The following is the concurring opinion of Judge Jafta in the Constitutional Court judgment on the case of the City of Tshwane Metropolitan Municipality v Afriforum and Another. The case concerned a temporary interdict against the City over the changing of mostly Afrikaans street names.

In his judgement Chief Justice Mogoeng, writing for the majority, ruled in favour of the City. Mogoeng said that “South Africa no longer ‘belongs’ to white people only” and “South Africa still looks very much like Europe away from Europe” with “a very insignificant number of names of our cities, towns and streets gives recognition to the indigenous people of this country.”

Jafta takes particular issue with the minority dissent by Judges Cameron and Froneman.

JAFTA J:

[1] I have had the benefit of reading the judgment of Mogoeng CJ (first judgment) and the joint judgment of Froneman J and Cameron J (second judgment). I agree that leave must be granted and also support the rest of the order proposed by the Chief Justice. I disagree that the granting of leave here attenuates “well-established and sensible rules and principles for hearing appeals against the grant of temporary interdicts” as suggested in the second judgment. Nor do I accept that the granting of leave “here extends existing doctrine considerably”. On the contrary, I am persuaded by reasons advanced by the Chief Justice in support of the order. But I propose to add my own reasons in support of that order. And what is stated in this judgment relates to conclusions made in the second judgment and reasons advanced in their support

Historically oppressive traditions

[2] I am also troubled by the statement in the second judgment which implies that a cultural tradition founded in history rooted in oppression may find recognition in the Constitution. And it cannot be gainsaid that the oppression we are talking about here was based on race and therefore was racist to the core. Its central and yet false pillar was that the white race was superior to other races. As many authorities show the Constitution creates a clean break from our ugly past of racial oppression by emphatically rejecting discrimination based on race and the humiliation and indignity suffered by black people at the hands of their white compatriots. In the very first case to be heard by this Court Mahomed J said:

“The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.”[1]

[3] How can that unquestionably transformative Constitution be expected to recognise cultural traditions rooted in the racist past? The answer must be, if there is such expectation, that it is misplaced. The fact that the oppressive racist history exists at the level of fact does not mean that it deserves any recognition in the Constitution. Therefore, the implication which the second judgment says may be drawn from the first judgment, would be the correct one.

[4] In light of our racist past, the prohibition on unfair discrimination, and equality were placed at the centre of our constitutional order. To underscore this point, equality is not only guaranteed as a right but also constitutes an important value underpinning the Constitution and the democratic order.[2] In Hugo this Court proclaimed:

“The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”[3]

[5] It was the shameful racist past properly described in the first judgment which led to streets and buildings in every town in this country, including Pretoria, reflecting exclusively the names of white people. Black people were precluded from residing in these areas which constituted nearly 90% of the entire country. In Brink this Court declared that the equality clause must be understood in the context of that painful past which was described in these terms:

“As in other national constitutions, section 8 [in the Interim Constitution] is the product of our own particular history. Perhaps more than any of the other provisions in chapter 3, its interpretation must be based on the specific language of section 8, as well as our own constitutional context. Our history is of particular relevance to the concept of equality. The policy of apartheid, in law and in fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as ‘white’, which constituted nearly 90% of the landmass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided. The deep scars of this appalling programme are still visible in our society. It is in the light of that history and the enduring legacy that it bequeathed that the equality clause needs to be interpreted.”^[4]

[6] It is against this context that the first judgment must be understood. The cultural rights guaranteed by section 31 of the Constitution must also be construed not only in the context of section 31(2) but also in the setting of our past.[5] Section 31(2) pronounces that the guaranteed cultural rights may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Therefore there can be no justification for recognition of cultural traditions or interests “based on a sense of belonging to the place where one lives” if those interests are rooted in the shameful racist past.

[7] There can be no gainsaying that names like Kaferkraal are so offensive that they have no place in our constitutional order. Yet such names may form part of where one lives and be linked to his or her sense of belonging. The retention of offensive names under the guise of exercising cultural rights should be rejected by all people who embrace our constitutional dispensation. As Mahomed J remarked:

“What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting—

‘future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.’”[6]

[8] By making many of the remarks which the second judgment finds objectionable, the first judgment articulates the repudiation of the shameful past by the Constitution and its “aspirationally egalitarian ethos” which was affirmed in Makwanyane and many other decisions of this Court. It is the Constitution itself which defines how transformation of our society should be pursued and not the first judgment which merely serves as its mouthpiece. It cannot be gainsaid that it is the primary duty of this Court to interpret the Constitution so that the other arms of government which are charged with the responsibility of driving the transformation project may know what exactly those responsibilities entail.[7] When the Court declares what the Constitution envisages, it does not impermissibly intrude into their terrain and “prescribe to them what choices to make”.

