IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN)

Case No.:

In the matter between:

ADAM MENDELSOHN Applicant

and

COUNCIL OF THE UNIVERSITY OF CAPE TOWN NORMAN ARENDSE N.O.

PERSONS LISTED IN ANNEXURE 'A'

UNIVERSITY OF CAPE TOWN

First Respondent Second Respondent

Third to Thirty-First Respondents Thirty-Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

ADAM MENDELSOHN,

do hereby make oath and say that:

1. I am an adult male. I am a professor of historical studies at the University of Cape Town (UCT), Woolsack Drive, Rondebosch, Cape Town. I hold the Isidore and Theresa Cohen Chair in Jewish Civilisation, and am the director of the Kaplan Centre for Jewish Studies. I am also the head of department for historical studies.

2. The facts contained in this affidavit fall within my knowledge and belief, save where the contrary appears from the context. They are true and correct. Where I make submissions of law, I do so on the advice of my legal representatives.

A. INTRODUCTION

3. On 22 June 2024, UCT's Council decided to pass, by a majority vote of the members present and voting, two resolutions. The resolutions include that "no UCT academic may enter into relations, or continue relations with, [sic] any research group and/or network whose author affiliations are with the Israeli Defence Force [sic], and/or the broader Israeli military establishment".

4. This is an application to review these resolutions.

5. First, the Council decided to pass these resolutions in an irrational manner.

The Council failed to consider an array of relevant considerations before passing the resolutions, including the resolutions' financial, relational and reputational implications for UCT.

6. Second, the resolutions are not linked rationally to any legitimate purpose.

6.1. The purpose of the resolutions appears to be to prevent UCT's affiliation with or complicity in unlawful conduct by the Israel Defence Forces (IDF), and to pressure the IDF to act lawfully.

6.2. The resolutions do not and cannot achieve this purpose.

6.3. The resolutions are overinclusive. For example, they prohibit academic affiliations that expose or prevent unlawful conduct by the IDF. They also prohibit academic research that is neutral in respect of unlawful conduct by the IDF.

6.4. The resolutions are underinclusive. They prohibit "relations" with "research groups" or "networks" whose "author affiliations are with the Israeli Defence Force". They do not prohibit UCT academics, for example, from collaborating directly with the IDF. They do not, as a further example, prohibit academics from receiving funds from the Israeli government, an entity distinct from the IDF.

6.5. The resolutions are hopelessly vague. The resolutions do not define "relations", "research groups", "networks", "author affiliations", or "the broader Israeli military establishment". These are nebulous concepts left unexplained by the Council. Crucially, the resolutions do not provide for the consequences of entering the prohibited "relations". UCT academics (and the institution) are thus in the dark as to how the resolutions will be implemented in practice, if they can be implemented at all.

6.6. Accordingly, the resolutions do not rationally link to their purpose.

They over- and undershoot the mark, where they do not miss the mark entirely.

7. Third, the Council lacked the power to pass these resolutions.

7.1. In 2010, the Council adopted a policy regulating when it may take positions on issues of public importance. The two resolutions passed by the Council do not comply with this policy. The Council's decisions contravene its own policy, making it unlawful.

7.2. Moreover, the Council is obliged ("must") by the Higher Education Act 101 of 1997 to "govern" UCT. "Govern" must be interpreted as including the promotion of academics' constitutional right to freedom of expression, which includes academic freedom. Consequently, "govern" cannot mean taking decisions that limit academic freedom. Governance of a university must at least be consistent with academic freedom.

7.3. The resolutions limit academic freedom in two ways. One, the most obvious way, the resolutions preclude academics from "entering relations" with certain groups or networks.

7.4. Two, the resolutions include an adoption by the Council of a definition of antisemitism. The Council resolved to "reject" the International Holocaust Remembrance Alliance's (IHRA) definition of antisemitism in favour of the Jerusalem Declaration's. Adopting a position in a contested academic debate goes beyond "governing" a university. Definitively deciding between definitions of antisemitism is like the Council resolving that legal positivists are wrong, or that Aristotle's ethics should be rejected in favour of those of Immanuel Kant. "Governing" a university cannot and does not extend to "resolving" debates best left to academics.

8. Fourth, even if the Council should have had the power to pass the resolutions (which is denied), it would have had to exercise that power in a manner that was procedurally fair. The Council did not however afford academics affected by the resolutions an opportunity to be heard.

9. Each of the above grounds of review suffices to set aside the Council's decision. The applicants reserve their rights to supplement these grounds of review on receipt of the re pondents' rule 53 record.

10. This affidavit proceeds to address the following:

10.1. PART B: The parties.

10.2. PART C: The background.

10.3. PART D: The grounds of review.

10.4. PART E: Semi-urgency.

10.5. PART F: Remedy and costs.

B. THE PARTIES

(i) The applicant

11. I am the applicant. I have provided my details in paragraph 1. I bring this application in my personal capacity and in the public interest. The resolutions stand to affect my constitutional right to academic freedom, as well as those of my fellow academics at UCT. A number of other academics

expressed their concern about the Council's decision to adopt these resolutions and are supportive of an application of this nature being brought. My research, which focuses on modern Jewish history, will be impacted by the sweeping resolutions passed by the Council. As I explain below, I cannot clearly anticipate the impact the resolutions will have on my work, which is precisely why the resolutions are irrational. But it is clear enough that the resolutions will have a detrimental impact on my research, which often relates to or involves Israeli citizens (including citizens who were conscripted by the IDF and remain reseNists).

(ii) The respondents

12. The first respondent is UCT's Council. Section 26(2) of the Higher Education Act envisages the establishment of UCT's Council. UCT's Institutional Statute establishes the Council. The Council is obliged to govern UCT in terms of section 27(1) of the Higher Education Act, subject to the Institutional Statute. I attach the relevant page from UCT's latest Institutional Statute as FA1. The applicants seek to review and set aside the Council's decision to adopt the two resolutions.

13.

