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[2017] ZACC 39
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Ferguson and Others v Rhodes University (CCT187/17) [2017] ZACC 39; 2018 (1) BCLR 1 (CC) (7 November 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 187/17
In the matter
between:
SIAN
FERGUSON
First Applicant
YOLANDA
DYANTYI
Second Applicant
SIMAMKELE
HELENI
Third Applicant
and
RHODES
UNIVERSITY
Respondent
Neutral citation:
Ferguson and Others v Rhodes University
[2017]
ZACC 39
Coram:
Mogoeng CJ, Zondo
DCJ, Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and
Zondi AJ
Judgments:
Kollapen AJ (unanimous)
Decided on:
07 November 2017
Summary:
Right to freedom of expression —
Right to assembly, demonstration, picket and petition.
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.
ORDER
On appeal from the Supreme
Court of Appeal:
The following order is
made:
1.
Leave to appeal is granted only against the
order of the Supreme Court of Appeal upholding the
High Court of South
Africa, Eastern Cape Division, Grahamstown’s
order on costs in the application for leave to appeal in the High
Court.
2.
The appeal on costs is upheld.
3.
The cost orders of the High Court and the
Supreme Court of Appeal in the application for leave to appeal are
set aside.
4.
Each party is to pay its own costs in the
High Court, Supreme Court of Appeal and in this Court,
in respect of the
application for leave to appeal.
JUDGMENT
KOLLAPEN AJ (
Mogoeng
CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane
AJ, Madlanga J, Mhlantla J and Zondi AJ concurring)
:
Introduction
[1]
Universities play an important
enabling, facilitating, and critically reflective role in most
democratic societies.  They are
often the locus for the birth
and incubation of new ideas and provide in many ways the enabling
environment where a society can
engage in dialogue about the kind of
future it wishes to embrace.  This process can often be robust.
It involves a contestation
of ideas and ideologies and, at times, the
passion and emotion with which a social issue is embraced may well
lead to conflict
that plays itself outside the bounds of the
Constitution.  This is such a case where a necessary and
important campaign against
gender-based violence, including rape,
resulted in conduct that made serious inroads into the rights and
liberties of others.
[2]
The three applicants approach this
Court seeking leave to appeal against an order of the Supreme Court
of Appeal
[1]
which refused them leave to appeal against an order of the High Court
of South Africa, Eastern Cape Division, Grahamstown (High Court).
[2]
Rhodes University (Rhodes / the University) had succeeded in
obtaining an urgent interim interdict against a number of
respondents,
including the applicants, who were involved in student
protests on the University’s campus.  The High Court
subsequently
granted an order making the interim interdict final –
albeit in a form and scope considerably different from the original

interdict granted.
[3]
What falls to be considered is
whether the granting of the final interdict including an adverse cost
order against the applicants
in the application for leave to appeal
in the High Court as well as in the Supreme Court of Appeal was
constitutionally appropriate
and if not, what relief this Court
should consider granting.
Background facts
[4]
In April 2016, a structure known as the Chapter 2.12 Movement,
comprising predominantly of students at Rhodes, embarked on a
campaign
to highlight the issue of rape culture and gender-based
violence on the University’s campus.  The campaign was
described
by the High Court as addressing an issue that was “deeply
emotional, relevant and challenging”.
[3]
It, however, led in some instances to unlawful conduct that included
the kidnapping and assault of two male students who
were suspected of
rape or sexual assault, the disruption of classes at the University,
damage to and destruction of University
property, and the erection of
barricades at the entrance to the University.
[4]
It was alleged that the applicants were part of the group that
was involved in such conduct, associated themselves with such

