City of Tshwane Metropolitan Municipality v Afriforum and Another (A811/2013) [2015] ZAGPPHC 1056 (26 May 2015)

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[2015] ZAGPPHC 1056
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City of Tshwane Metropolitan Municipality v Afriforum and Another (A811/2013) [2015] ZAGPPHC 1056 (26 May 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA
APPEAL
CASE NO: A811/2013
NGHC
CASE NO: 20665/2013
Not
reportable
Not
of interest to other judges
Revised
26/5/2015
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Appellant
(Respondent
in the Court
a quo)
And
AFRIFORUM
1
st
Respondent
EVERT
VAN
WYK
2
nd
Respondent
(First
and Second Applicants in the Court a
quo)
JUDGMENT
Jordaan
J:
INTRODUCTION
1.
This is an appeal against the decision
of Prinsloo J handed down on 19 April 2013 granting then respondents
interim relief interdicting
and restraining the appellant, the CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
from remov
i
ng
street and road signs bearing the old names of streets forming the
subject matter of the review pending the final determination
of the
review action under Case No
.
21910/2012
(The review action) regarding the City's decision on 29 March 2012
and the finalisation of any appeal following therefrom.
2.
The City was ordered
,
within two months of the date of the
order, to restore and replace such signs bearing such old names to
their position on the streets
prior to them having been removed
therefrom by the City or those acting on its
behalf.
3.
Leave to appeal to this Full Court was granted by the Supreme Court
of Appeal on 12 September 2013.
4.
BACKGROUND TO THE APPLICATION:
Both
parties provided in their Heads of Argument
a
comprehensive chronology of events that
lead up to the application in the court a
quo
.
The Respondents annexed (annexure
"
A")
to their heads
,
a
table setting out these
events.
On behalf of the Respondents it was submitted that of particular
relevance to this appeal is the following:
4.1
On the 25th of April 2002 the
Appellant's counciladopted its Policy Guidelines for the
·
Naming cf Public Places and Streets
("the Policy") which was developed by the Appellant to
provide clear guidelines as
to the renaming of public places and
streets. These Guidelines appear in Volume 2 on paginated page 141. I
agree that it is a comprehensive,
thorough policy ensuring the
promotion of the spirit of democracy, proper public participation and
the involvement of the persons
affected.
4.2.
On the 27th of September 2007 the Appellant's Council resolved to
change the names of 27 streets in Pretoria.
4.3.
At the very same meeting (27 September
2007), and without prior notice of theintention to do so, following
the adjournment for the
majority party to convene a caucus on the
issue, the Appellant's council decided to summarily set aside its
Policy and also, that
"for
purposes of this report"
a
public participation process involving –
(a)
Ward Committees city wide;
(b)
Stakeholders;
(c)
The general public through submissions
be
approved.
4.4.
The Appellant states that it conducted
public participation meetings at
"various
wards".
This is based on 10
meetings which were held at the following venues:
4.4.1.
Temba Council Chamber;
4.4.2.
Mabopane Skills Centre;
4.4.3.
Soshanguve Bodibeng Library;
4.4.4.
East Lynne Community Centre;
4.4.5.
Mamelodi West Community Hall;
4.4.6.
Atteridgeville, Ramushu Hall;
4.4.7.
Centurion Council Chamber;
4.4.8.
Sammy Marks Auditorium;
4.4.9.
City Hall;and
4.4.10.
Pretoria North Town Hall;(a previous attempted
meeting at this venue had to be postponed due to rioting).
4.5.
On 29 March 2012 a report in respect of the renaming of the 27
inner-city
streets was presented to the
Appellant's Counciland the Appellant's Council resolved to change
the
names of the relevant streets to the
names as proposed in the report. (The Respondents submit that It
should
·be
noted
that the proposed names were not presented to the community or the
public at
large after they were finally
decided upon by Council and the decision to change the names directly
occurred already onthe 29th
of.March 2012.
4.6.
On the 2
nd
of April 2012 the First Respondent requested an undertaking not to
remove the oh street name signs (affixed under
.
th
.
new street
name signs
with
a red line through it} failing which they would proceed to launch an
urgent application.
4.7.
On
the 16th of April 2012 the Appellant's response declining that
request was received
.
4.8
On the 17
th
of April 2012 the First Respondent again requested an undertaking. On
the 18
th
of April 2012 the Appellant indicated that it will only
be able to respond by the 20th of April
2012
.
The
First Respondent then
launched
the first urgent application which led to the judgment by Tuchten J
finding that:
"What
happened is that Afriforum promptly on learning of the decision
sought an undertaking that the City would not implement
Its decision
pending a review which the Applicant intended bringing, giving the
City a fairly lengthy period to respond to its
request for an
undertaking. The City did not respond until the last day of the
period so given and then declined to furnish the
undertaking and
began putting up the new street boards. Afriforum brought its urgent
application within a reasonable time after
the City communicated its
refusal to halt the implementation of Its decision pending the
proposed review. It became clear during
argument before me that the
City used the period offered by Afriforum to consider its position to
engage a contractor to manufacture
and put up new signs. That means
that the city made its decision to decline to provide the undertaking
sought and delayed for tactical
reasons to communicate that decision
to Afriforum ".
And
further that the Appellant provided an undertaking in open Court that
“
It
would not proceed with the implementation of its decision until
completion of a process which the city must consult the Provincial

