Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017 (2) SA 485 (SCA) (20 October 2016)

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[2016] ZASCA 159
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Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017 (2) SA 485 (SCA) (20 October 2016)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 730/2016
In the matter between:
ALEXANDRIA
GABRIELLA HOTZ

FIRST APPELLANT
MASIXOLE
MLANDU

SECOND APPELLANT
CHUMANI
MAXWELE

THIRD APPELLANT
SLOVO
MAGIDA

FOURTH APPELLANT
ZOLA
SHOKANE

FIFTH APPELLANT
and
UNIVERSITY OF CAPE
TOWN

RESPONDENT
Neutral citation:
Hotz
v UCT
(730/2016)
2016 ZASCA 159
(20 October  2016)
Coram:
NAVSA, BOSIELO, THERON, WALLIS and MATHOPO JJA
Heard
:
29 September 2016
Delivered
:
20 October 2016
Summary:
Interdict – student protests –
requisites for the grant of an interdict – whether requisites
satisfied –
nature of relief to be granted.
ORDER
On appeal from:
Western Cape Division of the High
Court, Cape Town (Allie J sitting as a court of first instance.
Judgment reported sub nom
University
of Cape Town v Davids & others
[2016]
3 All SA 333
(WCC)):
(a)
The order of the court below is altered to read as follows:
‘
1
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are interdicted and restrained
from –
1.1
erecting any unauthorised structures on the applicant’s
premises;
1.2
destroying, damaging or defacing any of the applicant’s
premises;
1.3
participating in, or inciting others to participate in any unlawful
conduct and/or unlawful protest
action at any of the applicant’s
premises; and
1.4
inciting violence.
2
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are to pay the applicant’s
costs jointly and severally,
including the costs of two counsel.’
(b)
Save to that extent the appeal is dismissed with all parties to pay
their own costs.
JUDGMENT
Wallis JA (Navsa,
Bosielo, Theron and Mathopo JJA concurring)
[1]
Since March 2015 South African universities
have been engulfed by waves of student protests conducted under names
such as #RhodesMustFall
and #FeesMustFall. The protests, and the
actions of protestors, university administrators, campus security and
the police are the
subject of heated debate in the media. This appeal
is not about the merits or legitimacy of those protests. It involves
no judgment
on the conflicting views of the students and their
supporters, the university administrators, the politicians and others
caught
up in these events. Our task is to determine, in accordance
with long-established legal principles whether the high court was
correct
to grant a final interdict against the five appellants,
arising out of events on the campus of the University of Cape Town
from
15 to 17 February 2016.
[2]
At the commencement of argument, counsel
for the appellants accepted that the appeal was confined to
considering whether the actions
of the appellants at that time were
unlawful and whether there was a reasonable apprehension that they
would recur. He did this
while stressing that their actions must be
seen against the background of their struggle for social justice. In
the result, we
are concerned only with the factual situation when the
case came before the court below. Subsequent events, such as the
current
protests on various campuses, are not relevant to our
decision.
[3]
The appeal arises from a protest, dubbed by
the participants ‘Shackville’, that commenced on 15
February 2016 on the
campus of the respondent, the University of Cape
Town (UCT or ‘the university’). On 17 February 2016 and
as a matter
of urgency UCT obtained an interim interdict against 16
individuals, some registered students and some not, that barred them
from
entering the university campus, unless they had the university’s
consent to be there for academic purposes or to occupy student

