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[2017] ZACC 10
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Hotz and Others v University of Cape Town (CCT280/16) [2017] ZACC 10; 2017 (7) BCLR 815 (CC); 2018 (1) SA 369 (CC) (12 April 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 280/16
In the matter
between:
ALEXANDRIA
HOTZ
First Applicant
MASIXOLE
MLANDU
Second Applicant
CHUMANI
MAXWELE
Third Applicant
SLOVO
MAGIDA
Fourth Applicant
ZOLA
SHOKANE
Fifth Applicant
and
UNIVERSITY OF CAPE
TOWN
Respondent
Neutral
citation:
Hotz
and Others v University of Cape Town
[2017]
ZACC 10
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgments:
The Court
Decided
on:
12 April 2017
Summary:
Right to education — Right to
freedom of expression — Right to assembly, demonstration,
picket and petition —
Right to freedom of association
Remedial powers of
the Constitutional Court — Exercise of judicial discretion in
awarding costs — Instances in which
an appeal court may
interfere with a discretionary order — Application of the
Biowatch
principle on costs — Failure to exercise discretion judicially
in the constitutional context — Application to tender
further
evidence — Further evidence unnecessary to determine the issue
on costs.
ORDER
On appeal from the Supreme
Court of Appeal:
1.
Condonation for the late filing of this
application is granted.
2.
The application for leave to file a
replying affidavit and to tender further evidence is dismissed.
3.
Leave to appeal is granted only against the
order of the Supreme Court of Appeal upholding the High Court’s
order on costs.
4.
The appeal on costs is upheld.
5.
The costs order of the High Court against
the applicants, confirmed by the Supreme Court of Appeal, is set
aside.
6.
Each party is to pay its own costs in the
High Court, Supreme Court of Appeal and in this Court.
JUDGMENT
THE COURT (Nkabinde
ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ,
Mhlantla J, Musi AJ and Zondo J):
Introduction
[1]
The widespread student protests in
higher learning institutions including the student protest at the
University of Cape Town (UCT/University),
pursuant to the
“#FeesMustFall” movement, were in pursuit of the
realisation of the overarching objective of a free
education.
The movement attracted national attention for its achievements, which
include a 0% fee increase for the year 2016
and increased government
funding for universities.  The protests also affected almost one
and all in other ways, for example,
quality time for learning was
lost; properties were destroyed; injuries were sustained; many
students were arrested and others
excluded from campuses; some
students were excluded from furthering their studies; life was lost
and costs in litigation were incurred
as a result of the protestors’
unlawful conduct.
[2]
This application for leave to appeal
is a sequel to the student protest at UCT, in early 2016.  It
was brought on an urgent
basis against the decision of the
Supreme Court of Appeal (SCA).
[1]
That Court upheld the order for a final interdict by the
High Court of South Africa,
Western Cape Division,
Cape Town
[2]
(High Court) against the applicants, who were part of a group of
students that had participated in the student protest under the
names
“#RhodesMustFall” and “#FeesMustFall”.
[3]
The SCA’s decision did not involve the legitimacy of the
protest but focused on whether the High Court correctly granted
a
final interdict.
[3]
The Chief Justice directed the
parties to file written submissions solely on whether the High Court
exercised its discretion
judicially in granting a costs order against
the applicants.  The parties complied with the directions.
After the written
submissions were filed, the applicants sought
leave to file a replying affidavit and to tender further evidence.
[4]
At issue is the urgency of this
matter, the appropriateness of the grant of a final interdict, the
costs order of the High Court
as confirmed by the SCA and
whether leave to file a replying affidavit and to tender further
evidence should be granted.  The
applicants also seek
condonation for the late filing of
this
application.
Background facts
[5]
The UCT student protest of about 200
to 300 people, called “Shackville”, concerned primarily
two issues: the difficulties
experienced by many students,
predominantly black students, in paying fees and problems relating to
finding suitable accommodation
for them to pursue their studies.  A
group of protesters erected a shack on UCT’s premises in the
middle of Residence
Road.  The construction of the shack and the
blockading of other roads on campus obstructed traffic in and around
the University.
The protesters painted slogans on the War
Memorial at the campus.  Portraits and paintings were removed
from the University
buildings and burnt.  Attempts by the
University management to move the protest to another location, away
from the site where
roads were obstructed, failed.
Litigation history
High Court
[6]
UCT launched an urgent application
when a member of the campus security received a threat of arson
directed at the University’s
buildings.  It obtained an
interim interdict against several people (some registered students
and others not – including
the applicants).
[4]
On the return date of the rule
nisi
UCT applied, successfully, for confirmation of the rule
nisi
against the five applicants only.  The High Court granted the
final interdict
[5]
and ordered them to pay UCT’s costs jointly and severally,
including the costs of two counsel.  It subsequently granted
the
applicants leave to appeal to the SCA.
Supreme Court of Appeal
[7]
Before the SCA, the issue was not
about the legitimacy of the protests.  The applicants accepted
that the appeal was about
the unlawfulness of their actions.
[6]
In fact, in their written submissions before the SCA the
applicants accepted that they were “in the midst of protest