The second respondent is the incumbent chair of the Council, cited in his official capacity. The third to thirty-first respondents are the remaining 29 incumbent members of the Council. Their names are listed in annexure A to the notice of motion. No relief is sought against these respondents individually at this stage (some of whom were not members of the Council at the time when the resolutions were passed), and they are cited for any interest they may have in this matter. A decision to oppose the application may have cost implications for individual members, given their fiduciary duties, but that is a separate issue that will be addressed in a later affidavit, if considered appropriate.

14. The thirty-second respondent is UCT.

15. The service address for all the respondents is care of the Registrar of UCT, Bremner Building, Lovers Walk, Rondebosch, Cape Town.

C. THE BACKGROUND

16. The story behind the Council's decisions begins in 2017.

17. On 3 April 2017, the Palestinian Solidarity Forum (PSF), a student group, wrote to UCT's Vice-Chancellor (then Max Price) calling for UCT to implement an academic boycott of Israeli academic institutions. The Vice-Chancellor sought the Senate Executive Committee's (SEC) advice.

18. On 14 June 2017, the matter served before UCT's Academic Freedom Committee (AFC). It was placed before the AFC by the SEC.

19. On 31 August 2017, a special meeting of the AFC was arranged to hear presentations by both the PSF and the South African Union of Jewish Students.

19.1. Arising from these discussions, the AFC rejected the PSF's call for a boycott given the impact the boycott would have on academic freedom. The AFC decided that a boycott would not be in interests of students and staff, who would be prevented from engaging with Israeli academics or collaborating on research where there were no official (government) funds.

19.2. The AFC developed an alternative proposal that would limit UCT's relations with Israeli academic institutions at an institutional level. The AFC suggested selecting or exempting individual universities based on their involvement in, or complicity with, illegal Israeli activities in the Occupied Palestinian Territories. The AFC proposed that it would be possible to boycott or refrain from institutional-level agreements with Israeli universities while not impacting on the freedom of individual academics. The AFC recommended that since UCT currently has no formal agreements at institutional level with any Israeli university and yet there are many academics who do collaborate with Israeli academics, a boycott would be a symbolic statement and would not reduce academic exchanges and collaboration.

20. On 24 November 2017, UCT's Senate met and considered the proposal put forward by the AFC, but decided that.the SEC and the AFC should meet to discuss the proposal.

21. On 25 April 2018, the SEC and the AFC held a special joint meeting to discuss the AFC's proposal.

22. On 23 November 2018, the Senate met and resolved by majority vote not to support the proposal from the PSF for a boycott of Israeli academic institutions. As part of its agenda, the Senate considered a statement by UCT's executive opposing both the PSF's and the AFC's respective proposals. I attach the executive's statement as FA2. The statement points out, among other things, that-

22.1. "boycotts of academic institutions always risk the academic freedom of individuals, and more often than not, do not advance solutions to conflict and human rights violations"; and

22.2. "individuals may have their own views on the academic boycott of Israeli institutions or individuals. They are free to take their own positions, including to boycott institutions and individuals, but we believe that it is not appropriate as an institution to take such a position. The university is mindful of the consequences of adopting an institutional position in favour of a boycott in that such a position in itself has a chilling effect on debates on this topic".

23. On 15 March 2019, the Senate met to consider the proposal developed by the AFC.

23.1.

Following a debate, the Senate resolved by a majority vote to support the following resolution: "UCT will not enter into any formal relationships with Israeli academic institutions operating in the Occupied Palestinian Territories as well as other Israeli academic institutions enabling gross human rights violations in the Occupied Palestinian Territories." I attach this resolution as FA3. I refer to it as the March 2019 resolution.

23.2. I note that even the March 2019 Resolution, which applied to "institutions", recorded: "Individual academics, students and departments are free to engage in academic pursuits with anyone as they wish guided by their own conscience."

24. On 30 March 2019, the Council considered but did not adopt the March 2019 resolution. In the Council's view, several issues required clarification and action. These included an assessment of the sustainability impact of the Senate resolution, paired with a more consultative process. The Council resolved to send the matter back to the Senate. I attach an announcement summarising the Council's decision as FA4.

25. I underscore this. The Council, when faced in 2019 with a resolution calling for a boycott of Israel, declined to take a decision without further consultation and without a robust assessment of the impacts a boycott would have on UCT. In contradistinction, in 2024, the Council irrationally decided to prohibit "relations" with "the broader Israeli military establishment" without any assessment of the impacts, including financial, on UCT.

26. On 10 May 2019, the Senate met again and agreed to a wider consultative process, which the UCT executive undertook to facilitate with UCT stakeholders, and which included a sustainability impact assessment as requested by the Council.

27. On 6 June 2019, the Vice-Chancellor (now Mamokgethi Phakeng) called on the UCT community to give their views on the Senate proposal to boycott Israeli academic institutions. She provided a survey link. The deadline was set for 21 June 2019. I attach the announcement from UCT as FAS.

28. On 22 June 2019, the Council met and resolved to require the Senate and the executive to present the Council with their recommendation on the proposed boycott (arising from the public consultation process and impact assessment) at the Council's next meeting (FA6).

29. On 22 November 2019, the Senate voted by a two-thirds majority to support a "motion in respect of academic freedom" that rescinded the March 2019 resolution. I attach the resolution as FA7.

29.1. The resolution records:

"The reason that the motion included a rescission of the March 2019 resolution was because, in the proposer and seconder's view, the language of that resolution went beyond a symbolic gesture and, because it was open to interpretation, could potentially be applied to every Israeli academic institution. It was also their view that no reason had been given for why UCT should single out Israel for condemnation while it continued to have relationships with academic institutions in other countries that were engaged in human rights violations."

29.2. The resolution further provides that the Senate -

"Resolves not to impose an institution-wide prohibition on the tertiary academic sector of any nation state, but rather to engage positively and urgently with those institutions, parts thereof, and academic colleagues wherever they are to be found, whose words and actions endorse the constitutional values set out above, and who resist tyranny in all its forms wherever it manifests."

30. The Senate resolved to rescind the March 2019 resolution without considering the comments arising from the public consultation process and without considering the impact assessment report. Those documents were never tabled before the Senate and the Council because the rescission resolution was passed.

