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[2016] ZAWCHC 56
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University of Cape Town v Davids and Others (2648/2016) [2016] ZAWCHC 56; [2016] 3 All SA 333 (WCC) (11 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 2648/2016
DATE:
11 MAY 2016
In
the matter between:
UNIVERSITY
OF CAPE
TOWN
............................................................................................
Applicant
And
SANCHIA
DAVIDS
......................................................................................................
First
Respondent
KIRSTEN
WHITFIELD
..........................................................................................
Second
Respondent
MOGEZI
MAYEPI
.....................................................................................................
Third
Respondent
NEO
REILOE
MANCAPA
......................................................................................
Fourth
Respondent
DE
WAAL
HUGO
.........................................................................................................
Fifth
Respondent
ITUMELENG
NKULULEKO
MOLEFE
.................................................................
Sixth
Respondent
DUMISANI
NCUBANI
...........................................................................................
Seventh
Respondent
ATHABILE
NONXUBA
...........................................................................................
Eighth
Respondent
ALEX
HOTZ
...............................................................................................................
Ninth
Respondent
PAM
DHLAMINI
.......................................................................................................
Tenth
Respondent
MASIXOLE
MLANDU
.........................................................................................
Eleventh
Respondent
CHUMANI
MAXWELE
.........................................................................................
Twelfth
Respondent
SLOVO
MAGIDA
..............................................................................................
Thirteenth
Respondent
ZOLA
SHOKANE
.............................................................................................
Fourteenth
Respondent
BRIAN
KAMANZI
...............................................................................................
Fifteenth
Respondent
RU
SLAYEN
..........................................................................................................
Sixteenth
Respondent
THOSE
PERSONS WHO ASSOCIATE
THEMSELVES
WITH ANY UNLAWFUL CONDUCT
AT
ANY OF THE UNIVERSITY’S
PREMISES
..........................................
Seventeenth
Respondent
JUDGMENT:
11 MAY 2016
ALLIE,
J:
1.
This is an application to have the interim
interdict granted against the respondents on 17 February 2016, made
final. The terms
of the interim interdict are as follows: respondents
were interdicted and restrained from entering any of applicant’s
premises
and from committing any acts that impede and prevent
applicant’s rendering of services or making decisions.
2.
Applicant seeks confirmation of the Rule
Nisi only against the ninth, eleventh, twelfth, thirteenth and
fourteenth respondents.
3.
The interim order against fifth respondent
has been discharged by the Court while the interdict sought against
the remaining respondents
have been withdrawn.
4.
Ninth, eleventh, twelfth, thirteenth and
fourteenth respondents opposed this application and had legal
representation.
5.
Applicants allege the following.
6.
On 15 February 2016, protesting students
brought a shack structure onto the campus and erected it in the path
of traffic flow in
Residence Road and in the pedestrian path of
people who wished to walk up Jameson steps.
7.
Before 10 am on the morning of 15 February
2016, a student walked under the duct tape that was used to cordon
off the shack. An
altercation ensued when twelfth respondent
physically pushed the student, on twelfth respondent’s own
admission, allegedly
because according to twelfth respondent, the
student failed to obey the cordoned off area as being off-limits.
8.
Members of the executive task team [‘the
SETT”] approached the protesters to speak to them but the
protestors were hostile
and refused to engage with the SETT.
9.
At approximately 14h00 some protestors
moved towards Smuts Hall residence where eleventh respondent climbed
on to the roof of the
residence and spray painted the statue of Jan
Smuts with red paint to the applause of protestors.
10.
The group marched to Fuller Residence where
fourteenth respondent granted two female students access to the
residence’s roof
where the two students spray painted the
Fuller statue with red paint.
11.
On the morning of 16 February 2016 between
8am to 12h00, the position of the shack prevented students, people
who dropped off students
and staff from driving through Residence
Road, a thoroughfare used to enter and exit the area.
12.
Students, staff and a person who dropped
off a student were assaulted and verbally abused by protestors.
13.
Members of the SETT again met protestors
and handed them a letter in which they were requested to move the
shack onto a grass area
by 17h00, failing which the university
management would have the shack removed.
