THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 730/2016

In the matter between:
ALEXANDRIA GABRIELLA HOTZ
FIRST APPELLANT
MASIXOLE MLANDU

SECOND APPELLANT
CHUMANI MAXWELE

THIRD APPELLANT
SLOVO MAGIDA

FOURTH APPELLANT
ZOLA SHOKANE

FIFTH APPELLANT
and
UNIVERSITY OF CAPE TOWN

RESPONDENT

Neutral citation: Hotz v UCT (730/2016) 2016 ZASCA 159 (20 October
2016)
Coram:
NAVSA, BOSIELO, THERON, WALLIS and MATHOPO
JJA
Heard:
29 September 2016
Delivered: 20 October 2016
Summary: Interdict – student protests – requisites for the grant of an
interdict – whether requisites satisfied – nature of relief to be granted.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Allie J sitting as a court of first instance. Judgment reported sub nom
University of Cape Town v Davids & others [2016] 3 All SA 333
(WCC)):
(a)
The order of the court below is altered to read as follows:
‘1
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are interdicted and restrained from –
1.1
erecting any unauthorised structures on the applicant’s premises;
1.2
destroying, damaging or defacing any of the applicant’s premises;
1.3
participating in, or inciting others to participate in any unlawful
conduct and/or unlawful protest action at any of the applicant’s
premises; and
1.4
inciting violence.
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are to pay the applicant’s costs jointly and severally, including the
costs of two counsel.’
(b)
Save to that extent the appeal is dismissed with all parties to pay
their own costs.

JUDGMENT

Wallis JA (Navsa, Bosielo, Theron and Mathopo JJA concurring)

[1] Since March 2015 South African universities have been engulfed
by waves of student protests conducted under names such as

#RhodesMustFall and #FeesMustFall. The protests, and the actions of
protestors, university administrators, campus security and the police are
the subject of heated debate in the media. This appeal is not about the
merits or legitimacy of those protests. It involves no judgment on the
conflicting views of the students and their supporters, the university
administrators, the politicians and others caught up in these events. Our
task is to determine, in accordance with long-established legal principles
whether the high court was correct to grant a final interdict against the
five appellants, arising out of events on the campus of the University of
Cape Town from 15 to 17 February 2016.

[2] At the commencement of argument, counsel for the appellants
accepted that the appeal was confined to considering whether the actions
of the appellants at that time were unlawful and whether there was a
reasonable apprehension that they would recur. He did this while
stressing that their actions must be seen against the background of their
struggle for social justice. In the result, we are concerned only with the
factual situation when the case came before the court below. Subsequent
events, such as the current protests on various campuses, are not relevant
to our decision.

[3] The appeal arises from a protest, dubbed by the participants
‘Shackville’, that commenced on 15 February 2016 on the campus of the
respondent, the University of Cape Town (UCT or ‘the university’). On
17 February 2016 and as a matter of urgency UCT obtained an interim
interdict against 16 individuals, some registered students and some not,
that barred them from entering the university campus, unless they had the
university’s consent to be there for academic purposes or to occupy
student housing that had been allocated to them. It further interdicted

them from interfering with the rendering of university services and the
university’s decision-making processes by, amongst others, erecting
unauthorised structures on the campus; destroying, damaging or defacing
university property; participating in, or inciting others to participate in
unlawful conduct or protest action on university premises and inciting
violence. On 15 March 2016 the return day of the rule nisi issued on
17 February 2016, UCT sought a final interdict against the five
appellants. On 11 May 2016 Allie J granted that order. This appeal is
with her leave.

The protest
[4] The protest began on 15 February 2016, which was the first day of
the first academic term in 2016. It concerned primarily two issues,
namely, the difficulties experienced by many students, predominantly
Black, in paying university fees, and the problems they were having in
finding suitable accommodation to enable them to pursue their studies.
Broader themes were the issue of transformation of the university away
from what the students regarded as a colonial and Eurocentric heritage
and the massive problems that affect poor people in obtaining decent
housing.

[5] Fairly early on the morning of 15 February, at about 6.40 am, a
group of some 20 or 30 people gathered above Residence Road next to
the Maths building on the upper campus. The upper campus, is situated
on the side of Devil’s Peak and slopes upwards from the M3, the major
road between the centre of the city and the southern suburbs. Adjacent to
the M3 are rugby fields. They are bounded on their upper side by a road,
Madiba Circle, which runs round the whole of the upper campus. Two
halls of residence, Fuller Hall and Smuts Hall stand side by side above

Madiba Circle overlooking the rugby fields. Between them there is a
broad pedestrian walk running uninterruptedly straight up the hill to
Jameson Hall, the principal hall for formal functions at UCT. Residence
Road runs behind Fuller and Smuts Halls and separates them from the
principal buildings on the upper campus. It is a major route for vehicular
traffic through the university. After crossing Residence Road at the point
where the pedestrian walkway passes between the lower residences, one
walks up Jameson steps. That is the principal route taken by students
coming from the university residences to attend lectures in many, but not
all, faculties and to obtain access to the library, the student union and
certain other facilities.1

[6] At about 8.15 am on 15 February a bakkie arrived in Residence
Road near the Jameson steps and unloaded wood, corrugated iron, a door
and window and other construction materials. The group gathered at that
point, together with the two men in the bakkie, used these materials to
erect a shack in the middle of Residence Road obstructing traffic and
pedestrians. They then marked off a large area around the shack with the
red and white plastic tape used on construction sites and elsewhere to
demarcate areas of danger. A photograph in the record, taken from the
Jameson steps side, showed a fairly substantial wood and corrugated iron
structure in the middle of the road. It was of a type commonly
encountered in informal residential areas. Alongside it was a portable
toilet and there were more than twenty people sitting and standing around
the shack in the cordoned off area. Prominently displayed on the ground
in front of the shack at the foot of Jameson steps was a sign ‘RHODES

A
clear
and
labelled
map
is
available
on
the
university’s
website
at
https://www.uct.ac.za/images/uct.ac.za/contact/campusmaps/big/uctuppercampus.jpg,
accessed
October 2016.

MUST FALL’. On the back of the shack were the words ‘UCT
HOUSING CRISIS’. The shack is depicted in this photograph from the
record.

[7] It is apparent from the photographs that the shack and the
demarcated area constituted a substantial hindrance to traffic on
Residence Road and to the ordinary movement of pedestrians in that area
of the campus. The normal route for pedestrians going to and from
buildings on the upper campus was significantly restricted by the
presence of the shack, the protesters and the demarcated area. Evidence
that pedestrians were prevented from crossing the demarcated area and
that it operated as an exclusion zone was not disputed. The attitude
evinced in the opposing affidavits by various respondents was that such
persons were not respecting their protest and that it was therefore
permissible for them to prevent them physically from entering the
demarcated area.

[8] Three of the appellants, Ms Hotz, the first appellant, Mr Mlandu,
the second appellant and Ms Shokane, the fifth appellant, were students2
at the university and acknowledged that they were participants in the
‘Shackville’ protest. It was described in some of the affidavits (although
not those of the appellants) as ‘a themed protest action’ that sought ‘to
thoughtfully create an artistic form of protest with the idea to showcase
the experience of hardship of Black students and their daily pains and
struggles’. Mr Maxwele, the third appellant, had previously been
registered as a student and said that he intended to register again in 2016
after consulting a student adviser. He too acknowledged that he was a
participant in this protest. The fourth appellant, Mr Magida, had also
previously been a student at the university, but at the time of these events
was employed as an opera singer and had no direct connection with UCT,
or none that emerges from the papers. He did not deal with his
involvement in the Shackville protest, but did not deny the allegation that
he was one of the original participants.

[9] The presence of the shack caused considerable traffic congestion
not only on Residence Road and the upper campus, but extending to the
access points to the campus for traffic coming off the M3 and from Main
Road, Rondebosch. When senior university staff approached the
protesters with a view to persuading them to move the shack to a nearby,
grassed area close to Smuts Hall they were rebuffed. At a little after
1.00 pm, a decision was taken not to make any further attempts at that
stage to persuade the protesters to move the shack, but to monitor the
situation.

2 Ms Shokane had not yet registered because of an issue over unpaid fees, but was accepted as a
resident in Fuller Hall. Once the issue over unpaid fees had been resolved she would have been able to
complete her registration.