31. For four years, the matter appeared settled. The Senate had resolved that UCT should not limit academic freedom, and that UCT should not single out Israel for condemnation while maintaining relations with other institutions in other countries breaching international law. UCT placed no restrictions on academics undertaking or wishing to undertake research alongside Israeli and Palestinian academics. (UCT even awarded a grant for research in occupied Palestinian territories, attached as FAS.)

32. This changed after 7 October 2023. On that day, Hamas invaded Israel, killing and capturing hundreds of Israelis. Israel responded with military incursions into Gaza, killing thousands of Palestinians. The conflict is ongoing. The conflict between Israel and Hamas in Gaza has attracted polarised, strongly differing responses from academics at UCT and the broader public. People have strong beliefs, often held in good faith but coming to opposite conclusions, about the ethics of the conflict. The debate about the conflict, and the Middle East more generally, remains lively and tough, and is oftentimes fraught.

33. The lsrael-Hamas conflict prompted a resurgence of the "boycott issue" at UCT.

34. On 17 November 2023, the Senate met. During the meeting, various professors and associate professors put several questions to the executive regarding the lsrael-Hamas conflict. These were written questions submitted to Senate before the meeting. The professors and associate professors were Susan Levine, Lydia Cairncross, Ruchi Chaturvedi, Roshan Galvaan, Lesley Green, Mohamed Jeebhay, Leslie London, Fatima Seedat, and Sa'diyya Shaikh. The Senate then debated and passed a resolution on the conflict: "The UCT Senate calls for an immediate ceasefire and passage of humanitarian aid to Gaza, and the release of hostages and unlawfully held prisoners." I attach an announcement recording this as FA9.

35. On 7 December 2023, the Council issued a statement "on the crisis in Gaza" (FA10). The statement, among other things, called for an immediate ceasefire in Gaza.

36. On 10 January 2024, the Vice-Chancellor (now Daya Reddy) made a statement regarding public statements and protests by members of the UCT community (FA11).

36.1. In his statement, the Vice-Chancellor reiterated that UCT is committed to "respectful engagement that takes into account different perspectives, with UCT's values placed centrally, and with the essence of academic freedom at its core".

36.2. The Vice-Chancellor also referred to UCT's policy on public pronouncements by UCT members, as approved by the Council in October 2016 (FA12). The policy provides that members of UCT are free, and are encouraged, to take active positions as citizens, in particular in areas in which they have expertise, in public debates. The policy further provides that the views expressed by members may be challenged by other members of UCT, and that the views of one or other party may not be shared by the majority of members of UCT, may not represent institutional positions, or may be refuted by the institution.

37. On 23 February 2024, the Senate convened for a regular meeting. The agenda included three separate motions calling for one or more of a range of responses to the ongoing crisis in Gaza.

37.1. A question tabled to the executive concerned the three separate motions.

37.2. There was debate and a vote about whether and how the Vice­ Chancellor should respond to the question. It was decided that the Vice-Chancellor should respond, and his response should include references to prior studies regarding the risk to UCT of an academic boycott of Israel.

37.3. I attach to this affidavit an excerpt from the minutes of the Senate meeting recording the Vice-Chancellor's response (FA13). highlight the following from his response:

37.3.1. He warned the Senate that the motions would likely be legally challenged if passed.

37.3.2. The Council could not pass the resolutions unless, on balance, it was in the best interests of the University to do so.

37.3.3. The resolutions, since they limit academic freedom, would require strong justification.

37.3.4. The March 2019 resolution, if enacted, would have placed at risk R660 million in research contract funding from the United States (which, in 2019, was around half of the University's total income from research contracts). This is because the United States, and other countries including Germany, may consider the resolutions to be antisemitic.

38. In the event, none of the three motions could be voted on that day following a loss of quorum before any of the motions could be tabled.

39. On 8 March 2024, one of the three motions was debated in the Senate. The meeting ended after it was decided that voting would be secret, online, and open on Monday, 11 March. The motion was not supported in the subsequent vote.

40. On 19 April 2024, the Senate held a second continuation meeting on Gaza motions and passed two resolutions relating to the Gaza conflict (FA14). The two resolutions ultimately passed by the Council and impugned by this application mirror those two resolutions. The Senate, when passing these resolutions, did not consider any impact assessment report or public consultation comments, as it had resolved to do in its meeting of 23 February 2024. All the Senate considered was a bibliometric assessment, prepared by UCT's executive, on existing authorships involving both UCT academics and Israeli academics. I attach the assessment as FA15. I return to it below, where I explain that this assessment was never put before the Council.

41. On 22 June 2024, the Council resolved to adopt the Senate resolutions of 19 April 2024. The decision was communicated on 24 June 2024 (FA16). The announcement summarises the Council's resolutions:

"In terms of the first resolution, on the destruction of scholarship and education in Gaza, Senate [sic] resolved to:

• call, again, for an immediate ceasefire, the passage of humanitarian aid and the return of all captives as contained in the Senate's resolution of 17 November 2023

• condemn the destruction of the education sector in Gaza and the massive scale of killing of teachers and university staff in the current war

• urge the international community to ensure that the provision of humanitarian aid includes the restoration of the education sector in Gaza

• express concern and opposition to any attempts to curtail academic freedom by labelling criticism of Israel or Zionist policies as antisemitism

• reject the International Holocaust Remembrance Alliance's conflation of critique of Zionism and Israel's policies as antisemitism in favour of the Jerusalem Declaration's dynamic understanding of what constitutes antisemitism

• express support for academic colleagues in Gaza who are surviving under appalling conditions and our intention to assist in the rebuilding of the academic sector after the war

• express solidarity with academic colleagues victimised for their willingness to speak out against the educaracide [sic] in Gaza.

The second resolution was in regard to research collaborations with members of the Israeli Defence Force [sic] and the wider Israeli military establishment. In terms of this resolution, no UCT academic may enter into relations, or continue relations with, any research group and/or network whose author affiliations are with the Israeli Defence Force [sic], and/or the broader Israeli military establishment."

