Residents and business groups in Gugulethu have been interdicted against any disruption and protests at the Gugulethu Mall after they could not show the Western Cape High Court that they posed no threat in engaging in such activity.
This comes after several years of contention around the development of the shopping centre where residents and business interest groups have demanded that they be given preference to work or operate their businesses there.
During 2023 and early 2024, Gugulethu Mall owner, Vukile Property Fund Ltd, received demands from what appeared to be various community associations going by different names.
They demanded, among other things, the employment of a greater proportion of local Gugulethu residents at the mall, which spurred engagement between the owner’s representatives and community representatives.
This was thought to be a fruitful meeting at the time, and the Vukile representative left with the impression that the associations’ concerns had been addressed; however, this was not the case when the owner received another “final meeting invitation” months later.
In August last year, the property owner received a letter that detailed a list of demands and which took issue with the make-up of the staff employed at the mall.
It demanded that 80% of the employees be made up of Gugulethu residents and that all seasonal jobs be reserved for Gugulethu youth only.
The letter also demanded that business owners be consulted when office or store space became available, seemingly before it is rented out, and that “a portion of the mall’s proceeds should be paid towards educational purposes in the form of scholarships, bursaries, and youth programmes from the Gugulethu community”.
The letter then took on a threatening tone when, on behalf of the residents who penned it, said that their demands should be met or the mall would be shut down.
“Failure to honour the invitation will result in the mall being shut down for as long as necessary. Its existence might well be ceased if it will not benefit the community at large. We will not be silenced. Enough is enough,” the letter read.
According to the court record: “The final words of the letter raised a red flag to the applicant. It feared that the mall and its occupants might be in danger.”
The respondents did not deny that their August 2024 letter was, in fact, a threat (express or implied) to shut down the mall, intimidate patrons and tenants, and cause damage and destruction to the mall itself.
Judge Philippa van Zyl emphasised Section 17 of the Constitution of the Republic of South Africa, 1996, which affords everyone the right to protest, but “this is not an absolute right. It is limited to lawful, unarmed, and peaceful protest”.
Van Zyl said the letter by the residents “contains such a threat that cannot be denied”.
“This court needs – and should – only assess whether the respondents’ conduct constitutes a threat of unlawful conduct, be it express or implied. Once this has been established, the requirements for the grant of a final interdict have been met…
“Even after the launch of this application, the respondents have given no indication that their planned action will take place within the bounds of the law. On the contrary, it appears from what (the ward councillor) stated at the hearing that the respondents, being at the end of their tether, will do as they see fit and that they (in the ward councillor’s submission) ‘cannot be blamed’ for it. This speaks to the threat being a continuous violation of the applicant's rights, and not just a once-off remark in a letter,” said Van Zyl.
Gugulethu Business Forum chairperson, Mlungisi Mazana, said they could not comment on the court outcome yet.
“The Gugulethu Business Forum was not part of the entire process from the discussions/demands between the parties who ended up in court. We shall, however, read the court ruling when the time allows and comment if the need arises.
“The mall will always remain an important microcosm of the Gugulethu community and because of that fact, healthy relationships with the community must be encouraged and established in an amicable way.”