Public protest is a protected constitutional right in South Africa. However, when protest action moves into privately owned commercial environments such as shopping centres, different legal and risk considerations arise. In particular, protests inside shopping centres introduce complex liability questions.
Recent incidents, both locally and internationally, have drawn attention to the legal responsibilities of shopping centre management. These incidents involve protest activity within retail premises. Consequently, they raise important questions about liability, insurance exposure, workplace protection and duty of care. These concerns intensify when protests inside shopping centres become more frequent.
Private commercial space vs public protest
Shopping centres are privately owned premises that are open to the public for commercial purposes. Although the public may enter, the property owner or managing agent regulates access and use.
The law protects the right to assemble and protest. However, this right does not automatically extend to privately controlled premises.
When protests inside shopping centres occur without authorisation, or when they create safety risks, the legal focus shifts. It moves from constitutional protection to risk management and harm prevention. Therefore, shopping-centre owners and managing agents must take reasonable steps to protect lawful visitors.
Owners must ensure that shoppers and employees are not exposed to foreseeable harm. This obligation becomes critical in cases involving protests inside shopping centres.
The regulation of gatherings framework and civil liability
The Regulation of Gatherings Act provides the statutory framework for organising protests and demonstrations. Importantly, it also establishes potential civil liability when damage or injury occurs.
When “riot damage” occurs, organisers, conveners or participants may face joint and several liability. This liability includes damage to property, personal injury, or even death arising from the gathering. However, the statutory framework does not exclude common-law remedies.
An injured party may still pursue a delictual claim. They can do so against any responsible party, including property owners or security providers, if they establish negligence and other required elements.
Insurance exposure – the role and limits of SASRIA cover
The South African Special Risks Insurance Association (SASRIA) provides cover for special risks. These include riots, strikes, civil commotion, and public disorder. Standard commercial insurance policies typically exclude these risks. However, applying the SASRIA cover to protests inside shopping centres is not straightforward.
First, the SASRIA cover is not automatic. It only applies when specifically added as an extension to an underlying policy. Without this extension, protest-related losses may fall outside insurance coverage.
Second, not all protests qualify as insured events. A peaceful or loosely organised demonstration may not meet the threshold for a riot or public disorder. This is especially true when there is no significant disturbance of public peace.
Third, insurance policies impose obligations on policyholders. They must take reasonable steps to prevent or minimise loss. If management fails to enforce rules, deploy adequate security, or respond to foreseeable risks, insurers may limit or reject claims. This risk increases significantly in cases involving protests inside shopping centres.
As a result, an insurance gap may arise. Conventional insurers may decline cover because the loss relates to protest activity. At the same time, SASRIA may decline to cover due to inadequate preventative measures. Therefore, a passive approach to protests inside shopping centres materially increases risk exposure.
Employee injuries and the application of COIDA
Employees in retail environments face heightened risk during protest activity. This risk increases when protests occur inside or near their workplaces.
The Compensation for Occupational Injuries and Diseases Act (COIDA) provides compensation for workplace injuries. It covers both physical injuries and recognised psychological conditions linked to workplace events. However, complexity arises when injuries occur during travel to or from work.
Generally, COIDA does not cover such injuries. Exceptions exist where the employer provides transport or where travel forms part of the employee’s duties. Therefore, an employee injured while entering a store during protests inside shopping centres may face legal uncertainty.
In cases involving psychological harm, COIDA sets strict requirements. It does not compensate for ordinary emotional distress, humiliation, or harassment. Instead, it requires a medically recognised condition, such as trauma-related impairment, supported by expert evidence.
If COIDA does not apply, employees may still have legal options. Depending on the circumstances, they can pursue delictual claims against third parties whose negligence caused the harm.
Potential delictual liability of shopping-centre management
Beyond statutory and insurance considerations, shopping-centre management may face direct delictual liability. To succeed, a claimant must prove a duty of care, breach, causation and damages.
After establishing a duty of care, foreseeability becomes the central issue. If management knew or reasonably should have known, that protests inside shopping centres were likely, they must act. They must also assess whether such protests posed a risk of harm.
Reasonable preventative steps may include enforcing access controls, deploying adequate security, and dispersing unlawful gatherings. In addition, management may need to implement evacuation and safety protocols. If they fail to take these steps, they may face liability.
Protest activity inside shopping centres creates a complex risk environment. It involves statutory liability, insurance uncertainty, workplace injury considerations and delictual exposure. Therefore, shopping centre management must act proactively. They should review and enforce internal rules on demonstrations.
Shopping centre management should also assess security readiness for protest scenarios. In addition, they must evaluate insurance policies, including SASRIA extensions. Finally, they should ensure that incident-response protocols are operational.
In conclusion
The use of shopping centres as protest sites will likely increase. Activists increasingly view these spaces as effective platforms for public advocacy. As a result, protests inside shopping centres will become more common. Although the right to protest remains fundamental, it does not override safety obligations.
Property owners and managing agents must maintain safe premises. When protests inside shopping centres occur, the implications extend beyond constitutional rights. They include liability, insurance exposure and workplace safety.
Mzwakhe Poswa | Senior Associate | Insurance and Financial Services Practice | Adams and Adams | mail me |