14.
The protestors refused to move the shack
and tore up the letter.
15.
By 17h00, the number of protestors around
the shack had increased.
16.
At 18h00, a group of protestors forced
their way into Residence Hall and helped themselves to food in the
dining hall. The food
was meant for residents.
17.
A group of protestors removed portraits,
painting, photographic collages and photographs from the walls in the
dining hall and took
them outside into Residence Road.
18.
At 18h50 the protestors forced open the
door of Smuts Hall Residence where they entered and removed paintings
and portraits.
19.
At 19h00 a group of protestors went into
Jameson Hall, Molly Blackburn Hall and Beit’s Building where
they removed portraits
and paintings from the walls. These were also
taken to the area next to the shack.
20.
The paintings and photographs were burnt
together with a wheelie bin.
21.
Police attempted to disperse the
protestors.
22.
A Mazda bakkie, used by the Department of
Biological Sciences that was parked in University Avenue North, upper
campus, was set
alight and completely destroyed by a group of
protestors at approximately 20h40.
23.
Later a group of protestors moved to the
Jammie shuttle bus stop in Baxter Road, lower campus, where they
stoned a Jammie shuttle
bus and set it alight, destroying it
completely.
24.
Later the police and campus security
removed the shack from Residence Road.
25.
Three litres of petrol were found inside
the shack.
26.
During the course of that evening, first to
eighth respondents were arrested on charges of public violence and
malicious damage
to property.
27.
At approximately 23h00, an incendiary
device was thrown into the window of the office of the
Vice-Chancellor located at Bremner
Building, lower campus.
28.
The device led to the office and its
contents burning.
29.
On behalf of respondents, the following
submissions were made.
30.
Respondents’ Constitutional right to
freedom of association, freedom to demonstrate, freedom of expression
and right to dignity
would all be severely restricted if the final
interdict were granted.
31.
This argument ignores the fact that those
rights are not unlimited and they are subject to horizontal
application, in that, those
rights have to be exercised with due
regard to those self-same rights of other persons.
32.
Respondents’ counsel made the
astounding submission that the applicant’s alleged right to
control and manage access
to its property is not a right but a duty.
33.
If that argument were to be upheld, it must
mean that property owners or lawful possessors of property do not
enjoy clear rights
to control access to their properties.
34.
That argument must also mean then, that
universities throughout this country have no clear right to manage
access to university
property nor do they have a right to prohibit
unlawful conduct on their property
35.
If the law indeed prohibits a
university from asserting a clear right to control and manage access
to its property, then it is a
prohibition that no court of law has
made a ruling on before.
36.
Mr Masuku, on behalf of respondents argued
further that the doctrine of necessity is the justification for the
respondents’
conduct. I was implored to find that the conduct
of the respondents as admitted by them, are necessary acts of civil
disobedience.
37.
Civil disobedience is defined in the
Concise Oxford English Dictionary as follows: “
The
refusal to obey a law out of a belief that the law is morally wrong”
38.
Laws prohibiting damage to the
property of another, appropriating the property of another and
physically assaulting another can’t
be said to be morally
wrong.
39.
The defence of necessity is only
available in criminal law. I was not referred to any authority which
extends the defence to civil
law and elevates it to a justification
for violating the rights of other people.
40.
It is indeed so that student
movements and their protest action has featured prominently in this
country’s history of liberation
struggle.
41.
Nonetheless, the Constitutional
Court has pronounced definitively in SATAWU’s case
(supra)
that the right to demonstrate and protest is subject to it being
peaceful. The plain meaning of section 17 of the Constitution
says as
much.
42.
At para 52 the Constitutional Court
says the following:
“
[52]
This means that everyone who is unarmed has the right to go out and
assemble with others to demonstrate, picket and present
petitions to
others for any lawful purpose. The wording is generous.
It would need some particularly compelling context
to interpret this
provision as actually meaning less than its wording promises.
There is, however, nothing, in our own history
or internationally,
that justifies taking away that promise.”
43.
