on behalf of the applicants. The second respondent was
present in person and there was again no appearance on behalf of
the
third respondent. Mr
G
M Budlender
of the Legal Resources Centre appeared as
amicus
curiae.
The
Court is indebted to
Budlender
for his role in these proceedings.
At
the outset of the hearing
De
Waal
sought to amend paragraph 1.2 of the order granted by
Davis
J
by inserting at the end thereof a specific clause prohibiting the
respondents
from begging at the Waterfront. I indicated to
De
Waal
that the suggested amendment raised enormous social and legal issues
which had not been canvassed or raised directly on applicants’
papers.
Budlender
argued that if
De
Waal
persisted with the proposed application to amend, he would have to
seek an adjournment to file affidavits from experts,
inter
alia
,
with regard to the socio-economic situation in the Western Cape.
De
Waal
thereafter abandoned the said application.
In
fairness to
De
Waal
I should, perhaps, set out his concession in some detail. He
submitted that the applicants were not conceding that they were not
entitled to prohibit begging at the Waterfront. The concession was
being made as there was insufficient evidence to support such
an
order and because it raised complex issues such as possible indirect
discrimination.
De
Waal
in express terms stated that the second and third respondents would
not be acting in contempt of court by begging at the Waterfront
if
para 1.2 of the order issued by
Davis
J
was made final. This Court is accordingly not asked to prohibit
second and third respondents from begging at the Waterfront and
the
order which I propose to make should not be construed as containing
such a prohibition.
I
have, in any event, grave reservations about the constitutional
validity of such a prohibition. The issue of begging frequently
raises a direct tension between the right to life and property
rights. In that event, the property rights must give way to some
extent. The rights to life and dignity are the most important of all
human rights. By committing ourselves to a society founded
on the
recognition of human rights we are required to value those rights
above all others. (See:
S
v Makwanyane
and another 1995(3) SA 391 (CC) at [144]).
Furthermore, the right to life encompasses more than “mere animal
existence”. It includes the right to livelihood. (See:
Olga
Tellis v Bombay Municipal Corporation
AIR
1986
SC 180
para 32;
reprinted
in
Davis,
Cheadle & Haysom
Fundamental
Rights in the Constitution : Commentary and Cases (1997) 520 at 520,
521.
There is also the possibility of indirect discrimination on the
grounds of race. The modern history of this country is characterised
by over
three
hundred years of rule by a racial oligarchy. The result is that
poverty remains racially distributed. In the circumstances,
discrimination on the grounds of poverty would inevitably lead to
indirect discrimination on the grounds of race, which is prohibited
by The Constitution of the Republic of South Africa, Act 108 of 1996
(“the Constitution”).
The
respondents have not filed any answering affidavits and I must in
general accept the factual correctness of the allegations made
under
oath on behalf of the applicants. It is apparent, however, that
certain of the allegations are to some extent overstated and
a degree
of caution in assessing the evidence is merited.
The
Waterfront is somewhat different from other shopping malls and
appears to be private property of a particular kind. It is 123
hectares in extent and consists of a vast array of shops,
restaurants, offices and places of public entertainment. It also
includes
public roads, hotels and access to the sea. People wishing
to visit Robben Island are obliged to board the boat or ferry
transferring
them to the island at the Waterfront. Moreover, a post
office and a police charge office are located on the property.
It
has the distinctive character of private property to which members of
the public have routine access and which the public are invited
to
visit whether or not they intend to conduct any business on the
property. It is for all practical purposes a suburb of Cape Town.
The
applicants seek to permanently preclude second and third respondents
from entering the Waterfront because of their prior conduct.
The
complaints against the said respondents are not without merit. Over
the past two years the second respondent addressed young
visitors to
the Waterfront in a vulgar and intimidating manner; he made rude
sexual comments to a female security guard and grabbed
her breasts;
on several occasions disturbed clients eating at restaurants and
became violent and abusive
when
asked to leave; and he has threatened other security officers. The
complaint of alleged shoplifting at Pick & Pay is hearsay
and not
confirmed by any direct evidence. With regard to the third
respondent the principal complaint was that he attacked a patron
with
a broomstick. He was, however, acquitted on this charge. The other
allegations against him relate largely to him interfering
with
clients at restaurants while he is in a drunken state. The conduct
of the respondents falls short of civilised behaviour and
is quite
clearly unacceptable. It invades the rights of the applicants and
warrants prohibition.
The
fact that second applicant is the owner of all developed and
undeveloped buildings and property, except for certain residential
units, at the Waterfront, is not in dispute. In the circumstances,
De
Waal
contended, the applicants have a clear right to preclude individuals
such as the second and third respondents from entering the
Waterfront.
He argued that the power to exclude others and exercise
control over property lies at the core of the bundle of rights which
accrues
to a property owner under the common law (See:
Van
de Merwe:
Sakereg
2ed (1989) at p171)
.
