In a unanimous ruling yesterday, the Constitutional Court dismissed an appeal by three Rhodes University students against an interdict granted by the Grahamstown High Court in December 2016.
The three students had approached the Constitutional Court following two unsuccessful attempts at the High Court and Supreme Court of Appeal where they sought to appeal against the interdict.
The interdict followed involvement and participation by the students in protests against gender-based violence in April and May of that year which the court found had “made serious inroads into the rights and liberties of others.”
The protests led in some instances to unlawful conduct that included the kidnapping and assault of two male students who were suspected of rape or sexual assault, the disruption of classes at the University, damage to and destruction of University property, and the erection of barricades at the entrance to the University, the High Court had found.
In their approach to the Constitutional Court, the students sought to challenge the basis upon which the lower Court satisfied itself of their involvement in the “unlawful conduct” and contended that the interdict was issued on the basis that the University considered them to be the leaders of the student protest.
The Constitutional Court has now upheld the order by the High Court in this regard and has found that the judgment of the lower Court reflected “a detailed consideration of both the law… as well as the facts.”
“…the Court considered the role played by each of the applicants in the events of April and May 2016 and, while it delineated their leadership role in the protests, it also carefully explored and dealt with the actual conduct that was attributable to each of them in relation to the protests,” Justice N Kollapen said in the judgement.
“The factual findings of the High Court deal with both the actual nature of the speech it regarded as being unlawful as well as the unlawful conduct on the part of the applicants….for these reasons, I am compelled to conclude that the appeal falls to be dismissed on the merits,” Justice Kollapen said.
The Constitutional Court ordered both parties to bear their own costs thereby setting aside the cost orders of the High Court and the Supreme Court of Appeal in the application for leave to appeal.
The Court took into account that while the High Court had an option to consider an adverse cost order on the basis of its observation about “the shifting nature of the [applicants] evidence, which it regarded as disingenuous”, it did not do so.
“It would thus be appropriate if the parties were ordered to bear their own costs in both the application for leave to appeal in the High Court as well as in the Supreme Court of Appeal,” Justice Kollapen said.
Vice-Chancellor, Dr Sizwe Mabizela, noted and welcomed the judgment. “At Rhodes University, everyone has the right to freedom of expression, the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions as afforded in sections 16 and 17 of the Constitution.”
“Our institution will protect these rights for everyone. What we cannot protect and what the law does not protect, however, is unlawful conduct and the undermining of the rights and liberties of others. It is extremely unfortunate when illegality is committed in the name of a necessary and important campaign against gender-based violence.”
“Our University is resolute in its commitment to eradicate all forms of gender-based violence within the institution and to contribute to efforts in dealing with the scourge in our society,” he said.
*This year Rhodes excluded three male students, one for 10 years and two permanently over rape.
Issued on behalf of Rhodes University by Communications and Advancement Division.