FREEDOM OF EXPRESSION AND CAMPUS PROTESTS

Abstract

Hotz v University of Cape Town (2016 (4) All SA 723 (SCA)) presented the Supreme Court of Appeal (SCA) with an ideal set of circumstances to incisively deal with the precise meaning and parameters of section 16(1) of the Constitution, which mandates that everyone has the right to freedom of expression and section 16(2), which states that section 16(1) does not extend to advocacy of hatred that is based on race or ethnicity and that constitutes incitement to cause harm. It also afforded the SCA an opportunity to express itself on ancillary constitutional rights such as section 17 (the right to assemble and demonstrate); section 15 (the right of freedom of opinion); section 18 (the right to freedom of association) and section 19(1) (the right to campaign for a political cause).  The main focus of the judgment of the SCA (per Wallis JA), however, was on freedom of expression (s 16(1)) which will be the primary focus of this note.
Vehement protests on the campus of the University of Cape Town (UCT) constituted the background to this matter being heard by the SCA as an appeal against a final interdict of the Western Cape High Court. The final interdict excluding appellants from the campus of UCT was granted by Allie J who granted leave to appeal. The appeal specifically concerned the granting of the final interdict and the factual allegations made by the university regarding the nature of the protests which led to the granting of the final interdict.