The Constitutional Court only granted leave to appeal against the order of Wallis JA in the SCA upholding the high court’s order on costs and allowed the appeal to that limited extent.  Approximately 200 to 300 student protesters acted in concert and brought a shack structure onto UCT’s campus.  They sought to vindicate their rights to education, freedom of association, freedom to demonstrate and freedom of expression.  But by damaging property their conduct went beyond the boundary of peaceful and non-violent protest.  The Court held that the destruction of property and incitement of violence does not accord with our constitutional dispensation.  It was stressed that the destruction of property cannot be countenanced and the students responsible for these transgressions must be held accountable through appropriate legal means.

Hotz v University of Cape Town (CCT280/16) [2017] ZACC 10 (12 April 2017) per Court (Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J):

CC summary:

  • Right to education — Right to freedom of expression — Right to assembly, demonstration, picket and petition — Right to freedom of association
  • Remedial powers of the Constitutional Court — Exercise of judicial discretion in awarding costs — Instances in which an appeal court may interfere with a discretionary order — Application of the Biowatch principle on costs — Failure to exercise discretion judicially in the constitutional context — Application to tender further evidence — Further evidence unnecessary to determine the issue on costs.

Excerpts without footnotes

Introduction

[1]   The widespread student protests in higher learning institutions including the student protest at the University of Cape Town (UCT/University), pursuant to the “#FeesMustFall” movement, were in pursuit of the realisation of the overarching objective of a free education.  The movement attracted national attention for its achievements, which include a 0% fee increase for the year 2016 and increased government funding for universities.  The protests also affected almost one and all in other ways, for example, quality time for learning was lost; properties were destroyed; injuries were sustained; many students were arrested and others excluded from campuses; some students were excluded from furthering their studies; life was lost and costs in litigation were incurred as a result of the protestors’ unlawful conduct.

[2]   This application for leave to appeal is a sequel to the student protest at UCT, in early 2016. It was brought on an urgent basis against the decision of the Supreme Court of Appeal (SCA).[1]  That Court upheld the order for a final interdict by the High Court of South Africa, Western Cape Division, Cape Town[2] (High Court) against the applicants, who were part of a group of students that had participated in the student protest under the names “#RhodesMustFall” and “#FeesMustFall”.[3]  The SCA’s decision did not involve the legitimacy of the protest but focused on whether the High Court correctly granted a final interdict.

[3]   The Chief Justice directed the parties to file written submissions solely on whether the High Court exercised its discretion judicially in granting a costs order against the applicants. The parties complied with the directions.  After the written submissions were filed, the applicants sought leave to file a replying affidavit and to tender further evidence.

[4]   At issue is the urgency of this matter, the appropriateness of the grant of a final interdict, the costs order of the High Court as confirmed by the SCA and whether leave to file a replying affidavit and to tender further evidence should be granted. The applicants also seek condonation for the late filing of this application.

. . . . .

 Supreme Court of Appeal

[7]   Before the SCA, the issue was not about the legitimacy of the protests. The applicants accepted that the appeal was about the unlawfulness of their actions.[1]  In fact, in their written submissions before the SCA the applicants accepted that they were “in the midst of protest action which went beyond the [boundary] of peaceful and non-violent [protest] and thus rendered themselves subject to disciplinary processes that [UCT] initiated against the students”.[2]  Notably, this acquiescence narrowed the dispute between the parties.  The applicants however argued that their actions must be seen against the backdrop of their struggle for social justice.[3]

[8]   The SCA outlined the law regarding the requisites of a final interdict. It took note of the approach of the protesters: that they were entitled, in furtherance of their protest, to erect the shack and maintain it for an indefinite period.  Their conduct, the Court held, infringed UCT’s rights and was unlawful.[4]  The Court held that UCT’s apprehension of the recurrence of the harm was reasonable given the vehemence with which the protestors expressed their complaints against the University and its management.  Unless the final interdict was granted, the SCA remarked, the protestors would continue with their conduct.  The Court rejected the applicants’ suggestion of internal disciplinary action as an alternative remedy.[5]

[9]   Whilst UCT was entitled to final relief, the Court held, the High Court’s order was broad because it limited the applicants’ rights and effectively excluded them from the University campus.[6] The SCA varied the terms of the final interdict granted by the High Court but confirmed the costs order – ordering the five applicants to pay UCT’s costs jointly and severally, including costs of two counsel.[7]  The SCA held that fairness required each party to pay its own costs on appeal.

