‘Sight means noticing the increasingly violent protests on campuses as small groups of militant students demand fee-free higher education. Insight grasps that however noble the cause, the now chronic violence and disruptions on some campuses destroys something much more central to the very existence of the modern university – a place where reason, exchange, debate and thought replace violent action. Insight therefore conveys a sense not only of the here and now but of what the conflagration of the present means for the future of democratic institutions.’ - Jonathan Jansen
On 28 March 2018, the Institutional Reconciliation and Transformation Commission (IRTC) at the University of Cape Town (UCT) released its recommendation regarding granting amnesty to seven students ‘rusticated’* or expelled as a result of the Shackville protests at UCT in February 2016 (see the IRR’s article UCT lets the Fallists go free, Sara Gon, PoliticsWeb, 18 July 2018).
The IRR’s previous article quoted Chancellor Sipho Pityana’s memo “From the Chairman’s Desk” to the UCT campus community. The Council had agreed to the IRTC’s recommendation of amnesty. The events for which amnesty was sought occurred at the beginning of 2016, the second of three years of violent protests.
The IRTC defined ‘amnesty’ as ‘the expunging from the students’ academic record of all information about the offences related to the Shackville protests and related matters in order to clear their records so that they may graduate, pursue academic studies elsewhere, and satisfy a future declaration that they are ‘fit and proper persons’ so as to be able to pursue future careers and opportunities.
Clause RCS17 under Student disciplinary records and student transcripts in the section on Institutional Rules of the Constitution of UCT of 2012 provides as follows:
‘Any conviction in a disciplinary matter is recorded, and an individual student’s disciplinary record is permanent. Any transcript of academic record issued to a student is a complete transcript, and includes a statement of conduct.’
The Institutional Rules do not provide for amnesty, only for appeal.
The seven students the IRTC recommended giving amnesty to are Chumani Maxwele and Masixole Mlandu (at the forefront of the protests), Alexandria Hotz, Zuko Fekisi, Dudu Ndlovu, Kagiso Sekhoto and Tumelo Maja.
The seven intended to cause damage and should have foreseen the possibility of injury or even death. The damage and violence they instigated took place over a ten-day period. It was not a moment of craziness.
Maxwele, Mlandu and Hotz were named respondents in the final interdict obtained by UCT on 11 May 2016. They were also the first three of five appellants to appeal the granting of the interdict to the Supreme Court of Appeal (SCA).
The SCA made no finding on the merits of the protest, only on the actions of the appellants and whether the High Court’s granting of a final interdict was correct.
The SCA held that the appellants’ actions infringed UCT’s legal rights and that the university had a reasonable apprehension of future harm, particularly as the appellants were unwilling to give an undertaking to desist in future from conduct causing further harm.
The three then appealed to the Constitutional Court over the SCA’s costs order. It’s instructive, however, to note something the ConCourt said:
‘Self-help, as this Court has pointed out, is inimical to a society in which the rule of law prevails. Destruction of property, particularly in our learning institutions, cannot be tolerated. The High Court is correct that it could not have been within the contemplation of the drafters of the Constitution that section 17 (the right to protest) be used to justify hooliganism, vandalism or any other unlawful and illegitimate misconduct. There can be no doubt that the protestors’ conduct went beyond the boundary of peaceful and non-violent protest. The University had no choice but to approach the High Court for an order restraining the group from conducting themselves unlawfully during their protest.’
The right to protest is not unconditional. It is subject to the rights of other people and organisations not being infringed. Unlawful and illegitimate conduct is not justified by the right to protest.
The SCA noted that no undertakings about future protest were given by these students. Maxwele famously disrupted the Convocation meeting on 15 December 2016 when on the agenda was the possibility of former Vice-chancellor Max Price’s removal. At his graduation (after seven years and at the age of 32), Maxwele started chanting repeatedly “Max Price exploits us” and had to be removed from the stage.
Mlandu and Fekisi were members of the SRC Candidates/Shackville TRC which usurped the authority of the Students Representative Council, details of which are contained in the previous article.
No sooner had Mlandu been party to the Agreement than he breached it by participating in unlawful conduct during a #FeesMustFall protest in early 2017, which had to be interdicted.