D. THE GROUNDS OF REVIEW

42. This application is brought in the first place on the basis of the principle of legality. The Council's decisions are an exercise of public power. Ordinarily a university council does not function in the realm of performing duties that are administrative in nature: it takes policy decisions. These resolutions, though, go beyond policy and constitute administrative action. In the second place, therefore, this application is brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

43. The application rests on four grounds of review, though I reserve the right to supplement these grounds on receipt of the rule 53 record.

43.1. First, the Council took the decisions through an irrational process by failing to consider various relevant considerations.

43.2. Second, the Council's decisions cannot link rationally to any legitimate purpose.

43.3. Third, the Council did not have the power to pass the resolutions.

43.4. Fourth, even if it did have the power to pass the resolutions, the Council failed to exercise that power in a procedurally fair manner.

44. Before turning to these grounds of review, I address important aspects of the right to freedom of expression and academic freedom, which right lies at the core of this application.

(i) Tbe nature of the right to freedom of expression

45. The constitutional right to freedom of expression lies at the heart of a democracy. The right recognises the moral agency of individuals and facilitates the search for truth.

46. The right is one of a web of mutually supporting rights, closely tied to the constitutional rights to freedom of belief (section 15), dignity (section 10), freedom of association (section 18), and political rights (section 19). These rights, operating together, protect the rights of people not only individually to form and express opinions, but to establish associations and groups of like­ minded people to foster and propagate their views. They confirm the importance, both for a democracy and the individuals who comprise it, of being able to form and express opinions - particularly controversial or unpopular views, or those that inconvenience the powerful.

47. The right to freedom of expression extends to expression that shocks, disturbs, and offends. We have to put up with views we do not like. The right demands tolerance and open-mindedness; a commitment not to approbate every view, but to the public airing of disagreements and the refusal to silence unpopular views.

48. The fact that particular expression may be hurtful of people's feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection. Public debate is noisy and there are many areas of dispute in our society that can provoke powerful emotions. Many may deplore certain statements or ideas, but that does not deprive such statements or ideas of constitutional protection.

49. It is no coincidence that the Constitution guarantees the right to freedom of expression. South Africa's past is replete with thought control, censorship, and enforced conformity to governmental theories. Public bodies, certainly universities, should be particularly astute to outlaw any form of thought control, however respectably dressed. In particular, the protection of academic freedom and freedom of scientific research guards against repeating the history of significant state interference in the independence and autonomy of educational institutions, academics and students prior to South Africa's democracy.

(ii) An irrational process

50. A decision is irrational if the functionary taking the decision failed to take account of relevant considerations before taking that decision.

51. The Council failed to take account of the following considerations before deciding to pass the two resolutions.

52. First, the impacts the resolutions would have on UCT's finances, existing relationships with institutions or academics, and UCT's reputation.

52.1. These impacts were plainly relevant to the Council's decision. The Council previously accepted as much. On 30 March 2019, the Council resolved not to consider passing a resolution to boycott Israeli academic institutions precisely because it had not been provided with details regarding a boycott's impact on UCT.

52.2. This makes sense. The Council could not know whether the resolutions were in UCT's best interests without assessing the financial, relational, and reputational impacts of the two resolutions. And the Council could only pass the resolutions if the resolutions were in UCT's best interests. The Higher Education Act provides as much in section 27(7).

The Council had no idea whether the resolutions it has passed entail a loss of funds for UCT.

52.4. With respect to donors, many donors may withdraw their donations because of a boycott, in any form, against Israel. As an example, I refer to the affidavit by Trevor Norwitz, filed with this affidavit. Mr Norwitz explains how the Council's resolutions mean that UCT may struggle to raise funds in the United States due to several states having laws prohibiting donations to institutions boycotting Israel. The point, I emphasise, is not whether Mr Norwitz is correct. The point is that the Council simply never undertook any assessment of the cost of its resolutions to the university. That is irrational.

52.5. On 8 August 2024 the recently-appointed Vice-Chancellor (Mosa Moshabela) addressed a faculty board meeting of the Humanities Faculty. He said that in his first week as Vice-Chancellor he had been informed that there had been a withdrawal of at least R300 million in donor funds. He also said that that was not going to be the end of it. A senior colleague showed me a contract of donation to UCT, in a very substantial amount, which includes as a term that UCT show (in line with its policy of tolerance for differences of religion, culture and so forth) zero tolerance for antisemitism as defined by the IHRA.

The contract was signed on behalf of UCT in September last year by the then Vice-Chancellor and by the chairperson of the Council, the second respondent. The Council's resolutions, in particular the rejection of the very IHRA definition of antisemitism that had been accepted by UCT, places UCT in breach of this contract and therefore at risk of losing the donation.

52.6. As for research funding, which takes the form of contracts and grants, most of UCT's funding comes from the United States. I attach a breakdown of UCT's research funding sources as FA17. The Council gave no consideration to whether any existing research funding, and the obtaining of future funding, may be impacted by these resolutions. There is a real risk that the resolutions impact on funding, given how US states and institutions approach the issue of boycotting Israel.

52.7. The same is true of UCT's existing relationships. The Council adopted its resolutions without considering the number of academics the resolutions might affect, the kinds of projects or academic research the resolutions might prohibit, and the link between affected academic research and unlawful conduct by the IDF. The Council, for example, did not audit the number of academics who (at the time of the resolution) had "relations" with research groups linked to the IDF.

52.8. The irrationality is only exacerbated when one considers how UCT's executive had assessed the financial and relational impacts of an academic boycott in 2019. I have not seen this impact assessment report - but neither has the Council. In other words, there is an existing (albeit possibly outdated) report on the possible impacts of the resolutions - but the Council failed to consider it.

52.9. More recently, on 17 November 2023, UCT's Executive prepared the bibliometric analysis of UCT academics' collaborations with Israeli academics that was tabled before the Senate at its meeting of 17 November 2023 (annexure FA15). The analysis reveals a total of 2 278 papers by UCT and Israeli authors, of which 1 759 have over 50 authors. Of the remainder, 529 have between 10 and 50 authors, and 56 have fewer than 10 authors. Of these 56, not one concerns defence. The analysis shows that most of these papers focus on health sciences. The Council did not even consider this analysis, despite its obvious relevance to its decision, and despite the fact that this assessment served before the Senate.

