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[2016] ZAKZPHC 58
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Durban University of Technology v Zulu and Others (1693/16P) [2016] ZAKZPHC 58 (27 June 2016)
In
the High Court of South Africa
KwaZulu-Natal
Division, Pietermaritzburg
Case
No: 1693/16P
DATE:
27 JUNE 2016
In
the matter between:
Durban
University of
Technology
............................................................................................
Applicant
And
Sphiwe
Zulu
...................................................................................................................
First
Respondent
Thabiso
Luthuli
.........................................................................................................
Second
Respondent
Simon
Khumalo
...........................................................................................................
Third
Respondent
Ozayo
..........................................................................................................................
Fourth
Respondent
Phoswa
...........................................................................................................................
Fifth
Respondent
Wele
1
............................................................................................................................
Sixth
Respondent
Wele
2
.......................................................................................................................
Seventh
Respondent
Ntethe
..........................................................................................................................
Eighth
Respondent
Andile
Zondi
................................................................................................................
Ninth
Respondent
Lushozi
.........................................................................................................................
Tenth
Respondent
Siphosenkosi
Dlungwane
.......................................................................................
Eleventh
Respondent
Malishe
......................................................................................................................
Twelfth
Respondent
Mbulelo
Sithole
...................................................................................................
Thirteenth
Respondent
Other
Students of the Durban
University
of
Technology
...................................................................................
Fourteenth
Respondent
Judgment
Lopes
J
[1]
This is an interdict application brought by the applicant, the Durban
University of Technology. The applicant is an institution
of
higher learning and has five campuses in and around the Durban area,
and two in Pietermaritzburg. Student dissatisfaction
has been
ongoing since the campuses re-opened in January of 2016. This
dissatisfaction came to a head on the 17
th
February 2016, and there was widespread disruption on the campuses
which showed no signs of abating. The unrest included
a number
of acts of vandalism during which property of the applicant was
damaged.
[2]
Pursuant to an urgent application, and without notice to the
respondents, on the 18
th
February 2016 an order containing
a rule nisi was granted calling upon the respondents to show
cause why they should not
be interdicted and restrained from :
‘
1(a)
(i) disrupting or calling for the academic program of the applicant
to be disrupted or instigating others to perform acts designed
to
disrupt the academic program of the applicant and in particular from
performing any act or making any threat or instigating
any act or
threat by others, designed to disrupt lectures, practical work
sessions or tests and examinations at any of the various
campuses of
the applicant or from entering any venue, lecture hall, practical
session room or test examination venue unless they
are students of
the course in question and are attending only to participate in the
lecture or academic program;
(ii)
assaulting, threatening to assault, intimidating, by way of violent
protest action or otherwise instigating others to assault,
threaten
or intimidate students or staff at any of the campuses of the
applicant;
(iii)
damaging property or instigating others to damage property by way of
student protests at any of the campuses of the applicant;
(iv)
demonstrating or gathering at any place closer than 100 metres from
the perimeter of any of the applicant’s campuses.’
[3]
The order also directed that the rule operate as an interim interdict
pending the final determination of the application.
Further
provisions were made in the order for service of the application
papers and the order on the respondents. There are
fourteen
respondents, thirteen of whom are named or referred to in an effort
to identify them. The fourteenth, with whom
this judgment is
concerned, is referred to as ‘Other Students of the Durban
University of Technology’ (‘the other
students’).
[4]
The matter was adjourned from time to time and the rule extended with
the interim relief continuing to operate. The matter
came
before me on the 17
th
May 2016. I was requested to adjourn the matter
sine
die
and to extend the rule against the
first, fourth, ninth, and tenth respondents, all of whom opposed the
relief sought by the applicant.
They have delivered affidavits
in support of their opposition.
[5]
I was also asked to confirm the rule nisi in respect of the other
students. Because I had reservations as to the correctness
of
such an order, I reserved judgment with regard to the relief sought
against the other students.
[6]
I invited the applicant to make written submissions which were
delivered to me on the 20
th
May 2016. In addition,
Mr
Boulle
, who appeared for the applicants, argued the matter
before me on the 2
nd
June 2016. My concerns about
the grant of an order against the other students were :
(a)
they are not named;
(b)
no cause of action is established by the applicant against any of
them individually;
(c)
the relief sought against them is, at best, an attempt to ensure
peace and harmony on the campuses of the applicant, and to
discourage
students from protesting in a manner which is disruptive of the
academic programme of the applicant.
