by Lavona Appanna / Associate / Mooney Ford Attorneys

Have you ever visited your favourite eatery and noticed a sign that reads, ‘Right of Admission Reserved’? In this article, we unpack the meaning, legality, and implications of such notices.

At the outset, it is important to bear in mind that property owners and managers pay a substantial amount for the use of the premises they occupy and from which they operate. It would therefore seem logical that they may exercise full discretion over who may enter and who may be refused, as well as with whom they choose to conduct business. Unfortunately, it is not quite that straightforward.

There are fundamental rights to consider and balance when determining whether or not to permit entry onto one’s premises for the purpose of doing business.

The South African Constitution provides several key rights relevant to property owners and managers, namely:

Section 16 — Freedom of Expression

Section 18 — Freedom of Association

Section 25 — Right to Property

However, these rights are not absolute. They cannot be exercised in isolation or in violation of other constitutional rights, particularly those enshrined in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Section 6 of the Act specifically prohibits unfair discrimination. In practical terms, this means that a person may not be refused entry on discriminatory grounds.

Let us consider some examples that illustrate when a refusal of admission may be justified, and when it may not:

During and shortly after the COVID-19 pandemic, it became common for establishments to refuse entry to individuals who declined to wear masks or observe social distancing protocols. Given the public health context, such refusals were not considered discriminatory, provided the rule was applied uniformly, irrespective of race, religion, gender, or sexual orientation.

In other cases, refusal of entry may attract negative public attention, even if it does not amount to unlawful conduct. For example, a beachfront restaurant may choose to deny entry to patrons not wearing shoes or dressed in beachwear. This may appear exclusionary but is unlikely to amount to discrimination in law.

Other examples of arguably justified refusals of entry include:

1. An attempt to gain access outside of the establishment’s operating hours.
2. A business refusing entry to an individual previously caught attempting theft or fraud on the premises.
3. An event that is sold out and operating within ticketed capacity.
4. An establishment that has reached lawful maximum occupancy and seeks to avoid contravention of municipal bylaws.

That said, the refusal of entry can also be unlawful when based on discriminatory grounds. A notable example is the case of Anyikwa v Cubana Havana Lounge/Café [2014] ZAECPEHC 58, where an individual was denied entry to a restaurant based on his nationality. The court found in his favour and awarded damages for impairment of dignity and emotional and psychological harm.

In conclusion then, while property owners and managers are entitled to reserve the right of admission, that right must be exercised lawfully. It cannot be used as a disguise for discrimination. Any refusal based on race, religion, gender, or sexual orientation will likely amount to unfair discrimination and may expose the establishment to legal consequences. Discretion must be exercised fairly, consistently, and in line with the law, lest it be challenged, and found wanting.

Photo by Serenity Mitchell on Unsplash