V&A judgment reserved

2003-11-28 10:04

Cape Town - The Cape High Court on Thursday reserved judgment in the V&A Waterfront's bid to ban vagrants Patrick Smith and Ganief Benjamin from the premises.

The Waterfront management brought an urgent application in July when Judge Dennis Davis granted a temporary order banning the two from the Waterfront premises altogether and restrained them from interfering, harassing and causing harm to Waterfront visitors and business concerns.

They were also restrained from assaulting, harassing, intimidating or threatening any Waterfront staff or officials.

The application stemmed from several alleged incidents which mainly involved Smith.

In one alleged incident he entered a Waterfront restaurant in a drunken state and drank from a diner's beer. Papers before the court said the victim was left speechless and that Smith ignored demands he should leave the premises.

In another incident it is alleged that a drunken Smith threatened to rape two women tourists who had refused him a cigarette. It is further alleged that Smith fondled the breasts of a woman security officer who confronted him about the cigarette incident.

At Thursday's proceedings, before Justice Siraj Desai, the Waterfront at first sought to have the temporary order declared final.

Johan de Waal, for the Waterfront, said the management wanted an express order forbidding the two vagrants to beg at the Waterfront without permission.

Desai said such a ban would have enormous social implications but De Waal countered that the rights of the owners of the Waterfront (V & A Waterfront (Pty) Ltd) included the right to control the property.

He said Smith and Benjamin could later approach the court to relax or cancel the order if they no longer posed a threat. He said the right to exclude anyone from the property was a fundamental part of the law of ownership under common law.

After lengthy debate De Waal said the Waterfront management had changed its mind and now wanted an order restraining Smith and Benjamin from interfering with visitors to the Waterfront, particularly in restaurant areas.

"The order must compel them to leave a restaurant if asked to do so," he said.

Attorneys Geoff Budlender and Steve Kahanovitz, who were appointed by the court to argue the constitutionality of the application, contended that the sheer size of the Waterfront turned it from a mere private property into a suburb, which diminished the rights of the owners.

They said the owners were entitled to protection but could not exclude people from entering the property. The Waterfront was entitled to protection against specific unlawful conduct but a general exclusion, as initially sought, was an unjustified invasion of freedom of movement.

Judgment is to be handed down on December 23.

- SAPA