The following is the minority dissent by Judges Froneman and Cameron in 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.”
The full judgement can be accessed here.
FRONEMAN J and CAMERON J:
[1] The wounds of colonialism, racism and apartheid run deep. Understandably so, as the Chief Justice’s judgment (first judgment) so passionately shows. And insensitivity to the continuing wounds by many of us who were not subject to these indignities can only exacerbate the fraughtness. So it is with humility that we dissent, but dissent we must.
[2] The first reason for doing so is this. Correction of the injustices of the past is not best served by attenuating well-established and sensible rules and principles for hearing appeals against the grant of temporary interdicts. Granting leave to appeal here extends existing doctrine considerably. Both on the facts and the law we do not consider this justified.
[3] The second reason is that the implication that may be drawn from the first judgment is that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression. The oppressive history is there. But the constitutional discountenancing of a cultural history many continue to treasure has momentous implications for a substantial portion of our population. It invites deeper analysis.
[4] It is best to start with the issue of leave to appeal against temporary interdicts.
Leave to appeal
[5] It is by now settled law that the operative standard for determining whether leave to appeal should be granted is “the interests of justice”.[1] That the order is temporary is not in itself determinative of whether the interests of justice call for leave to appeal to be granted.[2] A number of cases in this Court have enumerated a collection of non-exclusive factors that need to be considered when determining the interests of justice.[3]
[6] One is “whether allowing the appeal would lead to piecemeal adjudication and prolong the litigation or lead to the wasteful use of judicial resources or costs”.[4] The counterpart of this consideration is whether “the fact that a final determination of the main dispute between the parties, which decisively contributes to its final resolution, might be more expeditious and cost-effective”.[5]
[7] In TAC I, it was pointed out that the effect of granting leave would “defeat the very purpose” of the interim order:
“The ordinary rule is that the noting of an appeal suspends the implementation of an order made by a court. An interim order of execution is therefore special relief granted by a court when it considers that the ordinary rule would render injustice in a particular case. Were the interim order to be the subject of an appeal, that, in turn, would suspend the order.”[6]
The judgment continued:
“[F]or an applicant to succeed in such an application, the applicant would have to show that irreparable harm would result if the interim appeal were not to be granted –a matter which would, by definition, have been considered by the court below in deciding whether or not to grant the execution order. If irreparable harm cannot be shown, an application for leave to appeal will generally fail.”[7]
Although made in the context of interim execution orders, the same principles apply to other temporary orders.[8]
[8] With these statements in mind it is necessary to return to some of the more prosaic facts, not dealt with extensively in the first judgment. The status quo ante (pre-existing situation) when Afriforum launched the review application on 12 December 2012 was that the contested street signs displayed both the proposed new names (at the top of the sign) and the old names (crossed out below them). After Tshwane’s Mayor announced the go-ahead for the permanent removal of the old, crossed-out names on 5 April 2013, Afriforum launched its second application for a temporary interdict to prohibit their removal.
[9] After the application was launched but before it was heard, the applicant (Municipality) removed the old, crossed-out signs virtually overnight. This necessitated an amendment to the relief sought, namely to restore the pre-existing boards, so as to contain both the old and new names, as before.
[10] On 19 April 2013 the High Court granted a temporary interdict. That contained two parts. A prohibitory part which restrained the Municipality from further removing old, crossed-out names from street and road signs. And a mandatory part which ordered the Municipality to restore those crossed-out street and road signs that had already been removed. The Supreme Court of Appeal granted leave to appeal against this order to the Full Court. The Full Court dismissed the appeal with costs on 26 May 2015. A further application to the Supreme Court of Appeal, for special leave, was dismissed on 3 August 2015. After that the Municipality approached this Court for leave to appeal. The review application has still not been heard, close to four years after it was launched.
[11] The temporary interdict the High Court granted has thus not been put into operation. By utilising an appeal process against what was supposed to be a temporary order pending finalisation of the real dispute between the parties, in the review application, the Municipality has managed to implicate judicial resources in the Supreme Court of Appeal (twice), the High Court (twice, before a total of four judges) and now seeks to do so again in this Court. And if it succeeds here, the relief it may obtain will still not be final. So, after more than three years of litigation about the temporary order, the resolution of the real, substantive issue between the parties in the main review application still awaits its turn through the judicial process.
[12] We can hardly think of an example that more fittingly illustrates the unnecessary prolongation of litigation and the wasteful expense of judicial resources and costs. All would have been better served by a speedy final determination of the main dispute between the parties. That would have contributed decisively to a final resolution of the parties’ real dispute. And it would have been infinitely more expeditious and cost-effective.
[13] This sorry history of stop-start litigation is sufficient reason, on its own, not to grant leave. But there are other reasons too.
[14] As we have seen, this Court’s jurisprudence requires the Municipality to show that irreparable harm would result if this interim appeal is not granted.[9] The application for leave is against the order of the Full Court, but that makes little difference, because the Full Court confirmed the High Court’s temporary order. The application for leave remains one for leave against a temporary order, not a final one. The fact that leave to appeal was granted and an appeal heard by the Full Court is a further factor counting against granting leave, rather than prolonging the process even further.
