Earlier this year UCT obtained a far-reaching final interdict from the high court against some students and others.  The SCA today disallowed the appeal save to the extent of amending the final order to protect some of their constitutional rights. Wallis JA in an erudite judgment stressed that the appeal ‘is not about the merits or legitimacy of those protests’.

“The law in regard to the grant of a final interdict is settled.  An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy. Once the applicant has established the three requisite elements for the grant of an interdict the scope, if any, for refusing relief is limited.  There is no general discretion to refuse relief”. [para 30 without footnotes]

Hotz v University of Cape Town (730/2016) [2016] ZASCA 159 (20 October 2016) per Wallis JA (Navsa, Bosielo, Theron and Mathopo JJA concurring)

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This is believed to be the first judgment of the SCA containing a photgraph!

Excerpts without footnotes

[16]   By 5.00 pm the group of protesters had grown and there were between 200 and 300 people at the site of the shack, some of whom may simply have been curious bystanders. At about 6.00 pm some 40 or 50 protesters obtained entrance to Fuller Hall, went into the kitchen and dining hall, and helped themselves to food meant for resident students.  Some among them then proceeded to remove a number of portraits, photographs and paintings from the walls of the dining hall.  These were taken into Residence Road and thrown on a pile and set alight.  Shortly before 7.00 pm the same group pushed their way into Smuts Hall and removed portraits and paintings that were also taken and burnt.  They then went into three other buildings on the upper campus and removed more paintings, photos and portraits that were likewise taken and burnt.  All in all, apart from formal photographs, 25 works of art having a value of nearly R700 000 were destroyed.

. . . . .

[27]    Uniform rule 36(10) provides for the admission without the need for formal proof of plans, diagrams, models and photographs. The mechanism for doing so is to give notice of the intention to produce such items at the hearing and to require the other party to admit them.  If there is no response to that notice those items may be received in evidence on their mere production without further proof thereof.

. . . . .

The law

[30]     The law in regard to the grant of a final interdict is settled.  An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy.[1] Once the applicant has established the three requisite elements for the grant of an interdict the scope, if any, for refusing relief is limited.  There is no general discretion to refuse relief.[2]

That is a logical corollary of the court holding that the applicant has suffered an injury or has a reasonable apprehension of injury and that there is no similar protection against that injury by way of another ordinary remedy.

In those circumstances, were the court to withhold an interdict that would deny the injured party a remedy for their injury, a result inconsistent with the constitutionally protected right of access to courts for the resolution of disputes and potentially infringe the rights of security of the person enjoyed by students, staff and other persons on the campus.

The university’s rights

[31]     There is no dispute regarding the rights that the university seeks to protect in these proceedings.  It is common cause that it has the right to:

‘(a)      control and manage access to its property;

(b)       ensure that it is allowed to properly manage and control unlawful conduct on its property;

(c)        ensure that its staff are able to carry out their work in the interests of the students;

(d)       ensure the safety of its students and staff and other members of the public who are legitimately on its property; and

(e)       protect UCT’s property.’

Four of the appellants accepted in their affidavit that UCT had certain rights that ought to be protected but denied that they posed a threat to those rights.

. . . . .

[33]     There can be no doubt that the actions of the protesters as already described infringed the university’s acknowledged rights. . . . .

[34]     The appellants invoked the defence of necessity,[1] to claim that their actions had not harmed or infringed the university’s rights ‘to the extent that warrants the confirmation of the interim interdict’.

They said that there was no evidence that the injury was a continuing one, and that because they were pursuing a legitimate and noble objective, namely the transformation of the university and the promotion of an atmosphere that was conducive and acceptable to all,

‘protestors and activists alike may be justified in exceeding the bounds of the law, particularly in circumstances where they seek to protect and highlight rights of others that are being infringed.’  

They submitted that their conduct had not been wrongful.

. . . . .

[39]     Counsel seized on this passage to argue that instead of an interdict the court should order the university and the protesters, including the appellants, to engage constructively with one another to resolve the issues that form the subject of the protests.

But it is one thing for a judge to express the hope that parties may, by sensible engagement with one another, resolve their differences without any need for the court to intervene, and another thing altogether to refuse a litigant relief to which they are in law entitled, on the basis of a view that constructive engagement, third party mediation or the application of common sense would be preferable means of addressing the differences between the parties.

Courts sometimes suggest to parties that there are ways other than litigation to resolve grievances and redress wrongs, but all they can do is encourage the parties to explore these alternatives.  They cannot impose them upon the parties.  In particular they cannot deny a legal remedy to a litigant entitled thereto on the basis that they should seek a remedy through some other non-legal means.

[40]     This understanding of the nature and purpose of an interdict is rooted in constitutional principles. Section 34 of the Constitution guarantees access to courts, or, where appropriate, some other independent or impartial tribunal, for the resolution of all disputes capable of being resolved by the application of law.