53. Second, the Council failed to consider the proceedings and minutes of the Senate meetings in 2018, 2019, 2023, and 2024.

53.1. In 2018, the Senate met and resolved by majority vote not to support the proposal from the PSF for a boycott of Israeli academic institutions. The Senate, when voting to reject this proposal, considered a statement by UCT's executive explaining that "boycotts of academic institutions always risk the academic freedom of individuals, and more often than not, do not advance solutions to conflict and human rights violations".

53.2. In 2019, the Senate resolved to rescind the March 2019 resolution.

The Senate gave important, relevant reasons for its decision, including curtailing academic freedom. The Council did not consider the minutes of this Senate meeting, or the Senate's rescission, when it decided to pass the resolutions impugned in this application.

53.3. The Council furthermore failed to consider the minutes of the Senate meetings between 17 November 2023 and 19 April 2024. These minutes record the arguments for and against the resoluti'ons, and include the bibliometric analysis I discussed above. For instance, I gave an address to the Senate against the resolutions, which I attach as FA18.

53.4. All these Senate proceedings were relevant to the Council's decision.

The Senate is the body responsible for the academic and research functions of UCT. The Council, patently, should consider all the relevant proceedings before the Senate before deciding to adopt a resolution passed by the Senate, certainly when previously the Senate had considered similar resolutions and decided to rescind them.

53.5. What the Senate proceedings of 19 April 2024 would have revealed, for instance, is that the motions that were adopted by way of Senate resolutions proceeded from a false premise. The premise was that the International Court of Justice (ICJ) had found that it was plausible that Israel was committing genocide in its attacks on Palestinians in Gaza, alternatively (to the same effect) that the ICJ had found that there was a prima facie case of genocide against Israel.

53.6. The premise was derived from an incorrect interpretation of the ICJ's judgment in the application for interim relief sought against Israel by South Africa. In an interview on 26 April 2024 the presiding judge in the ICJ hearing, and the President of the ICJ at the time, Joan Donoghue, made this clear. Although the interview post-dated the Senate meeting at which the motions were passed, it pre-dated the Council meeting at which the resolutions were adopted. I attach the Senate meeting minutes as FA19 (the ICJ premise is at page 25).

54. Third, I am aware that in 2018 and 2019 UCT obtained two legal opinions from counsel on whether the Council or the Senate could pass a resolution curtailing academics from collaborating with Israeli academics or institutions. The Council failed to consider these two legal opinions before adopting the two resolutions, despite their obvious relevance. This is irrational.

55. Fourth, the Council failed to consult with the AFC. The AFC is constituted to advise the Senate and the Council on any aspect of academic freedom, and to protect and promote academic freedom. I attach its terms of reference as FA20. As I explained above, the Council and the Senate previously consulted with the AFC regarding boycotting Israel. This, once again, makes sense. A resolution prohibiting academic relations with Israeli academics has severe ramifications for academic freedom; and the AFC should be consulted on such a resolution. However, the Council failed to do so before adopting its resolutions.

56. Fifth, the Council took no steps to consult with the academics who may be affected by the resolutions, or the broader UCT community. In 2019, the Council refused to decide on a boycott resolution without inviting public comments. In 2024, the Council, for no reason, decided to pass the two resolutions without consulting even those directly affected by the resolution: academics with existing "relations" with Israeli academics (who may somehow be part of the IDF or "the broader Israeli military establishment").

This is irrational, especially when the Council had previously decided to invite comments from the broader UCT community on whether to boycott Israeli academic institutions. The consequences externally may well extend beyond having to terminate existing "relations": academics could be penalised by being excluded from participation in international conferences, research work and research papers due to their affiliation with a university that is perceived to be either antisemitic or anti-Israel, or both.

57. Sixth, the Council failed to consider the consequences internally for academics who breach the prohibition in the resolutions. It is irrational to prohibit conduct without considering what would happen should someone commit that conduct. The Council did not consider whether breaching the prohibition would amount to a disciplinary offence, for instance, and whether the Council would have the power to compel an academic to cease collaborating with a research group or network. It is in itself a breach of fiduciary duties by those members of the Council who supported the decision not to have first determined the consequences for academics that would follow from a breach.

58. The Council's failure to consider the above relevant considerations renders its decision irrational.

(iii) No rational link to a legitimate purpose

59. As I explain below, the Council does not have the power to adopt resolutions that curtail academic freedom. However, assuming that the Council could adopt resolutions with the purpose of preventing UCT's affiliation to or complicity in unlawful conduct by the IDF, and pressuring the IDF to act lawfully, its resolutions cannot achieve that purpose.

60. First, the resolutions are too broad. They prohibit academic research that has no link whatsoever to unlawful conduct by the IDF or to pressuring that army to act lawfully. As examples, the resolutions imply that-

60.1. a UCT academic could not co-author a paper exposing atrocities committed by the IDF with a research group whose author affiliations include an Israeli soldier;

60.2. a UCT academic could not co-author a paper proposing ways in which the IDF can comply with international law with a research group including a soldier whose author affiliation is the IDF; and

60.3. a UCT academic could not co-author a paper on curing tuberculosis, or any topic entirely unrelated to and which can have no bearing on the IDF's conduct, with a research group whose author affiliations include an Israeli soldier.

61. The resolutions prohibit academic affiliations that expose or prevent unlawful conduct by the IDF, or which are neutral in respect of unlawful conduct by the Israel Defence Force. This is an irrational means by which to achieve the purpose of preventing affiliation with or complicity in unlawful conduct by the IDF, or pressuring compliance with the law. Simply put, prohibiting neutral academic research takes the purpose no further and prohibiting research critical of the IDF undermines it.

