The high-profile case involving the University of Cape Town (UCT) began on Thursday at the Western Cape High Court, where Professor Adam Mendelsohn, head of the Department of Historical Studies, is challenging two UCT Council resolutions passed in June 2024 related to the Israel-Gaza conflict.

The matter is being heard by Judges Robert Henney, Tandazwa Ndita and Mark Sher.The trial kicked off with a fiery start as Judge Henney questioned whether the matter needed to be before the court at all. He asked if there was no way for the parties to resolve the dispute through mediation and whether it was necessary for an academic institution to be involved in such litigation.

Mendelsohn’s lawyer, Advocate Eduard Fagan, replied that mediation had already been attempted but was unsuccessful. Mendelsohn argued that the Council acted unlawfully, failed to consult widely, and did not assess the potential financial and reputational risks of its decisions. He said the resolutions have damaged UCT’s global standing and academic freedom. The Free Speech Union of South Africa (FSU SA), which supports his case, has warned that the outcome could have “grave implications” for UCT’s reputation as South Africa’s top-ranked university.

The first resolution rejected the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, claiming it conflates criticism of Israel with antisemitism, a view denied by the IHRA.

The second imposed an academic boycott, barring UCT academics from collaborating with any organisations linked to the Israeli Defence Forces (IDF) or the wider Israeli military. Fagan, told the court that UCT’s Council was not properly briefed on the potential financial fallout. He said no cost-benefit analysis or consultation was done before adopting the resolutions, despite warnings that they could cost UCT millions in donor funding. Following the resolutions, the Donald Gordon Foundation withdrew a R200 million donation, while the Dell Foundation, which supported 288 students, also halted its funding. Fagan argued that UCT’s actions were misguided and infringed on individual academics, warning of further reputational harm.

Judge Henney then wanted to know if Fagan was saying that UCT jumped the gun, to which he responded.“Had the institution taken into consideration and place before full council, debated it, based on full principles, with the values of the constitution and institution, then we wouldn’t have been here.”

Mendelsohn was suspended after challenging the resolutions, though a later investigation cleared him of any wrongdoing. He is asking the court to declare the Council’s decisions unlawful, unconstitutional and invalid.The court also heard that UCT Council chairperson Norman Arendse went ahead with adopting the two resolutions on the Middle East conflict despite warnings from some council members about the potential financial and reputational risks. However, UCT’s legal representative, Advocate Tembeka Ngcukaitobi, argued that the Council had been fully informed before making its decision. He told the court that all members had access to information regarding possible reputational, financial and academic implications, and that constituency representatives were properly consulted.

During proceedings, Sher questioned Ngcukaitobi, about whether financial considerations were relevant to the Council’s decision. Ngcukaitobi confirmed that they were. Sher emphasised that council members must act with care and diligence, weighing all relevant factors. Ngcukaitobi explained that while council members were aware of potential financial losses, they decided that the moral imperative of condemning Israel’s conduct and making the statement on antisemitism outweighed financial concerns. He said a council speaker had argued that the university would be morally condemned if the resolution was not passed. Ngcukaitobi stressed that the council debated these issues, knew the financial consequences, and concluded that the resolutions should proceed.

Ngcukaitobi further argued that there were no grounds for a review, pointing out that when the council adopted its broad policy on 22 June 2024, it delegated implementation to a subcommittee (Exco), which in turn instructed the Senate to formulate detailed rules. He noted that the resolutions were therefore not yet operational, and the applicant came to court before enforcement structures were in place.

Sher answered by pointing out that UCT had breached its own agreements and clauses by favouring one explanation of antisemitism over another, stating: “That was the problem with the donation and ultimately that is how the donation was cancelled.” Sher then highlighted issues with the second resolution, noting it was formulated in absolute terms.

“It doesn’t say ‘we believe’ or ‘we take the view’ or ‘the terms shall be determined by Exco or another body’. It says there shall be no relation or continued relations. It seems to me that there is nothing about those resolutions as they stand, or anything in council guidance, that anyone else should make rules or provide clarity. That is why the resolutions had practical immediate effect.”

On the issue of punitive costs which Mendelsohn’s defense has informed the court they will ask for, Ngcukaitobi said it could swing two ways, explaining: “If it was malicious he pays the costs but if it was in good faith, but mistaken, he does not pay the cost if he loses.”

Ngcukaitobi however reminded the court that the individuals involved must still work together after the judgement and costs might negatively impact that relationship. In a related development, the South African Jewish Board of Deputies (SAJBD) has applied to join the case as an amicus curiae, (friend of the court).

The organisation said it will provide information about the hostile environment that developed on campus after the resolutions were adopted, including their impact on Jewish students and staff. In its application, the SAJBD cited several incidents of intimidation, harassment and discrimination involving UCT students, faculty and BDS-aligned groups.

These reportedly included verbal and physical abuse, online doxxing, exclusion from events and vandalism of Jewish property. The organisation said the UCT Council had not engaged with recognised Jewish community structures when addressing anti-semitism, and that its decisions had contributed to an increasingly inhospitable environment for Jewish students and staff.

Calling the matter a watershed case, the SAJBD said its outcome would help determine whether Jewish South Africans can rely on constitutional protections in public institutions. It said the case also carries implications for Jewish communities both locally and internationally.

As an amicus curiae, the SAJBD said it will assist the court in ensuring that universities uphold diversity of thought and protect individuals from discrimination, regardless of their beliefs or connections to Israel.The case continues next week Thursday.

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