As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 20183/2015
DATE: 20 OCTOBER 2015
In the matter between:
STELLENBOSCH UNIVERSITY Applicant
OPEN STELLENBOSCH Respondent
O R D E R
This is an urgent application which essentially is divided into two parts. The first part is for a mandament van spolie and the second is for an interim order, that is a rule nisi calling upon respondents’ to show cause on 1 December 2015 or soon thereafter as the case may be heard, why they should not be restrained from a range of activity which is set out in paragraphs 5 and following of the notice of motion.
Because this matter has come to me on an urgent basis, after hours and although service has been effected extremely late but given the circumstances not unreasonably so by the applicants’ upon respondents’, it is necessary for me to set out, albeit briefly, the reasoning behind granting this order which reflects my anxious consideration of the evidence as it has been put up by the applicants as justification for the relief sought .
This application as was suggested by Mr van der Walt, the director responsible for campus security at applicant, takes place within a specific context.
The context is disturbances on University campuses of the kind which are both anxiety provoking and extremely troubling. Universities are in essence locations where reasoning is to be employed in order to deliberate , argue and contest all manner of important political and social questions . Within our context , I do not need to be persuaded that there is an urgent and compelling need to transform both the demography of our universities with regard to the student body and more particularly staff, as well the core curriculum to reflect a far more indigenous flavour than the stubborn adherence to a model of a provincial English or European university .
However, these battles can and indeed must take place within the context of hard fought rights, all of which are contained in chapter two of the Republic of South Africa Constitution Act 108 of 1996.
Unfortunately this form of politics sometimes does not occur .Indeed the evidence that I have heard tonight describes not a University but more as a war zone. I have heard witnesses inform me that they were shuffled out in single file, as they were instructed by security told to evacuate the building. The evidence ,at least on a prima facie basis ,describes less of a University, and more of a violent area in which reasoning has been jettisoned ,on whatever basis one wishes to define that term. The Constitution must promote vigour and energy in our politics but not violence and a discourse based upon gratuitous insults .
If this latter approach to political struggle continues, even if with the greatest will in the world we employ our energy to transform our universities as I have indicated they must , we may well have little of value left to transform of the vital sector of higher education in this country.
I have set out these observations as I have found this application deeply troubling . As I indicated to the Acting Vice Chancellor , this relief may well be justified in law but often it hardens attitudes rather than acting as a balm.
There is a further point that is worth bearing in mind .it has been raised in particular by the Acting Vice Chancellor of the University and the Chief Operating Officer thereof, Professor van Huyssteen, who also testified. Professor van Huyssteen confirmed that the government subsidy at his University had declined from R8 900.00 per student in 2010 to R6 500.00 per year ,I assume, in 2014.
The overall University sector now receives only 40% of its funding from the government and the University of Stellenbosch, that is the applicant, only receives 22% of its total budget from the government.
In short , based on the level of government funding our universities can hardly be termed public universities . Further , based upon these figures , it is difficult to see how all who deserve to be at a university can be admitted as students and continue to receive the quality that every person in this country , no matter their gender , their race, class or social standing deserves ,unless some serious consideration is given to the manner in which government subsidises universities.
Indeed as Professor van Huyssteen told me, there is a deep irony in the context in which this case takes place .University funding appears to have followed models which have taken place elsewhere in the developed world . In common parlance, although the meaning is often misunderstood, the suggestion is that some form of neo liberal economics has allowed for the quasi privatisation of universities or to put it differently, the subsidisation of universities by way of the private sector and by way of students through fees rather than by way of adequate government funding. According to his evidence , university funding is a major obstacle to the development of the sector.
Courts cannot second guess government’s funding priorities .That is the province of a democratically elected government .But the Constitution, read through the prism of our history must operate as the framework to determine the nation’s public choices , even in respect of the prioritization of public funding .In this case , given s29 of the Constitution read with the Freedom Charter, there is along commitment that all institutions of learning should be open to all, an aspiration fought for people for more than 60 years .Hence government needs to reflect very carefully how to vindicate these commitments to each and every South African who deserves to be at a University.
It is within the context of vindication of this commitment that this application is to be located .Yet again ,as soon as the political process ,whether in this case at government or university level fails, the courts are called in as a backstop. Hence, my extreme jurisprudential anxiety provoked by this application. There is limit to what courts can do; besides we do not live in nor should we operate within a juristocracy .