conduct, and, in some instances, led the students in their actions.
[5]
There is no dispute that the offending conduct that initiated
the litigation did in fact occur.  What was, and remains, in
dispute was the role of the applicants in such conduct and whether
the High Court was correct in granting final relief against them
on
the basis that their participation was sufficiently established to
justify the relief that was granted.
Litigation history
[6]
On 20 April 2016, the University
approached the High Court and obtained an urgent interim
interdict.
[5]
The Court accepted oral evidence in support of the relief sought and
granted.  The relief granted was extremely wide
in its scope as
well as in its designation of whom the relief covered and was
extended to.
[6]
The first respondent was cited as the “Student
Representative Council of Rhodes University”; the second
respondent
was cited as the “Students of Rhodes University
engaging in unlawful activities on the applicant’s campus”;
whilst
the third respondent was cited as “Those persons
engaging in or associating themselves with unlawful activities on the
applicants’
campus”.  In these proceedings, the
relief sought is pursued only by the applicants.  They were
cited as the fourth,
fifth, and sixth respondents, respectively, in
the High Court.  We refer to them here as the “applicants”.
[7]
The applicants opposed the granting
of final relief and sought the discharge of the interim interdict.
The High Court also
made an order admitting the
“Concerned staff at Rhodes University”,
a body comprising academics
at the University, as an intervening
party in the application.  The intervening party did not take
issue with the factual
matrix advanced by the University but sought
the discharge of the interim interdict on the grounds that it was
unconstitutional
and unlawful.
[8]
The High Court’s judgment,
delivered on 1 December 2016, dealt in some detail with the factual
issues and concluded that the
applicants were all involved in some of
the unlawful conduct that was the subject of the interdict.
[7]
It proceeded to confirm the interdict against the applicants,
but to a considerably limited extent as compared to the original

relief granted.  Furthermore, at the instance of the applicants
and the intervening party, the Court discharged, in its entirety,
the
interim interdict that was granted against the first, second, and
third respondents.
[9]
The High Court found that the
applicants were partially successful in limiting the relief sought
against them and remarked that
they were fortunate to escape an
adverse cost order due to the shifting nature of their evidence.
[8]
The Court, however, concluded that fairness justified an order
that the parties each pay their own costs.
[10]
The applicants applied for leave to
appeal against the High Court’s order.  This application
was dismissed by the High
Court on 24 March 2017 and the applicants
were ordered to pay the costs of the respondent.
[11]
The applicants subsequently applied
for leave to appeal to the Supreme Court of Appeal.
Their application was
dismissed on 2 July 2017 with costs.
In this Court
[12]
The applicants submit that the
matter raises significant constitutional issues impacting on the
rights to freedom of expression
and protest as encapsulated in
sections 16
[9]
and 17
[10]
of the Constitution, respectively.  They challenge the factual
basis upon which the High Court satisfied itself of their involvement

in the unlawful conduct and contend that the interdict was issued on
the basis that the University considered them to be the leaders
of
the student protest.  They argue that they were therefore
rendered guilty by association.  In addition, they question
the
legal basis upon which both the High Court and the
Supreme Court of Appeal awarded costs against them in
respect
of the application for leave to appeal in both courts.
[13]
The respondent, in opposing the
application for leave to appeal, denies that the relief granted in
the High Court impermissibly
intrudes upon the applicants’
rights in terms of sections 16 and 17 of the Constitution, to the
extent that the protections
afforded in sections 16 and 17 do not
extend to unlawful conduct.  On the facts, their stance is that
the involvement of the
applicants in the interdicted unlawful conduct
went beyond association and extended to actual involvement.  Finally,
on costs,
the respondent submits that the decision of the applicants
in persisting to pursue the matter is “premised on their
attempts
to mislead the Court” and, as such, justifies such
cost orders.
Leave to appeal
[14]
The nature of the legal issues
underpinning the dispute between the parties indeed raises
constitutional issues impacting on a number
of rights, including the
rights to freedom of expression, to assemble and protest, to
education, and to property.  In addition,
the question of costs
is inimical to the right of access to courts and to justice.  In
my view, whatever the strength of the
case on the merits may be, the
interests of justice, in so far as they relate to the question of
costs, would justify the granting
of leave to appeal.
Merits
[15]
The legal issues as well as the
factual issues were thoroughly interrogated by the High Court and the
judgment reflects a detailed
consideration of both the law, as set
out in
Garvas
,
[11]
as well as the facts.  The Court considered fully the scope of
the interim relief and after examining what one can only describe
as
the full spectrum of case law on the issue, proceeded to discharge
the interdict in respect of the first, second, and third
respondents.
[16]
In dealing with the case against the
applicants, the High Court accepted that the interim interdict was
“unduly broad”
and parts of it were not “sustainable
or justified”.
[12]
It omitted those parts from the final order it made.  For
the rest, and this is the nub of the applicants’ case,
the
Court considered the role played by each of the applicants in the
events of April and May 2016 and, while it delineated their