housing that had been allocated to them. It further interdicted them
from interfering with the rendering of university services
and the
university’s decision-making processes by, amongst others,
erecting unauthorised structures on the campus; destroying,
damaging
or defacing university property; participating in, or inciting others
to participate in unlawful conduct or protest action
on university
premises and inciting violence. On 15 March 2016 the return
day of the rule nisi issued on 17 February 2016,
UCT sought
a final interdict against the five appellants. On 11 May 2016
Allie J granted that order. This appeal is with
her leave.
The protest
[4]
The protest began on 15 February 2016,
which was the first day of the first academic term in 2016. It
concerned primarily two issues,
namely, the difficulties experienced
by many students, predominantly Black, in paying university fees, and
the problems they were
having in finding suitable accommodation to
enable them to pursue their studies. Broader themes were the issue of
transformation
of the university away from what the students regarded
as a colonial and Eurocentric heritage and the massive problems that
affect
poor people in obtaining decent housing.
[5]
Fairly early on the morning of 15 February,
at about 6.40 am, a group of some 20 or 30 people gathered above
Residence Road next
to the Maths building on the upper campus. The
upper campus, is situated on the side of Devil’s Peak and
slopes upwards from
the M3, the major road between the centre of the
city and the southern suburbs. Adjacent to the M3 are rugby fields.
They are bounded
on their upper side by a road, Madiba Circle, which
runs round the whole of the upper campus. Two halls of residence,
Fuller Hall
and Smuts Hall stand side by side above Madiba Circle
overlooking the rugby fields. Between them there is a broad
pedestrian walk
running uninterruptedly straight up the hill to
Jameson Hall, the principal hall for formal functions at UCT.
Residence Road runs
behind Fuller and Smuts Halls and separates them
from the principal buildings on the upper campus. It is a major route
for vehicular
traffic through the university. After crossing
Residence Road at the point where the pedestrian walkway passes
between the lower
residences, one walks up Jameson steps. That is the
principal route taken by students coming from the university
residences to
attend lectures in many, but not all, faculties and to
obtain access to the library, the student union and certain other
facilities.
[1]
[6]
At about 8.15 am on 15 February a bakkie
arrived in Residence Road near the Jameson steps and unloaded wood,
corrugated iron, a
door and window and other construction materials.
The group gathered at that point, together with the two men in the
bakkie, used
these materials to erect a shack in the middle of
Residence Road obstructing traffic and pedestrians. They then marked
off a large
area around the shack with the red and white plastic tape
used on construction sites and elsewhere to demarcate areas of
danger.
A photograph in the record, taken from the Jameson steps
side, showed a fairly substantial wood and corrugated iron structure
in
the middle of the road. It was of a type commonly encountered in
informal residential areas. Alongside it was a portable toilet
and
there were more than twenty people sitting and standing around the
shack in the cordoned off area. Prominently displayed on
the ground
in front of the shack at the foot of Jameson steps was a sign ‘RHODES
MUST FALL’. On the back of the shack
were the words ‘UCT
HOUSING CRISIS’. The shack is depicted in this photograph from
the record.
NB: PLEASE CONSULT
THE PDF VERSION FOR IMAGES
[7]
It is apparent from the photographs that
the shack and the demarcated area constituted a substantial hindrance
to traffic on Residence
Road and to the ordinary movement of
pedestrians in that area of the campus. The normal route for
pedestrians going to and from
buildings on the upper campus was
significantly restricted by the presence of the shack, the protesters
and the demarcated area.
Evidence that pedestrians were prevented
from crossing the demarcated area and that it operated as an
exclusion zone was not disputed.
The attitude evinced in the opposing
affidavits by various respondents was that such persons were not
respecting their protest
and that it was therefore permissible for
them to prevent them physically from entering the demarcated area.
[8]
Three of the appellants, Ms Hotz, the first
appellant, Mr Mlandu, the second appellant and Ms Shokane, the fifth
appellant, were
students
[2]
at the university and acknowledged that they were participants in the
‘Shackville’ protest. It was described in some
of the
affidavits (although not those of the appellants) as ‘a themed
protest action’ that sought ‘to thoughtfully
create an
artistic form of protest with the idea to showcase the experience of
hardship of Black students and their daily pains
and struggles’.
Mr Maxwele, the third appellant, had previously been registered as a
student and said that he intended to
register again in 2016 after
consulting a student adviser. He too acknowledged that he was a
participant in this protest. The fourth
appellant, Mr Magida, had
also previously been a student at the university, but at the time of
these events was employed as an
opera singer and had no direct
connection with UCT, or none that emerges from the papers. He did not
deal with his involvement
in the Shackville protest, but did not deny
the allegation that he was one of the original participants.
[9]
The presence of the shack caused
considerable traffic congestion not only on Residence Road and the
upper campus, but extending
to the access points to the campus for
traffic coming off the M3 and from Main Road, Rondebosch. When senior
university staff approached
the protesters with a view to persuading
them to move the shack to a nearby, grassed area close to Smuts Hall
they were rebuffed.
At a little after 1.00 pm, a decision was
taken not to make any further attempts at that stage to persuade the
protesters
to move the shack, but to monitor the situation.
[10]
At about 2.15 pm a group of
protesters moved towards Smuts Hall and Mr Mlandu, the second
appellant, climbed up to the roof and
spray- painted the bust of Jan
Smuts, that stands above the entrance to the residence, with red
paint. The protesters applauded
this action. The group then proceeded
to Fuller Hall where Ms Shokane, the fifth appellant, swiped her
student card to provide
two of them with access. The two so admitted
then proceeded to spray paint the bust of Mrs Fuller, after whom the
residence is
named, with red paint to the accompaniment of applause
from the watching protesters.
[11]
Apart from the events already described
nothing else that occurred on 15 February, in regard to the protest,
was relied on by the
university as forming part of the background in
support of its application for an interdict. The protest continued,
with singing
and dancing, and by the evening the majority of the
protesters dispersed, although around ten remained and spent the
night in the
shack.
[12]
The following morning the group of
protesters reassembled at the shack and continued to sing and dance
and prevent people from entering
the demarcated area. This again
obstructed traffic in Residence Road as well as pedestrian movement
to and from the upper campus
and it was apparent to the university
administration that it was the intention of the protesters that the
shack would remain there
for a protracted period. The presence of the
shack and the blocking of Residence Road was causing a blockage of
traffic down Woolsack
Road that leads to Main Road, Rondebosch and
the traffic was backed up to the M3 off-ramp. The traffic jams were
one or two kilometres
long. Residence Road carries about 60 percent
of traffic within the campus and provides access to parking areas.
These were
blocked off with rocks and burning rubbish bins, and
persons trying to obtain access to them were threatened.
[13]
During the course of the morning a number
of altercations occurred between protesters and other students,
parents and members of
staff. The general allegations made in this
regard by the deponent to the university’s founding affidavit
were not denied
by any of the appellants, although the third
appellant, Mr Maxwele, denied a specific allegation of aggressive and
threatening
conduct by him in relation to events at the P3 parking
area. He did not, however, deny that he had set fire to rubbish bins
that
were used to block access to this area. He said that the
blocking of the road ‘was a necessary step in highlighting the
pain
of the students’.
[14]
The university alleged, and this was not
controverted, that during the course of the morning of 16 February a
number of students,
a staff member and a member of the public
dropping a student off, were physically assaulted and verbally abused
by the protesters.
The abuse included racial insults. Senior
management requested the protesters to move the shack out of
Residence Road and onto
the grass by Smuts Hall but this request was
refused.
[15]
At about 2.00 pm on 16 February
the second appellant, Mr Mlandu, painted a number of slogans on the
War Memorial that
stands above the rugby fields and commemorates
persons with a connection to UCT who had died in or were affected by
the First and
Second World Wars. The slogans on the front of the
memorial read ‘F*** WHITE PEOPLE!!’ and ‘F*** BLACK
EXCLUSION’,
while those on the reverse read ‘1652 MUST
GO!!’,
[3]
‘UCT IS A SITE OF CONQUEST’ and ‘UCT IYAKAKA
MOER!’.
[4]
At some time that day, slogans reading ‘F*** WHITE PEOPLE’
and ‘F*** WHITE TEARS’ were painted on the pavement
and
at the bus stop where the Jammie shuttle bus stops to collect
students from the Baxter residence on the lower campus to take
them
to the upper campus.
Attempts by
university management to invoke the assistance of the police were
unsuccessful. At 3.00 pm they caused a letter
to be delivered to
the protesters requesting them to move the site of their protest from
the position where it was blocking Residence
Road to a spot about
20 metres away on a grass lawn adjacent to Smuts Hall. The
letter expressly recognised the protesters
right to protest and the
importance of the issues they were raising. It offered the assistance
of campus security officers to move
the shack and requested that they
ensure that the participants in the protest acted ‘within legal
parameters’ and refrain
from interfering with ‘the rights
of fellow students and staff’. The protesters were told that if
the shack had not
been moved by 5.00 pm action would be taken to
remove it. The protesters di
d
not move the shack
and
instead tore up the letter in the presence of the university’s
management
. When
campus security personnel went to the site to assist in moving it
they were refused permission to do so. According to the
evidence, the
protesters made use of social media to summon sympathisers,
especially from other campuses and other social activists,
to bolster
numbers. They also started fires at various places, setting alight
‘wheelie bins’ used to collect rubbish.
They also
gathered rocks and stones and the deponent to the founding affidavit
made the point that the mood of the group changed
significantly from
what it had been earlier. They became more charged and he described
them as ‘hostile’.
[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.
[17]
There was no apparent pattern to the
removal and burning of portraits, paintings and photographs. Some
were by well-known artists
and were portraits of figures involved in
the university in years gone by. Others were paintings by
contemporary South African
artists. These included a series of works
commissioned by the Student Affairs Department and painted to
commemorate political events
between 1987 and 1994 in the last stages
of apartheid and up to the commencement of democracy. Some of the
photographs were of
past house committees of the residences. Others
included photographic collages of Molly Blackburn, an anti-apartheid
and civil
rights activist.
[18]
While the paintings were burning a bakkie
arrived on the campus containing building materials for the purpose
of constructing a
second shack. According to the first appellant, Ms
Hotz, this was a ‘shack we had ordered the previous day’.
The intention was that this would be erected near the lower campus
Jammie shuttle bus stop in Baxter Road. However, the intervention
of
campus security personnel and the police prevented the erection of
the shack, despite the objections of the protesters. It appears
that
the intended site for the erection of the second shack was near the
place where the slogans referred to in paragraph 15 were
painted.
[19]
After the protesters had forced their way
into the halls, residences and dining halls and while the paintings
were being burned,
Mr Ganger laid charges against the protesters at
the Rondebosch police station with a view to getting the police to
act. This was
at about 7.30 pm. As a result the police came to
the campus to disperse the protesters. While this was effective at
the site
of the shack in Residence Road, the dispersing protesters
broke into smaller groups and caused further damage. A bakkie used
for
research purposes by the Department of Biological Sciences and
parked in University Avenue North on the upper campus was set alight