Furthermore, he submitted, under section 25(1) of the Constitution,
a property owner is protected against the deprivation of property
rights, including the rights to exclude and control property, other
than by a law of general application, which law may not permit
arbitrary deprivation of property rights.
De
Waal
also argued that the
nature
of the property can have no bearing on the bundle of rights which
accrues to the owner of the property. In support of this proposition
he referred the Court to a decision of the United States Supreme
Court:
Pruneyard
Shopping Centre v Robins
447 US 74
, 64 L Ed 2d 741 at 752.
This decision does not quite support the proposition made by
counsel. It says, in this regard, that a property does not lose its
private character merely because the public is generally invited to
use it for designated purposes.
The
next argument vigorously advanced by counsel relates to the power of
this Court to amend the common law.
De
Waal
contended that any ruling by this Court to the effect that the
applicants do not have the right to exclude second and third
respondents
from the Waterfront will fall foul of the judgment of the
Supreme Court of Appeal in
Afrox
Healthcare v Strydom
2002(6) SA 21 (SCA).
He argued that as the owner’s right to exclude others from his
property is not directly inconsistent with the Constitution, it
must
be upheld by this Court. As I understand the
Afrox
case,
supra,
if I am convinced that any common law rule is in conflict with the
Constitution, I am obliged to differ from it (see paragraph 27
thereof). The obligation to differ from the common law is for
obvious reasons more compelling where it is in conflict with the
fundamental
liberties entrenched in the Bill of Rights contained in
the Constitution.
As
stated earlier, the Waterfront is an unique property. If I am to
exclude the respondents from the Waterfront I shall in effect
exclude
them from a charge office, a post office, hotels, places of
residence, shops, parts of the coast and, of course, visiting
Robben
Island. With regard to the latter
De
Waal
suggested that if second or third respondents really wished to go to
Robben Island, they could do so with a rubber dinghy from Mouille
Point. Though, I suppose, one could traverse the oceans on a rubber
dinghy, few South Africans would have the expertise, or sufficient
knowledge of the sea, to cross Table Bay in a rubber dinghy. I do
not think that second or third respondents are in any position
to do
so.
In
support of the argument that such exclusions are not without legal
precedent, the Court was referred to a recent decision of the
European Court of Human Rights:
Landvreugd
v Netherlands
[2002] ECHR 478
;
36 E.H.R.R. 56.
In that case, the Mayor of Amsterdam prohibited a person from
entering a particular area of Amsterdam for 14 days because he had
a
history of drug abuse in the area. The Court held that the
limitation of the right to freedom of movement did not violate
article
2 of Protocol 4 of the European Convention on Human Rights.
The
Landvreugd
case,
supra,
establishes that a prohibition of this kind does constitute a
limitation of the right of freedom of movement. The case, however,
must be approached with some caution because the European Court of
Human Rights is an international court. When it applies the
convention
to a concrete case in order to decide whether there has
been a violation, it allows a “margin of appreciation” to
national authorities.
What this amounts to is giving a certain
amount of deference or leeway to the decision of the domestic body.
(See
Handyside
v United Kingdom
[1976] ECHR 5
;
1
EHRR 737
(1996)
.
In deciding whether the restriction of freedom of movement was
“justified in the public interest in a democratic society”,
the
Court in the
Landvreugd
case held that:
“
It cannot be said that the
national authorities over-stepped their margin of appreciation when,
in order to put an end to this situation,
the Burgomaster issued a
prohibition order to the applicant.”
There
are, in any event, striking differences between the
Landvreugd
case and the present matter. In that case the exclusion was for 14
days. This Court is being asked to permanently exclude second
and
third respondents from the Waterfront. In the
Landvreugd
case the exclusion was from a small area. Here the Court is being
asked to exclude certain people from 123 hectares which in effect
constitute a suburb of Cape Town. Furthermore, unlike the
Landvreugd
case, alternative remedies have been suggested.
I
may add that in the light of the unfortunate recent history of this
country where millions of people were denied access to towns,
cities
and other public places, the practice of excluding people from parts
of a city, albeit for limited periods, may appear repugnant
and not
pass constitutional muster.
It
is not wholly clear from
De
Waal’s
submissions whether he accepts that the applicants do not have an
unqualified right to exclude anyone from the property. He focuses
on
the common law position which is set out by
Schreiner
JA
as follows:
“
Ownership,
unless limited by law, entitles the owner to exclude all others from
the property”
(See
Consolidated
Diamond Mines of South West Africa Ltd v Administrator, SWA
1958(4)
SA 572 (A) at 636C).
If the applicants’ property rights,
save for statutory limitations, are absolute, the fact of ownership
is sufficient basis for
the exclusion and interdict. The conduct of
the respondents would be irrelevant. They can be excluded from the
Waterfront for an
arbitrary reason or for no reason at all.
Though
arguing that the refusal of access to private property will seldom
constitute a significant restriction on the right of freedom
of
movement,
De
Waal
accepts that the right of freedom of movement may bind a private
person in appropriate circumstances. He also concedes that the
private property involved in these proceedings is an important area
within the City of Cape Town and, as he puts it, “the issues
are
less clear cut.”
