‘Shackville five’ win appeal of costs order

Cape Town – Five people involved in the University of Cape Town’s “Shackville” protest have successfully appealed a costs order against them.

The Constitutional Court found on Wednesday that free, quality, and decolonised education was of concern not only to protesters at UCT, but to university students across the country.

“While the applicants’ conduct went beyond the boundary of a peaceful protest, the constitutional context should have been taken into account,” the court found.

Lower courts should have considered the “chilling effect” the costs order would have on the students, in the context of constitutional justice.

“The court erred in not doing so.”

Unanimous judgment

In May, the Western Cape High Court granted a final interdict against Alexandria Gabriella Hotz, Masixole Mlandu, Chumani Maxwele, Slovo Magida, and Zola Shokane.

Hotz, Mlandu, and Shokane were students at the time. Maxwele and Magida were former students.

The Supreme Court of Appeal upheld the interdict, but narrowed the terms because it effectively excluded the group from the campus, which was traversed by public roads and constituted a public place.

The SCA confirmed the costs order, ordering the five to pay UCT’s legal costs jointly and severally, including costs of two counsel.

The students approached the Constitutional Court, arguing that the matter implicated their rights to education, freedom of expression, assembly, demonstration, picket and petition, and the right to freedom of association.

They argued that the courts deviated from the usual practice of awarding costs. The university opposed their appeal.

In a unanimous judgment on Wednesday, the Constitutional Court upheld the students’ appeal against the cost order. It found the high court failed to exercise its discretion.

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Justice Bess Nkabinde said courts had to consider how a costs order would hinder or promote the advancement of constitutional justice.

“In conclusion, on a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the SCA, but also in the high court.”

The court stressed that the destruction of property could not be tolerated.

“The students responsible for these transgressions must be held accountable through appropriate legal means.”

On February 15, 2016, students erected a shack on a road on upper campus of UCT as a symbol of the struggle for student housing and financial exclusions. Security guards later demolished the shack.

The SCA found the five were all involved in erecting the structure. It found they were either involved in, or party to, the destruction, damage, or defacing of university property.

Various busts were spray-painted, a bakkie and bus were set alight, the vice-chancellor’s office was petrol-bombed, and various artworks were destroyed on a burning pyre.

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