and destroyed. That occurred at about 8.40 pm. At about 9.00 pm,
at the Jammie shuttle bus stop in Baxter Road, a shuttle
bus was
stoned, set alight and destroyed. The value of the two destroyed
vehicles was slightly less that R1.6 million. At
about 8.00 pm
and in view of concerns about the situation on the campus the
Executive Director of Libraries was instructed
to close the library,
which is normally open until late at night for student study
purposes.
[20]
The protesters marched to the Rondebosch
police station at about 10.30 pm and before and during the march
eight people were
arrested.
[5]
At 11.00 pm an incendiary device was thrown through the
window of the office of the Vice-Chancellor of the university
in the
Bremner building on the lower campus. While the fire was detected and
extinguished by campus security personnel it caused
significant
damage estimated at R350 000. The identity of the perpetrators had
not yet been established when the application was
brought and this
occurrence is relevant only to an understanding of the university’s
concerns leading up to the interdict.
[21]
As the protesters were being dispersed from
the site in Residence Road, the shack was demolished by private
security personnel and
police. Inside the shack campus security found
a plastic can containing about three litres of petrol. A similar can,
capable of
carrying five litres of petrol, is to be seen in
photographs taken when the paintings were being burned. At least two
people were
photographed in possession of that can and one is shown
throwing its contents on to the fire, but not with a view to dousing
it.
The following morning, after the shack’s removal, rocks and
other objects had been placed in the road to obstruct traffic.
[22]
The events that precipitated the urgent
application came on 17 February when a member of the campus
security staff received
a report from a student of a threat of
further arson attacks on buildings on the campus. That occurred
shortly after midday on
that day and related to events the previous
evening. The student said that she had been given a lift to
Observatory Square, because
there was no Jammie shuttle bus
available, as one was on fire. She reported that the students in the
car appeared to have been
involved in the protests. They were very
excited about the burning of the bus and one said that she had been
involved in burning
paintings. The one said that he would be
returning to the campus the following day, that is, 17 February, and
they would try to
burn as many buses as possible. On top of that she
said that the student said that they intended to go to a building on
upper campus
with large gas bottles that they were also going to
burn. (This was identified as the P D Hahn building, which houses the
faculty
of science.) The student making the report claimed to be
terrified by the attitude of those in the car.
[23]
Apart from this report the university
became aware from a posting on social media of a threat to the
university library to ‘burn
books written by white people’.
In addition there was concern about the difficulty experienced the
previous day in securing
an intervention by the police and whether
they would intervene again if such intervention were necessary.
The urgent application
[24]
The urgent application was set down for
hearing at 4.30 pm on 17 February 2016 before Williams AJ. A
notice of motion was filed,
but no supporting affidavits, and the
hearing proceeded on the basis of the oral evidence of the registrar,
Mr Pillay, and the
university’s investigations manager, Mr
Ganger. The evidence covered the events described above. A number of
photographs
were handed in as exhibits and reference was made to
video footage that was available to be viewed if need be. The videos
both
portrayed events on the campus and had been used to identify
participants in the various events. In addition a sworn statement was

produced in regard to the report referred to in paragraph 22 and a
recording of the report was played.
[25]
At a very late stage of the hearing after
the evidence had been heard, while the judge was settling the terms
of the order she was
about to make, an attorney appeared on behalf of
the respondents. He indicated that his clients wished to be granted
an opportunity
to oppose the application. The judge said that she had
already ‘heard the application and I’m satisfied that a
proper
case has been made out for the relief sought’ and
indicated that she was in the process of finalising a timetable for
the
filing of papers. In the result a provisional order was made
including an interim interdict. The return date of the rule was 15

March 2016.
[26]
The order granted on 17 February made
provision for dealing with the photographic and video material placed
before Williams
AJ or referred to and relied on in the course of the
oral evidence. Paragraph 5 of the order provided that UCT was to file
a founding
affidavit by 22 February to which it was to attach a
transcript of the evidence; the three exhibits handed in at the
hearing
and any further footage of the incidents forming the subject
matter of the application. It provided that insofar as this evidence

consisted of video footage it should be dealt with under Uniform rule
36(10). UCT complied with that order.
[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. There was no response to the notices
delivered by the university and hence all the photographs and video
footage
were receivable in evidence without further proof.
[6]
It was in fact tendered to Allie J but we were informed from the bar
that she indicated, that she did not think it necessary to
view the
material. Perhaps that was because the description of the contents of
the video material was, in all but one respect,
not disputed. That is
the approach that most favours the appellants and I accordingly adopt
it.
[28]
The order eventually made by Allie J read
as follows:
‘
1
That 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
ViceChancellor or another
member of the applicant’s 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.
1.2
That the ninth and eleventh to fourteenth respondents are to pay the
applicant’s costs
jointly and severally, including the costs of
two counsel.’
The law
[29]
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.
[7]
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.
[8]
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
[30]
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.
An infringement of
rights actual or apprehended
[31]
Here again there are concessions on the
part of the appellants that narrow the area of dispute. In paragraph
71 of their heads of
argument it was said:
‘
It
is also accepted that the Appellants were in the midst of protest
action which went beyond the boundaries of peaceful and non-violent

[protest] and thus rendered themselves subject to disciplinary
processes that the Respondent initiated against its students.’

(My insertion.)
In view of certain
denials in their affidavits I do not construe this concession as an
acceptance by the appellants of their participation
or complicity in
all the events described above. But, it is a concession that they
were participants in protest action that overstepped
the bounds of
peaceful and non-violent protest. That is relevant because that is
the boundary set by the Constitution in s 17
of the Bill of
Rights, which guarantees the right ‘peacefully and unarmed’
to assemble, demonstrate, picket and present
petitions.
[32]
There can be no doubt that the actions of
the protesters as already described infringed the university’s
acknowledged rights.
Starting with the erection of the shack and the
obstruction of Residence Road the university could no longer control
or manage
access to its property. Similarly, it was unable to control
access to the residences and the dining halls. It was unable to
prevent
clearly unlawful activities such as the painting of slogans
on university property and the removal of the portraits, paintings
and photographs and their destruction. Staff, students and members of
the public were harassed and threatened and unable to go about
their
ordinary business on the campus. Property was damaged, defaced and
destroyed. None of the appellants denied that this had
occurred, or
disavowed it, or sought to distance themselves from it. On the
contrary, they aligned themselves with it and sought
to justify these
events.
[33]
The appellants invoked the defence of
necessity,
[9]
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.
[34]
The university for its part argued that
there had already been a substantial infringement of its rights in
consequence of the actions
of the protesters. It said that on the
evidence the appellants had all been active participants in the
protests and had not disavowed
any of the conduct of the protesters.
Their own participation was apparent from the eye-witness reports of
what occurred and was
supported by the photographic and video
material. In most instances the appellants acknowledged their own
actions and sought in
their affidavits to justify it. The only
acknowledgment of unlawfulness came in the heads of argument on their
behalf and there
was no undertaking by any of them not to repeat
their actions. In those circumstances the university contended that
it had already
suffered an infringement of its rights and that it
reasonably apprehended that unless an interdict was granted the
appellants would
continue with their protest activities in the same
vein as had occurred from 15 to 17 February.
Absence of another
remedy
[35]
For the sake of clarity it is necessary to
say something about this requisite. The appellants’ submissions
wavered between
a contention that courts have a general jurisdiction
to withhold the remedy of an interdict, and contending that various
courses
were open to the university to resolve its disputes with the
protesters, and that these constituted alternative remedies that were