action which went beyond the [boundary] of peaceful and non-violent
[protest] and thus rendered themselves subject to disciplinary

processes that [UCT] initiated against the students”.
[7]
Notably, this acquiescence narrowed the dispute between the parties.
The applicants however argued that their actions
must be seen
against the backdrop of their struggle for social justice.
[8]
[8]
The SCA outlined the law regarding
the requisites of a final interdict.  It took note of the
approach of the protesters: that
they were entitled, in furtherance
of their protest, to erect the shack and maintain it for an
indefinite period.  Their conduct,
the Court held, infringed
UCT’s rights and was unlawful.
[9]
The Court held that UCT’s apprehension of the recurrence
of the harm was reasonable given the vehemence with which
the
protestors expressed their complaints against the University and its
management.  Unless the final interdict was granted,
the SCA
remarked, the protestors would continue with their conduct.  The
Court rejected the applicants’ suggestion of
internal
disciplinary action as an alternative remedy.
[10]
[9]
Whilst UCT was entitled to final
relief, the Court held, the High Court’s order was broad
because it limited the applicants’
rights and effectively
excluded them from the University campus.
[11]
The SCA varied the terms of the final interdict granted by the
High Court but confirmed the costs order – ordering
the five
applicants to pay UCT’s costs jointly and severally, including
costs of two counsel.
[12]
The SCA held that fairness required each party to pay its own
costs on appeal.
In this Court
[10]
The applicants seek leave to appeal
the decision of the SCA on an urgent basis.  They seek
condonation for the late filing
of their application and leave to
file a replying affidavit to deal with the contentions in UCT’s
answering affidavit and
to tender further evidence.  The
applicants submit that the matter implicates students’ rights
countrywide especially
the rights to education, freedom of
expression, assembly, demonstration, picket and petition as well as
the right to freedom of
association.  They say that the High
Court and the SCA failed to assess properly and determine the issues
within the context
of their constitutional rights with the
consequence that it deviated from the long-established practice in
the exercise of judicial
discretion on costs.  The applicants
also attack the SCA’s decision on procedural grounds, among
other things, that
the Court made findings on evidence that was
improperly placed before it.
[13]
[11]
The applicants contend that the SCA,
having modified the High Court’s order, ought to have found
that they were successful
because, had they not challenged the High
Court’s order, they would have had to comply with an order so
far-reaching in scope
that their rights would have been undermined.
They maintain that not all of them were involved in acts of
destroying, damaging
or defacing UCT’s properties.  They
contend that the SCA should have considered the items that were
defaced and held
that some of the items represented objectionable
colonial symbols that provoked the actions of the students.
According to
the applicants, their actions were covered by the
doctrine of necessity.  They submit that the costs order is
irrational in
the circumstances of this case.  That order, they
say, is a slap in their collective face.
[12]
UCT opposes the application.
It contends that the matter does not implicate this Court’s
jurisdiction.  On the
merits it says that there are no prospects
of success and accordingly asks that the application for leave to
appeal be dismissed
with costs.
[13]
This matter has been determined
without written submissions on the merits and without hearing oral
argument.
[14]
The written submissions filed were confined solely to whether the
High Court exercised its discretion judicially in granting
costs
against the applicants.
Leave to appeal
[14]
Constitutional issues are implicated
because the matter invokes certain rights including the rights to
education,
[15]
