Tshwane Metropolitan Municipality v Afriforum (157/15) [2016] ZACC 19 (21 July 2016) per Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring). Froneman and Cameron JJ dissenting.
The majority granted leave to appeal against an interim restraining order and allowed the appeal and set aside the interim order. The interim order prevented the council from removing old street names in Pretoria and restoring those that had already been removed. The dissenting judgment argued that ‘the correction of the injustices of the past was not best served by attenuating well-established and sensible rules and principles for hearing appeals against the grant of temporary interdicts’. In their opinion granting leave to appeal ‘extends existing doctrine considerably. Both on the facts and the law we do not consider this justified’. In their opinion the municipality did not suffer any irreparable harm, ‘the separation of powers was not breached and it is not in the interests of justice to allow a dispute about a temporary order to drag on for more than three years, involving nineteen judges, with the main review still undecided’.
Their second reason for dissenting concerned 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’.
Extracts from the dissenting judgment, without footnotes
“[79] 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.
. . . . .
[82] It is best to start with the issue of leave to appeal against temporary interdicts.
Leave to appeal
[83] It is by now settled law that the operative standard for determining whether leave to appeal should be granted is “the interests of justice”. That the order is temporary is not in itself determinative of whether the interests of justice call for leave to appeal to be granted. 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.
[84] 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”.
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”.
. . . . .
[86] 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.
[87] 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.
[88] 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.
[89] 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.
[90] 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.
[91] This sorry history of stop-start litigation is sufficient reason, on its own, not to grant leave. But there are other reasons too.
. . . . .
[97] 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. 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.
[98] 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. We disagree. It is not the reasoning, but the order itself that determines appealability. 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.
. . . . .
[100] 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.
. . . . .
[116] 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.
[117] 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?
[118] 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.
[119] 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”.
[120] 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’”. . . . . .
. . . . .
[123] 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.
[124] 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. At this, still-interim, stage, the existence of the right in this broad form is enough.
[125] 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.
[126] 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.
[127] The third judgment takes us to task for what we have said in relation to cultural rights. 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”. As is apparent from what we have stated, this is not accurate.
[128] 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. That is precisely why these proceedings are inapposite and premature.
[129] It is a grave insinuation that we seek to justify the protection of cultural rights under the guise of racism. We explicitly state that “[t]he Constitution protects culture, yes, but not racism”.
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.
[130] 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.
[131] 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?
[132] 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, and those who nurture the memory of Mahatma Gandhi’s struggles in South Africa, despite some repugnant statements about black Africans. 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.
. . . . .
[134] 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.
. . . . .
[159] 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.”