The protest action to which the
respondents were party, caused further financial loss to the
applicant who already allegedly lack
financial resources to provide
accommodation to all students in need of accommodation.
Applicable
Law
44.
The
primary requisites for the grant of a final interdict as enunciated
in
Setlegelo
v Setlegelo
[1]
were re-affirmed by the
Constitutional Court in
Pilane
v Pilane and Another
[2]
as follows:
“
[39]
The requisites for the right to claim a final interdict were
articulated by Innes JA in
Setlogelo
v Setlogelo
. An
applicant desirous of approaching a court for a final interdict must
demonstrate: (i) a clear right; (ii)
an injury
actually committed or reasonably apprehended; and (iii)
the absence of an alternative remedy.
45.
In the context of the undisputed facts of
this case, the clear right which the applicant holds, is a right to
protect its property,
the duty to provide a safe and secure
environment in which students and staff can attend the university,
access the facilities
and resources of the university and the
residences, at which they were accommodated. Linked to these rights
and duties, the university
has a concomitant duty to facilitate the
safe passage of students, staff and members of the public to and from
the university premises.
46.
There can be no question that an injury was
actually committed. In fact, some protestors had set in motion a
whole series of injurious
actions, which respondents now claim they
had no control over.
47.
Although the shack structure had already
been removed by the time, the interim order was granted, applicants
allege that it’s
apprehension of harm is reasonable, because
there was an attempt, that was foiled, to erect a similar structure.
48.
Setlogelo’s
case
refers to “
injury actually
committed or reasonably apprehended.
”
Joubert’s LAWSA Vol 11 para 390 describes a final interdict as
a remedy not only for a past infringement and harm
but also for a
future violation of rights and consequent harm.
49.
In
Pilane’s
case, the injury is described as “
the
violation of the right.”
50.
This court is required to determine whether
the apprehension of the harm recurring is a reasonable one.
51.
Concerning the disruptive and destructive
form that the protests took, it cannot be said that the apprehension
of it recurring is
not reasonable given the great lengths to which
some protestors went, to perpetrate the destruction. The unrepentant
stance adopted
by the respondents, lead the applicant to believe that
the harm could recur if an interdict is not granted prohibiting the
misconduct
complained of.
52.
The
applicant is required to establish that no other adequate alternative
remedy exists.
[3]
53.
Criminal prosecution of perpetrators of
damage to university property, does not prohibit the same individuals
or other protestors
from destroying university property.
54.
Disciplinary action taken against
respondents, similarly do not prohibit other protestors from
emulating the misconduct of the respondents.
Disciplinary action
cannot occur as speedily and as effectively as a court interdict.
55.
Applicant’s right to claim damages
remains but it is not a speedy remedy and it has not been established
that it would act
as a deterrent to prevent similar misconduct in the
future. The issue of applicant obtaining satisfaction for damages is
a thorny
one given that the respondents are mostly unemployed
students with limited financial resources. I say this because
they clearly
sought the reduction of fees in the Fees Must Fall
campaign and elected to rely on University sponsored accommodation as
opposed
to their own privately funded accommodation.
56.
In the circumstances there is no
adequate
alternative remedy available to
applicant.
57.
Respondent’s freedom of assembly, to
demonstrate and to picket is set out in section 17 of the
Constitution as follows:
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.”
58.
The
Constitutional Court qualified the rights set out in section 17 in
the case of
South
Africa Transport and Allied Workers Union and Another v Garvas
and Others
[4]
as follows:
“
[68]
The fact that every right must be exercised with due regard to the
rights of others cannot be overemphasised. The
organisation
always has a choice between exercising the right to assemble and
cancelling the gathering in the light of the reasonably
foreseeable
damage. By contrast, the victims of riot damage do not have any
choice in relation to what happens to them or
their belongings.
For this reason, the decision to exercise the right to assemble is
one that only the organisation may take.
This must always be
done with the consciousness of any foreseeable harm that may befall
others as a consequence of the gathering.
The organisers must
therefore always reflect on and reconcile themselves with the risk of
a violation of the rights of innocent
bystanders which could result
from forging ahead with the gathering.”