freedom of expression, to assembly, demonstration, picket and
petition as well as the right to freedom of association.
[16]
While the prospects of success on the merits are poor, the
applicants’ complaint about the High Court’s failure
to
exercise judicial discretion when mulcting them with costs does bear
prospects of success.  The SCA confirmed the High
Court’s
costs order without determining whether the discretion was exercised
judicially.  The interests of justice warrant
granting leave to
appeal to determine whether the High Court’s costs order is
irrational as contended for by the applicants.
In the
circumstances, I would grant leave to appeal.
Urgency?
[15]
The applicants aver that a
significant degree of urgency attends this application because the
“matter concerns the exercise
of constitutional rights and the
manner in which the boundaries of the exercise ought to be
interpreted, particularly in the context
of student protests”.
They have, however, not established urgency, particularly why this
matter is more urgent than
any other matter where constitutional
rights are implicated.  The fact that UCT’s initial
application in the High Court
was brought on urgency does not render
this application urgent.  The basis for urgency in that Court
was established.  Here
not.  The lodgement of this
application belatedly, as I mention shortly, also illustrates the
lack of urgency in this matter.
Condonation
[16]
The SCA judgment was delivered on 20
October 2016.  This application was lodged on 17 November 2016
instead of 10 November
2016.  The reason for the delay, the
applicants explain, is that a courier service collected the
application in Cape Town
on Thursday, 10 November 2016 instead
of Wednesday, 9 November 2016 and delivered it on Friday, 11 November
2016.  When the
correspondent attorney in Johannesburg attempted
to lodge the papers on Monday, 14 November 2016, the Registrar of
this Court refused
to accept the application because there was no
application for condonation and no judgment of the High Court.
[17]
The explanation advanced for the
delay is reasonable.  The delay is not long and has not
prejudiced UCT.  It is in the
interests of justice to condone
it.
Merits
[18]
The High Court granted a final
interdict against the five applicants
[17]
and discharged the rule
nisi
against the other applicants
[18]
because, the Court held, UCT had failed to make a case for relief
against them.  The applicants ask this Court to set aside
the
decisions a quo with costs including costs of three counsel where so
employed.
[19]
The SCA’s decision on the
merits, upholding the High Court’s order granting a final
interdict, is unassailable.
The applicants somewhat accept that
it was appropriate for the High Court to interdict some of the
applicants who were involved
in acts of destroying, damaging or
defacing UCT’s property.  Also, in their submissions to
the SCA the applicants accepted
that they were “in the midst of
protest action which went beyond the boundary of peaceful and
non-violent [protest] and thus
rendered themselves subject to
disciplinary processes”.
[20]
The applicants contend, however,
that the SCA should have considered and held that some of the items
concerned represented objectionable
colonial symbols that provoked
the actions of the students.  The order of the SCA was
effectively aimed at restraining the
applicants from committing
unlawful acts at the UCT campus.  That order does not, as was
the case with the High Court order,
preclude any of the applicants
from entering any of UCT’s campuses, nor does it prevent them
from engaging in lawful forms
of protest.  There is also no
merit in the procedural challenge mounted by the applicants against
the SCA judgment.  The
defence of necessity, in the
circumstances of this case, is tenuous.  The applicants’
appeal, on the merits, must fail.
Costs
[21]
Section 172 of the Constitution
vests in courts wide remedial powers when dealing with constitutional
matters.
[19]
In terms of this provision a court may make any order –
including a costs award – that is just and equitable.