leadership role in the protests, it also carefully explored and dealt
with the actual conduct that was attributable to each of
them in
relation to those protests.
[13]
The Court highlighted, in each instance, where the conduct went
beyond mere association and constituted actual involvement.
[17]
In this Court, the applicants
contend that the matter involves novel issues of constitutional law
that have never been considered
before by this Court.  They
include in this characterisation “the distinction between
lawful and unlawful speech and
conduct in protest settings, and the
question of whether, and under what conditions, an otherwise lawful
protestor associates him
or herself with the unlawful conduct of
someone else in the same protest”.  While these may well
constitute novel issues,
I am not convinced that this is a case that
justifies a ventilation and consideration of such issues.  The
factual findings
of the High Court deal with both the nature of the
speech it regarded as being unlawful as well as the unlawful conduct
on the
part of the applicants beyond their role in associating
themselves with the crowd.  In the end, the granting of the
final
interdict was, in part, premised on what the Court found to be
the acts of actual involvement on the part of the applicants.
[14]
For these reasons, I am compelled to conclude that the appeal
falls to be dismissed on the merits.
Costs
[18]
While costs are traditionally dealt
with at the tail end of the litigation process and invariably in the
concluding segment of a
court’s judgment, they nevertheless
continue to be considerably significant.  This is especially in
respect of how access
to justice is pursued and levered, as well as
in what may be described as the broader constitutional project where
the Constitution
– as a living tree – is given life and
meaning through the development of a jurisprudence that is rooted in
an understanding
of the context and purpose of the Constitution.
[15]
[19]
This Court in
Biowatch
observed what it called the “chilling
effect” cost orders could have on parties seeking to assert
their constitutional
rights – even where unsuccessful.
[16]
One can do no more than endorse this observation, particularly in a
society characterised by such disparities in resources
and inequality
of opportunities.  The assertion of constitutional rights is
inextricably linked to the transformative process
the Constitution
contemplates.  On the other hand, the
Biowatch
principle also permits exceptions and does not go so far as to
immunise all constitutional litigation from the risk of an adverse

cost order.
[17]
[20]
While
Biowatch
dealt squarely with state conduct, I do not understand the scope of
the principle that emerged as being confined to litigation
involving
the state in the narrow sense of the word.  In
Hotz
,
this Court applied the principle, without the need to extend its
scope, to a university as a public institution:
“
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.  UCT is recognised as a
public institution in terms of the Higher Education
Act.  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.  But this is not an inflexible rule.”
[18]
I cannot imagine in
the context of the present facts, why the
Biowatch
principle should not find application.  The High Court in
dismissing the application for leave to appeal considered it to
be an
applicable and operative principle, a conclusion with which I am in
full agreement.  The High Court, however, failed
to apply the
principle, a matter to which I will return later.
[21]
To the extent that the applicants
ask this Court to interfere with the cost orders of the High Court
and the Supreme Court of Appeal
– the making of which involved
the exercise of a discretion – this Court’s power to do
so is limited.  In
Trencon
,
this Court held:
“
In
order to decipher the standard of interference that an appellate
court is justified in applying, a distinction between two types
of
discretion emerged in our case law.
That
distinction is now deeply-rooted in the law governing the
relationship between appeal courts and courts of first instance.