to be preferred to an interdict in order to deal with the
university’s concerns. All of these submissions were
misconceived
because they proceeded from a misconception as to the
purpose of an interdict and as to the nature of this requisite for
its grant.
[36]
Firstly, the purpose of an interdict is to
put an end to conduct in breach of the applicant’s rights. The
applicant invokes
the aid of the court to order the respondent to
desist from such conduct and, if the respondent does not comply, to
enforce its
order by way of the sanctions for contempt of court.
Secondly, the existence of another remedy will only preclude the
grant of
an interdict where the proposed alternative will afford the
injured party a remedy that gives it similar protection to an
interdict
against the injury that is occurring or is apprehended.
That is why, in many cases a court will weigh up whether an award of
damages
will be adequate to compensate the injured party for any harm
they may suffer. There may also be instances where, in the case of
a
statutory breach, a criminal prosecution, in appropriate
circumstances, will provide an adequate remedy,
[10]
but there are likely to be few instances where that will be the
case.
[11]
Thirdly, the alternative remedy must be a legal remedy, that is, a
remedy that a court may grant and, if need be, enforce, either
by the
process of execution or by way of proceedings for contempt of court.
The fact that one of the parties, or even the judge,
may think that
the problem would be better resolved, or can ultimately only be
resolved, by extra-curial means, is not a justification
for refusing
to grant an interdict.
[37]
It is for this latter reason that the
appellants’ reliance on the following passage from
Pilane
was misconceived. That case dealt with
a dispute over traditional leadership and an attempt to secede from a
traditional community.
After holding that no case had been made on
traditional grounds for the grant of any of the interdicts sought,
Skweyiya J
remarked:
‘
[70]
The
three challenged interdicts adversely impact on the applicants’
rights to freedom of expression, association and assembly.
In the
absence of more convincing argument from the respondents in relation
to their own rights against which the applicants’
interests are
to be balanced, one is hard-pressed to find in the respondents’
favour.
[71]
The restraint on the applicants’ rights is disquieting,
considering the underlying dissonance within the Traditional

Community and the applicants’ numerous unsuccessful attempts to
have this resolved. The respondents’ litigious record
also
portrays a lack of restraint on the part of the Traditional
Community’s official leadership in employing legal devices
to
deal with challenges that should more appropriately be dealt with
through engagement. This could be seen as an attempt to silence

criticism and secessionist agitation and, if so, would not be a
situation that the law tolerates.
[72]
This
situation cries out for meaningful dialogue between the parties,
undertaken with open minds and in good faith.
One hopes that this will produce harmonious relations within the
Traditional Community.’
(My
emphasis)
[38]
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.
[39]
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’.
[12]
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.
[13]
To do so is ‘the very antithesis of the rule of law’.
[14]
The individual
appellants
[40]
Against the background of that introduction
and exposition of the applicable law, I turn to consider the factual
allegations made
by the university against each of the appellants and
the grounds for saying that it was entitled to a final interdict
against each
of them.
First appellant –
Ms Hotz
[41]
Ms Hotz was one of the original group of
protesters when the Shackville protest started. She acknowledged her
participation in it
and initially explained that it was ‘thoughtfully
created as an artistic form of protest with the idea to highlight the
plight
of black students and their daily pains and struggles’.
It is not clear how that was to be reconciled with her later
statement
that an ‘uprising’ was the only way of inducing
the university to act on the protesters’ grievances. She went

on to say that it was ‘an exhibition of black people’s
poverty in what is historically and predominantly an institution

catering for white privilege’ and a legitimate form of protest.
She bemoaned the fact that a campaign ‘started with
good
intentions and designed to have the effect of uplifting all UCT
students’ had instead resulted in the grant of an interim

interdict against her as well as a suspension order in terms of the
university’s disciplinary code.
[42]
Ms Hotz did not deal in any great detail
with the factual allegations in the affidavits delivered by the
university. From these
it is apparent that she was part of the group
of protesters who erected the shack and throughout the day on 15
February 2016 blocked
Residence Road and hindered other students,
staff and members of the public from going about their lawful
business on the affected
parts of the campus. Her evidence showed
that decisions by the protesters were collective in nature and it is
reasonable therefore,
in the absence of any denial or act of
disassociation by her, to accept that she was party to the
protesters’ refusal to
allow the shack to be moved to a point
where it would not constitute an obstruction, as well as their
conduct in dealing with people
who sought to enter the space
demarcated around the shack and make their way up Jameson steps. She
was silent about the actions
of the protesters in entering both Smuts
Hall and Fuller Hall and spray-painting the two busts. That occurred
in the immediate
proximity of the Shackville protest and was received
with applause by the protesters. The necessary inference is that she
approved
of this.
[43]
Ms Hotz’s denial that she slept in
the shack is accepted.
[15]
However, it is clear that she rejoined the protesters on 16 February
and was present throughout the protests that day. It was apparent
to
the university that the protesters intended the shack to remain in
place for a protracted period. In the afternoon the protesters

entered Fuller Hall. Ms Hotz acknowledged that she entered Fuller
Hall and ate a piece of chicken, but denied that she carried
out any
paintings or portraits. This was between 6.00 pm and 7.00 pm.
[44]
The contract manager for campus security at
the university said in an affidavit that Ms Hotz was part of the
group that burned the
paintings. She was recorded on the residence
north camera carrying a tyre in the vicinity of the protest and next
to a fire. Her
response to this was to say that she did carry the
tyre ‘and there is nothing illegal about this’ and she
dropped it
where students were singing and dancing. But she refrained
from explaining why she was a carrying a tyre at that time and place.

Her lack of an explanation prompted the university to respond that
the video footage showed her arriving in her car on Residence
Road
with at least one other student. There were three tyres taken from
the car, including the one she was carrying. One of the
students who
alighted from the car was also carrying a red Castrol plastic can.
This can was found in the shack and contained petrol.
One of the
photographs shows a student throwing what appears to be petrol or
some other accelerant from that can onto the burning
paintings and
portraits. In the absence of any reason to think otherwise it is
probable that this was the plastic can found later
that evening in
the shack. Ms Hotz did not seek to deliver a further affidavit to
deal with these matters.
[45]
Ms Hotz denied that she had participated in
the burning of paintings, portraits and photographs. She said in her
affidavit that:
‘
I
did not take part in any burning of the art. I was in the vicinity
along with many other students having a conversation about
the wisdom
of burning the art. I had grave reservations about this form of
protest but [was] in no position to prevent it.’(My
insertion.)
Two photographs in
the record belied this explanation. The first of these showed Ms Hotz
close to and seemingly moving towards where
paintings, portraits and
photographs were being thrown on a pile adjacent to the portable
toilet. The second showed her standing
immediately adjacent to the
pile of paintings, portraits and photographs. She was gesticulating
towards someone behind the people
standing immediately in front of
her. The three people standing immediately in front of her in the
second photograph were the fifth
appellant, and two young men, one in
a blue shirt and cap and the other wearing a yellow shirt. Both were
carrying backpacks. The
one in a yellow shirt is seen in another
photograph carrying the red can of petrol. Both of these young men
are shown in the photographs
taken inside Fuller Hall participating
in the removal of paintings and portraits from the walls of the hall.
Although the paintings
were moved a little further into Residence
Road to a point at the rear of the shack before being set alight, it
is difficult to
reconcile these photographs, and the fact that the
petrol can was brought to campus in her car, with her
non-participation in or
disavowal of the destruction of the art
works.
[46]
Ms Hotz said that ‘we’ had
ordered the shack to be erected on the lower campus and that, shortly
after the burning of
paintings, portraits and photographs commenced,
she left the shack protest and went to the middle campus where campus
security
and the police had stopped the vehicle carrying building
materials for the erection of a second shack. She said that there was
a heated exchange about the erection of the second shack. This was to
no avail and the vehicle with the building material was turned
away.
She said that she then went home to join the celebrations of her
mother’s birthday.
[47]
To summarise therefore Ms Hotz was actively
engaged in the erection of the shack and attempted to cause a second
shack to be erected.
She was involved in bringing tyres and petrol to
the campus and this was used in making fires and, in the case of the
petrol, used
in burning the art works. Her claim to have
disassociated herself from the latter actions is flimsy and can be
rejected on the
papers. She clearly encouraged others to participate
generally in the protest action.
Second appellant –
Mr Mlandu
[48]
Mr Mlandu was one of the original group of
protesters who erected the shack on Residence Road. On 15 February
he gained access
to Smuts Hall and spray-painted the bust of Jan
Smuts with red paint. The following day he painted the slogans set
out in paragraph
14 above on the War Memorial. He said that he
defaced the statue of Jan Smuts because it represented colonial
oppression, white
supremacist views and racial hatred. He accordingly
regarded his actions as constituting legitimate forms of protest. As
regards
the slogans on the War Memorial he said that they were
political terms and intended to debate racism both within and outside
the
university. His view was that he was ‘entitled to a
political speech intended to trigger legitimate political debates
about
racism and the university’s tolerance of it’. The
university, for its part, regarded his conduct in painting the bust