Since an award of costs is a discretionary matter, the discretion
must be exercised judicially, having regard to all the relevant

circumstances.
[20]
[22]
It is now established that the
general rule in constitutional litigation is that an unsuccessful
litigant in proceedings against
the state ought not to be ordered to
pay costs.
[21]
UCT is recognised as a public institution in terms of the
Higher Education Act.
[22]
The rationale for this rule is that an award of costs may have
a chilling effect on the litigants who might wish to vindicate
their
constitutional rights.
[23]
But this is not an inflexible rule.
[24]
In accordance with its wide remedial powers, this Court has
repeatedly deviated from the conventional principle that costs
follow
the result.
[25]
[23]
The rationale for the deviation was
articulated by this Court in
Affordable
Medicines
where Ngcobo J remarked:
“
There
may be circumstances that justify departure from this rule such as
where the litigation is frivolous or vexatious.  There
may be
conduct on the part of the litigant that deserves censure by the
Court which may influence the Court to order an unsuccessful
litigant
to pay costs.  The ultimate goal is to do that which is just
having regard to the facts and circumstances of the
case.”
[26]
[24]
The clearer approach to costs on
constitutional matters was set out by this Court in
Biowatch
.
The Court, per Sachs J, set out three reasons for the departure
from the traditional principle:
“
In
the first place it diminishes the chilling effect that adverse costs
orders would have on parties seeking to assert constitutional

rights.  Constitutional litigation frequently goes through many
courts and the costs involved can be high.  Meritorious
claims
might not be proceeded with because of a fear that failure could lead
to financially ruinous consequences.  Similarly,
people might be
deterred from pursuing constitutional claims because of a concern
that even if they succeed they will be deprived
of their costs
because of some inadvertent procedural or technical lapse.
Secondly, constitutional litigation, whatever the
outcome, might
ordinarily bear not only on the interests of the particular litigants
involved, but on the rights of all those in
similar situations.
Indeed, each constitutional case that is heard enriches the
general body of constitutional jurisprudence
and adds texture to what
it means to be living in a constitutional democracy.  Thirdly,
it is the state that bears primary
responsibility for ensuring that
both the law and state conduct are consistent with the Constitution.
If there should be
a genuine, non-frivolous challenge to the
constitutionality of a law or of state conduct, it is appropriate
that the state should
bear the costs if the challenge is good, but if
it is not, then the losing non-state litigant should be shielded from
the costs
consequences of failure.  In this way responsibility
for ensuring that the law and state conduct is constitutional is
placed
at the correct door.”
[27]
[25]
In
Trencon
[28]
this Court dealt with the power of an appellate court to interfere
with the High Court’s order.  It held that the proper

approach on appeal is for an appellate court to ascertain whether the
discretion exercised by the lower court was discretion in
the true
sense
[29]
or whether it was a discretion in the loose sense.  The
distinction in either type of discretion, the Court held, “will

