Hotz and Others v University of Cape Town

• Jurisdiction: South Africa
• Citation: 2017 (2) SA 485 (SCA)

Hotz and Others v University of Cape Town
2017 (2) SA 485 (SCA)

2017 (2) SA p485

Citation	2017 (2) SA 485 (SCA)
Case No	730/2016; [2016] ZASCA 159
Court	Supreme Court of Appeal
Judge	Navsa JA, Bosielo JA, Theron JA, Wallis JA and Mathopo JA
Heard	September 29, 2016
Judgment	October 20, 2016
Counsel	T Masuku (with T Sidaki) for the appellants.; A Katz SC (with M Maddison) for the respondent.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to freedom of expression — Exclusions — Hate speech — What constitutes — T-shirt bearing slogan 'Kill all whites' in context of student protests — Advocacy of hatred based on race alone, and constituting incitement to harm white people — Not amounting to speech protected by Bill of Rights — Constitution, s 16. C

Constitutional law — Human rights — Right to freedom of expression — Exclusions — Hate speech — What constitutes — Slogan 'Fuck white people' in context of student protests — Speech protected by Bill of Rights — Constitution, s 16.

Interdict — Final interdict — Requirements — Absence of other adequate or D satisfactory remedy — Alternative remedy must be legal remedy.

Interdict — Final interdict — Requirements — Once three requirements for grant of interdict established, scope, if any, for refusing relief limited — No general discretion to refuse relief.

Headnote : Kopnota

In the High Court the respondent, the University of Cape Town (UCT), E successfully obtained a final interdict against the five appellants — students and ex-students — on the grounds of their unlawful conduct during student protests that took place on the university premises. Those protests had begun with the construction by protesters of a shack in the middle of a road that served as a major route for vehicles through the university, causing F significant obstruction to traffic, as well as pedestrians. The protests lasted three days before the university instituted urgent proceedings in the High Court to halt them. They were marked by various instances of violence and threats of violence, vandalism, the starting of fires, arson attacks and the displaying of various abusive slogans — the message 'Fuck white people' was painted on a war memorial, and a T-shirt bearing the slogan 'Kill all whites' G was seen being worn by one of the appellants. The final order inter alia barred the appellants from entering the university campus, unless they had the university's consent to be there for academic purposes or to occupy student houses that had been allocated to them. It also interdicted them from further interfering in the university's day-to-day running by committing various unlawful acts or inciting others to do so. The appellants H appealed to the Supreme Court of Appeal against the order. The principal question to be decided was whether UCT had met the three requirements for the granting of a final interdict, namely a clear right; an injury actually or reasonably apprehended; and the absence of similar protection by another ordinary remedy.

Held, that once an applicant had established the three requirements for the grant I of an interdict, the scope, if any, for refusing relief was limited. There was no general discretion to refuse relief. (Paragraph [29] at 496H – 497A/B.)

Held, that the five appellants had been involved in the erection of the shack; had damaged or defaced university property; and had participated in, or encouraged others to engage in, unlawful conduct, including the blocking of traffic, and, with respect to some of them, the starting of fires and the use J

2017 (2) SA p486

A of threatening language in a public place. Certain of them had committed acts of violence and incitement to violence. Such conduct had the effect of interfering with UCT's acknowledged rights, which included the right to control and manage access to, and unlawful conduct on, its property; to ensure that its staff was able to carry out their work in the interests of the students; to ensure the safety of its students, staff and other members of the B public who were legitimately on its property; and to protect UCT's property. Furthermore, UCT had a reasonable apprehension that, unless an interdict was granted, the students would continue breaching its rights. Hence, the first two requirements for the granting of a final interdict had been met. (Paragraphs [30] and [70] at 497C – E and 511H – 512A.)

Held, that the alternative remedy had to be a legal remedy, that is, a remedy that C 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, might think that the problem would be better resolved, or could ultimately only be resolved, by extra-curial means, was not a justification for refusing to grant an interdict. The suggestion by counsel for the appellants that the court should rather order the parties to D enter into constructive engagement to resolve their issues, as such, stood to be rejected. Furthermore, other suggested alternatives of criminal charges, the implementation of internal disciplinary action, or mediation, were, given the circumstances of the case, also not proper or effective alternatives to an interdict. (Paragraphs [36] – [39] and [76] – [78] at 499D – 501B and 513D – J.)