[10]  At about 2.15 pm a group of protesters moved towards Smuts Hall
and Mr Mlandu, the second appellant, climbed up to the roof and spray-
painted the bust of Jan Smuts, that stands above the entrance to the
residence, with red paint. The protesters applauded this action. The group
then proceeded to Fuller Hall where Ms Shokane, the fifth appellant,
swiped her student card to provide two of them with access. The two so
admitted then proceeded to spray paint the bust of Mrs Fuller, after whom
the residence is named, with red paint to the accompaniment of applause
from the watching protesters.

[11] Apart from the events already described nothing else that occurred
on 15 February, in regard to the protest, was relied on by the university as
forming part of the background in support of its application for an
interdict. The protest continued, with singing and dancing, and by the
evening the majority of the protesters dispersed, although around ten
remained and spent the night in the shack.

[12] The following morning the group of protesters reassembled at the
shack and continued to sing and dance and prevent people from entering
the demarcated area. This again obstructed traffic in Residence Road as
well as pedestrian movement to and from the upper campus and it was
apparent to the university administration that it was the intention of the
protesters that the shack would remain there for a protracted period. The
presence of the shack and the blocking of Residence Road was causing a
blockage of traffic down Woolsack Road that leads to Main Road,
Rondebosch and the traffic was backed up to the M3 off-ramp. The traffic
jams were one or two kilometres long. Residence Road carries about
60 percent of traffic within the campus and provides access to parking

areas. These were blocked off with rocks and burning rubbish bins, and
persons trying to obtain access to them were threatened.

[13] During the course of the morning a number of altercations occurred
between protesters and other students, parents and members of staff. The
general allegations made in this regard by the deponent to the university’s
founding affidavit were not denied by any of the appellants, although the
third appellant, Mr Maxwele, denied a specific allegation of aggressive
and threatening conduct by him in relation to events at the P3 parking
area. He did not, however, deny that he had set fire to rubbish bins that
were used to block access to this area. He said that the blocking of the
road ‘was a necessary step in highlighting the pain of the students’.

[14] The university alleged, and this was not controverted, that during
the course of the morning of 16 February a number of students, a staff
member and a member of the public dropping a student off, were
physically assaulted and verbally abused by the protesters. The abuse
included racial insults. Senior management requested the protesters to
move the shack out of Residence Road and onto the grass by Smuts Hall
but this request was refused.

[15] At about 2.00 pm on 16 February the second appellant, Mr
Mlandu, painted a number of slogans on the War Memorial that stands
above the rugby fields and commemorates persons with a connection to
UCT who had died in or were affected by the First and Second World
Wars. The slogans on the front of the memorial read ‘F*** WHITE
PEOPLE!!’ and ‘F*** BLACK EXCLUSION’, while those on the

reverse read ‘1652 MUST GO!!’,3 ‘UCT IS A SITE OF CONQUEST’
and ‘UCT IYAKAKA MOER!’.4 At some time that day, slogans reading
‘F*** WHITE PEOPLE’ and ‘F*** WHITE TEARS’ were painted on
the pavement and at the bus stop where the Jammie shuttle bus stops to
collect students from the Baxter residence on the lower campus to take
them to the upper campus.

Attempts by university management to invoke the assistance of the police were unsuccessful. At
3.00 pm they caused a letter to be delivered to the protesters requesting them to move the site of their
protest from the position where it was blocking Residence Road to a spot about 20 metres away on a
grass lawn adjacent to Smuts Hall. The letter expressly recognised the protesters right to protest and the
importance of the issues they were raising. It offered the assistance of campus security officers to move
the shack and requested that they ensure that the participants in the protest acted ‘within legal
parameters’ and refrain from interfering with ‘the rights of fellow students and staff’. The protesters
were told that if the shack had not been moved by 5.00 pm action would be taken to remove it. The
protesters did not move the shack and instead tore up the letter in the
presence of the university’s management. When campus security
personnel went to the site to assist in moving it they were refused
permission to do so. According to the evidence, the protesters made use
of social media to summon sympathisers, especially from other campuses
and other social activists, to bolster numbers. They also started fires at
various places, setting alight ‘wheelie bins’ used to collect rubbish. They
also gathered rocks and stones and the deponent to the founding affidavit
made the point that the mood of the group changed significantly from
what it had been earlier. They became more charged and he described
them as ‘hostile’.

3 Presumably this was a reference to the arrival of the first White settlers at the Cape under Jan van
Riebeeck.
4 Roughly translated this means ‘UCT is defecating on your mother’, although the word used is
somewhat cruder in meaning than ‘defecating’.

[16] By 5.00 pm the group of protesters had grown and there were
between 200 and 300 people at the site of the shack, some of whom may
simply have been curious bystanders. At about 6.00 pm some 40 or 50
protesters obtained entrance to Fuller Hall, went into the kitchen and
dining hall, and helped themselves to food meant for resident students.
Some among them then proceeded to remove a number of portraits,
photographs and paintings from the walls of the dining hall. These were
taken into Residence Road and thrown on a pile and set alight. Shortly
before 7.00 pm the same group pushed their way into Smuts Hall and
removed portraits and paintings that were also taken and burnt. They then
went into three other buildings on the upper campus and removed more
paintings, photos and portraits that were likewise taken and burnt. All in
all, apart from formal photographs, 25 works of art having a value of
nearly R700 000 were destroyed.

[17] There was no apparent pattern to the removal and burning of
portraits, paintings and photographs. Some were by well-known artists
and were portraits of figures involved in the university in years gone by.
Others were paintings by contemporary South African artists. These
included a series of works commissioned by the Student Affairs
Department and painted to commemorate political events between 1987
and 1994 in the last stages of apartheid and up to the commencement of
democracy. Some of the photographs were of past house committees of
the residences. Others included photographic collages of Molly
Blackburn, an anti-apartheid and civil rights activist.

[18] While the paintings were burning a bakkie arrived on the campus
containing building materials for the purpose of constructing a second
shack. According to the first appellant, Ms Hotz, this was a ‘shack we had

ordered the previous day’.  The intention was that this would be erected
near the lower campus Jammie shuttle bus stop in Baxter Road. However,
the intervention of campus security personnel and the police prevented
the erection of the shack, despite the objections of the protesters. It
appears that the intended site for the erection of the second shack was
near the place where the slogans referred to in paragraph 15 were painted.

[19] After the protesters had forced their way into the halls, residences
and dining halls and while the paintings were being burned, Mr Ganger
laid charges against the protesters at the Rondebosch police station with a
view to getting the police to act. This was at about 7.30 pm. As a result
the police came to the campus to disperse the protesters. While this was
effective at the site of the shack in Residence Road, the dispersing
protesters broke into smaller groups and caused further damage. A bakkie
used for research purposes by the Department of Biological Sciences and
parked in University Avenue North on the upper campus was set alight
and destroyed. That occurred at about 8.40 pm. At about 9.00 pm, at the
Jammie shuttle bus stop in Baxter Road, a shuttle bus was stoned, set
alight and destroyed. The value of the two destroyed vehicles was slightly
less that R1.6 million. At about 8.00 pm and in view of concerns about
the situation on the campus the Executive Director of Libraries was
instructed to close the library, which is normally open until late at night
for student study purposes.

[20] The protesters marched to the Rondebosch police station at about
10.30 pm and before and during the march eight people were arrested.5

5 These eight, some of whom were registered students at the time, were originally included in those
against whom the interim interdict was sought, but the proceedings against them were withdrawn
before a final interdict was sought.

At 11.00 pm an incendiary device was thrown through the window of the
office of the Vice-Chancellor of the university in the Bremner building on
the lower campus. While the fire was detected and extinguished by
campus security personnel it caused significant damage estimated at
R350 000. The identity of the perpetrators had not yet been established
when the application was brought and this occurrence is relevant only to
an understanding of the university’s concerns leading up to the interdict.

[21] As the protesters were being dispersed from the site in Residence
Road, the shack was demolished by private security personnel and police.
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 following morning, after the shack’s removal, rocks
and other objects had been placed in the road to obstruct traffic.

[22] The events that precipitated the urgent application came on
17 February when a member of the campus security staff received a
report from a student of a threat of further arson attacks on buildings on
the campus. That occurred shortly after midday on that day and related to
events the previous evening. The student said that she had been given a
lift to Observatory Square, because there was no Jammie shuttle bus
available, as one was on fire. She reported that the students in the car
appeared to have been involved in the protests. They were very excited
about the burning of the bus and one said that she had been involved in
burning paintings. The one said that he would be returning to the campus
the following day, that is, 17 February, and they would try to burn as

many buses as possible. On top of that she said that the student said that
they intended to go to a building on upper campus with large gas bottles
that they were also going to burn. (This was identified as the P D Hahn
building, which houses the faculty of science.) The student making the
report claimed to be terrified by the attitude of those in the car.

