Hotz and Others v University of Cape Town

Five student applicants participated in the #RhodesMustFall and #FeesMustFall protests at the University of Cape Town (UCT) in early 2016. The protests concerned difficulties students faced in paying fees and finding accommodation. Approximately 200-300 protesters erected a shack on UCT premises called "Shackville" which obstructed traffic on campus. During the protest, tyres were burned, artworks and university property were destroyed, the Jan Smuts bust and War Memorial were defaced, a shuttle bus was set alight, and acts inciting violence occurred. UCT obtained an interim interdict against several persons including the applicants. On the return date, the High Court confirmed the rule nisi as a final interdict against the five applicants only and ordered them to pay UCT's costs jointly and severally, including costs of two counsel. The Supreme Court of Appeal upheld the interdict but varied its terms, finding the High Court's order too broad as it effectively excluded applicants from campus and infringed their constitutional rights to freedom of movement and association. However, the SCA confirmed the costs order. The applicants then sought leave to appeal to the Constitutional Court primarily on the costs issue.

• Whether the High Court exercised its discretion judicially in awarding costs against the applicants in constitutional litigation
• Whether the Biowatch principle on costs in constitutional litigation was properly applied
• The appropriate approach to costs where litigants raise genuine constitutional issues but engage in unlawful conduct
• When an appellate court may interfere with a discretionary costs order
• Whether the final interdict was appropriate
• The scope of the constitutional rights to assemble, demonstrate, picket and petition under section 17 of the Constitution
• The relationship between the right to peaceful protest and unlawful conduct during protest action

1. Condonation for late filing granted. 2. Application to file replying affidavit and tender further evidence dismissed. 3. Leave to appeal granted only against the SCA's order upholding the High Court's costs order. 4. Appeal on costs upheld. 5. The High Court's costs order against the applicants, as confirmed by the SCA, was set aside. 6. Each party ordered to pay its own costs in the High Court, Supreme Court of Appeal and Constitutional Court.

In constitutional litigation involving genuine constitutional issues, courts must exercise their discretion on costs judicially by considering the constitutional context and applying the Biowatch principle. The general rule is that unsuccessful litigants in constitutional proceedings against the state (including public institutions like universities) should not be ordered to pay costs due to the potential chilling effect on constitutional litigation. This rule applies even where the litigants engaged in some unlawful conduct, provided the litigation was not frivolous or vexatious and raised genuine constitutional issues of broader public importance. The starting point in determining costs in constitutional litigation must be the nature of the issues raised, not the characterization or conduct of the parties. Where litigants achieve a measure of success (such as having an overly broad order narrowed to protect constitutional rights), this supports the application of the general rule against costs orders. An appellate court may interfere with a costs order where the court below failed to exercise its discretion judicially - such as by failing to consider the constitutional context and relevant principles governing costs in constitutional litigation. The right to peaceful assembly and demonstration under section 17 of the Constitution protects individuals who remain peaceful in their own intentions and behavior, even if others in the protest engage in violence, but this protection ceases when individuals themselves engage in violent or unlawful conduct.

The Court made several important obiter observations: (1) Self-help is inimical to a society in which the rule of law prevails, and destruction of property, particularly in learning institutions, cannot be tolerated. (2) It could not have been within the contemplation of the Constitution's drafters that section 17 be used to justify hooliganism, vandalism or other unlawful misconduct. (3) Students responsible for destruction of property and incitement of violence must be held accountable through appropriate legal means. (4) The #FeesMustFall protests raised issues of genuine constitutional import reflecting a "seething sense of injustice" regarding the failure to provide free, quality and decolonized education - issues of concern not only to UCT students but to students across South Africa. (5) Limited financial resources of litigants is not a consideration that militates against granting costs - to hold otherwise would mean parties without means could litigate without justification with immunity from costs awards. (6) The Court noted that the #FeesMustFall movement achieved significant results including a 0% fee increase for 2016 and increased government funding for universities, but also had negative consequences including lost learning time, property destruction, injuries, arrests, exclusions and loss of life. (7) Each constitutional case enriches the general body of constitutional jurisprudence and adds texture to what it means to live in a constitutional democracy.

This judgment is significant for clarifying the application of the Biowatch principle on costs in constitutional litigation involving protest action. It establishes that even where litigants engage in unlawful conduct during protests, courts must still consider the constitutional context and the genuine constitutional issues raised when determining costs. The case balances the need to protect constitutional rights (education, freedom of expression, assembly and association) with the requirement that protests remain peaceful and lawful. It reinforces that the "nature of the issues" rather than the "characterisation of the parties" is the starting point in constitutional litigation costs determinations. The judgment is important for student protest movements and demonstrates that raising genuine constitutional concerns - even if accompanied by some unlawful conduct - should not automatically result in adverse costs orders that could have a chilling effect on constitutional litigation. It also provides guidance on when appellate courts may interfere with discretionary costs orders - namely when the discretion was not exercised judicially by failing to consider relevant constitutional factors. The case forms part of the important #FeesMustFall jurisprudence addressing access to education and student rights in post-apartheid South Africa.