Hotz and Others v University of Cape Town

The case arose from student protests at the University of Cape Town (UCT) in early 2016 as part of the #FeesMustFall and #RhodesMustFall movements. Protesters erected an unauthorised shack on campus (known as the Shackville protest), blocked roads, defaced property including the War Memorial, and removed and burnt artworks. UCT obtained an urgent interim interdict against several protesters, including the five applicants. On the return date, the High Court confirmed a final interdict against the applicants only and ordered them to pay UCT’s costs jointly and severally. The Supreme Court of Appeal upheld the grant of a final interdict (with narrowed terms) and confirmed the costs order. The applicants approached the Constitutional Court, primarily challenging the costs order on the basis that the High Court and SCA failed to exercise their discretion judicially in a constitutional matter.

Leave to appeal was granted only in respect of the costs order. The appeal on costs was upheld. The High Court and SCA costs orders against the applicants were set aside, and each party was ordered to pay its own costs in the High Court, Supreme Court of Appeal, and Constitutional Court.

This case is significant for clarifying the application of the Biowatch principle in constitutional litigation, particularly where litigants engage in unlawful conduct while asserting constitutional rights. It underscores that courts must carefully and judicially exercise their discretion on costs in constitutional matters, and that failure to do so justifies appellate interference. The judgment also affirms that public universities are organs of state for purposes of constitutional costs principles.