Opinionista Justin McCarthy 16 May 2016

Trampling on others’ rights in the name of liberation

During the RhodesMustFall-organised #Shackville protests at UCT in February, what commenced as a legitimate protest over a shortage of student accommodation morphed rapidly into a proxy for the destruction of university property under the flimsy auspices of the affronting spectre of colonial domination.

Last Wednesday the High Court ordered that five RhodesMustFall members be “interdicted and restrained from entering, or remaining on, any of the applicant’s [UCT’s] premises except with the applicant’s express prior written consent to do so”. This is an important judgment as it signals a significant but welcome setback to a widely discredited movement intent on hijacking genuine student grievances.

At the outset it’s important to recognise that the RMF “movement” is a bit of an anathema. They claim to shun formal structures in favour of a loosely bound collective leadership, a convenient oxymoron. In reality they’re a ragtag bunch of radicals with nothing more than a vague idealistic notion of decolonising universities (whatever that may actually mean), no strategy, no structures and now no hope.

Resorting largely to thuggish tactics to garner attention, they claimed a major victory by forcing the university to remove the infamous Rhodes statue from UCT’S campus. Or so they thought. In reality, removing a statue doesn’t make a jot of difference to students with an inferior high school education, those with the marks but without the financial means or those struggling to find accommodation. Neither does renaming buildings, streets or residences.

It’s empty tub-thumping rhetoric that fails their gullible sympathisers, diverts resources and attention away from meaningful issues and serves no other purpose than to inflate the egos of their unelected ringmasters. They later attempted to lay claim to the genesis of the genuinely effective and legitimate #FeesMustFall movement, but were widely accused of representing the tiny minority of nonpeaceful protesters who clashed with police and destroyed hundreds of millions of rand of university property countrywide.

With the further destruction of property following the erection of RMF’s shack on Residence Road, UCT’s administration successfully appealed to the court for the granting of a rule nisi against 17 parties accused of various transgressions. A rule nisi grants the applicant an interim order and calls upon the respondent/s to give reasons why a final order should not be granted. In other words, it’s up to the respondents to prove their innocence in the face of convincing evidence of wrongdoing. Five of the respondents elected to defend themselves in court rather than abide by the order, thereby accepting the risk that a failure to convince the court of their innocence could result in them incurring significant costs associated with a High Court hearing.

UCT sought the imposition of the order against these five only, enabling the court to discharge the rule nisi against the remaining 12. They, including infamous poo-chucker Chumani Maxwele, appeared in court and learnt a hard life lesson in the meaning and consequences of unlawful conduct. Included in the allegations upheld were charges of common assault, destruction of university property (including hundreds of artworks, a university bakkie, a student bus and the Vice-Chancellor’s office), blocking access to and from the university, physical violence towards people disagreeing with their protests and express or implied threats to harm people by displaying words to that effect.

In granting the final interdict, the judge first had to determine that the applicant establish that no other adequate alternative remedy exists, which she duly did. Astonishingly, respondents’ counsel argued that the “doctrine of necessity” was justification for the respondents’ conduct, and implored the judge “to find that the conduct of the respondents as admitted by them are necessary acts of civil disobedience”.

The judge ruled on the application of Section 17 of the Constitution that qualifies the requirement of peaceful and legitimate forms of protest. In so doing she specified, “It could not have been within the contemplation of the drafters of the Constitution that section 17 be used to justify hooliganism, vandalism or any other unlawful and illegitimate misconduct. When protesters who resort to vandalism, physical and verbal abuse seek refuge in section 17 of the Constitution, they effectively seek to erode the legitimacy of the hard won freedoms enshrined in the Constitution.

When lawyers attempt to justify such behaviour as necessary acts in a Constitutional democracy, they deserve the scorn of the courts and of the people.

A number of other crucial findings were made by the court, including the enforcement of the rights of the university and its stakeholders: “In the context of the undisputed facts of this case, the clear right which the applicant holds, is a right to protect its property, the duty to provide a safe and secure environment in which students and staff can attend the university, access the facilities and resources of the university and the residences at which they were accommodated. Linked to these rights and duties, the university has a concomitant duty to facilitate the safe passage of students, staff and members of the public to and from the university premises”. The judge further found a tenuous link between the accommodation protests and the destruction of property, stating “[T]he protest against the remaining offending statues and artwork appears to have been opportunistically tacked onto the protest against the lack of student housing for black students”, an important distinction underlining the vagueness of the movement’s focus and its reliance on drastic, unlawful and random actions to garner attention.

The judge had many other things to say that hopefully lay down some precedential ground rules for future protest actions. Judge Roshen Allie’s judgment is well worth reading for the complete picture. It’s also worth noting, although quite unfortunate to have to do so, that the learned judge is no stranger to protest action herself, having obtained a B.Proc from the University of Cape Town where she was active in student politics and was a member of the Azanian Students Organisation and the United Democratic Front.

RMF supporters have predictably accused the university of exercising repressive powers. I would counsel the aggrieved to read the judgment for a short lesson in the meaning of the constitutional rights, civil and criminal law.

The university could readily have sought damages from the respondents, an option still available to them, but desisted. Instead, they have taken the moral high ground in electing to effectively ban the ringleaders from university property, while dropping the interim order against 10 of the other 12 respondents (the court having dismissed two at the outset).

This allows the other parties to continue their studies and their protests, provided they remain within the parameters of the law. By so doing, the administration, for some time having been accused of bending too readily to the will of illegitimate behaviour, has allowed the court to emphatically draw the boundaries around acceptable behaviour as well as the rights of the majority of students that were reduced to collateral damage by RMF.

Protesters across all campuses will be forced to think carefully before trampling on others’ rights while attempting to justify it in the name of liberation. We might even see the advancement of real student grievances in place of the parliamentary-styled thuggery. DM

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