Brief Summary

Interdict — Interim interdict — Application for interdict against unnamed students — Durban University of Technology sought an interdict to prevent disruptions to academic activities due to student unrest — Court raised concerns regarding the lack of identification of respondents and absence of specific allegations of unlawful conduct against them — Held, the application for an interdict against the unnamed students was not justified as no clear right or cause of action was established, and the relief sought was overly broad and not supported by evidence of unlawful actions by the respondents.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an interdict application brought in the KwaZulu-Natal Division of the High Court, Pietermaritzburg. The applicant was Durban University of Technology (a higher education institution operating multiple campuses). The respondents comprised thirteen identified individuals and a fourteenth respondent described collectively as “Other Students of the Durban University of Technology” (referred to in the judgment as “the other students”).

The matter arose against the background of sustained student dissatisfaction following the reopening of campuses in January 2016, culminating in disruption and vandalism on 17 February 2016. On 18 February 2016, the applicant obtained an urgent order without notice (ex parte), incorporating a rule nisi that operated as an interim interdict pending final determination, and calling upon the respondents to show cause why the interdict should not be made final.

The application was adjourned multiple times, with the rule extended and interim relief continuing. When the matter came before Lopes J on 17 May 2016, the applicant sought, among other things, confirmation of the rule in respect of the fourteenth respondent (“the other students”). Lopes J reserved judgment on that aspect due to concerns about whether final interdictory relief could properly be granted against an unnamed and broadly described category of persons against whom no individual wrongdoing was alleged. Written submissions were requested and argument was heard again on 2 June 2016. The judgment ultimately dealt with whether the rule nisi should be confirmed or discharged as against the fourteenth respondent.

2. Material Facts

It was common cause (or treated as such for purposes of the issues decided) that student dissatisfaction had persisted after campuses reopened in January 2016 and escalated on 17 February 2016 into widespread campus disruption. The unrest included acts of vandalism resulting in damage to the applicant’s property, and included unlawful intimidation and violent conduct directed at students and staff.

On 18 February 2016, the applicant obtained an urgent ex parte order containing interim interdictory relief and a rule nisi. The order sought to restrain, in broad terms, conduct including disruption or instigation of disruption of the academic programme, assault or intimidation, damage to property, and demonstrations or gatherings within 100 metres of campus perimeters.

The fourteenth respondent was not a named person or clearly defined association; it was framed as a residual category encompassing students other than those specifically cited as the first to thirteenth respondents. The papers, as characterised by the court, did not allege that any particular member of this residual group had committed an unlawful act, nor that any member of this group was likely to do so in the future.

Steps were taken to effect service in an expansive manner. Service was said to have occurred by email to employees and students, and by posting the application and interim order on the applicant’s website and noticeboards at campuses, with notice that full papers were available for inspection at administrative offices.

The factual dispute relevant to the determination before Lopes J was not whether disruptive and unlawful conduct had occurred on campus, but whether the applicant had established a sufficient factual basis to justify the grant of final interdictory relief against the broadly described, unnamed group referred to as “the other students”.

3. Legal Issues

The central legal question was whether the court could properly confirm (make final) interdictory relief against the fourteenth respondent, being unnamed and unidentifiable persons, in circumstances where no unlawful conduct was alleged against them individually, and where the only common characteristic was that they were students of the applicant.

This was primarily a question concerning the application of established interdict principles to the facts, together with a linked inquiry into whether the “other students” constituted an ascertainable group against whom an effective and lawful court order could be made, without impermissibly sweeping in “innocent non-participants”.

A subsidiary issue concerned whether the applicant had alternative ordinary remedies, such that the interdict was not justified as against the unnamed group, and whether the practical utility of such an order (including its perceived deterrent effect and its relationship to policing) could justify granting relief that was not supported by a properly pleaded cause of action against the persons to be bound.

4. Court’s Reasoning

The court approached the matter from the starting point that the grant of a final interdict requires satisfaction of the well-known requirements set out in Setlogelo v Setlogelo 1914 AD 221, namely a clear right, an injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy. The court treated these requirements as the controlling framework for whether final relief could be granted, including against the fourteenth respondent.

A preliminary concern related to the form and breadth of the interdict sought. Lopes J indicated that an interdict should do no more than protect rights against unlawful conduct. The wording of paragraph 1(a)(i), as it stood, purported to restrain “disrupting or calling for” disruption of the academic programme in a manner that could catch conduct that might be lawful (for example, encouraging others not to attend lectures as a form of protest). Counsel proposed amendments, including the insertion of the word “unlawful” and an attempted refinement of the so-called perimeter interdict to link prohibited gatherings to the achievement or effect of conduct in the earlier subparagraphs. The court, however, treated these drafting adjustments as not resolving the primary obstacle to relief against the fourteenth respondent.

The core difficulty, as identified by the court, was the attempt to obtain an interdict against persons who were not identified and against whom no cause of action was established. Lopes J held that, even accepting the seriousness of the unrest and the public interest in preventing violence and criminal damage, these considerations did not justify orders that would “sweep up” persons against whom no allegations of unlawful conduct were made. The court emphasised that the fourteenth respondent was, in substance, a residual category covering all other registered students apart from those named, and that there was no allegation that any particular member of that residual body had acted unlawfully or was likely to act unlawfully.