Therefore, the proper approach on appeal is for an appellate court to
ascertain whether the discretion exercised by the lower court
was a
discretion in the true sense or whether it was a discretion in the
loose sense.  The importance of the distinction is
that either
type of discretion will dictate the standard of interference that an
appellate court must apply.
. . .
A
discretion in the true sense is found where the lower court has a
wide range of equally permissible options available to it.  This

type of discretion has been found by this Court in many instances,
including matters of costs, damages and in the award of a remedy
in
terms of section 35 of the Restitution of Land Rights Act.  It
is “true” in that the lower court has an election
of
which option it will apply and any option can never be said to be
wrong as each is entirely permissible.
In
contrast, where a court has a discretion in the loose sense, it does
not necessarily have a choice between equally permissible
options.
. . .
In
the instance of a discretion in the loose sense, an appellate court
is equally capable of determining the matter in the same
manner as
the court of first instance and can therefore substitute its own
exercise of the discretion without first having to find
that the
court of first instance did not act judicially.  However, even
where a discretion in the loose sense is conferred
on a lower court,
an appellate court’s power to interfere may be curtailed by
broader policy considerations.  Therefore,
whenever an appellate
court interferes with a discretion in the loose sense, it must be
guarded.”
[19]
Do the orders of
the High Court and the Supreme Court of Appeal warrant interference
by this Court?
[22]
In the proceedings that culminated
in the final interdict being granted against the applicants, the
basis for the cost order was
the overriding consideration of
fairness.
[20]
While the applicants take issue with the merits of that order
they do not take issue with the costs component of the order
and, if
indeed one has regard to the judgment as a whole, it was probably the
only appropriate order to make.  The applicants,
together with
the intervening party in the High Court, had been successful in
effecting the discharge of the interim interdict
against the first,
second, and third respondents.  In addition, they had
achieved a measure of success in limiting the
scope of the interdict
that was ultimately granted against each of them.
[23]
The High Court remarked that the
applicants were fortunate to avoid an adverse cost order being made
against them on account of
the shifting nature of their evidence
which, it regarded as disingenuous.
[21]
However, it nevertheless considered the order it ultimately made
justified on the basis of fairness.  Clearly, it was
open to the
High Court to consider an adverse cost order if it was of the view
that the circumstances justified it and that the
conduct of the
applicants had somehow brought them outside the protection of the
Biowatch
principle.  It did not do so, and the question of whether the
applicants were fortunate or not then becomes academic.  The

principle of fairness was the basis upon which the cost order was
made, and fortune, or otherwise, could hardly have been a relevant