[9] While the second judgment declares that it does not agree with Afriforum’s view of history, it proceeds to make a number of conclusions on associational cultural rights which go beyond the question whether the Full Court’s order was appealable.[8] In my respectful view this is not necessary. More so in light of the fact that the second judgment itself is not certain whether what is engaged is an interest or a right. In this regard, the second judgment says:

“And that is where we must part from the first judgment. On general principle we think the Constitution creates scope for recognising an interest or right based on a sense of belonging to the place where one lives, rooted in its particular history, and to be involved in decisions affecting that sense of place and belonging.”[9]

[10] If indeed what is implicated is merely an interest and not a right, its existence did not support the granting of an interdict in the first place, for an interdict is not granted to preserve an interest but a right which may be irreparably harmed, pending the final determination of the parties’ rights in the main proceedings. Hence the requirement that the applicant for an interdict must establish at least a prima facie right in order to succeed.

[11] Moreover, an examination of sections 30 and 31 of the Constitution does not support the right to a sense of belonging to the place where one lives which is rooted in its particular history. These sections guarantee specific rights. Section 30 guarantees the right to participate in the cultural life of one’s choice.[10] Whereas section 31 entrenches the associational right of persons belonging to a cultural community to enjoy their culture.[11] But both sections create internal limitations to the exercise of each of these rights. These rights may not be enjoyed or exercised “in a manner inconsistent with any provision of the Bill of Rights”. This means that these rights may not be exercised in a manner that discriminates unfairly or demeans the dignity of other people. That is why racist and oppressive cultural traditions have no place in our constitutional order, even though they may exist in history. In contrast, such traditions belong in the dust-bins of history where they ought to be buried.

[12] The internal modifiers of both rights limit their scope. This is a clear indication that any claim to the enjoyment of culture may not include an entitlement to racist and oppressive cultural traditions of the colonial and apartheid era. Recognition of racist traditions is inconsistent with our constitutional order which seeks to establish “society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups”. And thus in Makwanyane Sachs J pronounced:

“Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation and tolerance. When reviewing the past, the framers of our Constitution rejected not only the laws and practices that imposed domination and kept people apart, but those that prevented free discourse and rational debate, and those that brutalised us as people and diminished our respect for life.”[12]

[13] Therefore an interpretation of our Constitution advanced in the second judgment, to the effect that “the Constitution creates scope for recognising an interest or right based on a sense of belonging to the place where one lives”, rooted in oppression is untenable. It does not conform with the clean break from the history characterised by discrimination, humiliation and indignity suffered by black people and which the Constitution loudly rejects. In unmistaken terms the Constitution commits our nation to reject all disgraceful and shameful practices and traditions of the apartheid era and embrace equalitarian ethos in pursuit of transformation of our society into a caring one in which everyone enjoys equal rights and opportunities to realise fully their individual potential as members of society.

Appealability

[14] An impression is created in the second judgment that the first judgment considerably extends existing doctrine on whether leave to appeal should be granted against temporary interdicts. This, concludes the second judgment, is not justified by the facts and the law. In my respectful opinion this conclusion is incorrect.

[15] Having rightly stated that the standard for determining whether leave should be granted in this Court is that of the interests of justice, the second judgment proceeds to conflate that standard with the common law test to the effect that the order that is purely interlocutory is not appealable.[13] In so doing the second judgment overlooks fundamentally that the common law standard does not apply in this Court.

[16] The interests of justice and this standard alone applies to adjudication of applications for leave to this Court.[14] This is so because that standard is prescribed by the Constitution. Section 167(6) of the Constitution provides:

“National legislation or rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—

(a) to bring a matter directly to the Constitutional Court; or

(b) to appeal directly to the Constitutional Court from any other court.”

[17] It is apparent from this provision that all matters whether brought directly to this Court as a court of first instance or on appeal, reach the Court with its leave. Although the Constitution permits legislation and the rules to regulate access to the Court, significantly the constitutional injunction is that such legislation or rules must allow a litigant to bring a matter to this Court subject to two conditions only. These are the interests of justice and the leave of the Court. I agree with the second judgment that by now our law is settled on what the interests of justice entail. The fact that at common law an interlocutory order is generally not appealable is but one of the many factors that go into the pot when determining if in a particular case, it is in the interests of justice to grant leave.