create the standard of the interference that an appellate court must
apply”.
[30]
This Court remarked, per Khampepe J,
that “[a] discretion in the true sense is found where the lower
court has a wide
range of equally permissible options available to
it”.
In such instances, the
ordinary approach on appeal is that the “the appellate court
will not consider whether the decision
reached by the court at first
instance was correct, but will only interfere in limited
circumstances; for example, if it is shown
that the discretion has
not been exercised judicially
. . .”.
[31]
This type of discretion has been found by this Court in many
instances, including matters of costs . . .”.
[32]
The question remains whether the High Court, in considering the
relevant circumstances and available options, judicially
exercised
its discretion in mulcting the applicants with costs.
Appropriateness of the
High Court’s costs order
[26]
The applicants submit that the costs
order against them, in light of the totality of the evidence as well
as the context and circumstances
of this case, constituted
misdirection by both the High Court and the SCA.  They seek an
order setting aside the orders with
costs including costs of three
counsel, where available.
[27]
UCT submits that the High Court’s
costs order is entirely consonant with the principles in relation to
costs.  There
is no basis, it argues, for this Court to
interfere with the High Court’s exercise of discretion.
The University now
argues that the applicants’ limited
financial resources was not a consideration which militated against
the granting of costs
against them.  Were it so, they submit, a
party without means could litigate or defend a case without any
justification for
doing so – with immunity from a costs award.
[28]
It is established that a court of
first instance has discretion to determine the costs to be awarded in
light of the particular
circumstances of the case.
[33]
Indeed, where the discretion is one in the true
s
ense,
contemplating that a court chooses from a range of options, a court
of appeal will require a good reason to interfere with
the exercise
of that discretion.  A cautious approach is, therefore,
required.  A court of appeal may have a different
view on
whether the costs award was just and equitable.  However, it
should be careful not to substitute its own view for
that of the High
Court because it may, in certain circumstances be inappropriate to
interfere with the High Court’s
exercise of
discretion.
[34]
[29]
T
he
primary consideration in constitutional litigation must be the way in
which a costs order would hinder or promote the advancement
of
constitutional justice.
[35]
The “nature of the issues” rather than the
“characterisation of the parties” is the starting point.
[36]
Costs should not be determined on whether the parties are
financially well-endowed or indigent.
[37]
The University was thus correct that the applicants’ limited
financial resources is not a consideration which militated
against
the granting of costs.
[30]
Section 17 of the Constitution
provides: “[e]veryone has the right, peacefully and unarmed, to
assemble, to demonstrate, to
picket and to present petitions”.
This Court, in
Garvas
,
[38]
explained clearly the meaning and scope of this provision.
Mogoeng CJ aptly said that section 17 means that—
“
everyone
who is unarmed has the right to go out and assemble with others to
demonstrate, picket and present petitions to others
for any lawful
purpose.  The wording is generous.  It would need some
particularly compelling context to interpret this
provision as
actually meaning less than its wording promises.  There is,
however, nothing, in our own history or internationally,
that
justifies taking away that promise.
Nothing
said thus far detracts from the requirement that the right in section
17 must be exercised peacefully.  And it is important
to
emphasise that it is the holders of the right who must assemble and
demonstrate peacefully.  It is only when they have
no intention
of acting peacefully that they lose their constitutional protection.
This proposition has support internationally.
As the European
Court of Human Rights noted:
‘
[A]n
individual does not cease to enjoy the right to peaceful assembly as
a result of sporadic violence
or other
punishable acts committed by others in the course of the
demonstration, if the individual in question remains peaceful
in his
or her own intentions or behaviour.’
This
means that it is appropriate to proceed on the basis that section 17
of the Constitution means what it generously says.”
[39]
[31]
The starting point is to have regard
to the nature of the issues.  The issues that led to the protest
related, generally, to
the right to education.  A group of
students including the applicants embarked on a protest seeking to
vindicate their rights
including the rights to education in terms of
section 29 of the Constitution and to assemble and demonstrate in
terms of section
17 of the Constitution.  Their right to
assemble and demonstrate ceased when their demonstration or protest
became violent,
thus violating the rights not only of the University
but also of others at the campus.
[32]
It is common cause that during the
protest, tyres were carried onto the campus and used to fuel fire in
which the University’s
artworks and other objects were burned;
the bust of Jan Smuts and the War Memorial were defaced; rubbish bins
were burned and used
to block certain entrances; a shuttle bus was
set alight and acts inciting violence were committed by the
students.  Some
of the misdemeanours during the protest appear
to be attributable to the applicants.
[40]
Self-help, as this Court has pointed out, is inimical to a society in
which the rule of law prevails.
[41]
Destruction of property, particularly in our learning
institutions, cannot be tolerated.  The H
igh
Court is correct that it could not have been within the contemplation
of the drafters of the Constitution that section 17 be
used to
justify hooliganism, vandalism or any other unlawful and illegitimate
misconduct.
[42]
There can be no doubt that the protestors’ conduct went
beyond the boundary of peaceful and non-violent protest.
The
University had no choice but to approach the High Court for an
order restraining the group from conducting themselves unlawfully