[23] Apart from this report the university became aware from a posting
on social media of a threat to the university library to ‘burn books written
by white people’. In addition there was concern about the difficulty
experienced the previous day in securing an intervention by the police
and whether they would intervene again if such intervention were
necessary.

The urgent application
[24] The urgent application was set down for hearing at 4.30 pm on 17
February 2016 before Williams AJ. A notice of motion was filed, but no
supporting affidavits, and the hearing proceeded on the basis of the oral
evidence of the registrar, Mr Pillay, and the university’s investigations
manager, Mr Ganger. The evidence covered the events described above.
A number of photographs were handed in as exhibits and reference was
made to video footage that was available to be viewed if need be. The
videos both portrayed events on the campus and had been used to identify
participants in the various events. In addition a sworn statement was
produced in regard to the report referred to in paragraph 22 and a
recording of the report was played.

[25] At a very late stage of the hearing after the evidence had been
heard, while the judge was settling the terms of the order she was about to
make, an attorney appeared on behalf of the respondents. He indicated

that his clients wished to be granted an opportunity to oppose the
application. The judge said that she had already ‘heard the application
and I’m satisfied that a proper case has been made out for the relief
sought’ and indicated that she was in the process of finalising a timetable
for the filing of papers. In the result a provisional order was made
including an interim interdict. The return date of the rule was 15 March
2016.

[26] The order granted on 17 February made provision for dealing with
the photographic and video material placed before Williams AJ or
referred to and relied on in the course of the oral evidence. Paragraph 5 of
the order provided that UCT was to file a founding affidavit by
22 February to which it was to attach a transcript of the evidence; the
three exhibits handed in at the hearing and any further footage of the
incidents forming the subject matter of the application. It provided that
insofar as this evidence consisted of video footage it should be dealt with
under Uniform rule 36(10). UCT complied with that order.

[27] Uniform rule 36(10) provides for the admission without the need
for formal proof of plans, diagrams, models and photographs. The
mechanism for doing so is to give notice of the intention to produce such
items at the hearing and to require the other party to admit them. If there
is no response to that notice those items may be received in evidence on
their mere production without further proof thereof. There was no
response to the notices delivered by the university and hence all the
photographs and video footage were receivable in evidence without

further proof.6 It was in fact tendered to Allie J but we were informed
from the bar that she indicated, that she did not think it necessary to view
the material. Perhaps that was because the description of the contents of
the video material was, in all but one respect, not disputed. That is the
approach that most favours the appellants and I accordingly adopt it.

[28] The order eventually made by Allie J read as follows:
‘1
That the rule nisi issued on 17 February 2016 is confirmed in the following
varied terms:
1.1
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents are
interdicted and restrained from entering, or remaining on, any of the
applicant’s premises except with the applicant’s express prior written consent
to do so;
1.2
The written consent referred to in paragraph 1.1 means written consent given
after the date of this order by the applicant’s ViceChancellor or another
member of the applicant’s staff nominated by the Vice-Chancellor for that
purpose with reference to this order following receipt of a written request from
the relevant respondent;
1.3
Any one of the ninth, eleventh, twelfth, thirteenth and fourteenth respondents
who attends or remains on any of the applicant’s premises with the written
consent referred to in 1.1 is interdicted and restrained from –
1.3.1 entering or remaining on the applicant’s premises for any purpose not
expressly set out in the written consent;
1.3.2 erecting any unauthorised structures on the applicant’s premises;
1.3.3 destroying, damaging or defacing any of the applicant’s property;
1.3.4 participating in, or inciting others to participate in any unlawful conduct
and/or unlawful protest action at any of the applicant’s premises; and;
1.3.5 inciting violence.

6 The effect of the rule is that ‘if the prerequisites are established, [it] creates an admission only (i) as to
the authenticity of the document, i.e. it dispenses with the need to call the author of the plan or to
provide other proof of its authorship, and (ii) as to the physical features actually found by the   author.’
Shield Insurance Co Ltd v Hall 1976 (4) SA 431 (A) at 438F. In the case of photographic material it is
an admission as to what is depicted in the photograph.

1.2
That the ninth and eleventh to fourteenth respondents are to pay the
applicant’s costs jointly and severally, including the costs of two counsel.’

The law
[29]   The law in regard to the grant of a final interdict is settled. An
applicant for such an order must show a clear right; an injury actually
committed or reasonably apprehended; and the absence of similar
protection by any other ordinary remedy.7 Once the applicant has
established the three requisite elements for the grant of an interdict the
scope, if any, for refusing relief is limited. There is no general discretion
to refuse relief.8 That is a logical corollary of the court holding that the
applicant has suffered an injury or has a reasonable apprehension of
injury and that there is no similar protection against that injury by way of
another ordinary remedy. In those circumstances, were the court to
withhold an interdict that would deny the injured party a remedy for their
injury, a result inconsistent with the constitutionally protected right of
access to courts for the resolution of disputes and potentially infringe the
rights of security of the person enjoyed by students, staff and other
persons on the campus.

7 Setlogelo v Setlogelo 1914 AD 221 at 227. These requisites have been restated countless times by this
court, most recently in Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) [2014]
ZASCA 169 para 26, and Red Dunes of Africa v Masingita Property Investment Holdings [2015]
ZASCA 99 para 19. They were affirmed by the Constitutional Court. Pilane and Another v Pilane and
Another [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (Pilane) para 38.
8 Lester v Ndlambe Municipality and Another 2015 (6) SA 283 (SCA) paras 23-24; United Technical
Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) at 347F-H. The more
general statement regarding discretion in Wynberg Municipality v Dreyer 1920 AD 439 at 447 does not
reflect the approach adopted by our courts. It is different when dealing with an interim interdict, where
the remedy is clearly discretionary because of the need to consider the balance of convenience.
National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18;
2012 (6) SA 223 (CC) para 41-47.

The university’s rights
[30]  There is no dispute regarding the rights that the university seeks to
protect in these proceedings. It is common cause that it has the right to:
‘(a)
control and manage access to its property;
(b)
ensure that it is allowed to properly manage and control unlawful conduct on
its property;
(c)
ensure that its staff are able to carry out their work in the interests of the
students;
(d)
ensure the safety of its students and staff and other members of the public who
are legitimately on its property; and
(e)
protect UCT’s property.’
Four of the appellants accepted in their affidavit that UCT had certain
rights that ought to be protected but denied that they posed a threat to
those rights.

An infringement of rights actual or apprehended
[31] Here again there are concessions on the part of the appellants that
narrow the area of dispute. In paragraph 71 of their heads of argument it
was said:
‘It is also accepted that the Appellants were in the midst of protest action which went
beyond the boundaries of peaceful and non-violent [protest] and thus rendered
themselves subject to disciplinary processes that the Respondent initiated against its
students.’ (My insertion.)
In view of certain denials in their affidavits I do not construe this
concession as an acceptance by the appellants of their participation or
complicity in all the events described above. But, it is a concession that
they were participants in protest action that overstepped the bounds of
peaceful and non-violent protest. That is relevant because that is the
boundary set by the Constitution in s 17 of the Bill of Rights, which

guarantees the right ‘peacefully and unarmed’ to assemble, demonstrate,
picket and present petitions.

[32] There can be no doubt that the actions of the protesters as already
described infringed the university’s acknowledged rights. Starting with
the erection of the shack and the obstruction of Residence Road the
university could no longer control or manage access to its property.
Similarly, it was unable to control access to the residences and the dining
halls. It was unable to prevent clearly unlawful activities such as the
painting of slogans on university property and the removal of the
portraits, paintings and photographs and their destruction. Staff, students
and members of the public were harassed and threatened and unable to go
about their ordinary business on the campus. Property was damaged,
defaced and destroyed. None of the appellants denied that this had
occurred, or disavowed it, or sought to distance themselves from it. On
the contrary, they aligned themselves with it and sought to justify these
events.