[18] It does not mean that once it is shown that the order appealed against is interlocutory and that it has no final effect, then leave must be refused as a matter of law. Far from it. This Court must still determine whether, despite the nature of the order, it will be in the interests of justice to grant leave. The nature and effect of the order alone are not determinative of the issue. Therefore reliance placed on Pretoria Garrison Institutes is misplaced.[15] For obvious reasons that decision was not based on section 167(6) of the Constitution. Nor did it address legislation or the rules of this Court that give effect to that provision of the Constitution.

[19] But another jurisprudential flaw in applying the common law test is this. Here the temporary interdict granted by Prinsloo J was appealed to the Full Court with leave of the Supreme Court of Appeal. Therefore, the question of its appealability is irrelevant for present purposes. This is because the Supreme Court of Appeal has already determined that issue. It came to the conclusion that the order was appealable and granted leave to the Full Court. That order by the Supreme Court of Appeal is not challenged before us nor could it be impugned, because that horse has long bolted.

[20] Once the Supreme Court of Appeal granted leave, the Full Court was obliged to adjudicate the appeal. The argument that was advanced before that Court on appealability was irrelevant. That Court could not refuse to hear the matter even if it held the view that the order was not appealable. It was bound by the order of the Supreme Court of Appeal that allowed an appeal against Prinsloo J’s order.

[21] Moreover the appeal before us, as the first judgment mentions, lies against the order of the Full Court and not of the Court of first instance. The Full Court did not issue a temporary interdict. That was the order of the Court of first instance which was upheld on appeal. In these proceedings the City seeks to appeal against the order of the Full Court in terms of which its appeal was dismissed with costs on a punitive scale of attorney and client. The second judgment overlooks this fundamental point and proceeds on the footing that we are called upon to determine if the temporary interdict is appealable. But that is practically impossible in the present circumstances. We cannot and it is not competent for us to unscramble that egg at this late hour.

[22] It could be open to this Court to consider the appealability point in respect of the interdict if leave was rejected by the other courts and the Full Court did not adjudicate the appeal. Affirming this principle this Court proclaimed in Mabaso:

“[W]here an application for leave to appeal to the Supreme Court of Appeal is refused by the President of the Supreme Court of Appeal, a refusal which is ordinarily unaccompanied by reasons, any subsequent appeal to this Court is considered to be an appeal, not against the decision of the Supreme Court of Appeal, but against the High Court decision, and the time for lodging the appeal is duly extended. This is consistent with the jurisprudence of this Court under the earlier rules.”[16]

[23] But even at common law, the principle that an interlocutory order is not appealable is applied flexibly. The rule is that even the so-called purely interlocutory orders are appealable with the leave of the court which had issued the order. Thus in Oliff the Appellate Division remarked:

“This matter must, therefore, stand over to enable the plaintiff to apply within twenty -one days of this judgment to the Court a quo for leave to appeal. If that Court grants such leave and the order granting leave is lodged with the Registrar of this Court, we, having heard argument on the merits, will be in a position to deliver a judgment on the merits and to make an appropriate order as to costs. If the Court a quo refuses leave to appeal and the order refusing such leave is lodged with the Registrar of the Court, this matter will, without any further order of this Court, be deemed to have been struck off the roll with costs.”[17]

[24] In that context the main issue was whether the court of appeal had jurisdiction to entertain an appeal against a temporary order and that it would have the jurisdiction if leave was granted by the court of first instance. Consistent with this principle in McLean the Court said:

“I think a summary judgment under our rule of Court 22 is a purely interlocutory order or judgment. . . . It is an accepted principle of our law that a litigant should exhaust his remedies in the forum having jurisdiction before appealing to higher tribunal . . . .

So here an aggrieved defendant should exhaust his remedies under rule 22 before appealing against a summary judgment unless, for some good reason, he can persuade the Judge a quo to give him leave to appeal.”[18]

[25] And later the principle was further explained by the Appellate Division in Engineering Management Services in these terms:

“In a wide and general sense the term ‘interlocutory’ refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. But orders of this kind are divided into two classes: (i) those which have a final and definitive effect on the main action; and (ii) those, known as ‘simple (or purely) interlocutory orders’ or ‘interlocutory orders proper’, which do not . . . .