[15] The irreparable harm the Municipality alleges it will sustain is the R2.6 million it would allegedly cost for it to restore the old, crossed-out signs. This, it says, is part of the temporary interdict that is final in effect. There are a number of reasons why this argument cannot avail the Municipality.
[16] First, the expenditure to restore the crossed-out signs is not “final in effect” in the manner hitherto required by our courts in relation to the appealability of the granting of temporary orders. For well over sixty years, since the decision in Pretoria Garrison Institutes,[10] the test for appealability of an interim order has been this: the order is purely interlocutory and not appealable—
“unless it is such to ‘dispose of any issue or any portion of the issue in the main action or suit’ or, which amounts, I think, to the same thing, unless it ‘irreparably anticipates or precludes some of the relief which would or might be given at the hearing’. The earlier judgments were interpreted in that case and a clear distinction was given that regard should be had, not to whether one party or the other has by the order suffered an inconvenience or disadvantage in the litigation which nothing but an appeal could put right, but to whether the order bears directly upon and in that way affects the decision in the main suit.”[11]
[17] The R2.6 million expenditure, which has its origin in the Municipality’s own removal of the old, crossed-out signs, virtually overnight, after the proceedings were launched, will not feature as an issue in the main review application at all. Under the authorities its effect therefore does not qualify as “final in effect”.
[18] There is another reason why that order is not final in effect. It was always open to the Municipality to approach the High Court, after the initial granting of the interim order, to show that the order would work great hardship on it or that circumstances have changed materially.[12] The High Court would have been entitled to reconsider its earlier order, and rescind or amend it. One of the options that might have been open to it was to make the order conditional on Afriforum indemnifying the Municipality for the damages it might suffer if the Municipality prevails in the main proceedings.[13] That is what the Municipality should have done, rather than enmeshing the successful applicant, and the courts, in a series of exhausting appeals.
[19] But, as we saw, finality and appealability are no longer dispositive. The broader interests of justice are. It is common cause that the Municipality took down the crossed-out old signs and erected the new signs, without the crossed-out old ones, in a hurry after it became aware that the second application for a temporary interdict had been launched. Nowhere in its extensive affidavits has it explained why it did this. The inference that it was done in order to thwart the order is natural and probable. If done for that purpose, the Municipality’s conduct would have been in contempt of court.[14] But that is not the present point. The point is that, in doing what it did, the Municipality knowingly took a risk. That was the risk that, in accordance with existing law, it might have to bear the consequences of its hasty intervention. In other words, the Municipality itself created the irreparable harm it now complains of.
[20] The first judgment also appears to regard the reasoning of the Full Court in the appeal, to the effect that it considered Afriforum’s contentions on the lack of public participation as unassailable, as showing the finality and hence appealability of that order.[15] We disagree. It is not the reasoning, but the order itself that determines appealability.[16] And the order at issue confirms the High Court’s temporary order. That order remains temporary – and the review court is not bound by the findings or reasoning of the Full Court on the merits of the review application.
[21] We have now had the opportunity of reading the separate concurrence of Jafta J (third judgment). He seeks to counter our perspective that to grant leave here attenuates well-established, sensible rules and principles for hearing appeals against the grant of temporary interdicts and that it considerably extends existing doctrine.
The third judgment holds that because leave was granted to the Full Court, which heard the appeal, appealability issues in relation to the grant of temporary orders disappear. We differ. The first appeal simply makes matters worse. The Full Court order itself is a temporary order. In accordance with this Court’s jurisprudence, the burden on the Municipality – to show irreparable harm before interests of justice considerations could permit an appeal against a temporary order – is more difficult, not easier. The Municipality in the appeal before the Full Court had (an unusual) second bite at the cherry. It now wants a third.
[22] At the end of all this, nineteen judges – four in the High Court, four in the Supreme Court of Appeal (in the applications for leave), and eleven in this Court – would have been involved in deciding a preliminary, temporary order. We hope this does not become the norm.
[23] That brings one to the contention that the temporary order infringed upon the Municipality’s executive or legislative powers. We have difficulty in discerning how.
[24] The interdict does not order the new names to be removed. It seeks merely to preserve the situation existing at the time the main review application was brought in December 2012. That was that the street or road signs with both the new names and the crossed-out old names below them should remain. So, until the review application is heard and finally determined, there is no infringement of any constitutional or legislative competence of the Municipality. It is entirely free to determine the names of streets and roads. The new names are there for all to see, with the crossed-out ones indicating what the old names were.
[25] The High Court merely restored the status quo ante – the mandatory interdict did not meddle in the domain of the Executive. In fact, it showed deference to the position as it existed at the point the review was brought. The order does not trench on the Municipality’s constitutional and statutory powers. It merely plays the role a temporary interdict should, which is to maintain the status quo.
[26] There is thus no “serious, immediate, ongoing and irreparable [harm]”[17] to the Municipality’s constitutional and legislative powers, nor is the impact of the order “immediate, ongoing and substantial”[18] in relation to those powers.
