It?s a landmark or, as some would be tempted say, a ?beachmark? decision. On Monday, the Supreme Court issued an interlocutory injunction against Ocean Blue Company Ltd, which holds the lease for Ilot Gabriel, an idyllic islet just off the country?s north coast. The judge effectively ruled that the company is not allowed to charge visitors for access to the islet?s beaches. In his ruling, Justice Abduraffeeck Hamuth averred that beaches are part of the public domain and thus freely accessible to all.

Ocean Blue Company Ltd, which obtained the lease for Ilot Gabriel on March 30, 2007, and co-respondents the State and the permanent secretary of the ministry of Agro-industry and Fisheries, hoped to levy a Rs115 fee off anyone who set foot on the islet?s beaches. However, the applicants for the injunction, cruise operators Grand Baie Cruise, Nautix, and private pleasure craft owners Iswarlall Beerbul and Antoine Benjamin believed that ?the strip of beach around Mauritius and around all Mauritian islets is ?domaine public? and freely accessible to the public in general, Mauritians and tourists alike?.

?In a nutshell, the applicants? contention is that the beach of the islet forms part of the ?domaine public? and the respondent is not entitled to restrict access to the beach in any manner whatsoever whereas in fact this is what it is doing?, explains the ruling.

Unsurprisingly, the respondents were of an altogether different persuasion. ?The gist of the respondent?s answer to the present application is that it is misconceived inasmuch as it is the holder of a lease of the islet; that that the applicants, their employees and Mauritian citizens are not denied access on the islet, but that with the approval of the co-respondents, the respondent is levying a fee of Rs100+VAT per person on foreign tourists, which it says it is entitled to do, and which is lawful?.

The applicant?s attorney, Robin Mardemootoo, explains that the bone of contention had nothing to do with ?the leasing out of government land? but rather with the respondents? attempt to hinder ?the fundamental right to walk and sit on the beach between the low-water and high-water marks?. And, as stipulated by Article 538 of the Civil Code, the stretch of beach between low-water and high-water marks are ?dependencies of the public domain?.

Part of the public domain

According to the applicants? affidavit, the islet?s beach is not, in fact, part of the lease. ?We appreciate that the respondent is entitled to deny us access to the leased part of Ilot Gabriel, per the terms and conditions of its lease agreement. However, since early September 2007, the lessee and its representatives are denying our passengers (Mauritians and tourists alike) and our employees the right to freely, walk, sit and lie on the beach of Ilot Gabriel. The respondent and its representatives insist on being paid a fee in order for our passengers and our employees to have the right to walk and/or sit and/or sunbathe on the beach of Ilot Gabriel.?

Justice Hamuth, however, was having none of it. In his judgment he came to the following conclusions: ?(1) It is common ground and indisputed that the beach of the islet forms part of the ?domaine public? to which generally free access is not to be restricted or denied to anybody, and that no part of the said beach has been leased to the respondent as per its contract with the co-respondents. (2) There is a real risk that in spite of the averments to the contrary in the affidavits of the respondent the present state of affairs will degenerate subtly to access being denied even to the beach and even to Mauritian nationals unless the fee claimed is paid as alleged by the applicants and their witnesses. (3) The prejudice suffered by visitors to the beach of the islet generally, due to the restriction in question is a prejudice which cannot be adequately compensated by damages.?

The respondents may choose to appeal against the decision but for the time being, Justice Hamuth?s ruling signals the end of a long and controversial saga. Indeed, Blue Ocean Company Ltd had even hired nightclub bouncers to prevent visitors from freely accessing the beach.

In their affidavit, the applicants detailed the treatment that was dished out of ?two of our passengers who were denied the right to walk on the Ilot Gabriel beach and were physically pushed away by the bouncers?. The judgment may also incite the State and permanent secretary of the ministry of Agro-industry to have a long hard think before siding with a heavy-handed private company that seeks to deprive Mauritian citizens on one of their most basic rights, that of enjoying this country?s beaches.