Vagrants win case against V&A

2003-12-24 13:29

Cape Town - Two men accused of disruptive begging at the V&A Waterfront, have been given the High Court's permission to go back, but have been ordered to behave with the requisite decorum.

Judge Dennis Davis, who handed the judgment down on Tuesday, said the Waterfront's attempt to have Patrick Smith and Ganief Benjamin permanently excluded from the Waterfront could not succeed. This was because too many fundamental individual rights would be infringed by such a court order.

However, Davis had some strong words for the two men, who have upset patrons in the past.

He interdicted them both from "unlawfully causing harm to visitors and businesses" at the Waterfront, particularly remaining at a restaurant after having being asked to leave.

Smith was also interdicted from "unlawfully assaulting, intimidating or threatening any employee and/or official of (the Waterfront)".

Davis accepted evidence that for two years Smith had addressed "young visitors" to the 123ha complex of restaurants, elite shopping malls and tourist attractions in a vulgar and intimidating fashion, made rude sexual comments to a female security guard and grabbed her breasts and on several occasions disturbed clients eating at restaurants and became violent and abusive when asked to leave.

He had also threatened other security officers and is alleged to have shoplifted, although this was not proved.

Benjamin was acquitted of attacking a Waterfront patron with a broomstick, but is also accused of interfering with restaurant patrons while drunk.

"The conduct of (Smith and Benjamin) falls short of civilised behaviour and is clearly unacceptable. It invades the rights of (the Waterfront) and warrants prohibition," the judge said.

Earning their daily bread

Davis was quick to point out that he had not been asked to prohibit the men from begging at the Waterfront, and his order did not stop them from earning their daily bread thus.

He said he had "grave reservations" about the constitutional validity of such a prohibition, property rights in this case having to give way to the more important rights of life and dignity.

He said that an order against begging would also veer dangerously to the side of race discrimination because "three hundred years of racial oligarchy" meant that poverty was often "racially distributed".

Davis said that during court proceedings submissions made by the Waterfront showed that they "reluctantly" accepted that they did not have an unqualified right - on the basis that the Waterfront is private property - to exclude Smith and Benjamin from the premises.

This was because the complex's nature meant is was "fundamentally different" from another business, such as a restaurant or shopping mall.

Excluding the two men would limit their access to a SA Police Service charge office, a post office, hotels, residences, shops, parts of the coast and the ability to visit Robben Island.

- SAPA