In evaluating the submission that a “globular” or collective interdict could be justified, the court considered earlier decisions dealing with interdicts against groups and the problem of binding “innocent non-participants.” The court relied particularly on the reasoning in Ex parte Consolidated Fine Spinners & Weavers Ltd & Another in re Consolidated Fine Spinners & Weavers Ltd & Another v Govender and Others (1987) 8 ILJ 97 (D), where Page J rejected the notion that the practical inability to identify perpetrators justified granting orders against persons including those against whom no cause of action had been shown, holding that the issue was not discretionary: either a cause of action exists or it does not. Lopes J also referred to the treatment of that approach in Mondi Paper (a Division of Mondi Ltd) v Paper Printing Wood & Allied Workers’ Union & Others (1997) 18 ILJ 84 (D), which highlighted the consequences of court orders for later contempt proceedings and the impropriety of placing an “innocent non-participant” in a position where they might effectively have to establish why an order should not have been made against them in the first place.

The court rejected the attempt to distinguish those authorities on the basis that service in the present matter was said to have been effected widely (by email, website, and notices). Lopes J considered the absence of allegations linking the fourteenth respondent to unlawful conduct to be decisive: service could not cure the lack of a pleaded cause of action against the persons sought to be bound.

The court further addressed an argument that an innocent party could approach the court to object and be effectively separated from the class of “other students”. The court did not accept that this was an adequate justification for a blanket order, because the objection procedure presupposed that persons not alleged to have acted unlawfully should bear the burden of taking steps to avoid being bound by an order in the first place.

In considering whether the “other students” constituted an identifiable group against whom collective responsibility could be imposed, Lopes J found that the mere commonality of being students was insufficient. The judgment reasoned that many students would oppose violence and vandalism, and that subjecting such persons to interdictory relief (including perimeter restrictions) without specific allegations would be improper. The court aligned itself with the concern that such orders have a generalised effect akin to legislation. In this connection, Lopes J relied on City of Cape Town v Yawa and Others [2004] 2 All SA 281 (C), in which interdictory relief against unnamed future occupiers was refused on the basis that the respondents were not identified and did not constitute an ascertainable group properly before the court. The court also referred to Kayamandi Town Committee v Mkhwaso and Others 1991 (2) (as cited in the judgment), endorsing the view that an interdict against unnamed persons would have the generalised effect typical of legislation and would be a decree rather than a proper court order.

Finally, the court considered whether the applicant had an alternative ordinary remedy. Lopes J held that the applicant could deploy security and surveillance measures to identify perpetrators, after which criminal prosecution could follow. The court was not persuaded that a “short-cut” via a blanket interdict and subsequent contempt proceedings was justified or more practical. The judgment also rejected the contention that police required an interdict before intervening: the court stated that police are under a constitutional duty to enforce the law and do not require court orders to authorise intervention in unlawful conduct.

5. Outcome and Relief

The court discharged the rule nisi granted on 18 February 2016 as against the fourteenth respondent (“Other Students of the Durban University of Technology”). The judgment did not grant final interdictory relief against that respondent.

No costs order is recorded in the portion of the judgment provided in relation to the discharge of the rule nisi against the fourteenth respondent.

Cases Cited

Setlogelo v Setlogelo 1914 AD 221.

Mondi Paper (a Division of Mondi Ltd) v Paper Printing Wood & Allied Workers’ Union & Others (1997) 18 ILJ 84 (D).

Ex parte Consolidated Fine Spinners & Weavers Ltd & Another in re Consolidated Fine Spinners & Weavers Ltd & Another v Govender and Others (1987) 8 ILJ 97 (D).

Larsens Division of BTR Dunlop Ltd v National Union of Metalworkers of SA and Others (1992) 13 ILJ 1405 (T).

City of Cape Town v Yawa and Others [2004] 2 All SA 281 (C).

Kayamandi Town Committee v Mkhwaso and Others 1991 (2) (citation incomplete as reproduced in the judgment).

Legislation Cited

No specific legislation was cited by name in the judgment extract provided. The court referred generally to constitutional duties in relation to policing, without citing a specific constitutional provision.

Rules of Court Cited

No rules of court were cited in the judgment extract provided.

Held

The court held that a final interdict could not properly be confirmed against the fourteenth respondent described as “Other Students of the Durban University of Technology” because the persons comprising that category were not identified, did not constitute an ascertainable group in any legally relevant sense, and no unlawful conduct or reasonable apprehension of future unlawful conduct was alleged against them individually.

The court held further that the seriousness of campus unrest and the public interest in preventing violence could not justify granting an interdict that would bind innocent non-participants, particularly given the serious implications of contempt proceedings and the availability of ordinary remedies such as identifying perpetrators through security measures and pursuing criminal prosecution.

LEGAL PRINCIPLES

A final interdict requires proof of a clear right, an injury committed or reasonably apprehended, and the absence of an alternative ordinary remedy, as articulated in Setlogelo v Setlogelo 1914 AD 221.

An interdict should be framed to restrain unlawful conduct and should not be cast so widely as to prohibit potentially lawful forms of protest or expression.

A court should not grant interdictory relief against persons (or broad classes of persons) where no cause of action is established against them, and where they are not identified or do not comprise an ascertainable group properly before the court; practical difficulties in identifying wrongdoers do not justify orders that include innocent non-participants.

Orders that purport to bind unnamed or indeterminate groups risk having a generalised, legislative effect, which is inconsistent with the nature of a court order directed at defined parties.

The potential deterrent effect of an interdict, or perceived operational preferences of law enforcement, does not displace the requirement that interdictory relief be granted only on a proper legal and factual foundation, particularly where alternative remedies (including identification of wrongdoers and criminal processes) exist.

Durban University of Technology v Zulu and Others (1693/16P) [2017] ZAKZPHC 16 (3 March 2017)