…
“
[84]
The limitation on the right to assemble is reasonable and justifiable
in an open and democratic society based on human
dignity, equality
and freedom.”
59.
The respondent’s right to protest,
demonstrate, assemble, picket and petition cannot serve as
justification for destroying
property, threatening to harm people and
physically pushing a person who disagrees with their form of protest.
60.
The respondent’s section 17 rights
found it’s way into the Constitution after a painful and brutal
history caused by
the unjust political, social, economic and legal
system of apartheid. It was born out of the brutality visited upon
peaceful and
legitimate protests for equality, justice and liberation
for the majority of oppressed people in South Africa. That struggle
for
liberation was marked by a principled approach in which voices of
dissent were not quelled with gratuitous violence, arrogance and
self-righteousness.
61.
Section 17 rights are qualified by the
requirement of peaceful and legitimate forms of protest.
62.
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.
63.
When protestors who resort to vandalism,
physical and verbal abuse, seek refuge in section 17 of the
Constitution, they effectively
seek to erode the legitimacy of the
hard won freedoms enshrined in the Constitution.
Applying
the Law to the Facts
64.
Applicant alleged that ninth respondent was
seen walking in Residence Road after alighting from her car, carrying
a tyre to the
area where protestors had already made the fire that
was used to burn paintings and photographs.
65.
Ninth respondent’s answer to the
allegation is that there is nothing illegal about carrying a tyre.
66.
In its replying affidavit, applicant
alleges that ninth respondent drove a car that transported three
tyres onto campus.
67.
Another student was allegedly seen
alighting from ninth respondent’s car with a red Castrol can
that later contained approximately
3 litres of petrol.
68.
The circumstantial evidence points to ninth
respondent’s direct involvement in facilitating the lighting of
fires and consequently
the burning of artwork on campus.
69.
Ninth respondent offers no plausible
explanation for bringing a tyre to the fire.
70.
Ninth respondent justifies the fire as
follows: “
From what I saw the fire
had been made to prevent the movement of cars into the vicinity of
Residence Road.
” It is an
astounding allegation. She attempts to legitimise the making of
a fire to block vehicular traffic. The allegation
demonstrates a
gross failure to appreciate that a fire usually destroys the property
on which it is made and has the potential
to harm nearby vehicles,
persons, buildings and its contents. No explanation is given on how
the protestors could unilaterally
arrogate to themselves, the power
to block vehicular access to a road.
71.
Ninth respondent does not explain why she
“
dropped the tyre where students
were singing and dancing
” yet she
alleged that it was not used to burn anything.
72.
She is silent on what later happened to the
tyre that she left near the fire.
73.
Ninth respondent’s denial of
involvement in the burning of artwork rings hollow in the light of
her patently uncredible disavowing
of involvement in damaging
applicant’s property.
74.
Applicant repeatedly alleged that it is not
the shack as a means of protest that it objects to but rather where
it was positioned
together with the conduct of the protestors who
actively prevented vehicles from passing through a thoroughfare road,
causing disruption
to the movement of people who were entitled to
exercise their right of access to the university.
75.
Eleventh respondent admits defacing the
statue of Jan Smuts and alleges that he did so because it represents
colonial oppression
and white supremacist views, as did the statue of
Cecil John Rhodes.
76.
The Rhodes Must Fall (RMF) campaign to
which the respondents subscribe, achieved the removal of the statue
of Cecil John Rhodes
in 2015. It is indeed myopic if that campaign
focussed on one offensive statue and did not engage the university on
the other allegedly
offensive material. If however, the university
was engaged on the removal of other offensive material, then the
respondents clearly
failed to indicate which channels they pursued
and exhausted in having that material removed prior to resorting to
drastic, violent
and destructive action.
77.
While the removal of the Rhodes statue was
preceded by extensive engagement between the protestors and the
university, the campaign
against other offending statues and works of
art appear to have not followed a similar course.
78.
The protest against the remaining offending
statues and artwork appears to have been opportunistically tacked
onto the protest against
the lack of student housing for black
students.
79.