[7]
The requirements for a final interdict are:
(a)
a clear right;
(b)
an injury actually committed or reasonably apprehended;
(c)
the absence of similar protection by any other ordinary remedy.
See
Setlogelo v Setlogelo
1914
AD 221
at 227.
[8]
At the outset I raised my concerns with Mr
Boulle
regarding the wording of the order sought, as an interdict should do
no more than protect the rights of an applicant from unlawful
conduct. In this regard, paragraph 1(a)(i) purported to
interdict and restrain the other students from disrupting or
calling
for the academic programme of the applicant to be disrupted. In
my view it may be a lawful form of protest for one
student to
encourage another, for example, not to attend lectures because of
some perceived evil or complaint about the way in
which the lectures
are presented or the content thereof. Such a form of protest,
and others which one may easily imagine,
are not unlawful. Mr
Boulle
submitted that this sub-paragraph could easily be remedied by the
insertion of the word ‘unlawful’ prior to the description
of the various prohibited forms of conduct.
[9]
Mr
Boulle
also raised the so-called perimeter interdict sought in sub-paragraph
1(a)(iv). He proposed an amended formulation of that sub-paragraph
to
include the words ‘where such demonstration or gathering is
designed to achieve, or has the effect of achieving, the conduct
or
consequences listed in sub-paragraphs 1(a)(i), (ii), and (iii)’
at the end of sub-paragraph 1(a)(iv).
[10]
Accepting for the moment that these amendments will render the order
an appropriate one, (and I am by no means certain that
the amendment
to sub-paragraph 1(a)(iv) will do so) there remains the difficulty of
granting an interdict in any form against the
other students in
circumstances where they have not been identified, and no unlawful
conduct or breach of the applicant’s
rights by them is alleged.
[11]
Mr
Boulle
submitted that in order to justify an order against
the other students it is necessary to establish:
(a)
an allegation against the globular body of the other students;
(b)
that they were served with the interim order;
(c)
that they did not respond;
(d)
that their interests were weighed against the interests of the
applicant and the wider public interest.
[12]
Mr
Boulle
drew to my attention the efficacy of similar interdicts which have
been granted by this court on previous occasions. He submitted
that although people may realise that their acts are unlawful, once
they believe that the eye of the court is upon them, so to
speak,
they are more likely to behave in a manner which is not in conflict
with their lawful obligations.
[13]
Mr
Boulle
also
drew to my attention the fact that the members of the South African
Police Services are unwilling to go onto a university campus
to deal
with demonstrations until an interdict has been granted by the
court. This is so even where there is violence and
students are
breaking the law. Members of the South African Police Services
are not entitled to insist upon an interdict
to prevent unlawful
conduct such as that alleged by the applicant. They are under a
constitutional duty to enforce the law,
and do not need the
assistance of courts orders to authorise them to do so.
[14]
Mr
Boulle
stressed that it is the function of courts to be effective and where
an applicant is entitled to relief and it is in the public
interest
that such relief be granted, it should be ordered. There is no
doubt that it is in the public interest that violence
should not be
tolerated. That is so whether it involves damage to the
applicant’s property, or the unlawful intimidation
of other
students and the staff of the applicant.
[15]
Mr
Boulle,
however,
conceded that there was a risk inherent in any order granted against
what have been referred to as ‘innocent non-participants’.
He also conceded that the interdict could only be effective against
the other students if they performed illegal acts. He
submitted, however, that there is no harm in interdicting a person
from doing something which he/she was not allowed to do in any
event.
[16]
Mr
Boulle
recognised the stringent consequences of the breach of a court order
inasmuch as the other students may be charged with contempt
of court
should they breach the order. He submitted that in those
circumstances the defence of not knowing of the existence
of the
order could always be raised if that was appropriate. If the
other students committed acts knowing of the court order,
then it was
right and proper that they be held in contempt of court. In
this regard, Mr
Boulle
drew my attention to
Mondi Paper (a
Division of Mondi Ltd) v Paper Printing Wood & Allied Workers’
Union & Others
(1997) 18 ILJ 84 (D)
and
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).
[17]
In
Consolidated Fine Weavers &
Spinners
Page J heard an application
for a rule nisi operating as an interim interdict restraining some
795 respondents from interfering
with, assaulting or intimidating any
of the applicant’s employees, customers, or other visitors to
the applicants’
factory complex. The respondents were all
employees of the two applicants in a factory complex.
