Alexandria Gabriella Hotz and Others v University of Cape Town

During 15-17 February 2016, students and others participated in the "Shackville" protest on the University of Cape Town campus. The protest concerned student fees and accommodation issues, as well as broader transformation concerns. The protesters erected a shack on Residence Road blocking traffic and pedestrian movement, created an exclusion zone, spray-painted busts of Jan Smuts and Mrs Fuller, removed and burned paintings, portraits and photographs valued at nearly R700,000 from university buildings, blocked roads with burning rubbish bins and rocks, set fire to a research vehicle and a shuttle bus (total value R1.6 million), and threw an incendiary device into the Vice-Chancellor's office causing R350,000 damage. Five appellants (students and former students) were identified as active participants. UCT obtained an interim interdict on 17 February 2016, which effectively banned the five appellants from campus unless they had written permission from the Vice-Chancellor. The interim order was confirmed as a final interdict on 11 May 2016 by Allie J. The appellants appealed.

• Whether the requisites for a final interdict were satisfied: (1) a clear right; (2) an injury actually committed or reasonably apprehended; and (3) the absence of similar protection by any other ordinary remedy
• Whether the protest actions constituted unlawful conduct that infringed the university's rights
• Whether the defence of necessity applied to justify the protesters' actions
• Whether criminal prosecution, disciplinary proceedings, or mediation constituted adequate alternative remedies to an interdict
• Whether the broad exclusion order (banning appellants from campus except with written permission) was an appropriate and constitutionally compliant remedy
• The scope and limitations of the constitutional right to protest, assemble and demonstrate under section 17 of the Constitution
• The boundaries of constitutionally protected freedom of expression under section 16, particularly regarding hate speech

The appeal was partially upheld. The order of the High Court was altered to remove the exclusion of the appellants from campus and to focus only on restraining specific unlawful conduct (erecting unauthorized structures; destroying, damaging or defacing property; participating in or inciting unlawful conduct/protest; and inciting violence). The costs order in the High Court was upheld (appellants to pay costs jointly and severally including costs of two counsel). In the Supreme Court of Appeal, each party was ordered to pay its own costs.

The binding legal principles established are: (1) The constitutional right to protest under section 17 protects only peaceful and unarmed assembly and demonstration; conduct that exceeds these bounds loses constitutional protection. (2) All constitutional rights must be exercised with due regard to the rights of others and respect for the rule of law. (3) The three requisites for a final interdict remain: a clear right, injury actually committed or reasonably apprehended, and absence of similar protection by another ordinary remedy. (4) An alternative remedy will only preclude an interdict if it affords similar protection against the injury; criminal prosecution, internal disciplinary proceedings, and mediation generally do not constitute adequate alternative remedies. (5) Courts cannot refuse a legal remedy (interdict) to which a party is entitled on the basis that extra-curial means (engagement, mediation) would be preferable. (6) Interdict orders must be narrowly tailored to restrain the specific unlawful conduct and not unduly infringe other constitutional rights such as freedom of movement and association. (7) The blocking of public roads, destruction of property, violence, and interference with others' rights in the course of protests constitute unlawful conduct not protected by the Constitution. (8) The defence of necessity in civil matters must be properly pleaded and is generally not available where lawful avenues of redress exist.

Wallis JA made several non-binding observations: (1) The Court expressly stated it was not adjudicating on the merits or legitimacy of the student protests or the conflicting views of students, university administrators, and politicians - it was concerned only with the lawfulness of specific actions. (2) The judgment noted that freedom of speech must be robust and the ability to express hurt, pain and anger is vital for voices of the oppressed to be heard, but this does not extend to advocacy of hatred based on race that constitutes incitement to harm (section 16(2)(c)). (3) The Court observed that the slogan on Mr Magida's T-shirt ("KILL ALL WHITES") constituted hate speech and incitement to violence not protected by the Constitution, while Mr Mlandu's slogan "F*** WHITE PEOPLE" on the War Memorial, though offensive, did not constitute incitement to harm and remained within constitutional protection. (4) The judgment acknowledged the honorable history of civil disobedience by figures like Gandhi, Martin Luther King, and Archbishop Tutu, but distinguished their context (challenging unjust or oppressive systems lacking moral content) from protest in South Africa's constitutional democracy with its Bill of Rights and avenues for legal redress. (5) The Court expressed sympathy for courts suggesting that parties explore alternatives to litigation but emphasized courts cannot impose such alternatives or deny legal remedies on that basis. (6) The judgment noted that subsequent events (protests on various campuses after the case was heard) were not relevant to the decision.

This case is significant for clarifying the scope and limits of the constitutional right to protest in South Africa, particularly in the university context. It affirms that while the right to protest is constitutionally protected under section 17, it must be exercised peacefully and lawfully, with due regard for the rights of others and the rule of law. The judgment emphasizes that freedom of expression and assembly do not protect unlawful conduct such as destruction of property, violence, obstruction of public roads, or interference with others' rights. The case also demonstrates the proper approach to crafting interdict remedies: they must be narrowly tailored to address the specific unlawful conduct rather than broadly restricting constitutional rights. The judgment is important for its discussion of when alternative remedies (criminal prosecution, disciplinary action, mediation) may or may not be adequate alternatives to interdicts. It rejects the notion that courts can impose non-legal solutions or withhold legal remedies in favor of mediation or engagement where a party is entitled to an interdict. The case arose during the #FeesMustFall and #RhodesMustFall student protest movements and provides important guidance on balancing protest rights with institutional rights and public order.