Eleventh respondent admits entering Fuller
Hall and eating food designated for residents. Eating food paid for
by residents or their
sponsors, amounts to appropriating for oneself,
the property of another. I make the assumption that the
respondents at some
stage, were university students and therefore
they were studying to improve their knowledge and skill so that they
could become
productive members of society. Theft is not acceptable
and justifiable conduct for a responsible and productive member of
society
80.
There is a clear disconnect between a
protestor who states that he or she is protesting for the benefit of
other black students
so that those students would be granted
accommodation and food, but then appropriates for himself or herself,
the food of other
students.
81.
Twelfth respondent describes the burning of
artworks and the Vice-Chancellor’s office as “
unfortunate
”
and “
delegitimising
”
the RMF and Fees Must Fall campaign.
82.
Twelfth respondent denies that he suggested
that the protestors should burn the artwork and Vice- Chancellor’s
office.
83.
Twelfth respondent justifies the occupation
of buildings as necessary to spur the university into action
concerning the demands
of the protestors.
84.
Twelfth respondent admits pushing a student
who walked through a cordoned off area near the shack because the
student allegedly
sought to provoke the protestors by ignoring the
command to avoid the cordoned off area.
85.
Twelfth respondent clearly does not
appreciate, despite having legal representation, that when one person
pushes another, it is
most likely common assault. He also denies the
student, in question, the right to counter protest without causing
physical harm
or danger to the ‘Shackville’ protestors.
86.
Applicant alleged that twelfth respondent
was present when the bus was torched and he rolled drums into the
road shortly before
the bus was burned.
87.
Twelfth respondent denies this allegation
but applicants rely on video footage to support its allegation.
88.
Twelfth respondent dismisses altercations
between protestors and other students as “
small
scuffles of no significance
.” In
adopting this cavalier approach to physical altercations, twelfth
respondent is treating with disdain, the right of
students not allied
to his cause to protest.
89.
Twelfth respondent admits eating meals at
Tugwell residence while applicant alleged that he was not entitled to
do so.
90.
Thirteenth respondent became legally
represented at the hearing and his answering affidavit was handed up
in court.
91.
Thirteenth respondent alleged that Anwar
Mall gave him permission to eat food at University House residence
even though he is not
a student.
92.
Applicant denies that anyone granted
thirteenth respondent permission to eat at University House and
alleges that only first year
students were granted that permission as
an interim measure by Grant Willis, the director of student housing.
93.
Thirteenth respondent is accused of wearing
a t-shirt with the following words written on it: “Kill All
Whites.”
94.
Thirteenth respondent alleges that the
words were preceded by a small almost illegible “s”,
thereby denoting the following
words ostensibly: “ sKill All
Whites.”
95.
Firstly, there is no known campaign being
waged by protestors to have all white persons skilled. Secondly,
there is no logical reason
why the “s” would be written
much smaller than the rest of the words if such a campaign indeed
existed. Thirdly, thirteenth
respondent ought to take responsibility
for his actions in an open and transparent manner instead of
disingenuously attempting
to cast doubt on his intention when he
chose to wear a sweater with the said words on it, in the midst of
protest action.
96.
It is apposite to remind the respondents of
the sentiments expressed by the late State President, Nelson
Rolihlahla Mandela
on 20 April 1964 in his opening address in the
dock:
“…
I
have fought against white domination, and I have fought against black
domination. I have cherished the ideal of a democratic and
free
society in which all persons will live together in harmony with equal
opportunities …”
97.
The former State President made clear the
objectionable and heinous nature of both white domination and black
domination in that
speech.
98.
To the same extent that a sweater with
words expressing a desire to kill all blacks is objectionable and an
incitement to violence
and racial hatred, the sweater worn by
thirteenth respondent is an incitement to violence and racial hatred.
99.
Fourteenth respondent admits that she
allowed two students who were not residents, into Fuller House, for
the purpose of spray painting
a statue. She said that she exceeded
the boundaries of acceptable protest.
100.
She admits that she allowed students that
were not residents to eat the food. That food was clearly prepared
for residents.
101.
She admits participating in removal and
burning of artworks that are regarded as symbols of oppression. She
alleges that she was
swayed by the crowd.