[33] The appellants invoked the defence of necessity,9 to claim that their
actions had not harmed or infringed the university’s rights ‘to the extent
that warrants the confirmation of the interim interdict’. They said that
there was no evidence that the injury was a continuing one, and that
because they were pursuing a legitimate and noble objective, namely the
transformation of the university and the promotion of an atmosphere that
was conducive and acceptable to all, ‘protestors and activists alike may

9 In the criminal context, where it most frequently arises, Jonathan Burchell South African Criminal
Law and Procedure - Volume I: General Principles of Criminal Law 4 ed (2011) at 9-145, says that:
‘The defence of necessity arises when a person, confronted with a choice between suffering some evil
and breaking the law in order to avoid it, chooses the latter alternative.’

be justified in exceeding the bounds of the law, particularly in
circumstances where they seek to protect and highlight rights of others
that are being infringed.’ They submitted that their conduct had not been
wrongful.

[34] The university for its part argued that there had already been a
substantial infringement of its rights in consequence of the actions of the
protesters. It said that on the evidence the appellants had all been active
participants in the protests and had not disavowed any of the conduct of
the protesters. Their own participation was apparent from the eye-witness
reports of what occurred and was supported by the photographic and
video material. In most instances the appellants acknowledged their own
actions and sought in their affidavits to justify it. The only
acknowledgment of unlawfulness came in the heads of argument on their
behalf and there was no undertaking by any of them not to repeat their
actions. In those circumstances the university contended that it had
already suffered an infringement of its rights and that it reasonably
apprehended that unless an interdict was granted the appellants would
continue with their protest activities in the same vein as had occurred
from 15 to 17 February.

Absence of another remedy
[35] For the sake of clarity it is necessary to say something about this
requisite. The appellants’ submissions wavered between a contention that
courts have a general jurisdiction to withhold the remedy of an interdict,
and contending that various courses were open to the university to resolve
its disputes with the protesters, and that these constituted alternative
remedies that were to be preferred to an interdict in order to deal with the
university’s concerns. All of these submissions were misconceived

because they proceeded from a misconception as to the purpose of an
interdict and as to the nature of this requisite for its grant.

[36]  Firstly, the purpose of an interdict is to put an end to conduct in
breach of the applicant’s rights. The applicant invokes the aid of the court
to order the respondent to desist from such conduct and, if the respondent
does not comply, to enforce its order by way of the sanctions for
contempt of court. Secondly, the existence of another remedy will only
preclude the grant of an interdict where the proposed alternative will
afford the injured party a remedy that gives it similar protection to an
interdict against the injury that is occurring or is apprehended. That is
why, in many cases a court will weigh up whether an award of damages
will be adequate to compensate the injured party for any harm they may
suffer. There may also be instances where, in the case of a statutory
breach, a criminal prosecution, in appropriate circumstances, will provide
an adequate remedy,10 but there are likely to be few instances where that
will be the case.11 Thirdly, the alternative remedy must be a legal remedy,
that is, a remedy that a court may grant and, if need be, enforce, either by
the process of execution or by way of proceedings for contempt of court.
The fact that one of the parties, or even the judge, may think that the
problem would be better resolved, or can ultimately only be resolved, by
extra-curial means, is not a justification for refusing to grant an interdict.

10 Food and Allied Workers' Union and Others v Scandia Delicatessen CC and Another 2001 (3) SA
613 (SCA) paras 34-41.
11 Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC) paras 47-50. There were in
the past statutes in the employment field that provided not only that non-compliance by the employer
with obligations in favour of employees was a criminal offence and empowering the court dealing with
the criminal case to determine what amount was owing to the employees and order that it be paid. But
those were special procedures and their existence does not affect the proposition that criminal
proceedings are generally speaking not an alternative to the grant of an interdict restraining unlawful
conduct.

[37] It is for this latter reason that the appellants’ reliance on the
following passage from Pilane was misconceived. That case dealt with a
dispute over traditional leadership and an attempt to secede from a
traditional community. After holding that no case had been made on
traditional grounds for the grant of any of the interdicts sought,
Skweyiya J remarked:
‘[70] The three challenged interdicts adversely impact on the applicants’ rights to
freedom of expression, association and assembly. In the absence of more convincing
argument from the respondents in relation to their own rights against which the
applicants’ interests are to be balanced, one is hard-pressed to find in the respondents’
favour.
[71] The restraint on the applicants’ rights is disquieting, considering the underlying
dissonance within the Traditional Community and the applicants’ numerous
unsuccessful attempts to have this resolved. The respondents’ litigious record also
portrays a lack of restraint on the part of the Traditional Community’s official
leadership in employing legal devices to deal with challenges that should more
appropriately be dealt with through engagement. This could be seen as an attempt to
silence criticism and secessionist agitation and, if so, would not be a situation that the
law tolerates.
[72] This situation cries out for meaningful dialogue between the parties, undertaken
with open minds and in good faith. One hopes that this will produce harmonious
relations within the Traditional Community.’ (My emphasis)

[38] Counsel seized on this passage to argue that instead of an interdict
the court should order the university and the protesters, including the
appellants, to engage constructively with one another to resolve the issues
that form the subject of the protests. But it is one thing for a judge to
express the hope that parties may, by sensible engagement with one
another, resolve their differences without any need for the court to
intervene, and another thing altogether to refuse a litigant relief to which

they are in law entitled, on the basis of a view that constructive
engagement, third party mediation or the application of common sense
would be preferable means of addressing the differences between the
parties. Courts sometimes suggest to parties that there are ways other than
litigation to resolve grievances and redress wrongs, but all they can do is
encourage the parties to explore these alternatives. They cannot impose
them upon the parties. In particular they cannot deny a legal remedy to a
litigant entitled thereto on the basis that they should seek a remedy
through some other non-legal means.

[39] This understanding of the nature and purpose of an interdict is
rooted in constitutional principles. Section 34 of the Constitution
guarantees access to courts, or, where appropriate, some other
independent or impartial tribunal, for the resolution of all disputes
capable of being resolved by the application of law. The Constitutional
Court has described the right as being of cardinal importance and
‘foundational to the stability of an orderly society’ as it ‘ensures the
peaceful, regulated and institutionalised mechanisms to resolve disputes
without resorting to self-help’. It is ‘a bulwark against vigilantism, and
chaos and anarchy’.12 Not only is the Constitution the source of the
university’s right to approach the court for assistance, in doing so it is
exercising a right that the Constitution guarantees. In granting an interdict
the court is enforcing the principle of legality that obliges courts to give
effect to legally recognised rights. In the same way the principle of
legality precludes a court from granting legal recognition and

12 Chief Lesapo v North West Agricultural Bank and Another 1999 12 BCLR 1420; 2000 1 SA 409
(CC); [1999] ZACC 16 para 22, citing with approval Concorde Plastics (Pty) Ltd v NUMSA 1997 11
BCLR 1624 (LC) at 1644F - 1645A.

enforcement to unlawful conduct.13 To do so is ‘the very antithesis of the
rule of law’.14

The individual appellants
[40] Against the background of that introduction and exposition of the
applicable law, I turn to consider the factual allegations made by the
university against each of the appellants and the grounds for saying that it
was entitled to a final interdict against each of them.

First appellant – Ms Hotz
[41] Ms Hotz was one of the original group of protesters when the
Shackville protest started. She acknowledged her participation in it and
initially explained that it was ‘thoughtfully created as an artistic form of
protest with the idea to highlight the plight of black students and their
daily pains and struggles’. It is not clear how that was to be reconciled
with her later statement that an ‘uprising’ was the only way of inducing
the university to act on the protesters’ grievances. She went on to say that
it was ‘an exhibition of black people’s poverty in what is historically and
predominantly an institution catering for white privilege’ and a legitimate
form of protest. She bemoaned the fact that a campaign ‘started with
good intentions and designed to have the effect of uplifting all UCT
students’ had instead resulted in the grant of an interim interdict against
her as well as a suspension order in terms of the university’s disciplinary
code.

13 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC) paras 53 and
61. The principle is one that our courts have always observed. Hoisain v Town Clerk, Wynberg 1916
AD 236 at 240.
14 Hubbard v Cool Ideas 1186 CC [2013] ZASCA 71; 2013 (5) SA 112 (SCA) para 15.