62. Second, the resolutions are too narrow. The resolutions irrationally fail to prohibit types of academic research that could easily affiliate UCT with the IDF, or which could undermine any attempt to pressurise the IDF to act lawfully. The resolutions prohibit "relations" only with "research groups" or "networks" whose "author affiliations are with the Israeli Defence Force". They do not prohibit UCT academics, for example, from collaborating directly with the IDF. They do not, as a further example, prohibit academics from receiving funds from the Israeli government, an entity distinct from the IDF. The upshot is irrational given the supposed purpose of the resolutions:

62.1. a UCT academic could not co-author a paper exposing atrocities committed by the IDF with a research group whose author affiliations include an Israeli soldier; but

62.2. another UCT academic could receive millions of dollars in funding from the IDF to conduct research on military strategies or weapons development (this research could even be co-authored by a member of the IDF, if the research does not include a "research group" or "network").

63. Third, the resolutions are so vague that they cannot bear a rational link to their purpose. The resolutions do not define "relations", "research groups", "networks", "author affiliations", or "the broader Israeli military establishment".

The Council needed to explain these aspects of its resolution, because without more the scope of the resolutions is nebulous beyond practicality.

63.1. Academics may have any number of kinds of (professional) "relations" with other academics. These range from formal co­ authorships and funding arrangements to attending conferences, guest lectures, and other more informal collegial interactions. Which ones are prohibited by the resolution? The answer is simply unclear.

63.2. "Research groups", "networks", and "author affiliations" are not always formally recognised concepts within academia. A "network" could include various research groups, and the "author affiliations" of those networks can span across institutions. The issue is that the resolutions do not address the degrees of separation permitted by the prohibition. For instance, if an academic wanted to collaborate with a Harvard University research group, but that research group is part of a network whose "author affiliation" through another research group at another institution includes an Israeli soldier, then is that academic precluded from working with the Harvard group? The resolutions, without more, do appear to prevent the academic from collaborating with the Harvard group.

63.3. In some disciplines or publications, an "author affiliation" is the self­ declared institutional "home" of an academic. So, my "author affiliation" could be UCT, or any institution with which I am affiliated.

On this meaning, the resolutions prohibit relations with "networks" or "research groups" whose members (presumably) self-declare their affiliation to be the IDF or the "broader Israeli military establishment". But this is irrational given the supposed purpose of the resolutions. For example, to avoid the resolutions' prohibition, an IDF soldier who is also an academic at a university could simply self-declare her "author affiliation" as that university, and not disclose her IDF affiliation. Conversely, UCT academics can collaborate with Israeli academics who assist the IDF with research regularly, if the latter academics' institutional affiliation is a university, not the IDF.

63.4. The "broader Israeli military establishment" is the most ambiguous aspect of the resolutions. I have assumed above that the clause "and/or the broader Israeli military establishment" qualifies the author affiliations prohibited by the resolutions. But the vague sentence structure of the resolution could easily permit a broader interpretation: academics are prohibited from entering relations with the broader Israeli military establishment, and with research groups or networks with author affiliations to the IDF. In any case, the "broader Israeli military establishment" plays a pivotal role in the resolutions, but its scope is entirely unclear.

63.5. On a plain reading, the resolution would preclude collaborations with almost all Jewish Israeli academics, since most Jewish Israeli citizens are conscripted to serve in the IDF and remain reservists after their service until the ages of 46 (for officers), 41 (non-officers), and 50 (for key positions). Just as one example, over 7000 staff members and students from the Ben-Gurion University of the Negev were called up as reservists since 7 October 2023 (FA21). The effect of the resolutions, it appears, would preclude almost entirely any relations with academics at Ben-Gurion.

63.6. The resolution furthermore appears to envisage a "military establishment" beyond the IDF, but the entities or persons falling within that establishment are undefined. For instance, would an academic hospital that treats IDF soldiers with rare diseases form part of Israel's "broader military establishment"? Again, there is no answer.

63.7. In addition to all this, as explained above, the resolutions are silent as to what happens to academics who enter a prohibited "relation". Without including consequences of breach, the resolutions are too vague to be implemented, thus failing to link rationally to achieving their apparent purpose.

64. In sum, the resolutions cannot achieve their apparent purpose. They are self­ destructive, because they prohibit academic research that could pressurise the IDF to act lawfully, and because they allow academic research that could directly affiliate UCT with the IDF. They are, furthermore, ambiguous beyond implementation. Academics at UCT simply cannot know whether they are hit by the resolutions' prohibitions, and what would happen to them if they were. All this renders the resolutions irrational.

(iv) No authority

65. The Council did not have the authority to pass the two resolutions.

66. First, on 3 November 2010, the Council passed a resolution regulating when it should adopt a public position on issues of public importance. I attach this policy as FA22.

66.1. The Council simply failed to consider this policy when it decided to adopt the two resolutions impugned by this application. The Council's failure to consider its own policy suffices to set aside its decision.

66.2. Moreover, the Council's decision contravenes the policy.

66.3. One, the policy requires the Council to make statements "only when it is clear that Council is able to do so with authority". The Council is not an authority on the lsrael-Hamas war, or on the conduct of the IOF. The Council certainly did not consult with experts on the conflict, or hear the views of persons who represent the parties to the conflict. The Council is well placed to speak to issues facing UCT, and at best the broader academic community in South Africa - but not a complex war taking place thousands of kilometres away. As an historian, and one with considerable knowledge of and ongoing engagement with the history of the Middle East, I am confident in saying that not a single member of the Council as then constituted is an expert on that part of the world.

66.4. Two, the Council should be satisfied that its response "will command widespread (though not necessarily unanimous) support within the UCT community". The Council did not satisfy itself of widespread support within the UCT community. It could not. The lsrael-Hamas conflict has sparked a lively debate at UCT, with UCT members taking varying stances on the conflict. One can hardly imagine a topic currently more controversial and polarising than the lsrael­ Hamas conflict. As an example, I attach articles by various professors and students at UCT, who express differing views on the topic (FA23 to FA30).

66.5. But the most important indication is how the Senate flip-flopped on the issue. The Senate, since 2018, decided against boycotting Israeli academics, then decided to boycott Israeli institutions, then rescinded that decision, then decided again to boycott Israeli (military) academics. Moreover, as recently as 11 March 2024, the Senate rejected a motion regarding the lsrael-Hamas conflict, although that motion would no doubt have enjoyed the support of the same members of Senate who voted in favour of the two resolutions on 19 April 2024.