102.
Applicant denies that all the artworks
burned were symbols of oppression.
103.
Students are entitled to protest within the
boundaries of legal protest. Destruction of University property,
blocking access to
and from the University, physical violence towards
people who disagree with protests and express or implied threats to
harm people
by displaying words to that effect during protests
clearly exceed those boundaries.
104.
While it has been said that an interdict is
not a remedy for a past invasion of rights, but for present &
future rights, in
Philip Morris
Inc v Marlboro Shirt Co. S.A Ltd 1991(2) SA 720 (A) at 735 B-C
,
the court said: “
An interdict,
however, is not a remedy for the past invasion of rights: Stauffer
Chemicals Chemical Products Division of Cheseborough-Ponds
(Pty) Ltd
v Monsanto Company
1988 (1) SA 805
(T) at 809 F. In order to have
been granted the relief claimed by it, Philip Morris was obliged to
have established that at the
time it instituted these proceedings in
1987 Marlboro Shirt was still representing that its merchandise was
associated with Marlboro
cigarettes and that there was a reasonable
likelihood that members of the public may then have been confused
into believing that
the merchandise of Marlboro Shirt was connected
with Philip Morris.
”
105.
The misconduct complained of
in
casu
, occurred contemporaneously with
application for the interim order, hence there was insufficient time
to depose to a founding affidavit
and the applicant relied on oral
evidence in support of the application.
106.
In determining whether a final interdict
should be granted, a court, will invariably be confronted with a
situation where the offending
conduct has ceased, mostly, as a result
of the interim interdict.
107.
That does not however, make the misconduct
a past invasion of rights.
108.
The requirement of a reasonable
apprehension of harm or harm actually committed would be rendered
nugatory if final interdicts were
to be refused because the harm has
ceased as a consequence of an interim interdict.
109.
In my view, the interim interdict is
somewhat overbroad. I would accordingly reduce its scope in making it
final.
110.
Since applicant is only seeking relief
against ninth, eleventh, twelfth, thirteenth and fourteenth
respondents, it follows that
the rule nisi granted against
respondents 1 to 4, 6 to 8, 10 and 15 – 17 must be discharged.
111.
I am not persuaded that applicant has made
out a case for relief against unnamed persons who are meant to
constitute the seventeenth
respondent and I will discharge the rule
against that respondent because the description of that respondent is
also too broad,
vague and ill-defined.
112.
In the result, the following order is
granted:
1.
The rule
nisi
issued on 17 February 2016 is confirmed in the following varied
terms:
1.1
The ninth, eleventh, twelfth, thirteenth
and fourteenth respondents are interdicted and restrained from
entering, or remaining on,
any of the applicant’s premises
except with the applicant’s express prior written consent to do
so;
1.2
The written consent referred to in
paragraph 1.1 means written consent given after the date of this
order by the applicant’s
vice-chancellor or another member of
the applicants’ staff nominated by the vice-chancellor for that
purpose with reference
to this order following receipt of a written
request from the relevant respondent;
1.3
Any one of the ninth, eleventh, twelfth,
thirteenth and fourteenth respondents who attends or remains on any
of the applicant’s
premises with the written consent referred
to in 1.1 is interdicted and restrained from –
1.3.1
entering or remaining on the applicant’s premises for any
purpose not expressly set out
in the written consent;
1.3.2
erecting any unauthorised structures on the applicant’s
premises;
1.3.3
destroying, damaging or defacing any of the applicant’s
property;
1.3.4
participating in, or inciting others to participate in any unlawful
conduct and/or unlawful
protest action at any of the applicant’s
premises; and
1.3.5
inciting violence.
2.
The ninth and eleventh to fourteenth
respondents are to pay the applicant’s costs, jointly and
severally, including the costs
of two counsel.
R.
ALLIE
[1]
1914
AD 221
[2]
2013
(4) BCLR 431
(CC) at para 39
[3]
Buitendach
v West Rand Proprietary Mines Ltd
1925 TPD 886
at 906
[4]
2013
(1) SA 83
(CC) at para 68 & 84