during their protest.
[33]
What I have said above does not
detract from the fact that in determining appropriate costs the High
Court was required to locate
the costs award in a constitutional
setting, by identifying the nature of the issue, as a starting
point.
[43]
It is common cause that the group of protesters, including the
applicants, were engaged in a “#FeesMustFall”
protest
because they could not, among other things, afford the university
fees.  At the heart of the protest, as the applicants
contended,
was a “seething” sense of injustice that prevails among
university students and South Africans at large
at the failure
of the state and universities to provide free, quality and
decolonised education to South Africans.  This issue
had the
effect on the protesters’ right to education in terms of
section 29 of the Constitution.  The issue involved
was of
concern not only to the protestors at UCT, including the applicants,
but also to other students generally in other universities
in South
Africa.
[34]
Whilst the applicants’ conduct
went beyond the boundary of a peaceful protest, the constitutional
context should have been
taken into account.  It cannot be
gainsaid that the issue they raised was of genuine constitutional
import.  Although
the applicants were unsuccessful, the Court
should have considered the chilling effect the costs order would have
on the litigants,
in the context of constitutional justice.  The
Court erred in not doing so.
[35]
It is correct that there are
exceptions to the general rule that in constitutional litigation an
unsuccessful litigant in proceedings
against the state ought not to
be mulcted with costs as they may have a chilling effect on them.
One of the exceptions, that
justify a departure from the
general rule, is where the litigation is frivolous or vexatious.
[44]
Here, the applicants’ opposition to UCT’s application in
the High Court was clearly not frivolous or vexatious.
The
High Court made final the rule
nisi
granted against the applicants on 17 February 2016.  In terms of
that rule (the interim interdict), the 16 respondents
including
the 17th respondent  ̶  those persons who associate
themselves with an unlawful conduct at any of the
University’s
premises ̶ were provisionally interdicted and restrained from
entering any of the University’s premises.
Notably, the
terms of the interim relief sought by the University were somewhat
broad in that it had the effect of excluding the
applicants from
entering the premises of the University.
[45]
[36]
At the risk of repetition, the
applicants were neither frivolous nor vexatious in opposing the
University’s application.
This is also illustrated by the
SCA’s remarks where Wallis JA pointedly said:
“
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 [applicants] 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.
That
order plainly infringed [the applicants’] right of freedom of
movement guaranteed in section 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 [applicant], 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.
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.”
[46]
[37]
As expected, the narrowing of the
High Court order signifies not only that the applicants were not
frivolous or vexatious but also
the measure of their success.  In
this regard, the SCA said the following:
“
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 paragraph
1.3.2 to 1.3.5 of that order.  Such an order would focus upon
preventing the [applicants], 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
[applicants] would have succeeded in having certain of the
restrictions imposed upon them removed.”
[47]
It follows that the
High Court erred in not applying the general principle set out in
Biowatch
and in failing to realise that the exceptions to this general
principle were not applicable in the circumstances of this case.
Had
the High Court exercised its discretion judicially by taking that
consideration into account, it would not have mulcted
the applicants
with costs.  Since the High Court did not exercise its
discretion judicially, this Court is entitled to interfere
with the
costs award.
[38]
Having held that the University was
not entitled to an order in the broad terms that it sought and was
granted; that the core problem
with that order is that it effectively
excluded the applicants from the University campus – including
public areas; that
the order plainly infringed the applicants’
right of freedom of movement guaranteed in section 21(1) of the
Constitution
[48]
and also restricted the exercise of their right of freedom of
association with others; that the order constituted a substantial

intervention in the applicants’ social lives and that the
applicants attained a measure of success, the SCA nonetheless upheld

the costs order of the High Court without a reasoned explanation for
doing so.  In my view, the SCA should have upheld the
appeal on
costs.
[39]
The applicants were among the group
of student protesters, approximately 200 to 300 students, who acted
in concert in bringing a
shack structure onto UCT’s campus.
This “group” of student protestors, acting in concert,
sought to vindicate
their rights to education, freedom of
association, freedom to demonstrate and freedom of expression.
Disappointingly, their
conduct however went beyond the boundary of
peaceful and non-violent protest – by damaging the University’s
property.
The destruction of property and incitement of
violence is discordant with our constitutional dispensation.  It
needs to be
stressed that the destruction of property cannot be
countenanced.  The students responsible for these transgressions
must
be held accountable through appropriate legal means.
[40]
In conclusion, on a consideration of
all relevant circumstances, justice and fairness would best be served
if each of the parties
were ordered to pay their own costs not only
in the SCA, but also in the High Court.  In this Court, the
applicants have succeeded
in part and lost in part.  I would,
taking into account all the relevant considerations mentioned above,
order each party
to pay its own costs, also in this Court.
Replying affidavit and
further evidence
[41]
After the written submissions were
filed following the Chief Justice’s directions, the applicants
lodged an application to
file a replying affidavit and tender further
evidence and sought costs if the application is opposed.  This
evidence includes
the Student Disciplinary Appeal Tribunal ruling
dated 3 November 2016.  In my view, the further evidence sought
to be introduced
is not necessary in order to determine the issue of
costs in this case.  That issue must be considered on the
evidence at
the Court’s disposal and on broad general lines and
not on lines necessitating consideration of additional evidence.