[27] But apart from this purely factual aspect, the separation of powers argument suffers from a further fracture. As far as we are aware, there has been no case in this Court where leave to appeal has been granted against the granting of a temporary order where the exercise of executive or legislative power requires public participation and the proper extent of public participation is at the heart of the parties’ dispute.
[28] OUTA,[19] upon which the first judgment relies, was very far from the case before us now. It involved a decision by the South African National Roads Agency that had to be made within the framework of government policy decided by the National Cabinet.[20] It was not and could not be contended that the determination of policy by the Cabinet required public participation of the sort to which the Municipality committed itself here. Though notice requirements in promulgating the toll road system were at issue in the main review, the issue before the High Court was the balance of convenience between motorists, who would pay tolls that may eventually be found unlawful,[21] and government, that needed to recoup the costs of the roads sought to be tolled:
“The harm and inconvenience to motorists, which the High Court relies on, result from a national executive decision about the ordering of public resources, over which the executive government disposes and for which it, and it alone, has the public responsibility. Thus, the duty of determining how public resources are to be drawn upon and re-ordered lies in the heartland of executive-government function and domain.”[22]
[29] Nor were ITAC,[23] UDM,[24] or Glenister I[25] anything like this case. The powers at issue in each all lay within the exclusive competencies of either the National Executive or Legislature.[26] Of course, this Court has recognised that public participation may be a requirement of our participative democracy, starting with Doctors for Life.[27] But none of those cases involved appeals against temporary orders where public participation was a prized value.[28]
[30] The Municipality raises no challenge to its own requirement of public participation in the renaming process for streets or roads. Nowhere in its affidavits does it backtrack. It stands by the process. Rightly so. Public participation in a municipal council’s naming of streets has been recognised by the Supreme Court of Appeal in Ethekwini[29] as a requirement that may be challenged on the principle of legality.[30]
[31] Public participation in street-renaming as a requirement of the principle of legality is thus unchallenged. That being so, separation of powers vanishes as a premise in granting leave. That must follow, since otherwise it predetermines the very question that is the subject of the review application. And OUTA tells us that should not be done.[31]
[32] The temporary order does not infringe upon the Municipality’s budgetary powers at all. The Municipality’s budget may be affected by the ultimate decision in the review application – but that consequence cannot restrict a court’s determination of a disputed legal issue. As stated in Blue Moonlight:
“This court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations.”[32]
[33] Hence the temporary order nowise infringes on the Municipality’s legislative or executive competences. But even if it did, granting leave against a temporary order creates further difficulties.
[34] This case involves an organ of State at local government level. The decision on whether it is in the interests of justice for this Court to grant leave when a municipality’s decision to rename streets is temporarily interdicted cannot, it seems to us, depend on what the names were before the proposed change and what they may be after.
[35] Nor can it depend on how big the municipality is. So it seems to us that the preliminary question whether it is in the interests of justice to grant leave must be the same whether the changes are of the kind here, namely highly contentious, or much less contentious.
[36] Postulate this situation. All the facts and court processes are similar to those here, with only this exception. The case involves a small municipality. And it has decided to rename its streets, previously known as First to Twenty-sixth Streets, A to Z Streets. The proportion of the budget it uses to do this is the same as in the present case. A group of residents seek a temporary order to prevent this, pending a review application. The municipality reacts in the same way as here. Assume further that the court that initially granted the temporary interdict did so wrongly.
[37] Would we grant leave? Surely not. But we have to treat like cases alike. So on our understanding of the first judgment we would have to.
[38] Perhaps then the thrust of the first judgment is that intervention on appeal will be countenanced only where the objection to the renaming impedes the transformation to which the Constitution commands our society.
[39] That brings us to the second reason for this dissent. This is the implication that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history finds no recognition in the Constitution, because that history is rooted in oppression.
Is culture inevitably tainted by historical injustice?
[40] The broad premise of the first judgment is that the time has come to stop objections to name changes based on a cultural heritage that is rooted in a history of colonialism, racism and apartheid.
[41] Afriforum may protest at the first judgment’s characterisation of their historically rooted sense of place and belonging as “highly insensitive to the sense of belonging of other racial groups”. It will jib at the suggestion that it “is divisive, somewhat selfish and does not seem to have much regard for the centuries-old deprivation of ‘a sense of place and a sense of belonging’ that black people have had to endure”.
[42] But for that Afriforum has largely itself to blame. In its founding affidavit Afriforum repeatedly refers to the Municipality’s attempts at correcting “so-called ‘historical injustices of the past’”. It supplies evidence that the old street names were of—
“historical figures of Pretoria, artisans, business people, surveyors who played a central role in the layout as it currently exists, prominent figures in history (most have made their contributions long before the so-called apartheid), city fathers and legal practitioners (including attorneys, advocates, magistrates and even a judge). It is clear that these people played a direct and positive role in the city as it exists today. It would therefore be grossly inaccurate to suggest that these persons have a direct connection with the so-called historical injustices.”