The Senate, clearly, cannot make up its mind. That indicates an absence of "widespread support" for the Council's resolutions. Also, the two resolutions adopted by the Senate were both passed by a significant minority of the membership of the Senate (albeit a majority of those present and voting).

66.6. Three, the Council, "in the first place", should take public positions on issues relating "to the protection of academic freedoms". The implication is that the Council cannot take a position inimical to the protection of academic freedom. But that is precisely what the Council has done. The Council has restricted academic freedom in its resolutions, contrary to the policy's requirement that the Council "in the first place" take stances protecting academic freedom.

67 . The Council's policy on public positions accords with the position adopted by various leading universities around the world. The leading institution in this regard is the University of Chicago.

67.1. The "Chicago Principles", as they have come to be known, are a set of principles developed by the University of Chicago regulating academic freedom at a university. The Principles, which I attach as F31, provide:

"[T]he University's fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose."

67.2. The Principles accept that freedom of expression may be limited, but only expression that "violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University".

67.3. The Principles have been adopted by over 110 universities in the United States, including Harvard, Stanford, Georgetown, Columbia, and Princeton. I attach a full list of institutions as FA32.

67.4. The Chicago Principles should be read in conjunction with the Kalven Report, a report by a special committee appointed by the University of Chicago in 1967 to address the university's role in political and social action (FA33). The report finds:

"The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.

[... ]

The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues." (Emphasis added.)

67.5. The Report concludes: "Our basic conviction is that a great university can perform greatly for the betterment of society. It should not, therefore, permit .itself to be diverted from its mission into playing the role of a second-rate political force or influence."

68. Second, the Council is obliged to "govern" UCT under the Higher Education Act. I am advised that on a constitutional interpretation, "govern" cannot mean taking decisions that limit academic freedom or that take positions in ongoing academic debates, like the two resolutions. This is a matter for legal argument. For now, I demonstrate how, factually, the resolutions limit academic freedom in two ways.

69. First, the Council resolved to prohibit UCT academics from entering "into relations, or [continuing] relations with, [sic] any research group and/or network whose author affiliations are with the Israeli Defence Force [sic], and/or the broader Israeli military establishment". This is a severe and drastic limitation on academic freedom. I detailed above how the resolution, given its poor drafting and ambiguity, bans a wide range of collaborations (from co-authorships to guest lectures) with a seemingly endless array of academics (like research groups that are part of networks with other research groups which themselves may have "author affiliations" with Israeli academics who, as a matter of Israeli law, remain conscripted reservists).

70. Various affidavits from UCT academics have been filed alongside this one.

Each supporting affidavit details how academics stand to be impacted by the resolutions.

71. As for my work, my academic freedom stands to be impacted in the following ways:

71.1. I am an elected member of the Board of Directors of the Association for Jewish Studies, the foremost international scholarly body in the field of Jewish Studies. The Association has more than a thousand members including Israeli scholars, some of whom are conscripted reservists and many of whom work at Israeli universities, as well as many scholars outside of Israel who collaborate with scholars in Israel. In all likelihood, some of these scholars are part of "networks" banned under the terms of the resolution. Under a plain reading of the resolution, this could preclude my participation in the Association for Jewish Studies. The same applies to my membership of and participation in the Academic Council of the American Jewish Historical Society, as well as my routine participation in large scholarly conferences in the field of Jewish Studies.

71.2. The Kaplan Centre for Jewish Studies organises biennial conferences relating to the field of Jewish Studies. These conferences routinely include academics from Israel whose "networks" conceivably include those banned under the terms of the resolution. Such a ban on their participation would impede my ability - as well as that of the staff of the Kaplan Centre - to engage with fellow scholars and to pursue our research unimpeded.

71.3. Given the nature of our research, I and the staff of the Kaplan Centre routinely engage with scholars at the Hebrew University of Jerusalem, National Library of Israel, Yad Vashem and other academic institutions in Israel. In addition to the issue highlighted above relating to "networks," these routine engagements raise the question of the definition of "broader Israeli military establishment."

71.4. The debate in Senate that preceded the passing of these resolutions included claims that all of the leading Israeli universities could and should be regarded as part of the "broader Israeli military establishment." Similar claims were advanced in Senate in 2019. Given that this phrase is undefined and can be broadly interpreted, the resolution can potentially impede our freedom to partner with colleagues at leading Israeli institutions and to pursue our research unimpeded. I refer to pages 24 and 29 of the Senate meeting minutes attached above as FA19.

71.5. I am the Principal Investigator of an ongoing research project designed to track antisemitism on social media in South Africa. This project received funding from the Konrad Adenauer Stiftung and is currently funded by the Norwegian Ministry of Foreign Affairs. As part of this project, we have joined a research consortium that includes partners in Ukraine, Norway, and the United States.

These and other partners routinely employ the IHRA definition of antisemitism in pursuit of their research. This project builds on much prior research by the Kaplan Centre on the history of antisemitism in South Africa, as well as attitudinal surveys that we have undertaken periodically to track sentiment toward Jews in South Africa. Central to this research is the freedom to define antisemitism without any restraints imposed by UCT. The decision by Council to "reject" the IHRA's definition of antisemitism potentially imposes such restraints.

72. The Council's resolutions set a dangerous precedent. The Council may prohibit UCT academics from having any "relations" with any institution or person Council considers warranting censure. If the Council can ban academics from working with Israeli academics, because it considers the IDF to be breaching international law, then the Council could easily ban academics from collaborating with academics from the following countries:

72.1. The United States and the United Kingdom, because of their respective militaries' conduct in (for example) Iraq and Afghanistan.

72.2. The People's Republic of China, for its military's conduct in (for example) the South China Sea, or the persecution of the Uyghur ethnic minority in the Xinjiang Uyghur Autonomous Region, were reportedly subjected to forced cultural assimilation, forced sterilisation, mass detention and coercive labour policies.