[42] Ms Hotz did not deal in any great detail with the factual allegations
in the affidavits delivered by the university. From these it is apparent that
she was part of the group of protesters who erected the shack and
throughout the day on 15 February 2016 blocked Residence Road and
hindered other students, staff and members of the public from going
about their lawful business on the affected parts of the campus. Her
evidence showed that decisions by the protesters were collective in nature
and it is reasonable therefore, in the absence of any denial or act of
disassociation by her, to accept that she was party to the protesters’
refusal to allow the shack to be moved to a point where it would not
constitute an obstruction, as well as their conduct in dealing with people
who sought to enter the space demarcated around the shack and make
their way up Jameson steps. She was silent about the actions of the
protesters in entering both Smuts Hall and Fuller Hall and spray-painting
the two busts. That occurred in the immediate proximity of the Shackville
protest and was received with applause by the protesters. The necessary
inference is that she approved of this.

[43] Ms Hotz’s denial that she slept in the shack is accepted.15
However, it is clear that she rejoined the protesters on 16 February and
was present throughout the protests that day. It was apparent to the
university that the protesters intended the shack to remain in place for a
protracted period. In the afternoon the protesters entered Fuller Hall. Ms
Hotz acknowledged that she entered Fuller Hall and ate a piece of
chicken, but denied that she carried out any paintings or portraits. This
was between 6.00 pm and 7.00 pm.

15 This is not to cast doubt on Mr Ganger’s identification of her as having slept there, but merely
because in the absence of cross-examination of the two of them the dispute cannot be resolved on the
papers.

[44] The contract manager for campus security at the university said in
an affidavit that Ms Hotz was part of the group that burned the paintings.
She was recorded on the residence north camera carrying a tyre in the
vicinity of the protest and next to a fire. Her response to this was to say
that she did carry the tyre ‘and there is nothing illegal about this’ and she
dropped it where students were singing and dancing. But she refrained
from explaining why she was a carrying a tyre at that time and place. Her
lack of an explanation prompted the university to respond that the video
footage showed her arriving in her car on Residence Road with at least
one other student. There were three tyres taken from the car, including the
one she 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 or some other accelerant from that can onto the
burning paintings and portraits. In the absence of any reason to think
otherwise it is probable that this was the plastic can found later that
evening in the shack. Ms Hotz did not seek to deliver a further affidavit to
deal with these matters.

[45] Ms Hotz denied that she had participated in the burning of
paintings, portraits and photographs. She said in her affidavit that:
‘I did not take part in any burning of the art. I was in the vicinity along with many
other students having a conversation about the wisdom of burning the art. I had grave
reservations about this form of protest but [was] in no position to prevent it.’(My
insertion.)
Two photographs in the record belied this explanation. The first of these
showed Ms Hotz close to and seemingly moving towards where
paintings, portraits and photographs were being thrown on a pile adjacent

to the portable toilet. The second showed her standing immediately
adjacent to the pile of paintings, portraits and photographs. She was
gesticulating towards someone behind the people standing immediately in
front of her. The three people standing immediately in front of her in the
second photograph were the fifth appellant, and two young men, one in a
blue shirt and cap and the other wearing a yellow shirt. Both were
carrying backpacks. The one in a yellow shirt is seen in another
photograph carrying the red can of petrol. Both of these young men are
shown in the photographs taken inside Fuller Hall participating in the
removal of paintings and portraits from the walls of the hall. Although the
paintings were moved a little further into Residence Road to a point at the
rear of the shack before being set alight, it is difficult to reconcile these
photographs, and the fact that the petrol can was brought to campus in her
car, with her non-participation in or disavowal of the destruction of the
art works.

[46] Ms Hotz said that ‘we’ had ordered the shack to be erected on the
lower campus and that, shortly after the burning of paintings, portraits
and photographs commenced, she left the shack protest and went to the
middle campus where campus security and the police had stopped the
vehicle carrying building materials for the erection of a second shack. She
said that there was a heated exchange about the erection of the second
shack. This was to no avail and the vehicle with the building material was
turned away. She said that she then went home to join the celebrations of
her mother’s birthday.

[47] To summarise therefore Ms Hotz was actively engaged in the
erection of the shack and attempted to cause a second shack to be erected.
She was involved in bringing tyres and petrol to the campus and this was

used in making fires and, in the case of the petrol, used in burning the art
works. Her claim to have disassociated herself from the latter actions is
flimsy and can be rejected on the papers. She clearly encouraged others to
participate generally in the protest action.

Second appellant – Mr Mlandu
[48]  Mr Mlandu was one of the original group of protesters who
erected the shack on Residence Road. On 15 February he gained access to
Smuts Hall and spray-painted the bust of Jan Smuts with red paint. The
following day he painted the slogans set out in paragraph 14 above on the
War Memorial. He said that he defaced the statue of Jan Smuts because it
represented colonial oppression, white supremacist views and racial
hatred. He accordingly regarded his actions as constituting legitimate
forms of protest. As regards the slogans on the War Memorial he said that
they were political terms and intended to debate racism both within and
outside the university. His view was that he was ‘entitled to a political
speech intended to trigger legitimate political debates about racism and
the university’s tolerance of it’. The university, for its part, regarded his
conduct in painting the bust as exceeding the permissible limits of
legitimate protest and the slogans as ‘racist, hateful and inflammatory
language’. It drew attention to the fact that Mr Mlandu sought to defend
his actions as legitimate forms of protest.

[49]  Apart from these activities Mr Mlandu was one of the people who
entered Fuller Hall and helped themselves to food intended for the
students who were resident there. He did not dispute the evidence that he
was one of the leaders who urged the crowd of protesters to enter Fuller
Hall and demand food. In summary he was actively engaged in the
erection of the shack and the conduct of the Shackville protest. He was

responsible for defacing the bust of Jan Smuts and the War Memorial. He
encouraged others to enter Fuller Hall and help themselves to food
intended for resident students.

Third appellant – Mr Maxwele
[50] Mr Maxwele was one of the original protesters. He was involved in
the erection of the shack in Residence Road, the demarcation of a ‘no go’
area with danger tape and preventing people from crossing into that area.
He testified that the blocking of the road was ‘a necessary step in
highlighting the pain of the students’. He was involved in the altercation
with a student who wanted to cross the area demarcated by tape and who
was assaulted after he ‘cut the corner’ of the demarcated area. Mr
Maxwele’s explanation was that the student was being provocative. He
accepted that he pushed him, but said that it was ‘an inflated view’ that
there was an assault. The description by another student was that his
friend was grabbed, hit, pushed and scratched and that the principal
protesters involved in the incident were Mr Maxwele and Mr Magida, the
fourth appellant. This was accompanied by racial abuse – a charge not
denied. The incident was recorded on video footage. It seems improbable
that it was simply a small scuffle of no importance as suggested by Mr
Maxwele. Had there been a substantial challenge to the accuracy of the
description of this incident no doubt the appellants’ counsel would have
asked the judge to view the footage.

[51] Apart from this instance Mr Maxwele did not dispute the
university’s allegation that at least five other incidents occurred involving
physical and verbal altercations between protesters and students, staff and
members of the public. He said that he understood that the university
would not want to disclose the identity of these individuals, but took the

view that this was all part and parcel of the protest. If protesters were
provoked there would be a response that ‘may well have included
pushing around the persons’. While he denied any involvement in any
incidents of violent protest, he did not respond when the university said
that he was clearly identifiable as being present when the Jammie shuttle
bus was set alight and was part of the group that had rolled large cans into
the road to block the passage of the bus before it was set on fire. Earlier
that day he had been identified by Mr Witbooi, the traffic manager of the
university, as the person who accosted him when he was attempting to
remove dirt bins and rocks that were blocking Residence Road and
diverting traffic through the P3 parking area in order to clear Residence
Road. Mr Witbooi said that Mr Maxwele threatened him with physical
assault and was involved in altercations with parents. He also lit bins that
had been placed to block the entrance to P3 parking area and warned that
anyone who came close to the area would be dealt with by him.
According to Mr Witbooi his manner was aggressive and threatened
violence.

[52] One would have expected a detailed response by Mr Maxwele to
these allegations, but he said nothing about being identified as having
been on the scene at the time the Jammie shuttle bus was set on fire. As
regard the earlier incidents involving Mr Witbooi his response was the
following:
‘There is again nothing illegal or in conflict with the rules against protests. This was
not a violent protest. The blocking of the road was a necessary step in highlighting the
pain of students. It is denied that I ever threatened someone with violence and this
statement is made irresponsibly. I deny having involved myself in anything illegal.’
It appears from this response that Mr Maxwele thought that the protesters
were entitled to block roads and hamper the free movement of traffic and

could not be prevented from doing so. He did not deal with or challenge
the statement that he had lit bins placed in the parking area to block
traffic. His approach throughout his affidavit was that the protesters were
entitled to do what they did.  He said that he was not a party to either the
burning of artworks or the burning of the Vice-Chancellor’s office, which
he described as ‘unfortunate incidents’, which he would not condone.

