Interdict cannot replace rule of law


David Fryer

The long-running legal saga of the Rhodes University  interdict case came to an end on 24 March, with Judge Murray Lowe dismissing an application for leave to appeal brought by the 4th-6th respondents (all young women who had participated in the #rureferencelist protest in April last year).  The University issued a statement on this matter on 30 March.

However, the statement makes a number of claims that are contestable. For example, that where matters have been dealt with “through the legitimate structures in the university… we continue to see positive results”.  However, it was clearly the alleged failure of these structures that sparked the #reference list protests.

It then states that “It is with the above in mind that the university notes with concern last weekend’s mobilisation of students…”, and refers to disciplinary cases.

“Since last year completed cases resulted in the exclusion of the perpetrators from the University… Consequence management is an important safeguard against… anarchy.”

Contrary to the impression created, the final interdict does not affect current protest action. Nor does the interdict judgment support an ‘anti-protest’ position.

In fact, in the 1 December judgment, the judge discharged (i.e. dismissed) the order against the other respondents in the case in its entirety. So, although the failure to obtain leave to appeal is certainly significant to the three individual respondents, it is not particularly relevant to the rest of the university community, for whom the interdict ceased to apply three months back.

Moreover, the matter heard on 24 March hinged on disputed facts (i.e. whether the court accepted the university’s or respondents’ account of events). These disputes of fact were not relevant to the rest of the 1 December ruling which hinged on matters of principle.

First, the judge affirmed the right to protest. Complex issues raised in this case but not resolved included: whether the right to protest include a right to disrupt in some ways; and how to balance the right to protest and other rights (such as the right to education).

The second matter, which is really the crux of the question, is that the judge agreed that the interim interdict was “absurdly wide”, regarding both whom and what it sought to interdict.

Interdicts cannot be applied willy-nilly.  Not only do individuals risk draconian consequences for actions which “would ordinarily have a consequence no higher than a civil action for damages” (for example), but there is a real danger that individuals who are doing nothing unlawful will be impacted.

Not only is the question of ‘lawfulness’ very contested in the context of protests, there is also a danger of bystanders being arrested or shot. In the confusion on Rhodes campus in October, it was impossible to tell exactly who protesting and who was simply trying to get across campus. Police responded by showing a complete lack of discrimination.

Finally, the judge agreed that the interdict, which interdicted not only physically violent and disruptive acts, but also “unlawful damage to the reputation of the Applicant”, could have a chilling effect on freedom of expression. It should not be necessary to emphasise how important this is at a university.

The bottom line is that an interdict is supposed to reinforce rather than replace the rule of law (it is not to be confused with a state of emergency). When an interdict goes too far, it becomes draconian and repressive. It should be clear that what is needed is a balance.

Contesting anti-protest orders that have gone too far does not constitute ‘condoning violence’. Unless such orders are challenged in court by groups like Concerned Staff (who had the pro-bono support of SERI), they are likely to be finalised by default.

  • David Fryer is a Senior Lecturer in the Department of Economics and Economic History at Rhodes University and one of the Concerned Staff Group who opposed the interdict. He writes in this personal capacity.
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