Judge rules on interdict
The High Court in Grahamstown yesterday dismissed Rhodes University’s bid to seek an interdict forbidding certain activities associated with protests on the campus earlier this year.
Following a week of protests at Rhodes in April against rape culture, sparked by the publication on social media of the so-called #RU Reference List, the court granted Rhodes an interim interdict prohibiting kidnapping, assault, threats and intimidation among other actions.
A consortium of university staff represented by the law clinic of Seri, the Socio-Economic Rights Institute, contested the interdict on constitutional grounds, including that it was vague, infringed on their right to protest, freedom of expression and academic freedom.
Seri’s Law Clinic also represented the six respondents: the students Representative Council (SRC); students of Rhodes University engaging in unlawful activities on the campus; those persons engaging in or associating themselves with unlawful activities on the campus; students Sian Ferguson, Yolanda Dyantyi and Simamkele Heleni.
In the original urgent application, Vice-Chancellor Dr Sizwe Mabizela, registrar Dr Steven Fourie, finance head Dr Iain L’Ange and others gave oral evidence of how kidnappings, assaults, intimidation and vandalism had led them to fear for University property and students’ lives.
Yesterday, Judge Murray Lowe said the three named students were interdicted and restrained from kidnapping, assaulting, threatening, intimidating and inciting violence in respect of any member of the Rhodes University community on the applicant’s campus.
They have also been restricted from entering any of the University residences for a purpose of destroying or damaging property.
Ferguson and Dyantyi were interdicted and restrained from disrupting lectures and tutorials at Rhodes and from inciting such disruption.
Simamkele Heleni is interdicted and restrained “from interfering with access to or egress from and free movement on or off” the Rhodes campus, of all members of the Rhodes University community “and all others who have lawful reason to move on to and off the University campus”.
However, the more general interdict and the other interdicts were no more, Lowe said in his judgment.
The judge said the parties should each pay their own costs.
Lowe said in his view there was merit in some of the submissions made on the University’s behalf.
He said Ferguson undoubtedly sought the disruption of a lecture, although that was allegedly “peacefully”.
“This undoubtedly goes beyond S17 constitutional entitlement or that relating to other constitutional rights such as the freedom of expression,” Lowe said in his judgment.
“There is also no doubt that she played a leading role, if not a leadership role, in the initial protest and certainly acted as one of the people conveying the groups’ views.
“That of itself, and had the protest remained peaceful, would have been perfectly acceptable. As it happened, I accept on a proper approach to the papers that this protest became completely out of hand, and that this crossed the line involving the unlawful activities referred to above,” said Lowe.
He said in respect of Dyantyi, he accepted that on a proper approach to the papers, that she was involved to a substantial extent in the unlawful activities surrounding the kidnapping of two male students.
Lowe said undoubtedly that threatened the safety and physical freedom of the two students and no doubt caused them extreme stress and fear.
He said Dyantyi was also clearly a leader of the protest action as it had been stated. The judge further said that Dyantyi participated in encouraging the disruption of a lecture on the same basis as Ferguson. He said all of which goes way beyond her constitutional entitlement.
In respect of Heleni, Lowe said her role was more limited, relating to an incident with lecturer and residence warden Rob Benyon, and some limited role in the barricading of the street. Lowe said that clearly consti- tuted an unlawful threat in whatever context.
Nevertheless, the judge said there was some merit in Ferguson, Dyantyi and Heleni’s complaints that the order was unduly broad.
“The order speaks for itself in this regard, and I have clearly omitted that which was not sustainable or justified,” said Lowe.
He said the SRC's role in the matter appeared to be limited to a call for a complete cessation of the academic process.
He said that was not unlawful and might be a legitimate S17 protest action, as long as it did not incite nonpeaceful or armed protest. Lowe said as a result, the interdict against the SRC falls to be discharged.
“As to costs, dealing firstly with the intervening staff in respect of second and third respondents, it seems to me that in respect of the relief sought against those respondents, the intervening staff have been successful,” said Lowe.
The judge said the University spread the relief that it sought too widely in the circumstances of the matter, and was unable, in seeking a final order, to realistically contend the contrary.
He said it should be said that the three students should consider themselves fortunate to escape a costs order having regard to the shifting nature of their evidence “which I consider to be disingenuous”.
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