[53] In summary, Mr Maxwele was actively engaged in the erection of
the shack and the conduct of the Shackville protest. In particular he was
responsible for burning rubbish bins and blocking the entrance to the P3
parking area. He was involved in a physical confrontation with threats of
violence with Mr Witbooi and further confrontation and some actual
violence in dealing with the student who crossed into the exclusion zone.
He was also present when the Jammie shuttle bus was set alight and
helped to barricade the road prior to that occurring.

Fourth appellant – Mr Magida
[54] Mr Magida was not a registered student, but unlike others he did
not claim any intention to return to studies at the university. It appears
that he was pursuing a career as an opera singer. However, from the
outset of the protest he was a participant as he had been in earlier
protests. His participation appears, however, to have been general along
with a number of others. He was not identified as having entered the
residences or participated in the removal and burning of art works. Nor
was he identified as a participant in the other incidents, such as the
burning of the bakkie, or the Jammie shuttle bus, or the fire bombing of
the Vice-Chancellor’s office. The only incident in which he was
identified as a participant going beyond merely being one of the
protesters was the confrontation between Mr Maxwele and the student

who despite the protesters’ objections crossed into the demarcated
exclusion zone. He was identified as having made comments such as ‘you
are a white racist’ and ‘leave … we have no time for white tears’. He also
‘wielded’ a large piece of wood in a threatening way and used it to
indicate to students that they should walk round the exclusion zone. None
of this was denied in an affidavit he filed shortly before the hearing
before Allie J.

[55] The university’s complaint related more to an earlier incident on
10 February 2016 when some students were in a dining hall on the
campus and it came to the university’s attention, as a result of postings on
social media, that Mr Magida was there wearing a T-shirt with the slogan
‘KILL ALL WHITES’ written in large letters with a marker pen on the
back. In response to these reports Mr Ganger left a message for Mr
Magida to come and see him and when he did so told him that he had
received complaints about the message on the shirt and that it constituted
hate speech and incitement to violence. Nothing seems to have come of
this save that Mr Magida allowed Mr Ganger to take a photograph of him
wearing the shirt. An insert of that picture is as follows:

There is no evidence that Mr Magida was seen wearing the shirt during
the Shackville protest.

[56] Mr Magida’s affidavit said that he had told Mr Ganger that the
slogan on the shirt in fact read ‘sKILL ALL WHITES’ and that this was
an artistic form of expression. He said that what was intended was that if
anyone came closer they would have realised that this was the wording of
the slogan and in coming closer and seeing this ‘the opportunity for
dialogue and/or debate about the living standards of marginalised people
and the constant fear of black people by white people is realised’. Mr
Ganger’s response was that even from extremely close the ‘s’ was barely
visible. It is certainly completely invisible on the photograph taken by Mr
Ganger.

[57] Mr Magida was accordingly actively engaged in the erection of the
shack and the conduct of the Shackville protest. He was involved in one
incident of violent confrontation and threatened others. He wore the T-
shirt with its slogan a few days prior to the commencement of the protest.

Fifth appellant – Ms Shokane
[58]    Ms Shokane was also one of the original protesters. Apart from
her participation in the protest she was identified as being involved in
three particular matters. First, she was the person who used her card to
provide access to Fuller Hall to the two women who spray-painted the
bust of Mrs Fuller. In her affidavit she said that when she did this she
genuinely believed that it was the right thing to do, but had come to
realise that she erred in that regard. She was also the person who urged
the crowd of protesters to go into Fuller Hall to take food from the
kitchens. She claimed that this was in accordance with advice given to the

students by the housing director and that she thought ‘it was wrong to
deprive students of food under the circumstances’. The precise
circumstances that led her to this view were unclear and unexplained. The
university pointed out that there had been no authorisation permitting
students, even those such as Ms Shokane, who lived in residences, to
choose where they would eat or to allow non-residents to consume food
intended for resident students.

[59] The third matter arose in the context of the burning of art works. A
photograph clearly showed Ms Shokane carrying a large painting and
throwing it into a fire where other art works were already burning. She
accepted that she did this, but said that there was a spontaneous crowd
response to the removal of art works, on the basis that they represented
colonial interests and that she was part of the crowd and swayed by
crowd pressure. She claimed that her actions were a spontaneous reaction
in the middle of student protests. She denied playing any part in the
removal of paintings from the dining room of Fuller Hall.

[60] Again, the photographs add something to this narrative. The first
two show Ms Shokane stooping over the pile of pictures and photographs
adjacent to the portable toilet and then show her in apparent discussion
with the first appellant and the two young men already mentioned. At this
stage the pile of paintings, portraits and photographs is adjacent to the
toilet. What the photos then show is that some of the larger portraits were
moved to a point at the back of the shack, that is, on the side of the
residences and away from Jameson steps. Here they were stacked upright,
defaced and set on fire. The photograph shows someone about to throw a

large stone at them. In the background is the young man in a yellow shirt
carrying the red petrol can.16 The large portrait that Ms Shokane threw
onto the fire can be seen in the background. The next photo in the
sequence shows that the fire had started and protesters were bringing
photographs and other material to add to the pyre. It is not wholly clear at
what stage Ms Shokane added the portrait that she was shown throwing
onto the fire. The photograph in the record tends to suggest that darkness
had already fallen but this may be misleading. However, looking at the
one showing Ms Shokane, it is apparent that some of the original upright
stack was still in place, whereas a photograph showing petrol being
thrown from the red can onto the blaze was taken in daylight and by that
stage the upright stack had completely collapsed. It seems more probable
therefore that Ms Shokane’s actions occurred at an earlier, rather than a
later, stage of events.

[61] Ms Shokane was accordingly actively engaged in the erection of
the shack and the conduct of the Shackville protest. She assisted in the
entry to Fuller Hall both for the purpose of spray-painting the bust of Mrs
Fuller and to obtain food. She was also actively involved in the burning
of art works.

Discussion
[62] Protest action is not itself unlawful. As pointed out by Skweyiya J
in the passage already quoted from Pilane the right to protest against
injustice is one that is protected under our Constitution, not only
specifically in section 17, by way of the right to assemble, demonstrate

16 It must be borne in mind that in one of the early photographs he was in conversation with both the
first and fifth appellants.

and present petitions, but also by other constitutionally protected rights,
such as the right of freedom of opinion (s 15(1)); the right of freedom of
expression (s 16(1)); the right of freedom of association (s 18) and the
right to make political choices and campaign for a political cause
(s 19(1)). But the mode of exercise of those rights is also the subject of
constitutional regulation. Thus the right of freedom of speech does not
extend to the advocacy of hatred that is based on race or ethnicity and that
constitutes incitement to cause harm (s 16(2)(c)). The right of
demonstration is to be exercised peacefully and unarmed (s 17). And all
rights are to be exercised in a manner that respects and protects the
foundational value of human dignity of other people (s 10) and the rights
other people enjoy under the Constitution. In a democracy the recognition
of rights vested in one person or group necessitates the recognition of the
rights of other people and groups and people must recognise this when
exercising their own constitutional rights. As Mogoeng CJ said in
SATAWU v Garvis,17 ‘every right must be exercised with due regard to
the rights of others’. Finally the fact that South Africa is a society
founded on the rule of law demands that the right is exercised in a manner
that respects the law.