The applicants have not made out a case for the filing of the
replying affidavit.  It is, in the circumstances, not in the

interests of justice to grant the applicants permission to do so.
Order
[42]
The following order is made:
1.
Condonation for the late filing of this
application is granted.
2.
The application for leave to file a
replying affidavit and to tender further evidence is dismissed.
3.
Leave to appeal is granted only against the
order of the Supreme Court of Appeal upholding the High Court’s
order on costs.
4.
The appeal on costs is upheld.
5.
The costs order of the High Court against
the applicants, confirmed by the Supreme Court of Appeal, is set
aside.
6.
Each party is to pay its own costs in the
High Court, Supreme Court of Appeal and in this Court.
For the
Applicants:
T Masuku, T Sidaki and R Matsala instructed by
Godla
and Partners
For the
Respondent:
A Katz SC and M Maddison instructed by
Fairbridges Wertheim Becker
[1]
Hotz v University of Cape Town
[2016]
ZASCA 159
;
[2016] 4 All SA 723
(SCA) (SCA judgment), per Wallis JA
(Navsa JA, Bosielo JA, Theron JA and Mathopo JA
concurring).
[2]
University of Cape Town v Davids
[2016]
ZAWCHC 56
;
[2016] 3 All SA 33
(WCC) (High Court judgment), per Allie
J.  The High Court made final the rule
nisi
granted against the applicants on 17 February 2016.  In terms
of that rule (the interim interdict), the 16 respondents including

the 17th respondent  ̶  those persons who associate
themselves with unlawful conduct at any of the University’s

premises  ̶  were provisionally interdicted and
restrained from entering any of the University’s premises
and
from committing any acts that impeded and prevented the University’s
rendering of services or making decisions (High
Court judgment at
para 1).
[3]
SCA judgment above n 1 at para 1.
[4]
High Court judgment above n 2 at paras 27-8.
[5]
R
estraining the five
applicants (respondents a quo) from entering the University premises
unless they had obtained UCT’s
consent; interfering with
rendering of university services; erecting unauthorised structures
on the campus; destroying, damaging
or defacing the university
property; participating in or inciting others to participate in
unlawful conduct or protest action
on the campus and inciting
violence.
[6]
SCA judgment above n 1 at paras 1-2.
[7]
Id at para 31.
[8]
Id at para 2.
[9]
Id at para 32.
[10]
Id at para 78.
[11]
Id at para 79.
[12]
The substituted order included the following:
“
1
[The five applicants] are interdicted and restrained from—
1.1
erecting any unauthorised structures on [UCT’s] premises;
1.2
destroying, damaging or defacing any of [UCT’s] premises;
1.3
participating in, or inciting others to participate in any unlawful

