Hotz and Others v University of Cape Town

• Jurisdiction: South Africa
• Citation: 2018 (1) SA 369 (CC)

Hotz and Others v University of Cape Town
2018 (1) SA 369 (CC)

2018 (1) SA p369

Citation	2018 (1) SA 369 (CC)
Case No	CCT 280/16; [2017] ZACC 10
Court	Constitutional Court
Judge	Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Heard	April 12, 2017
Judgment	April 12, 2017
Counsel	T Masuku (with T Sidaki and R Matsala) for the applicants.; Anton Katz SC (with M Maddison) for the respondent.

Flynote : Sleutelwoorde

Costs — Constitutional litigation — Proper approach — Unsuccessful party in constitutional litigation against state — Litigants involved in student protests at university campus, which turned violent, in support of free and decolonised education — Unsuccessfully opposing interdict brought against them by C university — Court ordering unsuccessful litigants to pay costs — Students protesting in vindication of rights to education, freedom of association, freedom to demonstrate and freedom of expression — Given constitutional context, inappropriate to award costs against students.

Headnote : Kopnota

During February 2016 on the campus of the University of Cape Town (UCT) a D student protest took place in which the applicants — students and ex-students — participated. The protest fell under the umbrella of the '#RhodesMustFall' and '#FeesMustFall' movements sweeping across South African higher-learning institutions, whose respective goals were the decolonisation of education in South Africa, and free education. The protest at UCT, however, went beyond being peaceful and non-violent. Unlawful conduct in E which the applicants were implicated took place — inter alia, the destruction of property through acts of vandalism and arson, and violence and threats of violence. An interdict at the instance of UCT was successfully obtained in the High Court against the applicants, who had opposed it, inter alia, prohibiting them from committing various unlawful acts on the campus. The order went as far as barring the applicants from entering the campus, unless they had the F consent of the university to be there. The applicants were ordered to pay costs. On appeal the SCA largely confirmed the interdict, but limited its scope, finding that, in excluding students from campus, the order of the court a quo violated the applicants' rights of free movement. The SCA confirmed the costs order against the applicants.

The Constitutional Court granted the applicants leave to appeal. On the merits, G it agreed with the decision of the SCA (see [18] – [20]). However, it found that, in ordering the applicants to pay the costs of UCT in respect of the Hight Court proceedings, the High Court and the SCA had failed to exercise their discretion judicially (thus entitling it to interfere with the costs award). More particularly, the matter called for them to apply the Biowatch principle, which they did not do. (See [37].) That principle provided that in H constitutional litigation an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs. This general rule was subject to various exceptions, for example, where the unsuccessful party had litigated in a frivolous or vexatious manner. (See [22] – [25].)

The starting point, the Constitutional Court held, was to have regard to the I nature of the issues (see [29], [31] and [33]). In addition to seeking to vindicate their rights to freedom of association, freedom to demonstrate and freedom of expression, the applicants had embarked on their protests (which led to the interdict) in support of their belief that the state and universities should provide free and decolonised education to South Africans. The issue was one impacting the right to education in terms of s 29 of the Constitution of not only the protesters, but also of South African J

2018 (1) SA p370

students A generally. (See [31], [33] and [39].) While the applicants' conduct went beyond peaceful and non-violent protest, which left the university with no choice but to interdict their unlawful conduct, this constitutional context should have been taken into account by the High Court and the SCA in deciding costs. Although the applicants were unsuccessful, the courts a quo should have considered the chilling effect the costs order would have on B the litigants, in the context of constitutional justice, and erred in not doing so. (See [32] and [34].) The Constitutional Court further held that the applicants had not acted in a frivolous or vexatious manner in opposing the interdict application. This fact was illustrated by the finding — indicating at least partial success on the part of the applicants — by the SCA that the order of the High Court was overbroad. (See [37].) In conclusion, the Constitutional C Court upheld the appeal on costs, and ordered that each party pay its own costs in the High Court, Supreme Court of Appeal and Constitutional Court (see [40]).

Cases cited

AB and Another v Minister of Social Development D 2017 (3) SA 570 (CC) (2017 (3) BCLR 267; [2016] ZACC 43): compared

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dictum in para [138] applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dicta in E paras [16], [22] and [23] applied

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420; [1999] ZACC 16): referred to

Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) (2007 (2) BCLR 125; [2006] ZACC 13): dictum in para [19] applied

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another F 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to

Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) ([2016] 4 All SA 723; [2016] ZASCA 159): costs reversed on appeal

Media Workers Association of South Africa v Press Corporation of South Africa Ltd ('Perskor') 1992 (4) SA 791 (A) ([1992] ZASCA 149): dictum at 800E applied

Minister G of Home Affairs v Rahim 2016 (3) SA 218 (CC) (2016 (6) BCLR 780; [2016] ZACC 3): compared

Sali v National Commissioner of the SA Police Service 2014 (9) BCLR 997 (CC) ([2014] 9 BLLR 827; (2014) 35 ILJ 2727; [2014] ZACC 19): compared

SATAWU H and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; [2012] ZACC 13): dicta in paras [52] – [53] applied

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) (2015 (10) BCLR 1199; [2015] ZACC 22): dicta in paras [83], [84] and [88] applied

University of Cape Town v Davids and Others [2016] 3 All SA 33 (WCC) I ([2016] ZAWCHC 56): overruled on costs.

Case Information

T Masuku (with T Sidaki and R Matsala) for the applicants.

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

An application for leave to appeal a decision of the Supreme Court of J Appeal.

2018 (1) SA p371

Order A

1.

Condonation for the late filing of this application is granted.

2.

The application for leave to file a replying affidavit and to tender further evidence is dismissed.

3.

Leave to appeal is granted only against the order of the Supreme Court of Appeal upholding the High Court's order on costs. B

4.

The appeal on costs is upheld.

5.

The costs order of the High Court against the applicants, confirmed by the Supreme Court of Appeal, is set aside.

6.

Each party is to pay its own costs in the High Court, Supreme Court of Appeal and in this court. C

Judgment

The court (Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J):

Introduction D

[1] The widespread student protests in higher-learning institutions, including the student protest at the University of Cape Town (UCT/University), pursuant to the '#FeesMustFall' movement, were in pursuit of the realisation of the overarching objective of a free education. The movement attracted national attention for its achievements, which E include a 0% fee increase for the year 2016 and increased government funding for universities. The protests also affected almost one and all in other ways: for example, quality time for learning was lost; properties were destroyed; injuries were sustained; many students were arrested and others excluded from campuses; some students were excluded from F furthering their studies; life was lost and costs in litigation were incurred as a result of the protestors' unlawful conduct.

[2] This application for leave to appeal is a sequel to the student protest at UCT, in early-2016. It was brought on an urgent basis against the decision of the Supreme Court of Appeal (SCA). [1] That court upheld the G order for a final interdict by the High Court of South Africa, Western Cape Division, Cape Town (High Court), [2] against the applicants, who were part of a group of students that had participated in the student

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The court (Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J)

protest A under the names '#RhodesMustFall' and '#FeesMustFall'. [3] The SCA's decision did not involve the legitimacy of the protest but focused on whether the High Court correctly granted a final interdict.

[3] The Chief Justice directed the parties to file written submissions solely on whether the High Court exercised its discretion judicially in B granting a costs order against the applicants. The parties complied with the directions. After the written submissions were filed, the applicants sought leave to file a replying affidavit and to tender further evidence.

[4] At issue is the urgency of this matter, the appropriateness of the...