The trial of Professor Adam Mendelsohn against the University of Cape Town (UCT) continued at the Western Cape High Court on Thursday, with the legal teams for Mendelsohn and UCT presenting sharply contrasting arguments over whether the university’s council acted lawfully and in the institution’s best interests when it adopted its resolutions on the Middle East conflict.

Mendelsohn, who heads UCT’s Department of Historical Studies, is challenging two resolutions passed by the university’s council in June 2023, asking that they be declared unlawful, unconstitutional, and invalid. He contends that the council’s decisions were not made in the best interests of the university and lacked proper governance.

Advocate Eduard Fagan, representing Mendelsohn, told the court that UCT’s actions were neither rational nor guided by sound governance principles, describing the council’s decision as a “reputational one” rather than one based on reason.

He said the university failed to weigh the potential financial and reputational fallout before adopting the resolutions.

“It undoubtedly needed to consider if the resolutions would make UCT better or sicker and if sicker, then by how much,” he told the court.

“It needed to consider whether, by risking the loss of substantial funding, UCT would be able to retain its position as a top-ranked university in Africa or, in the worst-case scenario, continue as a university. That was the best-interest imperative.”

The court previously heard that major donors such as the Donald Gordon Foundation and the Dell Foundation withdrew their support following the adoption of the resolutions. The former pulled R200 million in funding, while the latter halted aid to 288 students.

The resolutions, passed in June 2023, included rejecting the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism and imposing an academic boycott on institutions linked to the Israeli Defence Forces.

Fagan maintained that the council had been inadequately briefed by chairperson Norman Arendse and that no cost-benefit analysis or consultation was conducted before the vote.

The South African Jewish for a Free Palestine (SAJFP) has also applied to be admitted as a friend of the court in support of UCT’s position.

In its submissions, SAJFP argues that the IHRA definition has been used internationally as a “chief vehicle” for suppressing criticism of Israel and warns that it undermines efforts to combat genuine anti-semitism.

The group’s expert, Professor Steven Friedman, stated in his affidavit that wealthy and influential donors have used the IHRA definition to stifle free speech at universities through conditional funding and threats to withdraw financial support.

SAJFP contends that the UCT Council’s refusal to adopt the IHRA definition is a vital step toward protecting academic freedom and freedom of expression for staff and students, many of whom are members of the organisation. The group further supports UCT’s academic boycott, arguing that collaboration with institutions linked to the Israeli military risks violating human rights and international law.

The case comes amid wider divisions on campus over the conflict. At the time the resolutions were adopted, more than 70 members of UCT’s Faculty of Law had signed a public statement calling for a ceasefire and for investigations into alleged international crimes in Gaza.

Representing UCT, Advocate Tembeka Ngcukaitobi countered that the council’s decisions were grounded in moral conviction rather than financial calculation.

He said the council had engaged in thorough debate before adopting the resolutions and cannot choose financial concern over moral imperative.

In a lighter moment, the judges and legal representatives shared that they were growing weary of the ongoing back-and-forth in the lengthy proceedings, with agreement across the courtroom that all parties hoped to conclude the matter soon provided no new issues arose.

Ngcukaitobi requested additional time to respond to Fagan’s latest affidavit, noting that there were many allegations he would also need to argue.

Judges Robert Henney, Tandazwa Ndita and Mark Sher granted a postponement.

The matter is scheduled to resume next Friday.

tracy-lynn.ruiters@inl.co.za

Weekend Argus 

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