[63] This court had occasion to deal with the right to demonstrate in
SATAWU v Garvis.18  It said:
‘Our Constitution saw South Africa making a clean break with the past. The
Constitution is focused on ensuring human dignity, the achievement of equality and
the advancement of human rights and freedoms. It is calculated to ensure
accountability, responsiveness and openness. Public demonstrations and marches are
a regular feature of present day South Africa. I accept that assemblies, pickets,

17 SATAWU and Another v Garvis and Others [2012] ZACC 13; 2013 (1) SA 83 (CC) para 68.
18 SATAWU v Garvis and Others [2011] ZASCA 152; 2011 (6) SA 382 (SCA) paras 47-49.

marches and demonstrations are an essential feature of a democratic society and that
they are essential instruments of dialogue in society. The [Regulation of Gatherings]
Act was designed to ensure that public protests and demonstrations are confined
within legally recognised limits with due regard for the rights of others.
I agree with the court below that the rights set out in s 17 of the Constitution, namely,
the right to assemble and demonstrate, are not implicated because persons engaging in
those activities have the right to do so only if they are peaceful and unarmed. It is that
kind of demonstration and assembly that is protected. Causing and participating in
riots are the antithesis of constitutional values. Liability in terms of s 11 follows on
the unlawful behaviour of those participating in a march. The court below rightly had
regard to similar wording in the Constitution of the United States, where people are
given the right to assemble peacefully. Such provisions in constitutions such as ours
are deliberate. They preclude challenges to statutes that restrict unlawful behaviour in
relation to gatherings and demonstrations that impinge on the rights of others.
It was submitted on behalf of the Union that damage to public property caused by a
gathering that degenerated into a riot was a small price to pay to preserve and protect
the precious right to public assembly and protest, which is integral to a democratic
state. I agree with the court below that members of the public are entitled to protection
against behaviour that militates against the rule of law and the rights of others.’

[64]  The blocking of Residence Road and the creation of the exclusion
zone interfered with traffic and the ordinary comings and goings of
students, parents, staff and members of the public. It was not intended to
be temporary. No doubt many people sympathised with the protest and
were content to suffer any inconvenience that it caused. Others may have
adopted the approach that discretion was the better part of valour. To
some it was a source of greater inconvenience and others may have been
actively hostile. This would have contributed to confrontations arising.
There is little doubt that some threatening behaviour and limited acts of
violence accompanied the enforcement of the exclusion zone.

[65] The approach of the protesters was that they were entitled in
furtherance of their protest to erect the shack and maintain it for an
indefinite period. In the case of the first appellant she was an active
participant in attempts to erect a second shack elsewhere on the campus.
The third appellant asserted that the erection of the shack and the protest
surrounding it was not illegal and counsel maintained that position. In
that they were wrong. Under the relevant by-laws19 Residence Road is a
public road20 and the university property is therefore a public place.21 In
terms of by-law 2(1) it is a criminal offence for any person in a public
place intentionally to block or interfere with the safe or free passage of a
pedestrian or a motor vehicle. It is also a criminal offence to use abusive
or threatening language in a public place (by-law 2(3)(a)) or to start or
keep a fire (by-law 2(3)(l)). So in a number of respects the manner in
which the Shackville protest was conducted was unlawful.

[66] The university sought to address the problems by requesting the
protesters to move the shack to a nearby spot and to continue their protest
in a manner that respected the right to protest but without the associated
unlawful conduct and interference with the rights of others. The
appellants and their co-protesters refused and this eventually compelled
the university, after the occurrence of the events of 16 February to obtain
the assistance of the SAPS and to remove the shack. That occurred after
the third appellant had ben involved in burning rubbish bins to prevent

19 Cape Town Municipal By-laws Relating to Streets, Public Places and the Prevention of Noise
Nuisances approved by the Council on 24 May 2007 and promulgated on 28 September 2007
(PG 6469; LA 44559)
20 In terms of the definition of ‘public road’ in the by-laws a public road is defined as ‘any road, street
or thoroughfare … which is commonly used by the public or any section thereof or to which the public
or any section thereof has a right of access’. There are a number of cases in which this or similarly
worded definitions have been considered in relation to roads situated on private property in which it
has been held that they are nonetheless public roads. See the cases collected in R v Papenfus 1970 (1)
SA 371 (R).
21 See the definition of ‘public place’ as including a public road.

vehicles from using the P3 parking area and the second appellant had
defaced university property, by spray-painting the bust of Jan Smuts and
painting slogans on the War Memorial with the support of the other
protesters. It also occurred after the removal of paintings, portraits and
photographs from Fuller Hall and other university buildings and their
being burnt. That all of this constituted the criminal offence of malicious
injury to property was not disputed.

[67] The issue of the content of the slogans, whether painted on the War
Memorial and the bus stop or worn on a T-shirt, as well as statements,
such as those made by the third appellant in the confrontation with a
student, is a delicate one. Freedom of speech must be robust and the
ability to express hurt, pain and anger is vital, if the voices of those who
see themselves as oppressed or disempowered are to be heard. It was
rightly said in Mamabolo22 that:
‘… freedom to speak one's mind is now an inherent quality of the type of society
contemplated by the Constitution as a whole and is specifically promoted by the
freedoms of conscience, expression, assembly, association and political participation
protected by ss 15 - 19 of the Bill of Rights’.
But in guaranteeing freedom of speech the Constitution also places limits
upon its exercise. Where it goes beyond a passionate expression of
feelings and views and becomes the advocacy of hatred based on race or
ethnicity and constituting incitement to cause harm, it oversteps those
limits and loses its constitutional protection. In Islamic Unity
Convention23 Langa CJ explained the reason for this:

22 S v Mamabolo (E TV and Others intervening) [2011] ZACC 11; 2001 (3) SA 409 (CC) para 28; The
Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191
(CC) paras 99-100.
23 Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC)
para 32.

‘Section 16(2) therefore defines the boundaries beyond which the right to freedom of
expression does not extend. In that sense, the subsection is definitional. Implicit in its
provisions is an acknowledgment that certain expression does not deserve
constitutional protection because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our Constitution is founded on the
principles of dignity, equal worth and freedom, and these objectives should be given
effect to.’

[68] 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. The message on
Mr Magida’s T-shirt said unequivocally to anyone who was more than a
metre or two away that they should kill all whites.24 The reaction to that
message by people who saw it, as communicated to Mr Ganger, was that
this was an incitement to violence against white people. The fact that Mr
Magida sought to explain away the slogan and suggest that it said
something other than what it clearly appeared to say, is itself a clear
indication that he recognised its racist and hostile nature. Whether it in
fact bore a tiny letter ‘s’ before the word ‘KILL’ is neither here nor there.
The vast majority of people who saw it would not have ventured closer to
ascertain whether, imperceptibly to normal eyesight, the message was
something other than it appeared to be. They would have taken it at face
value as a message being conveyed by the wearer that all white people
should be killed. There was no context that would have served to
ameliorate that message. It was advocacy of hatred based on race alone
and it constituted incitement to harm whites. It was not speech protected
by s 16(1) of the Constitution.

24 This could not possibly be construed as parody, unlike the slogan in issue in Laugh It Off Promotions
CC v South African Breweries International (Finance) BV t/a Sabmark International [2005] ZACC 7;
2006 (1) SA 144 (CC).

[69]  Mr Mlandu’s slogans on the War Memorial did not in my view fall
outside the protection of s 16(1) of the Constitution. 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 Van den
Heever J once delicately expressed it, ‘a word signifying the sexual act
[is] substituted for a verb of motion’.25 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.

[70] The evidence summarised above in respect of each of the
appellants discloses that they were all engaged in the erection of the
shack; they were all either involved in or parties to the destruction,
damage or defacing of university property; they all participated in
unlawful conduct and encouraged others to do the same. In the cases of
Mr Maxwele and Mr Magida that involved actual violence and incitement
to violence. These actions had the effect of interfering with the
acknowledged rights of the university as set out in paragraph 30.

[71] The appellants invoked necessity as a defence to the university’s
contention that this conduct was unlawful and a breach of its rights. In the
court below the judge held that this defence is confined to the criminal

25 Marruchi v Harris 1943 OPD 15 at 19.

law. That is incorrect. There are instances in relation to civil wrongs
where necessity will rebut an inference of unlawfulness. Thus it would be
a defence to a claim based on trespass that one was fleeing a forest fire
and there was no other route to escape the flames. Extending the example,
it would also be a defence to a contention that taking one’s neighbour’s
water in order to fight the fire was unlawful. Here the appellants contend
in argument that their conduct was necessary in the light of the
university’s failure to address their concerns and the lack of
transformation of which they complained.

[72] The contention must fail at the first hurdle. Necessity was not
raised as a defence in the affidavits and was therefore not one that the
university was called upon to address. None of the appellants alleged that
they had acted out of necessity or sought to explain their conduct in terms
of necessity. The history of civil disobedience by outstanding historical
figures such as Mahatma Ghandi, Martin Luther King, and Archbishop
Desmond Tutu, to mention but a few, is an honourable one. At times it
involved breaches of the law, such as Rosa Parks’ dignified and steadfast
refusal to sit on the bus in the seats reserved for Black people, or the
thousands in this country who burnt the hated dompas in protest against
the Pass Laws, that were imposed by an undemocratic government on an
oppressed majority, and lacked any moral content. Civil disobedience by
those inidividuals was a challenge to an unjust or oppressive political and
legal system, which is not present in our constitutional dispensation.