as exceeding the permissible limits of legitimate protest and the
slogans as ‘racist, hateful and inflammatory language’.

It drew attention to the fact that Mr Mlandu sought to defend his
actions as legitimate forms of protest.
[49]
Apart from these activities Mr Mlandu
was one of the people who entered Fuller Hall and helped themselves
to food intended for the
students who were resident there. He did not
dispute the evidence that he was one of the leaders who urged the
crowd of protesters
to enter Fuller Hall and demand food. In summary
he was actively engaged in the erection of the shack and the conduct
of the Shackville
protest. He was responsible for defacing the bust
of Jan Smuts and the War Memorial. He encouraged others to enter
Fuller Hall
and help themselves to food intended for resident
students.
Third appellant –
Mr Maxwele
[50]
Mr Maxwele was one of the original
protesters. He was involved in the erection of the shack in Residence
Road, the demarcation of
a ‘no go’ area with danger tape
and preventing people from crossing into that area. He testified that
the blocking
of the road was ‘a necessary step in highlighting
the pain of the students’. He was involved in the altercation
with
a student who wanted to cross the area demarcated by tape and
who was assaulted after he ‘cut the corner’ of the
demarcated
area. Mr Maxwele’s explanation was that the student
was being provocative. He accepted that he pushed him, but said that
it was ‘an inflated view’ that there was an assault. The
description by another student was that his friend was grabbed,
hit,
pushed and scratched and that the principal protesters involved in
the incident were Mr Maxwele and Mr Magida, the fourth
appellant.
This was accompanied by racial abuse – a charge not denied. The
incident was recorded on video footage. It seems
improbable that it
was simply a small scuffle of no importance as suggested by Mr
Maxwele. Had there been a substantial challenge
to the accuracy of
the description of this incident no doubt the appellants’
counsel would have asked the judge to view the
footage.
[51]
Apart from this instance Mr Maxwele did not
dispute the university’s allegation that at least five other
incidents occurred
involving physical and verbal altercations between
protesters and students, staff and members of the public. He said
that he understood
that the university would not want to disclose the
identity of these individuals, but took the view that this was all
part and
parcel of the protest. If protesters were provoked there
would be a response that ‘may well have included pushing around
the persons’. While he denied any involvement in any incidents
of violent protest, he did not respond when the university
said that
he was clearly identifiable as being present when the Jammie shuttle
bus was set alight and was part of the group that
had rolled large
cans into the road to block the passage of the bus before it was set
on fire. Earlier that day he had been identified
by Mr Witbooi, the
traffic manager of the university, as the person who accosted him
when he was attempting to remove dirt bins
and rocks that were
blocking Residence Road and diverting traffic through the P3 parking
area in order to clear Residence Road.
Mr Witbooi said that Mr
Maxwele threatened him with physical assault and was involved in
altercations with parents. He also lit
bins that had been placed to
block the entrance to P3 parking area and warned that anyone who came
close to the area would be dealt
with by him. According to Mr Witbooi
his manner was aggressive and threatened violence.
[52]
One would have expected a detailed response
by Mr Maxwele to these allegations, but he said nothing about being
identified as having
been on the scene at the time the Jammie shuttle
bus was set on fire. As regard the earlier incidents involving Mr
Witbooi his
response was the following:
‘
There
is again nothing illegal or in conflict with the rules against
protests. This was not a violent protest. The blocking of the
road
was a necessary step in highlighting the pain of students. It is
denied that I ever threatened someone with violence and this

statement is made irresponsibly. I deny having involved myself in
anything illegal.’
It appears from this
response that Mr Maxwele thought that the protesters were entitled to
block roads and hamper the free movement
of traffic and could not be
prevented from doing so. He did not deal with or challenge the
statement that he had lit bins placed
in the parking area to block
traffic. His approach throughout his affidavit was that the
protesters were entitled to do what they
did.  He said that he
was not a party to either the burning of artworks or the burning of
the Vice-Chancellor’s office,
which he described as
‘unfortunate incidents’, which he would not condone.
[53]
In summary, Mr Maxwele was actively engaged
in the erection of the shack and the conduct of the Shackville
protest. In particular
he was responsible for burning rubbish bins
and blocking the entrance to the P3 parking area. He was involved in
a physical confrontation
with threats of violence with Mr Witbooi and
further confrontation and some actual violence in dealing with the
student who crossed
into the exclusion zone. He was also present when
the Jammie shuttle bus was set alight and helped to barricade the
road prior
to that occurring.
Fourth appellant –
Mr Magida
[54]
Mr Magida was not a registered student, but
unlike others he did not claim any intention to return to studies at
the university.
It appears that he was pursuing a career as an opera
singer. However, from the outset of the protest he was a participant
as he
had been in earlier protests. His participation appears,
however, to have been general along with a number of others. He was
not
identified as having entered the residences or participated in
the removal and burning of art works. Nor was he identified as a

participant in the other incidents, such as the burning of the
bakkie, or the Jammie shuttle bus, or the fire bombing of the
Vice-Chancellor’s
office. The only incident in which he was
identified as a participant going beyond merely being one of the
protesters was the confrontation
between Mr Maxwele and the student
who despite the protesters’ objections crossed into the
demarcated exclusion zone. He
was identified as having made comments
such as ‘you are a white racist’ and ‘leave …
we have no time for
white tears’. He also ‘wielded’
a large piece of wood in a threatening way and used it to indicate to
students
that they should walk round the exclusion zone. None of this
was denied in an affidavit he filed shortly before the hearing before