I turn then to deal with the two components of the relief which is sought. A mandament van spolie generally only requires that the applicant prove on the balance of probabilities that it was in peaceful and undisturbed possession of the property in question and that it was deprived unlawfully of such possession. I am satisfied that the evidence given by both Mr van der Walt, Professor van Huyssteen and the other two witnesses, Mr Lipp and Mr Lombard that the particular building in question referred to as Administration B, situated in Victoria Street, Stellenbosch, has been and was until today under the peaceful control of the University administration.
Professor van Huyssteen described the building as the nerve centre of the University where the rectorate is housed. I am also satisfied that students who now occupy that building and according to the evidence of Mr van der Walt between approximately 100 to 200 students occupy the building, do so in an unlawful fashion and that accordingly the requirements of the mandament have been met. In Wille’s Principles of South African Law, edited by Du Bois et-al (9th Edition) at 454, the learned authors’ write as follows:
A fundamental principle is nobody can take the law into their own hands. In order to preserve order and peace in society, the Court will summary grant an order for restoration of possession against someone who resorts to self help and dispossesses another unlawfully.
It is obvious that without the granting of a mandament, given the evidence that I have heard, peace and order cannot be restored. The University, if the order is not granted, will be without its nerve centre. It will be without its offices which houses the rectorate. They are now illegally occupied and there is no basis by which any other order other than a mandament would be justified at present. I take account of the short time of service upon respondents and that I am now without the benefit of their evidence .but , in the nature of the mandament and , given the evidence of a widespread occupation unlawfully of the building , I have little alternative . In any event , the order only applies to those who are in unlawful occupation .
The evidence also suggests that a number of violent activities have taken place. All of the witnesses testified to the aggression which they encountered. . Mr van der Walt, whose evidence was supported by the other witnesses, indicated to me that one of the respondents (6th respondent) had to be restrained when security personnel sought to escort senior personnel who were in the rectorate out of the building this afternoon. Mr Lipp and Mr Lombard, who were according to their evidence ‘cut off ‘from the other members of the senior personnel who had been escorted towards a bus, described their anxiety in terms of a crowd who aggressively sought to interfere with their peaceful attempt to leave.
Mr Lombard went so far as to describe the fact that when a security vehicle finally was able to pick him up. Two people jumped onto the bonnet and sought to interfere with the windscreen wipers of the vehicle before being forced off the vehicle as it moved away. These are disturbing averments. They justify an interim interdict of the kind which is sought in paragraph 5 ot the notice of motion . I have made provision for a speedy anticipation of the return day which may afford an opportunity for a counter narrative to be provided to the Court.
All the witnesses informed me, in particular the acting rector Professor van Huyssteen that the senior personnel of the University who testified were all taken by surprise at events that unfolded today.
Apparently, later today(20October) there were plans for a meeting (there still may well be one, I do not know). At this meeting students will be provided with a detailed fact sheet setting out the finances of the University and the reasons why an 11.5% increase has been proposed. Indeed as I understand it from the witnesses, one of the meetings that was taking place when the building was invaded was one to finalise this document. It is also apparent from the evidence that student representatives have already been informed about the state of finances at the University prior to today’s events.
The meeting was called by those who wished to have a fuller explanation of the finances so that student representatives could explained to the broader student body the intricate implications of the difficult finances which now confront applicant. Furthermore, I am informed that a mass meeting is to take place on Wednesday and according to Mr van der Walt permission was sought and granted for such a meeting to take place which doubtless would allow students to protest further.
This order should not be construed as denying to students the right to protest vigorously, vociferously, loudly, intemperately and perhaps in a way that we as the older members of society not necessarily approve. That is not just their right, it is what students have done throughout the generations at universities the world over .It is what society should expect of students who again in our country hold up a mirror to society so that the latter can see the failures which have been committed. Undoubtedly students throughout the country are frustrated and angry at what they perceive as overly slow social and economic progress and a breach of promises as these were contained in the Constitution .
However , what they and the balance of the citizenry are not allowed to do is threaten staff, to violently occupy buildings, to barricade streets and destroy property I was informed for example that Victoria Street was barricaded at a point and required police to intervene.
So reluctantly I must accept that the court must intervene even as I have been at pains to suggest the courts cannot and should not attempt to solve the underlying problems which have caused the symptoms which have given rise to this application .
In summary the interim relief tells respondents that they are not allowed to compromise those students who wish to write their examinations which is apparently about to occur. They are not allowed to damage buildings, nor to harass, harm or detain members of the staff as they attempted to do in the buildings. These are way beyond any permissible form of freedom of assembly association and protest which is sanctioned in terms of the Constitution.
FOR ALL OF THESE REASONS THEREFORE THE ORDER AS SOUGHT BY THE APPLICANTS IS GRANTED IN THE FORM PREPARED BY MR BREYTENBACH.BACK TO TOP