It
seems from the above that the applicants, perhaps reluctantly, accept
that they do not have an unqualified right to exclude anyone
from the
property. They acknowledge that the nature of the property and the
circumstances are relevant factors to take into consideration
in
determining whether the law and, in particular, the Constitution
place limits on the right to exclude. That concession is correctly
made. The applicants’ right to exclude people from the Waterfront
is qualified in several respects. It is a property to which
members
of the public are invited to visit whether or not they intend to
conduct any business at the Waterfront. This fact distinguishes
it
from, for instance, a restaurant. As a consequence of its location,
size and composition, it is for all practical purposes a
suburb of
Cape Town. It is fundamentally different from an ordinary shop or
restaurant, or for that matter a shopping mall. These
factors limit
or qualify the owner’s right to exclude.
The
right to exclude is further limited by the fact that exclusions will
be a limitation of the constitutional right of freedom of
movement of
the second and third respondents.
It
is not suggested that the invasion of the owner’s rights is
unrestricted or that the right of freedom of movement is itself
unlimited.
If the area is overcrowded and as a result unsafe to
allow further access, a temporary closure would clearly be within the
powers
of the access. To restrict a person’s freedom of movement
by excluding him from the area on a permanent basis, however, is an
entirely different matter. It should only be done where there is no
other way of achieving a lawfully justifiable goal.
With
regard to freedom of movement (section 21 of the Bill of Rights)
De
Waal
submitted that the core of the right is to prevent the
re-introduction of the pass laws which prevented people from moving
freely
from one place to another during the
apartheid
era. It may be that the effect of the section is to prohibit such
legislation. However, the section is not limited to those
circumstances.
It is broadly stated. There is no reason to limit it
so as to bring it in line with the common law; rather, the converse
applies.
In
the circumstances there is a tension between the property rights of
the applicants and second and third respondents freedom of
movement.
It is a tension which should be resolved in a manner which permits
the rights of both parties to be vindicated to the
greatest extent
possible.
Though
applicants assert that the interdict sought represents the least
restrictive means of vindicating their property rights, that
is in
fact not so. The permanent exclusion of the second or third
respondents from the property is the most extensive restriction
which
is possible. The suggestion that there is no other remedy available
to them, is also open to considerable doubt. On the undisputed
facts, the second respondent has acted in an aggressive manner
towards certain of the visitors and applicants’ staff on the
property.
That
conduct could be prohibited without excluding him from the property.
It is common cause that the third respondent has not assaulted,
intimidated or threatened applicants’ staff. The applicants,
however, persist in seeking an order for his exclusion from the
property
because he has
“committed
an act of violence and acts of harassment against visitors and second
applicant’s employees”.
The
only allegation of an act of violence is a hearsay allegation of
assault for which the third respondent was arrested, tried and
acquitted.
On
the other hand the applicants have a clear right to protect their
custom and business interests at the Waterfront from unlawful
interference by second and third respondents (See:
Fourways
Mall (Pty) Ltd v S A Commercial Catering & Allied Workers Union
1999
(3) SA 752
(W) at 756 and 759
).
They also have a sufficient interest in having the physical
integrity and security of their employees protected against the
unlawful
actions of the second respondent.
It
appears that the principal interest of the applicants is in
preventing unlawful activities by the respondents on its property.

This is a legitimate interest and the applicants are entitled to an
order which protects their legitimate rights and interests as
owner.
These rights may be effectively protected by an order which does not
exclude second or third respondents permanently from
the whole of the
Waterfront, but which prohibits the specific conduct which invades
the rights of the applicants. That order is
to be preferred.
Budlender
submitted that the prohibition must be in a form which is reasonably
precise, in that the respondents can know what they are prohibited
from doing under threat of criminal sanction. An order which is
vague would result in a criminal prohibition which is vague and
indeterminate and, moreover, lead to further conflict with regard to
its interpretation.
In
the result I issue the following order which I trust will not lead to
any misunderstanding:
1. The second and third respondents
are interdicted and restrained from unlawfully causing harm to
visitors and businesses situate
at the Victoria & Alfred
Waterfront, Cape Town (“the Waterfront”), in particular by
remaining on the premises of a restaurant
after having been
instructed by the person in charge to leave those premises.
2. The second respondent is
interdicted and restrained from unlawfully assaulting, intimidating
or threatening any employee and/or
official of the first applicant.
3. The applicants are granted leave,
in the event of second and/or third respondent, as the case may be,
failing to comply with the
provisions of this order, to apply on the
same papers, duly supplemented, for an order convicting the second
and/or third respondent
of contempt of court and imposing such
sentence of imprisonment or otherwise, as this Court may deem meet.
4. A copy of this order shall be
served personally upon the second and third respondents by the
Sheriff of this Court.
5. The
rule issued by
Davis
J
on 8 July 2003 is discharged.
--------------------
DESAI J