Protesting at university is a messy business as we South Africans observed during the #FeesMustFall campaign. Bullets are fired, tear gas is employed and students are left broken. In light of all the recent protests, universities are struggling to engage with protesters in a constructive manner. We have seen the quasi-militarisation of our campuses, where universities are only willing to negotiate after they have secured the legal high ground against their students by obtaining interdicts from the courts, often resulting in the handing over by universities of the moral high ground to students who have garnered mass support from the public as well as the media.
As a result of these public stories, the South African History Archive (SAHA) became aware that there have been a number of interdicts obtained against students, and decided to use the right to access to information in order to access copies of the records from the universities. Accordingly, SAHA submitted a single Promotion of Access to Information, 2000 request (PAIA request) to a total of 21 universities in and around South Africa for copies of all court interdicts obtained by the universities in the last five years, and in relation to protest action, against any person or organisation.
Unpacking the content of the Interdicts
The results revealed interesting observations. The earliest interdict taken by a university was in 2007 by the Central University of Technology. Some universities had obtained interdicts against student protest almost every year since 2010 such as Central University of Technology, the University of Witwatersrand, the University of Limpopo and Tshwane University of Technology.
Beyond that, it would seem that every university, which released records to SAHA, had obtained court orders in 2015 with some in 2016 as well. Whilst the interdicts do not detail any engagement with students prior to approaching the courts, it is highly possible to assume that no prior engagement took place as many of the interdicts were sought on an urgent basis. This could mean that universities were caught off guard by the protests and in an attempt to maintain a control over students and their respective campus’s approached the courts.
The interdicts seem to follow a generic set of wording preventing the respondents from disruptive behaviour, intimidation, occupying certain structures, obstructing the inflow of people to and from the university etcetera. There is not distinction made between peaceful disruptions and occupation and non-peaceful behaviour which points to a blanket prohibition of protest. It is almost as if the vice chancellors of the various institutions shared a single template for quelling protests. Whilst this is an unprovable fact, the proven fact is that these interdicts taken out against protesters held no sway in preventing the protests from happening and indeed from reoccurring in the future. Not only did the protests continue in defiance of the interdicts, many vice chancellors and even ministers were forced to humble themselves before student protesters who had the backing of almost the entire nation at one stage. Obviously we cannot be blind to the fact that sometimes interdicts and the enforcement thereof are necessary, especially considering the institutional damage arising out of the fees must fall movement is estimated to be in the hundreds of millions. However universities need to be cognisant of the fact that they are supposed to facilitate free speech, protest and disagreement and not adopt a militarised approach by approaching the courts in order to punish students who may or may not have genuine concerns.
The interesting part about the requests submitted by SAHA was not only that the records showed uniformity by universities in dealing with the right to protests and free speech, but also the varied approaches they took in dealing with the right to access to information.
Non-compliance with PAIA
Some universities complied with the statutory provisions of PAIA and did not. This is because a host of universities did not even acknowledge receipt of SAHA’s request and consequently, the PAIA request was deemed to have been refused. The University of South Africa, Vaal University of Technology, University of Zulu-land and Fort Hare University have not complied with PAIA at the initial stage. The lack of response from the University of South Africa is the most surprising especially seeing that it has been widely reported by the media that the university has obtained interdicts against protesters.
Near non-compliance with PAIA
Bordering on the title of the worst of the lot was Stellenbosch University who despite acknowledging receipt of the PAIA request decided to embark on a very strange path, raising technical issues unrelated to PAIA relating to the authority of trust employees to act on behalf of the trust they are employed by. They did not engage with the provisions of PAIA yet relied solely on their contentions as the basis for their refusal. SAHA decided to challenge their contentions and after pushing back SBU released the records to SAHA.
Semi-compliance with PAIA
The University of the Western Cape, University of the Free State, Walter Sisulu University and Nelson Mandela Metropolitan University did not respond to SAHA within the statutory time frame however when SAHA sent correspondence indicating that the matter would be taken up on appeal all three released the records to SAHA.
The North West University (NWU) and University of Limpopo (UNL) initially told SAHA that the interdicts could be found in the court files at the respective courts they were obtained which was a fair answer. However, when SAHA advised both NWU and UNL that if they believed the records were with the courts they had an obligation to transfer the request in terms of section 20 of PAIA; they responded with a revised decision and released the records to SAHA.
Notable Compliance with PAIA
Of the Universities that complied with the provisions of PAIA, the most proactive was the University of Johannesburg (UJ), who after receiving the request on 14 April 2016 acknowledged receipt thereafter a couple of days later on 18 April at 7am advising SAHA that the records would be made available at some time during the morning. In less than 2 hours SAHA received an email containing the 2 interdicts that UJ had taken out against protesters. Notably UJ decided not to charge SAHA the section 22 request fee nor the access fee. The experience with UJ was impressive and is an encouraging example of proactive compliance with PAIA.
Interestingly, the former Technikon institutions also scored well in their compliance with PAIA with the exception being the Vaal University of Technology. The Cape Peninsula University of Technology, Durban University of Technology, Central University of Technology and Tshwane University of Technology (TUT) all performed excellently and provided SAHA with records within the statutory time period, aside from TUT who were a couple of days overdue with their decision.
SAHA’s engagement with Rhodes University (RU) was impressive because at the time of the initial request RU had not obtained any interdicts against protests in the past 5 years, not even during the height of the fees must fall movement. However, between the times that they provided their decision and the deposing of an affidavit to confirm their decision, reports had come through the media indicating that RU had sought and obtained an interdict against the protest that had erupted following the release of the “RU reference list”. SAHA took a decision to not bring this to the attention of RU and see whether they would withdraw their initial decision. SAHA was pleasantly surprised when an email was received from RU stating that they intended to withdraw their initial request and attached the interim interdict they obtained a few days after their decision was given to SAHA. It is this type of proactive disclosure and transparency that is encouraging to witness and gives strength to the right to access to information.
The University of Pretoria followed the procedures set out in PAIA “to a T” and after SAHA paid the access fee they too released the copies of the interdicts they obtained against protests in the past 5 years. A similar approach was encountered with the University of Cape Town (UCT)
Despite there being varied responses by the universities as well as difficulties experienced by SAHA in some instances the silver lining was that from a total of 21 requests, records were release by 13 Requestee bodies which shows that whilst some universities may not care about the right to access to information the majority do.