Allie J.
[55]
The university’s complaint related
more to an earlier incident on 10 February 2016 when some
students were in a dining
hall on the campus and it came to the
university’s attention, as a result of postings on social
media, that Mr Magida was
there wearing a T-shirt with the slogan
‘KILL ALL WHITES’ written in large letters with a marker
pen on the back. In
response to these reports Mr Ganger left a
message for Mr Magida to come and see him and when he did so told him
that he had received
complaints about the message on the shirt and
that it constituted hate speech and incitement to violence. Nothing
seems to have
come of this save that Mr Magida allowed Mr Ganger to
take a photograph of him wearing the shirt. An insert of that picture
is
as follows:
NB: PLEASE CONSULT
THE PDF VERSION FOR IMAGES
There is no evidence
that Mr Magida was seen wearing the shirt during the Shackville
protest.
[56]
Mr Magida’s affidavit said that he
had told Mr Ganger that the slogan on the shirt in fact read ‘
s
KILL
ALL WHITES’ and that this was an artistic form of expression.
He said that what was intended was that if anyone came
closer they
would have realised that this was the wording of the slogan and in
coming closer and seeing this ‘the opportunity
for dialogue
and/or debate about the living standards of marginalised people and
the constant fear of black people by white people
is realised’.
Mr Ganger’s response was that even from extremely close the ‘
s
’
was barely visible. It is certainly completely
invisible on the photograph taken by Mr Ganger.
[57]
Mr Magida was accordingly actively engaged
in the erection of the shack and the conduct of the Shackville
protest. He was involved
in one incident of violent confrontation and
threatened others. He wore the T-shirt with its slogan a few days
prior to the commencement
of the protest.
Fifth appellant –
Ms Shokane
[58] Ms Shokane was
also one of the original protesters. Apart from her participation in
the protest she was identified as being
involved in three particular
matters. First, she was the person who used her card to provide
access to Fuller Hall to the two women
who spray-painted the bust of
Mrs Fuller. In her affidavit she said that when she did this she
genuinely believed that it was the
right thing to do, but had come to
realise that she erred in that regard. She was also the person who
urged the crowd of protesters
to go into Fuller Hall to take food
from the kitchens. She claimed that this was in accordance with
advice given to the students
by the housing director and that she
thought ‘it was wrong to deprive students of food under the
circumstances’. The
precise circumstances that led her to this
view were unclear and unexplained. The university pointed out that
there had been no
authorisation permitting students, even those such
as Ms Shokane, who lived in residences, to choose where they would
eat or to
allow non-residents to consume food intended for resident
students.
[59]
The third matter arose in the context of
the burning of art works. A photograph clearly showed Ms Shokane
carrying a large painting
and throwing it into a fire where other art
works were already burning. She accepted that she did this, but said
that there was
a spontaneous crowd response to the removal of art
works, on the basis that they represented colonial interests and that
she was
part of the crowd and swayed by crowd pressure. She claimed
that her actions were a spontaneous reaction in the middle of student

protests. She denied playing any part in the removal of paintings
from the dining room of Fuller Hall.
[60]
Again, the photographs add something to
this narrative. The first two show Ms Shokane stooping over the pile
of pictures and photographs
adjacent to the portable toilet and then
show her in apparent discussion with the first appellant and the two
young men already
mentioned. At this stage the pile of paintings,
portraits and photographs is adjacent to the toilet. What the photos
then show
is that some of the larger portraits were moved to a point
at the back of the shack, that is, on the side of the residences and

away from Jameson steps. Here they were stacked upright, defaced and
set on fire. The photograph shows someone about to throw a
large
stone at them. In the background is the young man in a yellow shirt
carrying the red petrol can.
[16]
The large portrait that Ms Shokane threw onto the fire can be seen in
the background. The next photo in the sequence shows that
the fire
had started and protesters were bringing photographs and other
material to add to the pyre. It is not wholly clear at
what stage Ms
Shokane added the portrait that she was shown throwing onto the fire.
The photograph in the record tends to suggest
that darkness had
already fallen but this may be misleading. However, looking at the
one showing Ms Shokane, it is apparent that
some of the original
upright stack was still in place, whereas a photograph showing petrol
being thrown from the red can onto the
blaze was taken in daylight
and by that stage the upright stack had completely collapsed. It
seems more probable therefore that
Ms Shokane’s actions
occurred at an earlier, rather than a later, stage of events.
[61]
Ms Shokane was accordingly actively engaged
in the erection of the shack and the conduct of the Shackville
protest. She assisted
in the entry to Fuller Hall both for the
purpose of spray-painting the bust of Mrs Fuller and to obtain food.
She was also actively
involved in the burning of art works.
Discussion
[62]
Protest action is not itself unlawful. As
pointed out by Skweyiya J in the passage already quoted from
Pilane
the right to protest against injustice
is one that is protected under our Constitution, not only
specifically in section 17, by
way of the right to assemble,
demonstrate and present petitions, but also by other constitutionally
protected rights, such as the
right of freedom of opinion (s 15(1));
the right of freedom of expression (s 16(1)); the right of
freedom of association
(s 18) and the right to make political
choices and campaign for a political cause (s 19(1)). But the
mode of exercise
of those rights is also the subject of
constitutional regulation. Thus the right of freedom of speech does
not extend to the advocacy
of hatred that is based on race or
ethnicity and that constitutes incitement to cause harm (s 16(2)
(c)
).
The right of demonstration is to be exercised peacefully and unarmed
(s 17). And all rights are to be exercised in a manner
that
respects and protects the foundational value of human dignity of
other people (s 10) and the rights other people enjoy
under the
Constitution. In a democracy the recognition of rights vested in one
person or group necessitates the recognition of
the rights of other
people and groups and people must recognise this when exercising
their own constitutional rights. As Mogoeng
CJ said in
SATAWU
v Garvis
,
[17]
‘every right must be exercised with due regard to the rights of
others’. Finally the fact that South Africa is a society