[43] So-called! This embodies the kind of insensitivity that poisons our society. There were historical injustices. Apartheid was all too real. And it was profoundly pernicious. These facts are not “so-called” figments of black people’s imagination. Pretoria was created as the capital of an Afrikaner Republic that expressly subordinated black people.[33] It became the capital city of a South Africa that grossly magnified that discrimination by systematic segregation and exclusion. Until just decades ago, black people could not own and live in property along Pretoria’s beautiful jacaranda-lined streets. The historical figures after which those streets were named benefited directly from the fact that they, unlike black people, could own and live on city properties.
[44] Those benefits have not dissipated. They still accrue primarily to white residents. Their historical advantage in acquiring property in the past dwells on, in deep systemic privilege and injustice. To deny these realities or avert one’s eyes to them lays one open to a charge that what one seeks to protect is not culture, but a heritage rooted in racism. The Constitution protects culture, yes, but not racism.[34]
[45] So we disagree profoundly with Afriforum’s view of history. And we think it would be better for white Afrikaans people, and indeed everyone else, to find their sense of place and belonging, not only in the past, but also in a shared future, one the Constitution nurtures and guards for all of us, together, united in our diversity. But does that entitle us to say that Afriforum members’ sense of belonging, place and loss is not real and that it should not also be recognised under the Constitution? The answer is No.
[46] 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. Whether that strictly falls within the cultural, environmental or citizenship rights in the Bill of Rights, or a combination of them, still needs to be explored.[35] At this, still-interim, stage, the existence of the right in this broad form is enough.
[47] But once it is accepted that a right or interest of that kind may exist, it cannot be negated by either saying that the basis of the sense of belonging does not advance society as a whole, or that its enjoyment is so ephemeral that its loss can never be irreparable. The first judgment does both.
[48] In asserting their right to a sense of belonging and place based on historical affinity to Pretoria, Afriforum’s members have done no wrong. They have committed no crime. The Preamble to the Constitution states that South Africa belongs to all who live in it, united indeed, but “in our diversity”. Indeed, recognising and preserving cultural rights is important in our constitutional society. This helps ensure that minorities, including cultural, linguistic or ethnic minorities, feel included and protected. This is not only to safeguard their interests. It is to preserve cultural diversity that is of value to the country’s identity. Cultural rights, whether of the Islamic community, the VhaVenda, or seTswana speakers, are integral to a sense of identity, self-worth and dignity.
[49] The third judgment takes us to task for what we have said in relation to cultural rights.[36] These statements were “not necessary”, because our judgment “proceeds to make a number of conclusions on associational cultural rights which go beyond the question whether the Full Court’s order was appealable”.[37] As is apparent from what we have stated, this is not accurate.
[50] We make no definite conclusions on associational rights under the Constitution. We state merely that, on general principle, 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. From this may flow a right to be involved in decisions affecting that sense of place and belonging. But whether that falls within the cultural, environmental or citizenship rights in the Bill of Rights, or a combination of them, remains to be explored.[38] That is precisely why these proceedings are inapposite and premature.
[51] It is a grave insinuation that we seek to justify the protection of cultural rights under the guise of racism.[39] We explicitly state that “[t]he Constitution protects culture, yes, but not racism”.[40] We find it regrettable that the third judgment then proceeds to state that “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,” as if that was what we sought to justify. We leave history to assess the warrant for that charge.
[52] What does concern us is the broad statement in the third judgment that embraces the implication of the first judgment, that any reliance by white South Africans, particularly white Afrikaner people, on any historically-rooted cultural tradition finds no recognition in the Constitution, because that history is inevitably rooted in oppression.[41]
[53] What does that mean in practical terms? Does it entail that, as a general proposition, white Afrikaner people and white South Africans have no cultural rights that pre-date 1994, unless they can be shown not to be rooted in oppression? How must that be done? Must all organisations with white South Africans or Afrikaners as members now have to demonstrate that they have no historical roots in our oppressive past? Who decides that, and on what standard?
[54] This will be of concern not only to white South Africans, or to Afrikaners. It may also be of concern to those who take pride in the achievements of King Shaka Zulu, despite the controversy about his reign,[42] and those who nurture the memory of Mahatma Gandhi’s struggles in South Africa, despite some repugnant statements about black Africans.[43] Our country has a rich and complex history. It has meaning for each of us, in diverse ways, which the Constitution accommodates and respects. The complexities of history cannot be wiped away, and the Constitution does not ask that we do so.
[55] What is more, no case was made that Afriforum was a racist organisation, or that its members are all racists. They were never called to defend that accusation on the papers, nor in oral argument. The first and third judgments appear to assume that they are. Does this entail that, from now on, Afriforum and its members are branded as racist? If they are, they have not been given an opportunity to contest that allegation.
[56] There are many cultural, religious or associational organisations that have roots in our divided and oppressive past. Are they all now constitutional outcasts, merely because of a history tainted by bloodshed or racism? If that is what the Constitution demands, we would wish to see a longer, gentler and more accommodating debate than happened here.