Statutes relating to appealability of judgments or orders (whether it be appealability with leave or appealability at all) which use the word ‘interlocutory’, or other words of similar import, are taken to refer to simple interlocutory orders. In other words, it is only in the case of simple interlocutory orders that the statute is read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the case may be. Final orders, including interlocutory orders having a final and definitive effect, are regarded as falling outside the purview of the prohibition or limitation.”[19]

[26] Two important issues emerge from this statement of the law. The first is that the genesis of the prohibition against an appeal in relation to an interlocutory order is a statute. The same applies to a limitation that subjects such appeal to the requirement of leave. The second is that this statutory prohibition or limitation applies to simple or purely interlocutory orders only. The final orders and interlocutory orders “having a final and definitive effect”, are regarded as falling outside the purview of the prohibition or limitation.

[27] This means undoubtedly that final orders and interlocutory orders with final effect are appealable without leave from the court that granted the order subject to an appeal. But for a litigant to appeal against a simple interlocutory order, she requires leave of the court of first instance. Absent that leave there can be no appeal. But if leave is granted, the appeal must be entertained, regardless of the fact that it is against a purely interlocutory order. Here that issue was determined by the Supreme Court of Appeal when it granted leave to the Full Court.

[28] For reasons already mentioned that principle cannot apply to cases brought to this Court because its jurisdiction is not derived from statute but the Constitution itself. It is the Constitution that says access to this Court is subject to leave being granted by the Court. No legislation can change that. In contrast appeals to other courts are subject to leave being granted by a court other than the court to which the appeal lies. For example, the Full Court entertains appeals only where leave is granted by the court of first instance, or, as was the case here, by the Supreme Court of Appeal. The Supreme Court of Appeal in turn adjudicated appeals with leave of the court against whose order the appeal lies or with its own leave. This illustrates that the position of this Court is unique.

[29] But even if the order that was appealed was that of the Court of first instance, that is the temporary interdict itself, I would support the granting of leave here for all the reasons articulated in the first judgment. Just like the Supreme Court of Appeal that granted leave to appeal against the same interim interdict. The common law rule that an appeal against an interim order reaches the appeal court if leave is granted by the court of first instance cannot apply in respect of this Court because no court has authority to grant leave to it. Consequently the judgment extends no principle. Nor was any such rule or principle attenuated by the first judgment to correct injustices of the past. On the contrary the judgment exercises a constitutional power duly conferred on this Court by section 167(6) of the Constitution.

[30] To sum up, the criticisms in the second judgment levelled at the judgment of the Chief Justice cannot be sustained and as a result are not warranted. I have illustrated that a construction of the Constitution as recognising racist cultural traditions is mistaken. Equally ill-conceived is the proposition that by granting leave the Chief Justice extends existing doctrine and attenuates well-established principles precluding appeals against temporary interdicts. This is so for a number of reasons. First, the only standard that applies to applications for leave to this Court is the interests of justice and derives from the Constitution and not the common law. Second, the appeal mounted by the City is against the order of the Full Court and not the temporary interdict. Third, the common law itself does not prohibit an appeal against a temporary order or an interim interdict but requires leave to be granted by the court of first instance. Fourth, that principle cannot apply here because no other court has the power to grant access to the Constitutional Court. Fifth, the decision of the Supreme Court of Appeal to grant leave here still stands, as it was never challenged.

Consequently I support the order made in the first judgment and the reasons advanced to motivate it on the merits.

Issued by the Constitutional Court, 21 July 2016

Footnotes:

[1] S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262.

[2] See sections 1, 7, 9 and 36 of the Constitution.

[3] President of the Republic of South Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR (CC) 708 at para 41.

[4] Brink v Kitshoff NO [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at para 40.

[5] Section 31 provides:

“1 Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—

(a) to enjoy their culture, practise their religion and use their language; and

(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

2 The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”

[6] Makwanyane above n 98 at para 262.

[7] Second judgment at [80].

[8] Second judgment at [121] to [124].

[9] Id at [124].

[10] Section 30 provides:

“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

[11] See above n 102.

[12] Makwanyane above n 98 at para 391.

[13] Second judgment at [83] to [98].

[14] Informal Traders n 13 above.

[15] See above n 53.

[16] Mabaso v Law Society of the Northern Provinces [2004] ZACC 8; 2005 (2) SA 117 (CC); 2005 (2) BCLR 129 (CC) at para 18; and Swartbooi and Others v Brink and Another (1) [2003] ZACC 5; 2003 (5) BCLR 497 (CC) at para 3-4.

[17] Oliff v Minnie 1952 (4) SA 369 (A) at 376B-D.

[18] Mclean v Wood NO 1953 (1) SA 215 (C) at 217-18.

[19] South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) (Engineering Management Services) at 549G – 550A.