[73] Consideration of a defence of necessity in the present
circumstances would have to take into account that in our legal system
government action or inaction that is unlawful is subject to judicial
scrutiny. That avenue and the right to peaceful protest guaranteed by our

Constitution are open to the students. Their grievances against the
university, if legitimate, could also be the subject of litigation. In the
present case, the court is required to adjudicate on actions, such as those
of the protesters, in the light of constitutional principles and the
protection afforded by a Bill of Rights, where an order was sought
interdicting such conduct on the grounds of its unlawfulness. We were
not asked to consider a development of the common law in terms of
s 39(2) of the Constitution and, as the issue of necessity was not properly
raised on the papers, it would be inappropriate for us to do so mero motu.

[74] The attitude that all of the appellants adopted in their affidavits was
that they had done nothing wrong. There was no expression of contrition
or any undertaking not to engage in such conduct again. I stress that they
were not being asked by the university not to engage in protest action.
That the university was always willing to accept as legitimate. It was the
manner in which the right to protest was exercised that gave rise to the
university’s application. Counsel for the appellants indicated that he was
unable on behalf of his clients to give an undertaking that they would not
engage in further conduct of the type complained of by the university and
held in this judgment to be in breach of the university’s rights.

[75] Given the vehemence with which the appellants expressed their
complaints against the university and its management it was probable that
they would have continued their protest and the actions related to it if
able to do so. (The interim interdict excluded them from the campus,
which precluded that.) In the absence of any undertaking from the
appellants not to repeat the conduct described above, the university had a
reasonable apprehension that unless an interdict was granted the students

would continue with conduct of the same type in breach of its rights.
Accordingly the first two requisites for a final interdict were established.

[76] That left only the question whether the university had available to
it an alternative remedy that would afford it the same protection as an
interdict. Various possibilities were mooted in that regard. In the heads of
argument it was suggested that it should implement internal disciplinary
action over the appellants. Alternatively it was said that the university
should press criminal charges against the appellants. Thirdly, it was
suggested that it should pursue a mediation process.

[77] All of these suggestions were advanced in heads of argument
without any substantiation in the affidavits of the appellants. Save for the
fourth appellant’s affidavit, which was extremely terse and dealt mainly
with the slogan on his T-shirt, they all said (in identical terms) that it was
the second requirement for an interdict, namely a reasonable
apprehension of harm, that was absent. Their case was not that any of
these alternatives was an adequate alternative remedy to an interdict.
Their case was that:
‘Insofar as the second requirement is concerned, it is not correct that there is a
continuing injury or that it is reasonable to apprehend that the injury will be repeated.
I am advised that an applicant is not entitled to an interdict restraining an act already
committed.’

[78] In any event the suggested alternatives were not a proper or
effective alternative to the grant of an interdict. Disciplinary proceedings
would not have prevented the appellants from continuing their actions
and those who were not registered students and not subject to the
university’s disciplinary procedures. Criminal charges would have been

protracted and not have affected matters while pending. Mediation, useful
and desirable though it frequently is in resolving disputes, would not, in
the absence of any undertakings from the appellants, have served the
purposes of an interdict. Furthermore, the students had rejected out of
hand overtures from the university to seek a negotiated solution to the
issues and adopted an intractable attitude that their demands should be
met. Mediation has little prospect of succeeding in that environment. It
was not an effective alternative remedy.

The order
[79] 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 appellants 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.

[80] That order plainly infringed their right of freedom of movement
guaranteed in s 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 appellant, 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.

[81] 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. In the light of this the court
afforded the parties an opportunity to see whether they could bridge the
gap between them by agreeing upon a more limited order. We were
thereafter informed that while the parties were able to agree the terms of a
more limited interdict, the appellants would only do so on the basis that it
had attached to it a number of other conditions. These were then placed
before us for the purpose, as it was said, of being considered in the
formulation of a just and equitable order. They included the abandonment
of all disciplinary proceedings against the appellants and the
establishment of an independent commission on student protests, with
certain ancillary provisions.

[82] For the reasons already given in paragraphs 35 to 39 above it is not
open to us to attach to the legal remedy of an interdict conditions of the
type suggested on behalf of the appellants. It is not for a court to instruct
the university whether to pursue or abandon disciplinary proceedings in
terms of its student code of conduct. Nor can a court instruct the
university to establish a commission of enquiry, much less dictate the
remit and mode of functioning of such a commission. The court’s
function is essentially adjudicative. While there are times when it must
engage in a measure of judicial creativity in formulating a remedy in a

particular case it does not have carte blanche to do whatever it wishes or
deems appropriate. There are two principal reasons for this. The first is
that the nature of judicial proceedings, presented as they are as a dispute
between the litigants, is ill-suited to understanding the full implications
and underlying nuances that would affect the terms of such broad and
general orders. The second is that the court’s role under our Constitution
is not to provide the solution to every social problem, but to make orders
arising from an adjudication on the merits of the particular dispute with
which it is confronted on the basis of the evidence led and the
submissions of the parties. The courts are also bound by the principle of
legality.

[83] 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
paragraphs 1.3.2 to 1.3.5 of that order. Such an order would focus upon
preventing the appellants, 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 appellants would have succeeded in having certain of the
restrictions imposed upon them removed. Fairness suggests that in that
situation all parties should pay their own costs in this court.

[84] In the result the following order is made:
(a)
The order of the court below is altered to read as follows:
‘1
The ninth, eleventh, twelfth, thirteenth and fourteenth respondents
are interdicted and restrained from –
1.1
erecting any unauthorised structures on the applicant’s premises;
1.2
destroying, damaging or defacing any of the applicant’s premises;

1.3
participating in, or inciting others to participate in any unlawful
conduct and/or unlawful protest action at any of the applicant’s
premises; and
1.4
inciting violence.
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.’
(b)
Save to that extent the appeal is dismissed with all parties to pay
their own costs.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
T Masuku (with him T Sidaki)
Instructed by:
Godla and Partners Inc, Cape Town;

Matsepes Inc, Bloemfontein
For respondent:
A Katz SC (with him M Maddison)
Instructed by:
Fairbridges Wertheim Becker, Cape Town;
McIntyre & Van der Post, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
20 October 2016
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
Hotz v University of Cape Town

The SCA today delivered judgment today in an appeal against the
judgment of the Western Cape Division of the High Court granting a final
interdict against the five appellants arising out of events that took place
on the University of Cape Town (UCT) campus between 15 and 17
February 2016. The SCA held that on the facts it was appropriate to grant
a final interdict, but that the terms in which it had been granted by the
high court were too wide. It accordingly narrowed the scope of the order
to one interdicting the appellants from engaging in unlawful activities in
breach of UCT’s rights and those of other students, staff and persons
lawfully on the university campus. The prohibition on the appellants
being on the campus without written authorisation from the Vice-
Chancellor or his delegate was removed from the order.

The case arose from the Shackville protest in which protesters,
some of who were students and some not, erected a shack in Residence
Road on the upper campus and created an exclusion zone around it, there
by blocking traffic and interfering with the free passage of students to the
upper campus. The protesters refused to remove the shack and tried
unsuccessfully to erect a second one elsewhere on the campus. During the

protest statues and the War Memorial were defaced with slogans;
students forced their way into a residence and helped themselves to food
intended for resident students; removed portraits, paintings and
photographs from the walls of several buildings and defaced and burnt
them. When the protesters were dispersed and the shack demolished,
small groups of protesters burnt a bakkie, a Jammie shuttle bus and fire
bombed the office of the Vice-Chancellor. Threats were made to burn the
library and other buildings. These threats precipitated an urgent
application for an interim interdict, which was granted. Thereafter the
interdict was made final against the five appellants.

The court stressed that its judgment was not a judgment on the
merits of the protest, but related only to the actions of the appellants and
whether that warranted the grant of a final interdict. After a detailed
analysis of the evidence it held that the actions of the appellants infringed
UCT’s legal rights and that the university had a reasonable apprehension
of future harm, particularly as the appellants were unwilling to give an
undertaking to desist in future from conduct causing further harm.
However, the court limited the scope of the interdict to unlawful conduct
on the university’s premises. It ordered that each party would bear their
own costs.