Brackenfell High vs EFF: Judge Siraj Desai defends the right to protest

10 Nov 2020

A high court application to bar protest at Brackenfell High School comes in the wake of violent clashes that broke out outside the school on Monday 9 November between EFF members and a group of parents. The EFF members were protesting against alleged racism at the school after black learners were reportedly neither informed of nor invited to a private function organised by parents after the school’s matric ball had been cancelled due to Covid-19.

The urgent application from the Brackenfell High School governing body filed in the Western Cape High Court to have protest action barred in and around the school infringes on the rights of people to protest.

This was the core message sent by Judge Siraj Desai on Tuesday to the school’s governing body and its legal counsel, advocate Marius Verster. The governing body filed an urgent application seeking relief that would prohibit protest action around the Cape Town northern suburbs school and interim relief that would ensure the matric exams continued unhindered.

Advocate Deneys van Reenen, appearing for the EFF, told the court his client would oppose the application and asked the court for time to prepare a replying affidavit.

The application comes in the wake of violent clashes that broke out on Monday 9 November outside Brackenfell High School between EFF members and a group of parents from the school. The EFF members were protesting against alleged racism at the school. This relates to a private function organised by parents after the school’s matric ball had been cancelled due to Covid-19. It has been reported by some that black learners were neither informed of nor invited to the function.

Verster said: “We submit that the protest be carried out elsewhere, at the municipal office or city hall, to protect the matric exams and that it continues uninterrupted. The issue is the protest might happen again and we need interim protection.

“Your honour, the relief that we are seeking I accept is limited as far as the roads are concerned. The area described is very specific and we outlined the triangular shape and specifically that we don’t want protest in that area.”

However, Desai pointed out the relief was a breach of the right to demonstrate. The matter was constitutional and people had a right to be heard loudly, he said.

Desai said: “You see, Mr Verster, you are not in a position to dictate the presence or action of protest. The protest is a result of an act. They may not be factually correct, but if the facts are correct then the protesters are then entitled to protest. The only issue is to what extent does it breach the Constitution of the day.”

Replying to the judge’s comment, Verster explained that there was ample room for the protest to continue, adding that it could take place at the city hall which was quite close by. His argument was that Monday’s protest at the school erupted into chaos.

Desai told Van Reenen that the EFF papers had to be filed by Friday and the full application will be heard on Monday morning.

But Desai asked him: “Tell me what sense politically does it make if the protest would be at the city hall?”

Verster said in his experience in Johannesburg, all protests took place in front of the high court, adding that if [the EFF] protested at a public institution the protest would attract attention. The problem was that the protest at the school erupted into chaos and they were threatening more, Verster said.

Quoting from a letter by the EFF, stating that the EFF would descend on Brackenfell in its entirety and make sure nothing operated, Verster argued that it was a threat to disrupt the school examinations which happened on Monday. The risk was that it could happen again and “we meticulously attempted to describe specifically the roads which delineate the area where we say the protest will affect the school examination”, Verster argued.

However, Desai pointed out there was a much more fundamental right involved. If there was a hint of racism, the protest was entitled, the judge said.

Member of the school governing body Johannes Wilhelmus Muller explained in his founding affidavit that the purpose of the application was to obtain an urgent interdict against the EFF that would restrain it from staging a demonstration near the school.

Touching on a private farewell matric party held without informing black learners, he said: “It came to my knowledge that a private party called a Masquerade Ball was held on Saturday 17 October 2020 at the venue of Skilpadvlei Wine Farm near Stellenbosch. This party was not organised by the school or the governing body, but apparently by one or more of the parents.

“The governing body only noted the controversy about the party after it appeared on social media after the party. The controversy was that the 47 learners who attended the party were all of the white race group.”

According to Van Reenen, they received the papers only at 10.30am on Monday 9 November and didn’t have time to prepare a proper reply.

However, after being asked by Desai for an undertaking from his client, he told the court the EFF had indicated it would not disrupt the matric exams on the understanding they were still allowed to protest.

Desai said: “I want the exams to be written peacefully. The EFF is prepared to give an undertaking that it will not disrupt the matric exams on the understanding they are still allowed to protest. As long as the children are not endangered from entering the school and not prevented from writing exams.”

Desai told Van Reenen that the EFF papers had to be filed by Friday and the full application will be heard on Monday morning.

“Between now and then I accept the undertaking and I’m not making any other order at this stage because this case deals with the very fundamental issues impacting upon society,” Desai said.

“The relief that is sought by the governing body is wide ranging relief and in contravention of clause 17 of our Constitution and I don’t know if I’m at liberty to limit that right at this stage,” Desai underlined.

Meanwhile, provincial Education MEC Debbie Schafer has called for peace and calm in Brackenfell and all areas in the province. She reiterated that the department had to ensure that all matric learners had every opportunity to write their best National Senior Certificate exams.

“The debate on race and discrimination is an important one; however, it can be done with the maturity shown by our Grade 12 learners, and not by inciting aggression or violence,” she said. DM/MC

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