The Constitutional Court has described the right as being of cardinal importance and ‘foundational to the stability of an orderly society’ as it ‘ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes without resorting to self-help’.

It is ‘a bulwark against vigilantism, and chaos and anarchy’.[1]

Not only is the Constitution the source of the university’s right to approach the court for assistance, in doing so it is exercising a right that the Constitution guarantees.  In granting an interdict the court is enforcing the principle of legality that obliges courts to give effect to legally recognised rights.  In the same way the principle of legality precludes a court from granting legal recognition and enforcement to unlawful conduct.[1] To do so is ‘the very antithesis of the rule of law’.[2]

 

. . . . .

[70]     Mr Mlandu’s slogans on the War Memorial did not in my view fall outside the protection of s 16(1) of the Constitution.  Whatever ‘F*** WHITE PEOPLE’ was intended to mean it is nothing more than a crudely worded slogan indicating that the writer dislikes or rejects white people.  It may express hatred for white people, based on their race or ethnicity, but it does not operate as an inducement to cause them harm unless one reads into the words an unexpressed meaning.  It is regrettably not uncommon for people to use strong language in which, as Van den Heever J once delicately expressed it, ‘a word signifying the sexual act [is] substituted for a verb of motion’.[1]  Without more, which may emerge either from the context in which the expression is used or its combination with other words or actions, the use of that word does not ordinarily involve a threat of physical harm.

. . . . .

[72]     The appellants invoked necessity as a defence to the university’s contention that this conduct was unlawful and a breach of its rights. In the court below the judge held that this defence is confined to the criminal law.

That is incorrect.  There are instances in relation to civil wrongs where necessity will rebut an inference of unlawfulness.  Thus it would be a defence to a claim based on trespass that one was fleeing a forest fire and there was no other route to escape the flames.  Extending the example, it would also be a defence to a contention that taking one’s neighbour’s water in order to fight the fire was unlawful.  Here the appellants contend in argument that their conduct was necessary in the light of the university’s failure to address their concerns and the lack of transformation of which they complained.

. . . . .

[76]     Given the vehemence with which the appellants expressed their complaints against the university and its management it was probable that they would have continued their protest and the actions related to it if able to do so. (The interim interdict excluded them from the campus, which precluded that.)  In the absence of any undertaking from the appellants not to repeat the conduct described above, the university had a reasonable apprehension that unless an interdict was granted the students would continue with conduct of the same type in breach of its rights.  Accordingly the first two requisites for a final interdict were established.

[77]     That left only the question whether the university had available to it an alternative remedy that would afford it the same protection as an interdict. Various possibilities were mooted in that regard.  In the heads of argument it was suggested that it should implement internal disciplinary action over the appellants.   Alternatively it was said that the university should press criminal charges against the appellants.  Thirdly, it was suggested that it should pursue a mediation process.

. . . . .

 

[79]     In any event the suggested alternatives were not a proper or effective alternative to the grant of an interdict.  Disciplinary proceedings would not have prevented the appellants from continuing their actions and those who were not registered students and not subject to the university’s disciplinary procedures.  Criminal charges would have been protracted and not have affected matters while pending.  Mediation, useful and desirable though it frequently is in resolving disputes, would not, in the absence of any undertakings from the appellants, have served the purposes of an interdict.  Furthermore, the students had rejected out of hand overtures from the university to seek a negotiated solution to the issues and adopted an intractable attitude that their demands should be met.  Mediation has little prospect of succeeding in that environment.  It was not an effective alternative remedy.

[80]     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 appellants 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.

[81]     That order plainly infringed their right of freedom of movement guaranteed in s 21(1) of the Constitution. . . . .

[83]     For the reasons already given in paragraphs 35 to 39 above it is not open to us to attach to the legal remedy of an interdict conditions of the type suggested on behalf of the appellants.

It is not for a court to instruct the university whether to pursue or abandon disciplinary proceedings in terms of its student code of conduct.  Nor can a court instruct the university to establish a commission of enquiry, much less dictate the remit and mode of functioning of such a commission.

The court’s function is essentially adjudicative.  While there are times when it must engage in a measure of judicial creativity in formulating a remedy in a particular case it does not have carte blanche to do whatever it wishes or deems appropriate.

There are two principal reasons for this.

The first is that the nature of judicial proceedings, presented as they are as a dispute between the litigants, is ill-suited to understanding the full implications and underlying nuances that would affect the terms of such broad and general orders.

The second is that the court’s role under our Constitution is not to provide the solution to every social problem, but to make orders arising from an adjudication on the merits of the particular dispute with which it is confronted on the basis of the evidence led and the submissions of the parties.  The courts are also bound by the principle of legality.

[84]     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 paragraphs 1.3.2 to 1.3.5 of that order.  Such an order would focus upon preventing the appellants, 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 appellants would have succeeded in having certain of the restrictions imposed upon them removed.  Fairness suggests that in that situation all parties should pay their own costs in this court.