[57] The first judgment asserts that this diversity—
“ought to highlight the need for unity rather than reinforce the inclination to stand aloof and be separatist”.[44]
That kind of unity, it says, can be achieved partly—
“by removing from our cities, towns, ‘dorpies’, streets, parks, game reserves and institutions, names that exalt elements of our past that cause grief to other racial groups or reopen their supposedly healing wounds. Also, by removing even some innocuous names that give recognition only to the history, language, culture or people of one race, so as to make way for the heritage and deserving heroes and heroines of the previously excluded.”[45]
And—
“[a]ll peace and reconciliation-loving South Africans whose world-view is inspired by our constitutional vision must embrace the African philosophy of ‘ubuntu’. ‘Motho ke motho ka batho ba bangwe’ or ‘umuntu ngumumtu ngabantu’ (literally translated it means that a person is a person because of others). The African world-outlook that one only becomes complete when others are appreciated, accommodated and respected, must enjoy prominence in our approach and attitudes to all matters of importance in this country, including name-changing. White South Africans must enjoy a sense of belonging. But unlike before, that cannot and should never again be allowed to override all other people’s interests.”[46]
[58] With much of this we agree. But from a perspective of constitutional rights and values, these assertions are highly problematic. The Constitution allows the Executive and Legislature at national, provincial and local levels to formulate policies, legislate them into law, and execute and administer them when so done. They may choose to do so by changing the names of cities, towns and streets to reflect our diversity. Or they may decide not to do so. The Constitution allows them to make their own choice; it does not prescribe what choice to make. And the Constitution certainly does not allow the Judiciary to prescribe those choices.
[59] Again, we agree that it would be beneficial if all South Africans approached matters with appreciation and respect for others. But the Constitution does not impose that as an obligation on citizens, either by enjoining the adoption of the ubuntu world-view, or otherwise. And, again, the Constitution does not allow the Judiciary to impose that obligation generally, least in the naming of streets, which falls within local authorities’ constitutional competence.
[60] There are other portions of the first judgment that suggest that the national project of attaining inclusivity, unity in diversity and reconciliation makes suspicious or doubtful the kind of sense of space and belonging that Afriforum claims. We have already pointed out that the Constitution generally does not mandate the imposition of a particular conception of this national project by the courts, and particularly not in relation to a local government competency to rename streets. But, on its own terms, this conception also carries within it the destruction of its objective of inclusivity.
[61] Consider this. What is the effect of a failure to embrace ubuntu, by evincing appreciation of and respect for others? Does the person lose his or her constitutional protections? The first judgment seems to suggest Yes. This lies in its finding that even if Afriforum members had the kind of right they claimed – a sense of historic belonging and space – their loss of that sense can never qualify as irreparable harm. But this denial of that kind of possibly irreparable harm is not extended in our law to other infringements of rights whose loss cannot be quantified in material terms.
Did Afriforum establish irreparable harm?
[62] In cases where money is not at stake, the harm consists, when interim relief is considered, in the applicant’s temporary disablement from enjoying the right.[47] During the oral hearing, counsel for the Municipality was asked whether a parent claiming access to a child for a weekend a fortnight before the trial determination of the parents’ respective rights of access would suffer irreparable harm if that access was thwarted. He said No. Consonantly with his case, he had to.
[63] But the answer was wrong. The harm is irreparable. This follows from the nature of interim interdict proceedings. The first requisite is that a “right” must be established, even if open to doubt. If not, then there can be no interim interdict, just as there cannot be a final interdict in due course. If the right is established, albeit open to doubt, then the next question arises. The second requisite is that that right is being breached, or that a breach of it is anticipated. If no breach, again, no interdict. If a breach is occurring, or is anticipated, the next question arises. The third requisite is that the grant of a final interdict or other relief in the main proceedings will not be able to make good the interference with that right in the period until the right is finally established. It is in this sense that the harm must be irreparable.
[64] This question arises only because there is a right, and because it is being breached, or its breach is feared, with the consequence that an interdict will be granted. Without the first two findings there can be no interdict.
[65] The third question – about irreparability – arises only because it has already been found, albeit open to some doubt, that there has been an unlawful act that will warrant a final interdict in due course. So the third question is not: is there harm? That has already been established. The question is: will the prima facie established harm suffered in the interim be reparable once a final interdict is granted?
[66] To return to the question put to counsel – that parent will never have that weekend again, nor will the child. The fact that the trial is imminent changes nothing. Nor does the fact that a final interdict will in due course ensure that no further harm is done. Subject to the balance of convenience, it is not up to a court to pronounce upon the value to be placed on the deprivation of the parent’s prima facie established right to see the child. Indeed, the fact that a final interdict will be granted should the right be finally established, itself demonstrates that harm has been suffered until that time. The question, thus, is whether the harm that has been suffered until a final interdict is granted is capable of being reversed then.