. . . . .

In this Court

. . . . .

[13]   This matter has been determined without written submissions on the merits and without hearing oral argument.[1] The written submissions filed were confined solely to whether the High Court exercised its discretion judicially in granting costs against the applicants.

Leave to appeal

[14]   Constitutional issues are implicated because the matter invokes certain rights including the rights to education,[1] freedom of expression, to assembly, demonstration, picket and petition as well as the right to freedom of association.[2] While the prospects of success on the merits are poor, the applicants’ complaint about the High Court’s failure to exercise judicial discretion when mulcting them with costs does bear prospects of success.  The SCA confirmed the High Court’s costs order without determining whether the discretion was exercised judicially.  The interests of justice warrant granting leave to appeal to determine whether the High Court’s costs order is irrational as contended for by the applicants.  In the circumstances, I would grant leave to appeal.

. . . . .

Merits

[18]   The High Court granted a final interdict against the five applicants[1] and discharged the rule nisi against the other applicants[2] because, the Court held, UCT had failed to make a case for relief against them. The applicants ask this Court to set aside the decisions a quo with costs including costs of three counsel where so employed.

[19]   The SCA’s decision on the merits, upholding the High Court’s order granting a final interdict, is unassailable. The applicants somewhat accept that it was appropriate for the High Court to interdict some of the applicants who were involved in acts of destroying, damaging or defacing UCT’s property.  Also, in their submissions to the SCA the applicants accepted that they were “in the midst of protest action which went beyond the boundary of peaceful and non-violent [protest] and thus rendered themselves subject to disciplinary processes”.

[20]   The applicants contend, however, that the SCA should have considered and held that some of the items concerned represented objectionable colonial symbols that provoked the actions of the students. The order of the SCA was effectively aimed at restraining the applicants from committing unlawful acts at the UCT campus.  That order does not, as was the case with the High Court order, preclude any of the applicants from entering any of UCT’s campuses, nor does it prevent them from engaging in lawful forms of protest.  There is also no merit in the procedural challenge mounted by the applicants against the SCA judgment.  The defence of necessity, in the circumstances of this case, is tenuous.  The applicants’ appeal, on the merits, must fail.

 

Costs

. . . . .

[25]   In Trencon[1] this Court dealt with the power of an appellate court to interfere with the High Court’s order. It held that the proper approach on appeal is for an appellate court to ascertain whether the discretion exercised by the lower court was discretion in the true sense[2] or whether it was a discretion in the loose sense.  The distinction in either type of discretion, the Court held, “will create the standard of the interference that an appellate court must apply”.[3]  This Court remarked, per Khampepe J, that “[a] discretion in the true sense is found where the lower court has a wide range of equally permissible options available to it”.  In such instances, the ordinary approach on appeal is that the “the appellate court will not consider whether the decision reached by the court at first instance was correct, but will only interfere in limited circumstances; for example, if it is shown that the discretion has not been exercised judicially . . .”.[4]  This type of discretion has been found by this Court in many instances, including matters of costs . . .”.[5]  The question remains whether the High Court, in considering the relevant circumstances and available options, judicially exercised its discretion in mulcting the applicants with costs.

Appropriateness of the High Court’s costs order

. . . . .

[31]   The starting point is to have regard to the nature of the issues. The issues that led to the protest related, generally, to the right to education.  A group of students including the applicants embarked on a protest seeking to vindicate their rights including the rights to education in terms of section 29 of the Constitution and to assemble and demonstrate in terms of section 17 of the Constitution.  Their right to assemble and demonstrate ceased when their demonstration or protest became violent, thus violating the rights not only of the University but also of others at the campus.

[32]   It is common cause that during the protest, tyres were carried onto the campus and used to fuel fire in which the University’s artworks and other objects were burned; the bust of Jan Smuts and the War Memorial were defaced; rubbish bins were burned and used to block certain entrances; a shuttle bus was set alight and acts inciting violence were committed by the students. Some of the misdemeanours during the protest appear to be attributable to the applicants.[1]  Self-help, as this Court has pointed out, is inimical to a society in which the rule of law prevails.[2]  Destruction of property, particularly in our learning institutions, cannot be tolerated.  The High Court is correct that it could not have been within the contemplation of the drafters of the Constitution that section 17 be used to justify hooliganism, vandalism or any other unlawful and illegitimate misconduct.[3]  There can be no doubt that the protestors’ conduct went beyond the boundary of peaceful and non-violent protest.  The University had no choice but to approach the High Court for an order restraining the group from conducting themselves unlawfully during their protest.

