Top court affirms right to protest

In a judgment reaffirming students’ rights to protest, the Constitutional Court upheld a ruling by the Supreme Court of Appeal that damaging university property was unlawful, but said students had the right to protest on their campuses.

Five protesters — part of the #FeesMustFall demonstrations at the University of Cape Town (UCT) — erected shacks on university grounds, calling for poor black students to be given adequate accommodation.

A high court interdict barred them from the campus for damaging university property. The ruling was later augmented in the Supreme Court of Appeal, allowing the students to return in October 2016, with costs.

The Constitutional Court held that costs should not have been awarded against the protesters, even though they were rightly interdicted on the basis of established constitutional principles.

Justice Edwin Cameron set aside the cost aspect of those rulings and noted that the applicants were engaged in protests for free quality education because they could not, among other things, afford fees.

“The court should have considered the chilling effect the costs order would have on litigants, in the context of constitutional justice,” he said. “The court erred in not doing so.”

A partner at Webber Wentzel, Dario Milo, said this was an important affirmation of the general costs principle in constitutional litigation against public bodies because Cameron ruled that each party had to pay its own costs in each court.

The Webber Wentzel partner said “this position meant that there would not be a massive disincentive to citizens in bringing or defending cases which raise constitutional issues”.

UCT spokesman Elijah Moholola said the university noted that the interdict against the five protesters remained.