[67] If the right is vindicated in the later trial, in other words, if the parent lost the right to have the child for that weekend, the harm suffered by the parent by not having the child that weekend can never be repaired. If the right exists, subject to balance of convenience considerations, the harm is in being deprived of that right. And it is irreparable if the deprivation of that right in the interim cannot be repaired once a final interdict is granted. This will seldom be the case where the harm is not manifested in pecuniary terms.
[68] It is for these reasons that in vindicatory proceedings the deprivation in the interim of the right of ownership is presumed to be irreparable.[48] A court does not evaluate the qualitative value to the applicant of the right of ownership of a picture pending a final determination of its ownership. Whether the picture would have been hanging on a wall, and whether a court sees value in viewing it, or even whether the picture would have been held under lock and key in a cupboard, is all immaterial to irreparable harm. Once it is found that the right of ownership of the picture has been prima facie established, the loss of the right to hang it on the wall, or to hide it from view, are not capable of being restored.
[69] And we do not think, in general terms, that it is appropriate for a court to do a qualitative evaluation of the harm an applicant asserts when weighing whether the harm asserted is irreparable. The court may not ask, “what harm will you suffer if you don’t see your child this weekend?”, or “what harm will you suffer if you do not have the picture, which is in the cupboard anyhow?” “If you win at the trial, you’ll see the same child again, or have your picture back in the cupboard.” The harm is that the parent is denied the right to see the child that weekend, or denied the right to have the picture, whether in the cupboard or elsewhere, while the first proceedings are underway. That harm is irreparable even if the court places no value on seeing children or having pictures in cupboards – and even if the child in question were to be obnoxious or the cupboard were to be permanently locked.
[70] That weighing is properly and necessarily done when the balance of convenience is assessed. It is there that the extent of the interim harm to the applicant, if final relief is in due course granted, is weighed against the interim harm to the respondent, if final relief is refused. That weighing lies within the discretion of the lower court, and, as we have shown, is rarely appealable.
[71] It is the loss in the interim of the rights attaching to ownership, or to parenthood, that cannot be repaired. A court does not evaluate the worth of enjoying that right. It is the loss of the rights attaching to ownership, or parenthood, in themselves, that are presumed to be irreparable, because in fact they can never be restored.
[72] The question the first judgment poses is not whether the harm will be reparable, but whether there is any harm at all. In effect, it asks: “where is the harm?”[49] But if there is no harm, there are no grounds for a final interdict, because the unlawful breach of the applicant’s right inflicts no harm. If Afriforum establishes in the main proceedings that the Municipality acted unlawfully, there can be little doubt that it may be finally interdicted from acting on its unlawful decision. That being so, the harm is established, and the question before us is whether its unlawful act that endures in the interim can be undone. The fact that further harm to the applicant’s right to lawful action can be prevented for the future is immaterial.
[73] So, in our view, this Court should not be asking the question “where is the harm?” If it has been established, although open to some doubt, that the Municipality is obliged to follow certain procedures in changing the street names, and that it has not done so, then the harm is the unlawful act itself.
[74] And, as we have suggested, the implications are broader than street names, important as they are. It is an issue of the rule of law. Afriforum has a right to adherence by the Municipality to the rule of law. And it is entitled to insist upon it from the time its right to adherence to the rule is established, even though open to some doubt, and not only from the time adherence to the rule is finally established. The Court should not suggest that adherence to the rule of law in some cases is of no value. It is always of value. And non-adherence is not capable of reversal.
[75] That will be relevant when weighing the balance of convenience – the harm to the applicant if he or she ultimately succeeds in obtaining a final interdict, against the harm to the respondent if the claim does not succeed, but that is a different matter, falling within the discretion of the court from which the interdict is sought, and is not the inquiry before us. The duty of a court in the present context, subject to balance of convenience considerations, is to uphold a prima facie established right, not to discount it as having no value. The value lies in upholding rights.
[76] The first judgment denies this logical consequence in relation to Afriforum’s asserted right. It does so, first, because of its characterisation of the nature and extent of the right and, second, because the content of the right is not consonant with its conception of how best unity in diversity is achieved. Neither is justified.
Afriforum’s asserted right of cultural and historic belonging
[77] The first judgment approaches Afriforum’s asserted right of cultural and historic belonging as an assertion of an entitlement in perpetuity. This cannot be, it says: “Afriforum and its constituency do not have the right to have the old street names they treasure displayed in perpetuity.”[50] If that was indeed what Afriforum’s case was, we would agree that it cannot be sustained. But it is not.
[78] As we understand its case it is much more modest in nature. It contends that its cultural and historical sense of belonging gives it the additional kind of right or interest, outside that relied upon in the review application, which OUTA requires in applications for temporary orders.[51] Afriforum did not deny that the Municipality was entitled to change the street names. What it says is that it must do so properly – and that, until it does so, its members are entitled to the cultural entitlements that flow from the existing street names that have so much meaning for them.
It bears repetition that it did not ask for the temporary removal of the new names, only that the old crossed-out ones remain below them. It is the taking away of the old names that causes the harm, not the remaining of the new names. And the period during which the old names were removed and they felt the loss of belonging can never be restored, just as in the case of the parent and child in which that parent will never have that weekend again, nor the child.