founded on the rule of law demands that the right is exercised in a
manner that respects the law.
[63]
This court had occasion to deal with the
right to demonstrate in
SATAWU v
Garvis
.
[18]
It said:
‘
Our
Constitution saw South Africa making a clean break with the past. The
Constitution is focused on ensuring human dignity, the
achievement of
equality and the advancement of human rights and freedoms. It is
calculated to ensure accountability, responsiveness
and openness.
Public demonstrations and marches are a regular feature of present
day South Africa. I accept that assemblies, pickets,
marches and
demonstrations
are an essential feature of a democratic society and that they are
essential instruments of dialogue in society. The [Regulation
of
Gatherings] Act was designed to ensure that public protests and
demonstrations are confined within legally recognised limits
with due
regard for the rights of others.
I agree with
the court below that the rights set out in s 17 of the Constitution,
namely, the right to assemble and demonstrate,
are not implicated
because persons engaging in those activities have the right to do so
only if they are peaceful and unarmed.
It is that kind of
demonstration and assembly that is protected. Causing and
participating in riots are the antithesis of constitutional
values.
Liability in terms of s 11 follows on the unlawful behaviour of
those participating in a march. The court below rightly
had regard to
similar wording in the Constitution of the United States, where
people are given the right to assemble peacefully.
Such provisions in
constitutions such as ours are deliberate. They preclude challenges
to statutes that restrict unlawful behaviour
in relation to
gatherings and demonstrations that impinge on the rights of others.
It was
submitted on behalf of the Union that damage to public property
caused by a gathering that degenerated into a riot was a
small price
to pay to preserve and protect the precious right to public assembly
and protest, which is integral to a democratic
state. I agree with
the court below that members of the public are entitled to protection
against behaviour that militates against
the rule of law and the
rights of others.’
[64]
The blocking of Residence Road and
the creation of the exclusion zone interfered with traffic and the
ordinary comings and goings
of students, parents, staff and members
of the public. It was not intended to be temporary. No doubt many
people sympathised with
the protest and were content to suffer any
inconvenience that it caused. Others may have adopted the approach
that discretion was
the better part of valour. To some it was a
source of greater inconvenience and others may have been actively
hostile. This would
have contributed to confrontations arising. There
is little doubt that some threatening behaviour and limited acts of
violence
accompanied the enforcement of the exclusion zone.
[65]
The approach of the protesters was that
they were entitled in furtherance of their protest to erect the shack
and maintain it for
an indefinite period. In the case of the first
appellant she was an active participant in attempts to erect a second
shack elsewhere
on the campus. The third appellant asserted that the
erection of the shack and the protest surrounding it was not illegal
and counsel
maintained that position. In that they were wrong. Under
the relevant by-laws
[19]
Residence Road is a public road
[20]
and the university property is therefore a public place.
[21]
In terms of by-law 2(1) it is a criminal offence for any person in a
public place intentionally to block or interfere with the
safe or
free passage of a pedestrian or a motor vehicle. It is also a
criminal offence to use abusive or threatening language in
a public
place (by-law 2(3)(a)) or to start or keep a fire (by-law 2(3)(l)).
So in a number of respects the manner in which the
Shackville protest
was conducted was unlawful.
[66]
The university sought to address the
problems by requesting the protesters to move the shack to a nearby
spot and to continue their
protest in a manner that respected the
right to protest but without the associated unlawful conduct and
interference with the rights
of others. The appellants and their
co-protesters refused and this eventually compelled the university,
after the occurrence of
the events of 16 February to obtain the
assistance of the SAPS and to remove the shack. That occurred after
the third appellant
had ben involved in burning rubbish bins to
prevent vehicles from using the P3 parking area and the second
appellant had defaced
university property, by spray-painting the bust
of Jan Smuts and painting slogans on the War Memorial with the
support of the other
protesters. It also occurred after the removal
of paintings, portraits and photographs from Fuller Hall and other
university buildings
and their being burnt. That all of this
constituted the criminal offence of malicious injury to property was
not disputed.
[67]
The issue of the content of the slogans,
whether painted on the War Memorial and the bus stop or worn on a
T-shirt, as well as statements,
such as those made by the third
appellant in the confrontation with a student, is a delicate one.
Freedom of speech must be robust
and the ability to express hurt,
pain and anger is vital, if the voices of those who see themselves as
oppressed or disempowered
are to be heard. It was rightly said in
Mamabolo
[22]
that:
‘…
freedom
to speak one's mind is now an inherent quality of the type of society
contemplated by the Constitution as a whole and is
specifically
promoted by the freedoms of conscience, expression, assembly,
association and political participation protected by
ss 15 - 19 of
the Bill of Rights’.
But in guaranteeing
freedom of speech the Constitution also places limits upon its
exercise. Where it goes beyond a passionate expression
of feelings
and views and becomes the advocacy of hatred based on race or
ethnicity and constituting incitement to cause harm,
it oversteps
those limits and loses its constitutional protection. In
Islamic
Unity Convention
[23]
Langa CJ explained the reason for this:
‘
Section
16(2) therefore defines the boundaries beyond which the right to
freedom of expression does not extend. In that sense, the
subsection
is definitional. Implicit in its provisions is an acknowledgment that
certain expression does not deserve constitutional
protection
because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our
Constitution
is founded on the principles of dignity, equal worth and freedom, and
these objectives should be given effect to.’
[68]
A court should not be hasty to conclude
that because language is angry in tone or conveys hostility it is
therefore to be characterised
as hate speech, even if it has
overtones of race or ethnicity. The message on Mr Magida’s
T-shirt said unequivocally to anyone
who was more than a metre or two
away that they should kill all whites.
[24]
The reaction to that message by people who saw it, as communicated to
Mr Ganger, was that this was an incitement to violence against
white
people. The fact that Mr Magida sought to explain away the slogan and
suggest that it said something other than what it clearly
appeared to
say, is itself a clear indication that he recognised its racist and
hostile nature. Whether it in fact bore a tiny
letter ‘
s
’
before the word ‘KILL’ is neither here
nor there. The vast majority of people who saw it would not have
ventured closer
to ascertain whether, imperceptibly to normal
eyesight, the message was something other than it appeared to be.
They would have
taken it at face value as a message being conveyed by
the wearer that all white people should be killed. There was no
context that
would have served to ameliorate that message. It was
advocacy of hatred based on race alone and it constituted incitement
to harm
whites. It was not speech protected by s 16(1) of the
Constitution.
[69]
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’.
[25]
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.
[70]
The evidence summarised above in respect of
each of the appellants discloses that they were all engaged in the
erection of the shack;
they were all either involved in or parties to
the destruction, damage or defacing of university property; they all
participated
in unlawful conduct and encouraged others to do the
same. In the cases of Mr Maxwele and Mr Magida that involved actual
violence
and incitement to violence. These actions had the effect of
interfering with the acknowledged rights of the university as set out

in paragraph 30.
[71]
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.
[72]
The contention must fail at the first
hurdle. Necessity was not raised as a defence in the affidavits and
was therefore not one
that the university was called upon to address.
None of the appellants alleged that they had acted out of necessity
or sought to
explain their conduct in terms of necessity. The history
of civil disobedience by outstanding historical figures such as
Mahatma
Ghandi, Martin Luther King, and Archbishop Desmond Tutu, to
mention but a few, is an honourable one. At times it involved
breaches
of the law, such as Rosa Parks’ dignified and
steadfast refusal to sit on the bus in the seats reserved for Black
people,
or the thousands in this country who burnt the hated dompas
in protest against the Pass Laws, that were imposed by an
undemocratic
government on an oppressed majority, and lacked any
moral content. Civil disobedience by those inidividuals was a
challenge to
an unjust or oppressive political and legal system,
which is not present in our constitutional dispensation.
[73]
Consideration of a defence of necessity in
the present circumstances would have to take into account that
in
our legal system government action or inaction that is unlawful is
subject to judicial scrutiny. That avenue and the right to
peaceful
protest guaranteed by our Constitution are open to the students.
Their grievances against the university, if legitimate,
could also be
the subject of litigation.
In the present case,
the court is required to adjudicate on actions, such as those of the
protesters, in the light of constitutional
principles and the
protection afforded by a Bill of Rights, where an order was sought
interdicting such conduct on the grounds
of its unlawfulness. We were
not asked to consider a development of the common law in terms of
s 39(2) of the Constitution
and, as the issue of necessity was
not properly raised on the papers, it would be inappropriate for us
to do so
mero motu
.
[74]
The attitude that all of the appellants
adopted in their affidavits was that they had done nothing wrong.
There was no expression
of contrition or any undertaking not to
engage in such conduct again. I stress that they were not being asked
by the university
not to engage in protest action. That the
university was always willing to accept as legitimate. It was the
manner in which the
right to protest was exercised that gave rise to
the university’s application. Counsel for the appellants
indicated that
he was unable on behalf of his clients to give an
undertaking that they would not engage in further conduct of the type
complained
of by the university and held in this judgment to be in
breach of the university’s rights.
[75]
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.
[76]
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.
[77]
All of these suggestions were advanced in
heads of argument without any substantiation in the affidavits of the
appellants. Save
for the fourth appellant’s affidavit, which
was extremely terse and dealt mainly with the slogan on his T-shirt,
they all
said (in identical terms) that it was the second requirement
for an interdict, namely a reasonable apprehension of harm, that was

absent. Their case was not that any of these alternatives was an
adequate alternative remedy to an interdict. Their case was that:
‘
Insofar
as the second requirement is concerned, it is not correct that there
is a continuing injury or that it is reasonable to
apprehend that the
injury will be repeated. I am advised that an applicant is not
entitled to an interdict restraining an act already
committed.’
[78]
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.
The order
[79]
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.
[80]
That order plainly infringed their right of
freedom of movement guaranteed in s 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 appellant, 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.
[81]
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.
In the light of this the court afforded the parties an opportunity to
see whether
they could bridge the gap between them by agreeing upon a
more limited order. We were thereafter informed that while the
parties
were able to agree the terms of a more limited interdict, the
appellants would only do so on the basis that it had attached to it
a
number of other conditions. These were then placed before us for the
purpose, as it was said, of being considered in the formulation
of a
just and equitable order. They included the abandonment of all
disciplinary proceedings against the appellants and the establishment

