Public protest is a protected constitutional right in South Africa. However, when protest action moves from traditional public spaces into privately owned commercial environments such as shopping centres, a different set of legal and risk considerations arises.
Recent incidents, both locally and internationally, have drawn attention to the legal responsibilities of shopping centre management when protest activity occurs within retail premises. These developments raise important questions regarding liability, insurance exposure, workplace protection, and the duty of care owed to shoppers and employees.
Private commercial space vs public protest
Shopping centres are privately owned premises that are open to the public for commercial purposes. While members of the public are permitted to enter these spaces, such access remains subject to the control and regulation of the property owner or managing agent.
Although the right to assemble and protest is protected in law, that right does not automatically extend to privately controlled premises. Where protest activity occurs inside a shopping centre without authorisation, or where it creates safety risks, the legal enquiry shifts from constitutional protection to risk management and harm prevention.
Shopping centre owners and managing agents are accordingly required to take reasonable steps to ensure that persons lawfully on their premises are not exposed to foreseeable harm.
The regulation of gatherings framework and civil liability
The Regulation of Gatherings Act provides the statutory framework governing the organisation of protests and demonstrations. Importantly, it also creates potential civil liability where damage or injury results from a gathering.
Where so-called “riot damage” occurs, organisers, conveners or participants may be held jointly and severally liable for losses suffered. This includes not only damage to property but also injury to, or the death of, any person arising from the gathering.
Crucially, the statutory framework does not exclude common-law remedies. An injured party is not confined to the Act and may pursue a delictual claim against any responsible party, including property owners or security providers, where negligence and other elements can be established.
Insurance exposure: the role and limits of Sasria cover
The South African Special Risks Insurance Association (Sasria) provides cover for special risks such as riots, strikes, civil commotion and public disorder, which are typically excluded from standard commercial insurance policies. However, its application in the context of protest activity inside shopping centres is not straightforward.
Firstly, Sasria cover is not automatic. It only applies where it has been specifically added as an extension to an underlying insurance policy. In the absence of such cover, protest-related losses may fall outside the scope of insurance entirely.
Secondly, not all protests will qualify as insured events. A peaceful or loosely organised demonstration may not meet the thresholds required to constitute a riot or public disorder, particularly where there is no significant disturbance of public peace.
Thirdly, and importantly, insurance policies impose obligations on policyholders to take reasonable steps to prevent or minimise loss. Where shopping centre management fails to enforce shopping centre rules, neglects to deploy adequate security, or does not act when protest-related risks are reasonably foreseeable, an insurer may rely on breach of these obligations to limit or repudiate liability.
This creates a potential insurance gap in which conventional insurers may decline cover because the loss arose from protest-related activity, while Sasria may similarly decline cover due to inadequate preventative measures. From a risk management perspective, a passive or tolerant approach to protest activity inside shopping centres may therefore materially increase exposure.
Employee injuries and the application of Coida
Employees working in retail environments are particularly vulnerable when protest activity occurs inside or immediately outside their workplaces. The Compensation for Occupational Injuries and Diseases Act (Coida) provides compensation for injuries sustained in the course and scope of employment, including both physical injuries and clinically recognised psychological conditions that are causally linked to workplace events.
However, the position is more complex where the injury occurs while the employee is travelling to or from work. As a general rule, such injuries fall outside the scope of Coida unless special circumstances exist, such as employer-provided transport or where the travel itself forms part of the employee’s duties.
An employee who is injured while attempting to enter a store through a protest environment may therefore find themselves in a legally uncertain position, depending on the facts.
In relation to psychological harm, Coida does not compensate ordinary emotional distress, humiliation or harassment. Compensation may only arise where there is a medically recognised psychological condition, such as trauma-related impairment, that can be properly established through expert evidence.
Where an employee’s claim falls outside the scope of Coida, this does not necessarily leave them without recourse. Depending on the circumstances, employees may explore other available remedies, including the institution of delictual claims against third parties whose negligent conduct contributed to the harm.
Potential delictual liability of shopping centre management
Beyond statutory and insurance considerations, shopping centre management may face direct liability under the law of delict. A claimant must establish that a duty of care existed, that it was breached through negligence, that the breach caused the harm, and that damages were suffered.
After establishing a duty of care, the central issue in most cases will be foreseeability. If management knew, or reasonably ought to have known, that protest activity was likely to occur inside the centre and that such activity posed a risk of injury or harm, then reasonable preventative steps are expected.
These steps may include enforcing access control measures, deploying adequate security, dispersing unlawful gatherings, or implementing evacuation and safety protocols. A failure to take such steps may expose management to delictual liability.
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Practical implications for shopping centre owners and managing agents
Protest activity inside shopping centres presents a layered and often complex risk environment. This includes potential statutory liability under the gatherings framework, uncertainty in insurance cover, workplace injury considerations, and exposure to delictual claims.
From both a legal and commercial perspective, shopping centre management would be well advised to proactively review and enforce internal rules relating to demonstrations, assess security readiness for protest scenarios, evaluate existing insurance policies (including Sasria extensions), and ensure that incident response protocols are both in place and operational.
Conclusion
The use of shopping centres as sites of protest is likely to become more frequent, particularly where commercial spaces are seen as effective platforms for public advocacy.
While the right to protest remains fundamental, it does not displace the obligation of property owners and managing agents to maintain safe premises. Where protest activity occurs inside shopping centres, the consequences extend beyond constitutional considerations and into the practical terrain of liability, insurance exposure and workplace safety.
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