Recognising this does not imply that the harm must in all cases trump the other requirements for temporary orders. If the picture would have been in the cupboard anyway, the court takes that into account in weighing the balance of convenience. The balancing exercise between the harm suffered and other considerations must be done in the “balance of convenience” exercise and the ultimate discretion in deciding whether to grant a temporary interdict.
[79] So, to deny the harm is really to assert that there can be no right of the kind Afriforum relies on. It is better, we think, to confront the issue of recognition of the kind of right Afriforum asserts head on. Then the nuances and difficulties of the “dilemma of difference”; the idea of different fundamental rights underlying a broader notion of equal citizenship; and the interrelation between individual and community in asserting reliance on cultural rights,[52] may be openly addressed. All this is by-passed by the first judgment’s assertion that there is only one proper way to achieve unity in diversity under the Constitution.
[80] In so doing it excludes Afriforum’s members not only from the judicial process, as is the case here, but also from their concerns being respected in the Municipality’s own participation process. This is not an inevitable choice that the Constitution requires. The Constitution is broad and inclusive enough for our unity in diversity to survive even by recognising and including those who differ radically and wrongly from the one espoused in the first judgment, and for recognition that the historical past of white people also includes much not to be ashamed of.[53]
[81] We started off this judgment by stating that we write this dissent in a spirit of humility. It is difficult to recognise the rights and entitlements of those who deny the historical injustices of our past and who dub them “so-called” historical injustices. But recognition and tolerance of difference, even radical difference, is what, in our view, the Constitution demands of us. It is not consonant with the values of the Constitution to deny constitutional protections to people because of the content of their beliefs, views and aspirations.
[82] In the context of same-sex marriages, Sachs J declared in Fourie:
“A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society. . . . At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.
As was said by this Court in Christian Education there are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in section 18. Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the ‘right to be different’. In each case, space has been found for members of communities to depart from a majoritarian norm.”[54]
[83] Should members of Afriforum not be given the same kind of space when renaming streets they hold dear is at issue? Would the transformation of our society under the Constitution be endangered if they were given that space? For our part, we very much doubt it. It may merely suggest the growing power of our democracy.
Conclusion
[84] For these reasons we would refuse leave to appeal.
Footnotes:
[1] OUTA above n 3 at para 25.
[2] Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) at para 22.
[3] Id at para 24. See also Informal Traders above n 13 at para 20.
[4] Informal Traders above n 13 at para 20(g).
[5] Albutt above n 45 at para 23.
[6] TAC I above n 28 at para 5.
[7] Id at para 12.
[8] Informal Traders above n 13 at para 21. See also Machele and Others v Mailula and Others [2009] ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC) (Machele) at paras 22-5; and Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (SCA) (Cronshaw) at 691C‑F.
[9] TAC I above n 28 and Machele above n 51.
[10] Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A).
[11] Id at 870. See also Cronshaw above n 51 at 690D-G; and African Wanderers F.C. v Wanderers F.C. 1977 (2) SA 38 (AD) at 48B-H.
[12] Atkin v Botes [2011] ZASCA 125; 2011 (6) SA 231 (SCA) at para 12; and Informal Traders above n 13 at para 17.
[13] Cronshaw above n 51 at 690I-691A.
[14] SA Reserve Bank v Khumalo [2010] ZASCA 53; 2010 (5) SA 449 (SCA) (Khumalo).
[15] First judgment at [46].
[16] Khumalo above n 57 at para 4.
[17] OUTA above n 3 at para 25.
[18] Id at para 27.
[19] Id.
[20] Id at para 2.
[21] Though they were not – the Supreme Court of Appeal dismissed the review application against the tolls, and there was no appeal to this Court: Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] ZASCA 148; [2013] 4 All SA 639 (SCA).
[22] OUTA above n 3 at para 67.
[23] ITAC above n 38.
[24] President of the Republic of South Africa and Others v United Democratic Movement and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) [2002] ZACC 34; 2003 (1) SA 472 (CC); 2002 (11) BCLR 1164 (CC) (UDM).
[25] Glenister v President of the Republic of South Africa and Others [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC) (Glenister I).
[26] Id at para 2; ITAC above n 38 at paras 4-7 and UDM above n 67 at para 5.
[27] Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at paras 89, 101 and 111.
[28] For cases dealing with the importance and value of public participation, see Moutse Demarcation Forum and Others v President of the Republic of South Africa and Others [2011] ZACC 27; 2011 (11) BCLR 1158 (CC); Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC); and Matatiele Municipality and Others v President of the Republic of South Africa and Others (2) [2006] ZACC 12; 2007 (6) SA 477 (CC); 2007 (1) BCLR 47 (CC) (Matatiele).
[29] Ethekwini above n 7 at paras 23-4.
[30] Id at paras 18-21.
[31] OUTA above n 3 at paras 48 and 52.
[32] City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC) (Blue Moonlight) at para 74.