The IRTC’s report explains why the university buckled:
‘In order to address the challenges that arose as a result of the above-mentioned state of affairs, the UCT Council resolved at a special meeting on 14 October 2016 to grant the Vice-Chancellor the discretion and authority to grant amnesty to these students. Subsequent to the above-mentioned Council meeting, the relevant role-players concluded an agreement dated 7 November 2016 with regard to a process to normalise the situation of contestation and instability on the campus that threatened to jeopardise the year-end examinations.’
These students usurped the role of the SRC in negotiating over the protests with management. It wasn’t just Price and his Deputies; the Council gave Price the authority to negotiate with the anarchists who were holding UCT to ransom with the threat to disrupt year-end exams.
The IRTC also advised that:
‘The amnesty would also result in the University ensuring that the records of all students would be cleansed of all evidence which would have the possibility of impacting them negatively in the future. This would be done in the spirit of reconciliation and transformation which the University has committed itself to by establishing the IRTC. The second phase of the work of the IRTC will address the need for institutional transformation at the University of Cape Town.’
The Agreement was never really about ‘reconciliation and transformation’ or the subsequent ‘institutional transformation’. It was at this moment that UCT management had to display real courage for the sake of the 26 000-odd students and educators whose freedoms were being shattered by a few hundred illegal protesters.
‘After considering all the evidence, the IRTC is satisfied that the incidents were acts associated with their objective of raising awareness of their dissatisfaction with the housing crisis of students as well as the institutional culture at UCT which they perceived to be racist. We are also satisfied that the applicants have made a full disclosure of all relevant facts and that individually they have acknowledged and taken responsibility for their actions and the incidents and events that unfolded between 2015 and 2017 at the University.
‘The IRTC heard from the students of the pain and suffering experienced personally, the loss of academic years and opportunities through their expulsions, rustications and exclusions from the University, as well as the financial loss incurred. The Commission also heard about the anger, pain and suffering of the parents of the students many of whom are the first in their families to enter university. The IRTC believes that the students are fully aware of the consequences of their actions and have fully paid their dues.’
It is insulting to the victims of this criminality to consider the perpetrators’ “pain and suffering” over the majority of staff and students. They knew what they were doing and continued to do it after the Agreement was reached. They realised that their careers were at risk, so holding UCT hostage was a tactic to achieve an outcome they didn’t deserve. Their predicament was theirs alone.
The IRTC is right, they probably are ‘fully aware of the consequences of their actions’, but the IRTC will forgive our doubt that they ‘have fully paid their dues’. Real remorse beyond the parlous state of their career prospects is unlikely. What their dues were and how they paid them we don’t know.
In a functioning democracy society obeys the rule of law to ensure that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges. Chapter One of the Constitution holds that South Africa is a sovereign, democratic state built on a number of founding values. One of those values is “Supremacy of the Constitution and the rule of law.”
The tragic death of Professor Bongani Mayosi, Dean of the Faculty of Health Sciences, is likely to be ascribed to a greater or lesser extent to his experience with protesters. Mayosi’s office had been occupied for two weeks in 2016. Mayosi was surrounded repeatedly by aggressive and insulting staff and students, some of whom accused him of being ‘a coconut’.
Mayosi’s family said: ‘In the last two years he has battled with depression and on that day [Friday] took the desperate decision to end his life.’
‘Tolerance of intolerance is cowardice’ - Ayaan Hirsi Ali
Sara Gon is a Policy Fellow at the Institute of Race Relations (IRR), a think tank that promotes political and economic freedom. If you agree with what you have just read then click here or SMS your name to 32823.
* ‘Rustication’ is a quaint colonial term used at Oxford, Cambridge and Durham Universities for expelling a student temporarily.
1. Jansen, Jonathan The difference between sight and insight, BusinessLive PREMIUM 26 July 2018;
2. Decision(s) of the Institutional Reconciliation and Transformation Commission of the University of Cape Town(IRTC), 28 March 2018 ;
3. Gon, Sara UCT lets the Fallists go free PoliticsWeb, 18 July 2018;
4. Judgment on appeal in the Supreme Court of Appeal, Hotz v UCT (730/2016) 2016 ZASCA 159 (20 October 2016);
5. Judgment on appeal in the Constitutional Court, Hotz and Others v University of Cape Town (CCT280/16)  ZACC 10; 2017 (7) BCLR 815 (CC); 2018 (1) SA 369 (CC) (12 April 2017);
Prof Bongani Mayosi took his own life - Family,