. . . . .

[36]   At the risk of repetition, the applicants were neither frivolous nor vexatious in opposing the University’s application. This is also illustrated by the SCA’s remarks where Wallis JA pointedly said:

“It follows that the university was entitled to a final interdict.  However, in my view it was not entitled to an order in the broad terms that it sought and was granted by the High Court.  The core problem with that order, as I see it, was that it effectively excluded the [applicants] from the university campus, which is, as I have pointed out, traversed by public roads and constitutes a public place, unless they had written consent from the Vice-Chancellor or his delegate to be there.

That order plainly infringed [the applicants’] right of freedom of movement guaranteed in section 21(1) of the Constitution.  It also restricted their right to exercise their right of freedom of association with others who shared their view of the problems facing the university in particular, but more generally all universities in South Africa as well as broader social issues.  And it constituted a substantial intervention in their social lives.  If permission were given for one of them to attend a lecture, they would not be able to join their fellow students for coffee afterwards without obtaining express permission.  They could not decide on the spur of the moment to attend an interesting talk or event on campus.  Without permission they could not attend a sporting function or meet a friend or collect someone from a residence before going out on a social occasion.  The fifth [applicant], who had made complaints about sexual abuse she had suffered on campus, unconnected with the protests, would be unable to ascertain directly whether anything was being done in regard to her complaints.

It is unnecessary to multiply examples.  When these problems were put to counsel for the university he readily accepted that the order made would need to be crafted more narrowly.”[1]

[37]   As expected, the narrowing of the High Court order signifies not only that the applicants were not frivolous or vexatious but also the measure of their success. In this regard, the SCA said the following:

“Reverting then to the order made by the court below, in my view the evidence establishes a right to an interdict in the terms set out in paragraph 1.3.2 to 1.3.5 of that order.  Such an order would focus upon preventing the [applicants], on pain of facing contempt of court charges, from repeating the conduct that justified the grant of an interdict in the first place.  In those circumstances the university would have succeeded in vindicating its rights and obtained the protection it sought from the court, while the [applicants] would have succeeded in having certain of the restrictions imposed upon them removed.”[2]

It follows that the High Court erred in not applying the general principle set out in Biowatch and in failing to realise that the exceptions to this general principle were not applicable in the circumstances of this case.  Had the High Court exercised its discretion judicially by taking that consideration into account, it would not have mulcted the applicants with costs.  Since the High Court did not exercise its discretion judicially, this Court is entitled to interfere with the costs award.

[38]   Having held that the University was not entitled to an order in the broad terms that it sought and was granted; that the core problem with that order is that it effectively excluded the applicants from the University campus – including public areas; that the order plainly infringed the applicants’ right of freedom of movement guaranteed in section 21(1) of the Constitution[3] and also restricted the exercise of their right of freedom of association with others; that the order constituted a substantial intervention in the applicants’ social lives and that the applicants attained a measure of success, the SCA nonetheless upheld the costs order of the High Court without a reasoned explanation for doing so. In my view, the SCA should have upheld the appeal on costs.

[39]   The applicants were among the group of student protesters, approximately 200 to 300 students, who acted in concert in bringing a shack structure onto UCT’s campus. This “group” of student protestors, acting in concert, sought to vindicate their rights to education, freedom of association, freedom to demonstrate and freedom of expression.  Disappointingly, their conduct however went beyond the boundary of peaceful and non-violent protest – by damaging the University’s property.  The destruction of property and incitement of violence is discordant with our constitutional dispensation.  It needs to be stressed that the destruction of property cannot be countenanced.  The students responsible for these transgressions must be held accountable through appropriate legal means.

[40]   In conclusion, on a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the SCA, but also in the High Court. In this Court, the applicants have succeeded in part and lost in part.  I would, taking into account all the relevant considerations mentioned above, order each party to pay its own costs, also in this Court.