72.3. The Russian Federation, for its military's conduct in Ukraine.

72.4. Ethiopia and Eritrea, for its militaries' conduct in the Tigray Region, where civilian structures, including hospitals, schools, factories, and businesses, were shelled, looted and destroyed by Ethiopian federal forces and regional militias, and by Eritrean armed forces. The fighting and continued restrictions on humanitarian access forced more than two million people to flee their homes, with thousands fleeing into Sudan, and left at least 2.3 million in need of assistance.

72.5. Saudi Arabia, for its military's reportedly indiscriminate bombing of Houthis in support of the government of Yemen, in a ten-year civil war that is estimated so far to have caused 377 000 deaths.

73. These are just examples. The point is that the Council cannot decide, in its view, that an entire country is "off limits" and ban UCT academics from collaborating with academics from that country. Such a decision is a profound limitation on academic freedom. This is precisely why the Higher Education Act does not empower the Council to take decisions limiting academic freedom.

74. Second, the Council resolved to "reject" the IHRA's definition of antisemitism in favour of the Jerusalem Declaration's. Adopting a position in a contested academic debate, and by implication rejecting alternative positions in that debate, limits academic freedom. The Council has indicated to its academics that there is only one definition of antisemitism, or at least that an alternative definition is incorrect, shutting down contrary debate or research.

75. As a concrete example, I understand from the Council's resolution that I, as a member of UCT, may not use the IHRA definition of antisemitism in conducting research. But I currently do so.. 1 and the team of students and scholars that I work with are presumably barred from using the IHRA definition when collecting data on online hate speech, as we have done for several years.

76. Defining antisemitism remains a live controversy in academia. This should come as no surprise. Academics continue to debate definitions of racism, sexism, homophobia, and other forms of wrongful discrimination. Antisemitism is no different.

76.1. I am well placed to address this issue. My scholarly work involves research into antisemitism and other forms of racism. I am a participant in the lively debate among scholarly experts within the field about how best to define antisemitism.

76.2. I attach an article, as recent as 30 July 2024, in which an academic (an emeritus professor of UCT) takes issue with various aspects of definitions of antisemitism, including those of the IHRA and the Jerusalem Declaration (FA34).

76.3. I have also attached an address I made to the Senate before it passed its resolutions (FA18). In this address, I explained that definitions adopted by the IHRA and the Jerusalem Declaration are contested and controversial. The Senate (and now the Council), by rejecting the IHRA definition, has taken a (misconceived and uninformed) position in an ongoing scholarly debate. The resolution is akin to taking a position on controversial scientific theories, or deciding that one scholar is right over another, by majority vote. That cannot be what "governing" a university entails.

It is extraordinary therefore that an academic such as myself, who does have expertise on the subject, can be outvoted on what antisemitism means. As with the Council, the Senate, too, has at best a smattering of members who have any expertise on the subject of antisemitism. I have therefore been outvoted by persons who are not even knowledgeable about the subject on which they voted.

77. The Council's decision to "reject" the IHRA definition raises a further issue.

77.1. The Council's decision is based on a fundamental and material mistake of fact. The Council assumed that the IHRA definition constitutes a "conflation of critique of Zionism and Israel's policies as antisemitism". This is false. As I explained in my address to the Senate, the IHRA definition does no such thing. The definition reads:

"Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities."

77.2. • This definition does not preclude criticism of Israel. In fact, the drafters of the definition make plain in an accompanying note that "criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic".

(v) Procedural unfairness

78. The grounds of review relied upon thus far are all available to the applicants under the principle of legality, although they are also available to the applicants under section 6(2)(a), (e), (f) and (i) of PAJA. Procedural unfairness is solely a ground of review under section 6(2)(c) of PAJA.

79. I have explained above that the resolutions will have a detrimental impact on my research. They will also have a detrimental impact on the research of a considerable number of other UCT academics, as is apparent from the bibliometric analysis to which I have made reference. Needless to say, the ability to do research is fundamental to the academic enterprise. Our careers are built on the research we do. Research is the lifeblood of a university.

80. I, in common with other UCT academics who are detrimentally affected (or potentially detrimentally affected) by the resolutions, was entitled to be heard by the Council before those resolutions were passed. Had we been given such an opportunity, one must believe that we may have been able to persuade the members of the Council that adopting the resolutions would not be in the best interests of UCT; that adopting them would therefore constitute a breach of the members' statutorily-entrenched fiduciary duties; that the resolutions moreover are in conflict with the Council's own policy; that they infringe our constitutional rights; and that the detrimental effects (or the potential detrimental effects) for UCT academics are too severe to warrant the resolutions.

E. URGENCY

81. The applicants do not ask for curtailed time periods for the provision of the rule 53 record and, in due course, any answering papers that may be delivered. Once the pleadings have closed, though, they do intend to approach the Judge President (or the Acting Judge President) for an expedited date for the hearing of the application.

82. I should explain the reasons for this.

82.1. On 27 July 2024, the Council rejected a motion to delay implementation of its resolutions. It further resolved to oversee the implementation of its resolutions.

82.2. The implication is clear. The Council intends to begin implementing its resolutions forthwith.

82.3. The Council's intention brings urgency to the matter.

82.4. First, once the Council begins implementing its resolutions, academics will suffer harm that cannot be remedied in the ordinary course. The supporting affidavits to this application make this harm plain. There can be no undoing, once done, of cancellations of existing relations with academics or interruptions to time-sensitive academic research.

82.5. Second, there is a real and imminent concern that major UCT donors will withdraw funding from UCT should the Council resolutions remain in place. This will have disastrous consequences for UCT.

F. REMEDY AND COSTS

83. If the decisions to pass the resolutions are irrational or unlawful, then those decisions must be declared invalid in terms of section 172(1)(a) of the Constitution or in terms of PAJA. The default consequence is that those decisions must be set aside, and there is no reason against setting aside the decisions.

84. Should they succeed, the applicants seek cost jointly and severally against any respondents opposing this application on scale C. The complexity of this matter, and the nature of the constitutional issues raised, warrant costs on this scale. Should the application fail, then the applicants should not have to pay the costs of respondents opposing this application, given the Biowatch principle.

85. For these reasons, the applicants seek the relief sought in the notice of motion.

ADAM MENDELSOHN