​Appeal court ruling sets parameters for protest at universities

Students who are part of the Rhodes Must Fall movement clash with police during a protest on February 16 2016 at the University of Cape Town. (Lerato Maduna, Gallo)

Students who are part of the Rhodes Must Fall movement clash with police during a protest on February 16 2016 at the University of Cape Town. (Lerato Maduna, Gallo)

Last week, the Supreme Court of Appeal (SCA) handed down a judgment dealing with students at the University of Cape Town (UCT) who been interdicted from being on campus in the wake of events that took place in February. These events included sustained protests by groups of students against a range of university practices, which in turn appeared to be coupled with the demand for fees to fall.

In his judgment, Judge Malcolm Wallis sets out in graphic detail the key events that gave rise to UCT seeking relief from the high court. As an example, the judge observes: “There were three tyres taken from the car, including the one she [Alex Hotz, an appellant in this case] was carrying. One of the students who alighted from the car was also carrying a red Castrol plastic can. This can was found in the shack and contained petrol. One of the photographs shows a student throwing what appears to be petrol … from that can on to the burning paintings and portraits.”

A key part of the February protest was a shack built by students at one of the university’s key access points. The shack, which was built to highlight the problem of students who were homeless and whose plight the protesting students considered was being egregiously neglected by the university, was eventually demolished.

According to the papers before the court: “Inside the shack, campus security found a plastic can containing about three litres of petrol. A similar can, capable of carrying five litres of petrol, is to be seen in photographs taken when the paintings were being burned. At least two people were photographed in possession of that can and one is shown throwing its contents on to the fire, but not with a view to dousing it.”

The detailed description of these events, which now have been replicated on a national scale over the past month, show the problems confronting university authorities when protest – which is recognised by the Constitution – extends into a campaign not only of disruption but also of destruction. As the court said, though the right to protest vigorously and even vehemently is protected by the Constitution, when protest extends to violence it then represents the very antithesis of the Constitution.

The court found that the conduct of the students, who were appellants, breached the rights of the university “to control and manage access to its property”; “to ensure that it is allowed to properly manage and control unlawful conduct on its property” and that “staff are able to carry out their work in the interests of the students”; [and] “that the safety of its students and staff and other members of the public who are legitimately on its property” are ensured and to protect its property.

In addition, because none of the students before the court were willing to state that they, in future, would confine their protest action to constitutionally permissible protests, the judge, for a unanimous court, found that the key elements for granting an interdict had been met. Yet, when it came to the question of relief, the SCA differed from the high court in that it confined the interdictory relief in favour of UCT: whereas the students were interdicted from any conduct that was violent or illegal, they were not prevented from entering UCT for legitimate purposes as students.

In crafting this remedy, the court reiterated that the judiciary exists to adjudicate in respect of defined disputes – it is not there to solve every social or political problem. The judgment is of great significance in that it confirms the university’s right to approach the courts for relief and sets out the conditions under which that would be appropriate, while at the same seeking to protect students when they pursue their studies, even while protesting with vigour.

There is a further important component to the judgment. In dealing with hate speech, the judge said: “A court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to be characterised as hate speech, even if it has overtones of race or ethnicity.”

He then applied this test in the following way: “Whatever ‘F*** white people’ was intended to mean it is nothing more than a crudely worded slogan indicating that the writer dislikes or rejects white people. It may express hatred for white people, based on their race or ethnicity, but it does not operate as an inducement to cause them harm unless one reads into the words an unexpressed meaning. It is regrettably not uncommon for people to use strong language in which, as [Judge] Van den Heever J once delicately expressed it, ‘a word signifying the sexual act [is] substituted for a verb of motion’. Without more, which may emerge either from the context in which the expression is used or its combination with other words or actions, the use of that word does not ordinarily involve a threat of physical harm.”

This judgment guides a university as to what kind of interdict it might obtain in the present context, and it sensibly allows for speech, however aggressive or crude, to fall in the boundaries of legality. In its detailed recitation of the facts, it should also give pause to those who are concerned about the complex situation in which our universities find themselves as they are confronted with violent protest, which, in this case of UCT, took place in the absence of police presence on campus.

Serjeant at the Bar

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