Differences of opinion
had arisen between two groups of workers at
the factories and this had led to an illegal strike. There was
in addition widespread
harassment and intimidation, including the use
of force against those employees of the applicants who wished to
work, by those
who were on strike. The applicants were not,
however, in a position to identify individual perpetrators of the
unlawful acts.
[18]
In the application before Page J the applicants tendered not to seek
final relief against any innocent parties who could be
identified
prior to the return day of the rule nisi they sought. In this regard
Page J stated:
‘
In
my view the inability of the applicants to identify the perpetrators
does not afford any justification in law for granting an
order
against a number of people including persons against whom no cause of
action has been established. The practical exigencies
of the
situation … also do not afford a justification for such a
course, however desirable it may appear to be.
I
accept that it is indeed desirable for purposes of maintaining order
and restoring proper labour relations that the courts should
be able
to intervene, but this cannot in itself justify the court in
arrogating a power which it does not have in law. I do not
think that
it is, as was contended by counsel for the applicants, a
discretionary matter at all. Either there is a cause of action
or
there is not.’
[19]
It was submitted to Page J that the respondents should be considered
as a group whose group conduct is sought to be restrained.
The
fact that there may have been individual members who had not
perpetrated the acts complained of does not warrant a refusal
of
relief. Page J was of the view that in that case there was not
sufficient evidence before him to establish membership
of a group in
the sense for which it was contended. The only common factor
among all the workers against whom relief was
sought was that they
had stayed away from work the day before the application. Page
J was of the view that there was no justification
for making an order
against a person without proof of his complicity, and then requiring
him to establish his innocence.
As this was not an application
for a final order, the onus on the applicant was only to establish a
prima facie case. The
application was still not granted.
[20]
The judgment of Page J was considered by Nicholson J in
Mondi
Paper
. Strike action had
commenced and the applicant alleged that sabotage had taken place,
and that non-striking employees were
being intimidated during the
course of picketing. The matter came before Nicholson J on the
return date. He dismissed
the application on the basis that the
court did not have the necessary jurisdiction and that matter should
have been dealt with
in the Labour Court. He then opined, on
the basis that even if he was wrong in his jurisdictional conclusion,
that the rule
should be discharged because the respondents were not
identified and linked with alleged acts of intimidation and
sabotage.
Only hearsay allegations had been made in the papers
before him.
[21]
Nicholson J then quoted extensively from
Consolidated
Fine Spinners & Weavers.
He
recorded that a court order is the law and the equivalent of an act
of parliament insofar as the parties defined by it
are concerned.
In any subsequent criminal proceedings for contempt of court, the
criminal court would correctly assume that
the Supreme Court order
was properly granted and any ‘innocent non-participant’
would have to establish that the original
court order ought not to
have been granted against him/her. Nicholson J pointed out that
this reversal of the onus runs counter
to every notion of criminal
justice and the onus of proof.
[22]
Nicholson J stated that the flaw in the argument could best be
illustrated by considering an interdict directed at only one
‘innocent non-participant’. If there was no
evidence which could justify an interdict being granted against one
of the persons selected out of the mass of workers, then the same
could be done for every other person on the list of respondents
against whom there was no evidence whatsoever. In the context
of that case he stated:
‘
The
evil of intimidation of employees by striking workers and the
unlawful blocking of transport to company premises can never be
condoned. Juxtaposed against that evil is that of a court
granting orders against “innocent non-participants”
without evidence. The latter evil seems to me to outweigh the
former. It seems to me that the whole court system will
lose
the respect of the public at large if it grants orders against
“innocent non-participants”.’
[23]
Mr
Boulle
submitted that
Mondi Paper
was distinguishable because in that case service had not been
effected, or stated to have been effected. This would also
distinguish
Consolidated Fine Spinners &
Weavers
.
[24]
I do not agree that those cases are distinguishable from the facts of
the present matter. In the present matter the applicant
seeks
an order against all the other students registered with it who are
not one of the first to thirteenth respondents in the
application.
No unlawful act whatsoever is alleged against any one of them.
No allegation is made that any of them
is likely to behave unlawfully
against the applicant in the future.