of an independent commission on student protests, with certain
ancillary provisions.
[82]
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.
[83]
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.
[84]
In the result the following order is made:
(a)
The order of the court below is altered to read as follows:
‘
1
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are interdicted and restrained
from –
1.1
erecting any unauthorised structures on the applicant’s
premises;
1.2
destroying, damaging or defacing any of the applicant’s
premises;
1.3
participating in, or inciting others to participate in any unlawful
conduct and/or unlawful protest
action at any of the applicant’s
premises; and
1.4
inciting violence.
2
That the ninth, eleventh, twelfth, thirteenth and fourteenth
respondents are to pay
the applicant’s costs jointly and
severally, including the costs of two counsel.’
(b)
Save to that extent the appeal is dismissed with all parties to pay
their own costs.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant:
T Masuku (with him T Sidaki)
Instructed by:
Godla and Partners Inc, Cape Town;
Matsepes Inc, Bloemfontein
For respondent:
A Katz SC (with him M Maddison)
Instructed by:
Fairbridges Wertheim Becker, Cape Town;
McIntyre & Van der Post, Bloemfontein.
[1]
A clear and labelled map is available on the
university’s website at
https://www.uct.ac.za/images/uct.ac.za/contact/campusmaps/big/uctuppercampus.jpg
,
accessed 18 October 2016.
[2]
Ms Shokane had not yet registered because of an issue over unpaid
fees, but was accepted as a resident in Fuller Hall. Once the
issue
over unpaid fees had been resolved she would have been able to
complete her registration.
[3]
Presumably this was a reference to the arrival of the first White
settlers at the Cape under Jan van Riebeeck.
[4]
Roughly translated this means ‘UCT is defecating on your
mother’, although the word used is somewhat cruder in meaning

than ‘defecating’.
[5]
These eight, some of whom were registered students at the time, were
originally included in those against whom the interim interdict
was
sought, but the proceedings against them were withdrawn before a
final interdict was sought.
[6]
The effect of the rule is that ‘if the prerequisites are
established, [it] creates an admission only (i) as to the
authenticity
of the document, i.e. it dispenses with the need to
call the author of the plan or to provide other proof of its
authorship,
and (ii) as to the physical features actually found by
the   author.’
Shield
Insurance Co Ltd v Hall
1976 (4)
SA 431
(A) at 438F. In the case of photographic material it is
an admission as to what is depicted in the photograph.
[7]
Setlogelo v Setlogelo
1914 AD 221
at 227. These requisites
have been restated countless times by this court, most recently in
Van Deventer v Ivory Sun Trading 77 (Pty) Ltd
2015 (3) SA 532
(SCA)
[2014] ZASCA 169
para 26, and
Red Dunes of Africa v
Masingita Property Investment Holdings
[2015] ZASCA 99
para 19.
They were affirmed by the Constitutional Court.
Pilane and
Another v Pilane and Another
[2013] ZACC 3
;
2013 (4) BCLR 431
(CC) (
Pilane
) para 38.
[8]
Lester v Ndlambe Municipality and Another
2015 (6) SA 283
(SCA) paras 23-24;
United Technical Equipment Co (Pty) Ltd v
Johannesburg City Council
1987 (4) SA 343
(T) at 347F-H. The
more general statement regarding discretion in
Wynberg
Municipality v Dreyer
1920 AD 439
at 447 does not reflect the
approach adopted by our courts. It is different when dealing with an
interim interdict, where the
remedy is clearly discretionary because
of the need to consider the balance of convenience.
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012] ZACC 18
;
2012 (6) SA 223
(CC) para 41-47.
[9]
In the criminal context, where it most frequently
arises, Jonathan Burchell
South African
Criminal Law and Procedure
- Volume I:
General Principles of Criminal Law 4 ed (2011) at 9-145, says that:
‘
The
defence of necessity
arises when a person, confronted with a choice between suffering
some evil and breaking the law in order to avoid it, chooses
the
latter alternative.’
[10]
Food and Allied Workers' Union and Others v
Scandia Delicatessen CC and Another
2001 (3) SA 613
(SCA) paras 34-41.
[11]
Berg River Municipality v Zelpy 2065 (Pty)
Ltd
2013 (4) SA 154
(WCC) paras
47-50. There were in the past statutes in the employment field that
provided not only that non-compliance by the
employer with
obligations in favour of employees was a criminal offence and
empowering the court dealing with the criminal case
to determine
what amount was owing to the employees and order that it be paid.
But those were special procedures and their existence
does not
affect the proposition that criminal proceedings are generally
speaking not an alternative to the grant of an interdict
restraining
unlawful conduct.
[12]
Chief Lesapo v North West Agricultural Bank
and Another
1999 12 BCLR 1420
;
2000 1 SA 409
(CC);
[1999] ZACC 16
para 22, citing with approval
Concorde Plastics (Pty) Ltd v NUMSA
1997 11 BCLR 1624
(LC) at 1644F - 1645A.
[13]
Cool Ideas 1186 CC v Hubbard and
Another
[2014] ZACC 16
;
2014 (4)
SA 474
(CC) paras 53 and 61. The principle is one that our courts
have always observed.
Hoisain v Town
Clerk, Wynberg
1916 AD 236
at 240.
[14]
Hubbard v Cool Ideas 1186 CC
[2013]
ZASCA 71
;
2013 (5) SA 112
(SCA) para 15.
[15]
This is not to cast doubt on Mr Ganger’s identification of her
as having slept there, but merely because in the absence
of
cross-examination of the two of them the dispute cannot be resolved
on the papers.
[16]
It must be borne in mind that in one of the early
photographs he was in conversation with both the first and fifth
appellants.
[17]
SATAWU and Another v Garvis and Others
[2012]
ZACC 13
;
2013 (1) SA 83
(CC) para 68.
[18]
SATAWU v Garvis and Others
[2011] ZASCA 152
;
2011 (6) SA 382
(SCA) paras 47-49.
[19]
Cape Town Municipal By-laws Relating to Streets, Public Places and
the Prevention of Noise Nuisances approved by the Council
on 24 May
2007 and promulgated on 28 September 2007 (
PG
6469; LA
44559)
[20]
In terms of the definition of ‘public road’ in the
by-laws a public road is defined as ‘any road, street or

thoroughfare … which is commonly used by the public or any
section thereof or to which the public or any section thereof
has a
right of access’. There are a number of cases in which this or
similarly worded definitions have been considered
in relation to
roads situated on private property in which it has been held that
they are nonetheless public roads. See the cases
collected in
R v
Papenfus
1970 (1) SA 371 (R).
[21]
See the definition of ‘public place’
as including a public road.
[22]
S v Mamabolo (E TV and Others intervening)
[2011]
ZACC 11
;
2001 (3) SA 409
(CC) para 28;
The Citizen 1978
(Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae)
2011 (4) SA 191
(CC) paras 99-100.
[23]
Islamic Unity Convention v Independent Broadcasting Authority and
Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC) para 32.
[24]
This could not possibly be construed as parody, unlike the slogan in
issue in
Laugh
It
Off Promotions CC v South African Breweries International (Finance)
BV t/a Sabmark International
[2005]
ZACC 7; 2006 (1) SA 144 (CC).
[25]
Marruchi v Harris
1943 OPD 15
at 19.