Held, that a court should not be hasty to conclude that, because language is angry E in tone or conveys hostility, it is therefore to be characterised as hate speech, even if it had overtones of race or ethnicity. The slogan 'Fuck white people' fell within the protection of speech afforded by s 16(1) of the Constitution. However, the slogan appearing on an appellant's T-shirt — 'Kill all whites' — a message unequivocal in meaning — fell into the category of advocacy of hatred based on race alone, and constituted incitement to harm F whites. It was as such not speech protected by s 16(1) of the Constitution, as was argued by the appellants. (Paragraph [67] – [69] at 510E – 511H.)

Held, that UCT had met the requirements for the granting of a final interdict. However, the order granted by the court a quo was too broad in scope and had to be accordingly limited. In its effectively excluding the appellants from the university campus, unless they had the consent of the vice-chancellor G or his delegate to be there, the order had infringed the appellants' right of freedom of movement. (Paragraphs [79] – [83] at 514A – 515D.)

Cases cited

Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC): H referred to

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420; [1999] ZACC 16): dictum in para [22] applied

Concorde Plastics (Pty) Ltd v NUMSA and Others 1997 11 BCLR 1624 (LC): dictum at 1644F – 1645A applied

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): dicta in paras [53] and [61] applied I

Food and Allied Workers' Union and Others v Scandia Delicatessen CC and Another 2001 (3) SA 613 (SCA): referred to

Hoisain v Town Clerk Wynberg 1916 AD 236: compared

Hubbard v Cool Ideas 1186 CC 2013 (5) SA 112 (SCA) ([2013] ZASCA 71): J dictum in para [15] applied

2017 (2) SA p487

Islamic Unity Convention v Independent Broadcasting Authority and Others A 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [32] applied

Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743; [2005] ZACC 7): distinguished

Lester v Ndlambe Municipality and Another 2015 (6) SA 283 (SCA) B ([2014] 1 All SA 402; [2013] ZASCA 95): dicta in paras [23] – [24] applied

Marruchi v Harris 1943 OPD 15: referred to

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) (2012 (11) BCLR 1148; [2012] ZACC 18): referred to

Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC) ([2013] ZACC 3): referred to C

R v Papenfus 1970 (1) SA 371 (R): referred to

Red Dunes of Africa v Masingita Property Investment Holdings [2015] ZASCA 99: referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449; [2001] ZACC 17): dictum D in para [28] applied

SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; [2012] ZACC 13): dictum in para [68] applied

SATAWU v Garvis and Others 2011 (6) SA 382 (SCA) (2011 (12) BCLR 1249; [2011] ZASCA 152): dicta in paras [47] – [49] applied

Setlogelo v Setlogelo 1914 AD 221: dictum at 227 applied E

Shield Insurance Co Ltd v Hall 1976 (4) SA 431 (A): dictum at 438F applied

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) (2011 (8) BCLR 816; [2011] ZACC 11): referred to

United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T): dictum at 347F – H applied F

University of Cape Town v Davids and Others [2016] 3 All SA 333 (WCC): confirmed in part on appeal

Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) ([2014] ZASCA 169): referred to

Wynberg Municipality v Dreyer 1920 AD 439: dictum at 447 criticised.

Legislation cited G

The Constitution, 1996, s 16: see Juta's Statutes of South Africa 2015/16 vol 5 at 1-28.

Case Information

T Masuku (with T Sidaki) for the appellants. H

A Katz SC (with M Maddison) for the respondent.

An appeal from the Western Cape Division of the High Court, Cape Town (Allie J; reported as University of Cape Town v Davids and Others [2016] 3 All SA 333 (WCC)).

Order I

(a)

The order of the court below is altered to read as follows:

'1.

The ninth, eleventh, twelfth, thirteenth and fourteenth respondents are...