conduct and/or unlawful protest action at any of [UCT’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.”
[13]
These related to video footage, which –
according to the applicants – the SCA found to be receivable
in evidence without
it being viewed by the Court or authenticated
before it.
[14]
Rule 19(6)(b) of this Court’s rules
provides that “Applications for leave to appeal may be dealt
with summarily, without
receiving oral or written argument other
than that contained in the application itself”.
[15]
Section 29(1) of the Constitution provides:
“
Everyone
has the right—
(a)
to a basic education, including, adult
basic education; and
(b)
to further education, which the state,
through reasonable measures, must make progressively available and
accessible.”
[16]
Section 17 of the Constitution provides:
“
Everyone has
the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions.”
[17]
These applicants were cited a quo as the 9th,
11th, 12th, 13th and 14th respondents.  There were other
respondents in favour
of whom the rule
nisi
was discharged.  See below n 18.
[18]
Respondents a quo: 1st to 4th respondents; 6th to
8th respondents and 15th to 17th respondents.  The 17th
respondent constitutes
unnamed persons.
[19]
Head of Department: Mpumalanga Department of
Education v Hoërskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at para
97.
[20]
Affordable Medicines Trust v Minister of
Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 138 (
Affordable
Medicines
).
[21]
Id. See also
Biowatch
Trust v Registrar, Genetic Resources
[2012]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 22
(
Biowatch
)
.
[22]
101 of 1997.  Section 1 of the Act defines
“higher education institution” as—
“
any
institution that provides higher education on a fulltime, part-time
or distance basis and which is—
(a)
merged, established or deemed to be
established as a public higher education institution under this Act;
(b)
declared as a public higher education
institution under this Act; or
(c)
registered or provisionally registered as
a private higher education institution under this Act.”
Section 32 of the Act
affords public higher education institutions the opportunity to make
an Institutional Statute which gives
effect to any matters not
expressly prescribed by the Act.  The Institutional Statute
must be published by way of notice
in the Government Gazette.  In
the introduction of UCT’s Institutional Statute, gazetted on
20 September 2002, it
recognises itself as a public higher education
institution.
[23]
Biowatch
above n
21 at para 23.
[24]
Id at para 24.
[25]
See, f
or example,
AB
v Minister of Social Development
[2016] ZACC 43
;
2017 (3) BCLR 267
(CC) at para 329;
Minister
of Home Affairs v Rahim
[2016] ZACC 3
;
2016 (3) SA 218
(CC);
2016 (6) BCLR 780
(CC) at para 35;
Sali
v National Commissioner of the South African Police Service
[2014] ZACC 19
;
2014 (9) BCLR 997
(CC); (2014) 35
ILJ
2727 (CC) at para 97.
[26]
Affordable Medicines
above
n 20 at para 138.
[27]
Biowatch
above n
21.
[28]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa
[2015]
ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (
Trencon
).
[29]
The Appellate Division in
Media
Workers Association of South Africa v Press Corporation of South
Africa Ltd
(
Perskor
)
[1992] ZASCA 149
;
1992 (4) SA 791
(AD) at 800E (
Media
Workers Association
) described the
essence of a discretion in the true sense.  It held that “if
the repository of power follows any one
of the available courses, he
would be acting within his powers, and his exercise of power could
not be set aside merely because
a Court would have preferred him to
have followed a different course among those available to him”.
See
Trencon
above n 28 at para 84.
[30]
Trencon
above n
28 at para 83.
[31]
See
Giddey N.O. v JC
Barnard and Partners
[2006] ZACC 13
at
para 19; See also
Trencon
above n 28 at para 88, where Khampepe J remarked:
“
When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere

unless it is satisfied that this discretion was not exercised—
‘
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles’.”
[32]
Trencon
above n
28 at para 85.
[33]
See, for example,
Affordable
Medicines
above n 20 at para 138.
[34]
See
Media Workers
Association
above n 29 at paras
800D-E.
[35]
Biowatch
above n
21 at para 16.
[36]
Id.
[37]
Id.
[38]
SATAWU v Garvas
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC)
(
Garvas
).
[39]
Id at paras 52-3.
[40]
See SCA judgment above n 1 at paras 47, 48, 53
and 57.
[41]
See
Chief Lesapo v
North West Agricultural Bank
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 11.
[42]
See
High Court judgment
above n 2 at para 62.
[43]
See
Biowatch
above
n 21 at para 16.
[44]
Id
at para 24.
[45]
See
High Court judgment
above n 2 at para 1.
[46]
SCA judgment above n 1 at paras 79-81.
[47]
Id
at para 83.
[48]
Section 21(1) provides:
“
Everyone
has the right to freedom of movement.”