[33] Article 9 of the Constitution of the South African [Transvaal] Republic provided:
“The people are not prepared to allow any equality of the non-white with the white inhabitants, either in Church or State.”
[34] In Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 [1996] ZACC 4; 1996 (3) SA 165 (CC); 1996 (4) BCLR 537 (CC) at paras 39 and 40, Kriegler J remarked in relation to the use of the Afrikaans language in education:
“Dit is en bly egter ’n skans teen verswelging van enige minderheid se gemeenskaplike kultuur, taal of godsdiens. Solank ’n minderheid daadwerklik wagstaan oor sy gemeenskaplike erfgoed, solank is dit sy onvervreembare reg om eie onderwysinstellings ter behoud van kultuur, taal of godsdiens tot stand te bring.
Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde van die betrokke subartikel ondubbelsinnig; daar mag geen diskriminasie op grond van ras wees nie. Die Grondwet bied dus geen beskerming vir rassevooroordeel op die onderwysterrein nie. ’n Gemeenskaplike kultuur, taal of godsdiens met rassisme as ’n wesenselement het geen konstitusionele aanspraak op die vestiging van afsonderlike onderwysinstellings nie. Die Grondwet beskerm verskeidenheid, nie rassediskriminasie nie.”
Translation:
“However, it is and remains a bulwark against the swamping of any minority’s common culture, language or religion. For as long as a minority actually guards its common heritage, for so long will it be its inalienable right to establish educational institutions for the preservation of its culture, language or religion. There are, however, two important qualifications. Firstly, the concluding words of the subsection in question are unequivocal; there must be no discrimination on the ground of race. The Constitution gives no protection therefore against racial prejudice in the field of education. A common culture, language or religion having racism as an essential element has no constitutional claim to the establishment of separate educational institutions. The Constitution protects diversity, not racial discrimination.”
[35] For a general discussion see Firoz and Cachalia “Right to Culture” in Cheadle, Davis and Haysom (eds) South African Constitutional Law – The Bill of Rights (Butterworths, Durban 2002) at 25.3; Chaskalson et al Constitutional Law of South Africa 2 ed (Juta & Co Ltd, Cape Town 2005) chapter 58 and Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) chapter 28.
[36] See [172] of the third judgment, citing [121] to [124] .
[37] Id.
[38] See above n 78.
[39] See [169] of the third judgment.
[40] See [122].
[41] See [164] of the third judgment.
[42] Thompson A History of South Africa 4 ed (Yale University Press, New Haven & London 2014) at 87:
“In transforming the farming society of south-eastern Africa, the Mfecane wrought great suffering. Thousands died violent deaths. Thousands more were uprooted from their homes. Village communities and chiefdoms were eliminated. A century later, Solomon Tshekiso Plaatje, a Motswana, started his novel Mhudi with tragic events in the Mfecane. Yet, in Thomas Mokopu Mofole’s well known novel Chaka, written in Sesotho and translated into English, German, French, and Italian, and in an epic poem by Masizi Kunene, the name of Shaka has passed into African literature and the consciousness of modern Africans as a symbol of African heroism and power.”
[43] The sometimes ghastly racist things Mahatma Gandhi said about black South Africans are collated from his collected works here accessed on 1 July 2016..
Despite this, under the democratic government a square in Johannesburg was formally and ceremoniously named after Gandhi.
[44] See [7] of the first judgment.
[45] Id at [9].
[46] Id at [11].
[47] Corium (Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd 1993 (1) SA 853 (C) at 857J-858J; Bamford v Minister of Community Development 1981 (3) SA 1054 (C); and Braham v Wood 1956 (1) SA 651 (D&CLD) at 655A-C and H.
[48] Stern & Ruskin NO v Appleson 1951 (3) SA 800 (W) at 813B; and Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 384F-G.
[49] See [56] to [58] of the first judgment.
[50] See [60] of the first judgment.
[51] OUTA above n 3 at para 41.
[52] See the discussions referred to above n 78.
[53] In his famous “I am an African” speech in Parliament at the adoption of the Constitution, then Deputy President Mbeki included these people and features of history:
“I am an African.
…
I am formed of the migrants who left Europe to find a new home on our native land. Whatever their own actions, they remain still, part of me.
…
I am the grandchild who lays fresh flowers on the Boer graves at St Helena and the Bahamas, who sees in the mind’s eye and suffers the suffering of a simple peasant folk, death, concentration camps, destroyed homesteads, a dream in ruins.
…
I am he who made it possible to trade in the world markets in diamonds, in gold, in the same food for which my stomach yearns.”
For the full version see here accessed on 1 July 2016.
[54] Minister of Home Affairs and Another v Fourie and Another [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) (Fourie) at paras 60-1. See also Premier, Mpumalanga v Executive Committee, Association of State-Aided Schools, Eastern Transvaal [1998] ZACC 20; 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC) at para 1, where the Court observed:
“This case highlights the interaction between two constitutional imperatives, both indispensable in this period of transition. The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government. Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness. A characteristic of our transition has been the common understanding that both need to be honoured.”
Issued by the Constitutional Court, 21 July 2016