[]25]
Mr
Boulle
pointed to the fact that, in this matter, service of the rule nisi
had been effected by delivery of the court order to all employees
and
students of the applicant by email. A full set of the
application papers and the interim order were posted on the
applicant’s
website and posted on the main noticeboard on each
campus, together with a notification that a complete set of the
application
papers was available for inspection at the administrative
office of each campus.
[26]
Mr
Boulle
submitted that the answer to granting an interdict against an
innocent party is that that person may come to court, and object
to
the order being granted against them. On that basis they would
be joined as a separate party and no order would be made
against
them, and they would no longer be part of ‘the other students’
as the fourteenth respondent.
[27]
I appreciate the difficulties with which the applicant is faced, and
I regard the damage to property and the unlawful intimidation
of
other students and members of staff by threats of violence to be
wholly unacceptable and something which the applicant rightly
should
seek to prevent. That sympathy, and indeed the public interest
in putting a stop to unlawful protests and acts of
violence and
criminal damage to property, are not reasons for me to grant an order
against persons against whom no individual allegations
of such
conduct are made. I accept also in this regard that an
interdict may have a salutary effect upon those against whom
it is
granted. That is still not a basis for sweeping up innocent
persons in the preventative net of an interdict.
It would seem
to me that with the modern methods of access control, CCTV cameras,
etc, there is ample opportunity for the applicant’s
security
services to be able to identify those persons who were on the campus
when the violence occurred, and steps could be taken
to identifying
them. Once identified, the relevant criminal prosecutions could
be instituted.
[28]
Mr
Boulle
also referred me to
Larsens Division of BTR
Dunlop Ltd v National Union of Metalworkers of SA and Others
(1992) 13 ILJ 1405 (T). This case involved the grant of a final
interdict, including a perimeter restriction, albeit
on a more
restricted basis than the interim relief. In my view the case
is distinguishable from the present matter because
it regarded the
respondents as being culpable because they did not oppose the relief
sought on the return date. No consideration
was given to the
principles underlying the grant of a final order against persons of
whom no unlawful conduct was alleged.
[29]
I have considered the judgment of Budlender AJ (as he then was)
in
City of Cape Town v Yawa and Others
[2004] 2 All SA 281
(C) where he refused an application to interdict
unnamed persons who may in the future seek unlawfully to occupy
certain property,
without the consent of the owner. The
interdict was refused both because the respondents were not
identified and because
they did not constitute an ascertainable or
identifiable group of persons properly before the court and against
whom an effective
order could be made. Significantly, he
referred to
Kayamandi Town Committee v
Mkhwaso and Others
1991 (2) where
Conradie J, when referring to the grant of interdicts against unnamed
persons, stated that such an interdict ‘would
have the
generalised effect typical of legislation. It would be a decree
and not a Court order at all.’ I agree.
[30]
In the present case there are undoubtedly students (I would venture
to suggest the overwhelming majority of them) who vehemently
oppose
the use of violence and causing damage to the applicant’s
property. The suggestion that they have been interdicted
by the
High Court from behaving unlawfully and requiring them to observe a
perimeter interdict may well invoke a sharp reaction
of indignation.
Properly so, in my view, because no allegations have been made
against them specifically. Accordingly
they cannot be viewed as
an identifiable group – the commonality of being students being
wholly insufficient to form a basis
for collective responsibility.
[31]
The applicant has, in any event, an alternative and ordinary remedy
to rein-in the exuberance of the other students.
Proper
security and surveillance measures will ensure the future
identification of wrongdoers. They can then be prosecuted.
The short-cut of a blanket interdict, and reliance on a contempt
application is no less difficult to achieve than a criminal
prosecution.
[32]
What if more student demonstrations take place after a blanket
interdict is granted? Are all students served with the
order to
be charged. Clearly, that would be untenable. They would
each have to be identified as having acted unlawfully.
If that
can be done they can be criminally charged. As unpalatable as a
police presence on the campus of a university may
be to both staff
and students, when violence is adopted as a form of demonstration,
the police services have a duty to intervene
to protect life and
property.
[33]
In the result I make the following order :
‘
The
rule nisi granted against the fourteenth respondent on the 18
th
February 2016 is discharged.’
Dates
of hearing : 19
th
May 2016 and 2
nd
June 2016
Date
of judgment : 27
th
June 2016
For
the Applicant : Mr A Boulle (Instructed by NSG Attorneys c/o Stowell
& Co)