Rhodes University v Student Representative Council of Rhodes University: The constitutionality of interdicting non-violent disruptive protest

Safura Abdool Karim, Catherine Kruyer

Abstract


Section 17 of the Constitution of the Republic of South Africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the Regulation of Gatherings Act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. The recent student protests across South Africa have occasioned litigation seeking to interdict protest action which the universities claim is unlawful. Overbroad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. In a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown, a final interdict was granted interdicting two individuals from, among others, disrupting lectures and tutorials at Rhodes University and from inciting such disruption. In this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed using Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141. 


Keywords


right to protest; interdict; freedom of assembly; disruptive protest

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References


Legislation

The Constitution of the Republic of South Africa, 1996

Regulation of Gatherings Act 205 of 1993

Case Law

City of Cape Town v Yawa and Others (395/04) [2004] ZAWCHC 51

Durban University of Technology v Zulu and Others (1693/16P) [2016] ZAKZPHC 58

Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159

S v Manamela (Director-General of Justice Intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC)

South African Transport and Allied Workers Union and Another v Garvas and Others (CCT 112/11) [2012] ZACC 13

University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141.

Secondary Sources

Safura Abdool Karim, University interdicts: what do they mean and to whom do they apply?, GroundUp, 7 November 2017, http://www.groundup.org.za/article/university-interdicts-what-do-they-mean-and-whom-do-they-apply/ (accessed 28 August 2017).

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Iain Currie and Johan de Waal, Expression, in The Bill of Rights Handbook 5th Edition, Cape Town: Juta, 2005, 370.

Louis Menand (ed), The Future of Academic Freedom, Chicago: University of Chicago Press, 1996

Founding Affidavit of Corinne Ruth Knowles in case no: 1937/2016, Socio-Economic Rights Institute, http://seri-sa.org/images/FoundingAffidavit_ConcernedStaff.pdf (accessed 28 August 2017)

Fourth, Fifth and Sixth Respondents’ Answering Affidavit, Socio-Economic Rights Institute, http://seri-sa.org/images/Answering_Affidavit_FourthFifthSixthRespondents.pdf (accessed 28 August 2017)

SERI files papers in the ConCourt in an appeal in the Rhodes University case, Socio-Economic Rights Institute, http://seri-sa.org/index.php/more-news/680-litigation-update-seri-files-papers-in-the-concourt-in-an-appeal-in-the-rhodes-university-case-21-july-2017 (accessed 29 August 2017).

Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa 2nd Edition, Cape Town: Juta, 2013

Stephen Zumes, The Role of Non-Violent Action in the Downfall of Apartheid, Journal of Modern African Studies 37(1) (1999), 137-169.




DOI: http://dx.doi.org/10.17159/2413-3108/2017/v0n62a3020

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