consideration in the exercise of the Court’s discretion.
[24]
Thus the Court applied the criterion of
fairness in making its determination on costs, despite the fact that
the
Biowatch
principle was clearly applicable.  The applicants were asserting
their constitutional rights of freedom of expression and
association
in challenging the interim interdict, which was ultimately found to
be overly wide.  In my view, those proceedings
activated the
principle enunciated in
Biowatch
with regard to costs.  Thus, despite the High Court granting a
cost order that is consistent with
Biowatch
,
to the extent that it premised its order on the consideration of
fairness alone, this constitutes an error on its part even though
the
result arrived at was the same.
[25]
That background is necessary, in my
view, to provide some context to the High Court’s decision
on costs in the application
for leave to appeal.  In dismissing
the application for leave to appeal, the High Court said that it was
“thoroughly
unpersuaded that there is any prospect of appeal
success”.  The Court did not describe the application for
leave to
appeal as frivolous or vexatious nor did it describe it as
an exercise in bad faith.  When dealing with the costs
occasioned
by the application for leave to appeal, the High Court
in brief remarks said that it was “unpersuaded that the
[a]pplicants
should on the relevant facts of the matter at this
stage, and having regard to their application for leave to appeal, be
benefitted
by the
Biowatch
principle”.
[26]
Clearly, the High Court was alive to
the principle in
Biowatch
but took the view that the applicants should not benefit from it.
Under these circumstances, it is difficult to understand
the
reasoning of the High Court, as it does not emerge clearly from the
judgment.  In the main application, the High Court
premised its
order on the principle of fairness and none of the parties takes
issue with that.  It can hardly then be open
to the High Court,
in the leave to appeal proceedings, to refer to findings made in its
judgment (one assumes in the main
application) to justify an adverse
cost order.  It simply begs the question – if those
findings did not justify an adverse
cost order in the main
application, how could they now be used to justify an adverse cost
order in the application for leave to
appeal?  In addition, and
in the absence of those findings being set out in the judgment in the
application for leave to appeal,
one is left speculating what those
findings are and whether they justify a departure from the
Biowatch
principle
[27]
Under these circumstances, I am not
persuaded that the discretion with regard to costs was properly
exercised.  Accordingly,
there exists a basis for this Court’s
interference.  All things being equal, my view is that in the
absence of a finding
that the application for leave to appeal was
frivolous, vexatious, or brought in bad faith, the High Court
should have dealt
with costs in the leave to appeal application on
the same basis as it did in the main application.
[28]
At the end of the day, and while
this was clearly not the intention of the High Court, one needs
to be careful not to create
a perception that the applicants were
being admonished for seeking leave to appeal.  It was, of
course, their right to do
so, and they were able to mount an
arguable, but ultimately unpersuasive case, in their favour.
Conclusion
[29]
It would thus be appropriate if the
parties were ordered to bear their own costs, in both the application
for leave to appeal in
the High Court as well as in the
Supreme Court of Appeal.
Order
[30]
The following order is made:
1.
Leave to appeal is granted only against the
order of the Supreme Court of Appeal upholding the
High Court of South
Africa, Eastern Cape Division, Grahamstown’s
order on costs in the application for leave to appeal in the High
Court.
2.
The appeal on costs is upheld.
3.
The cost orders of the High Court and the
Supreme Court of Appeal in the application for leave to appeal are
set aside.
4.
Each party is to pay its own costs in the
High Court, Supreme Court of Appeal and in this Court,
in respect of the
application for leave to appeal.
For the
Applicants:
The Socio-Economic Rights Institute Law Clinic
For the
Respondent:
Huxtable Attorneys
[1]
Order of the Supreme Court of Appeal dated 2 July
2017.
[2]
Rhodes University v Student Representative
Council of Rhodes University
[2017] 1
All SA 617
(ECG) (High Court judgment).
[3]
Id at para 6.
[4]
Id at para 74.
[5]
Id at para 3.
[6]
Id at paras 141-2.
[7]
Id at paras 147 and 150-2.
[8]
Id at para 156.
[9]
Section 16 of the Constitution reads:
“(1)
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to—
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[10]
Section 17 of the Constitution reads:
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.”
[11]
South African Transport and Allied Workers
Union v Garvas
[2012] ZACC 13
;
2013
(1) SA 83
(CC);
2012 (8) BCLR 840
(CC) (
Garvas
).
[12]
High Court judgment above n 2 at para 153.
[13]
Id at paras 97-109 and 112-5.
[14]
Id at paras 146-7.
[15]
The metaphor of the “living tree” is
derived from the practice of traditional African societies.  The
tree was
where people would meet to resolve disputes.  The
metaphor has been incorporated into the design as well as the emblem
of
this Court and was intended to reveal the Court’s “ethos
and culture as a source of protection for all”.
See also
Edwards v Canada (Attorney General)
[1930] AC 124
at 136.
[16]
Biowatch Trust v Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
)
at para 23.
[17]
See
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para
138 where this Court held:
“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.”
See also
Lawyers for
Human Rights v Minister in the Presidency
[2016] ZACC 45
;
2017
(1) SA 645
(CC);
2017 (4) BCLR 445
(CC) at para 18 where this Court
held:
“[The
Biowatch
principle] does not mean risk-free constitutional
litigation.  The Court, in its discretion, might order costs,
Biowatch
said, if the constitutional grounds of attack are
frivolous or vexatious – or if the litigant has acted from
improper motives
or there are other circumstances that make it in
the interests of justice to order costs.”
[18]
Hotz v University of Cape Town
[2017]
ZACC 10
;
2017 (7) BCLR 815
(CC) (
Hotz
)
at para 22.
[19]
Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (
Trencon
) at paras 83 and
85-7.
[20]
High Court judgment above n 2 at para 157.
[21]
Id at para 156.