Govemment.
4.9
Thereafter a number of e-mails
[1]
exchanged between representatives of the First Respondent and the
Appellant running from the 23rc1 of May 2013 until the 9th of
October
2013.It is clear that those e-mails make it clear that there was an
attempt by the First Respondent, initially welcomed
by the
Appellant's
mayor,
to discuss the issues in an attempt to arrive at an amicable result
relating to both the issues of the street name and city
name changes.
After that process broke down the Respondent launched the review
action on the 12th of December 2012. These communications
are dealt
with in the judgment
of
the Court a quo and explain why the First Respondent had not launched
the
main review application within two weeks as previously envisaged in
the proceedings before Tuchten J.
4.10
On the 13th of December 2012 and after the service of the review
action, the Respondents' attorneys requested an undertaking
not to
remove the old street name signs (affixed underneath the new street
name signs) pending the outcome of the review action.
4.11
On the 17th of January 2013 a second request for an undertaking was
made by the Respondent's attorneys.
4.12
On the 4
th
of February 2013 the Appellant's
·attorneys of record responded indicating tht they are busy
taking instructions from the
Appellant,
adding
that
“...we hope to be in a position to revert to you
shortly".
4.13
It is not in issue that on the 4th of April 2013 the Appellanfs Mayor
made a speech declaring that the old street name signs
would be
removed and that only the new street name signs would remain.
4.14
On the 5
th
of April 2013 the speech was reported
in
The Beeld newspaper and the Respondents
became aware of the Appellant's
intention
to remove the old street name signs. On
the very same day the Respondents' attorneys, referring to their
previous request for the
undertaking to the news reports of the
Mayor's announcement that all street name signs would be removed,
sent a further request
for an undertaking to the Appellant's
attorneys of record.
4.15
The Appellant's attorneys refused to
give such undertaking.
4.16
On the 6
th
of April 2013
a
further
article appeared in The Beeld newspaper dealing with the Appellant's
accelerated removal of the old street name signs
.
4.17
On the 8
th
of April2013, and a
s
it
had become clear that the Appellant not only refused to give an
undertaking but was accelerating the removal of
the old street name signs, the
Respondent sent an unsigned copy of the application to the
Appellant's attorneys (which was eventually
heard in the Court
a
quo)
to enable them to start
preparation of their answering papers.
4.18
On the 9
th
of April 2013 the application was served upon the
Appellant’s attorneys of record.
4.19
On the 10 of April 2013 the Respondents
delivered their amended notice of motion and supplementary affidavit
stating that since
the service of the application the Appellant had
accelerated
"op ·n
ongekende spoedeisende skaa
r”
the removal of old street name
signs. This drew only the following response in the Appellant's
answering affidavit
.
"132
The contents of the supplementary affidavit in support of the amended
notice of notice
are
scandalous, irrelevant and
vexatious. They have no
.
bearing
upon the determination of the application. The Applicants must make
out
a
case for the relief
sought
and not litigate by reference to other matters for which no facts are
adduced.
133.
Bald allegations emanating from other matters or circumstances,
without outlining the full facts and context, is not only irrelevant,

but is desperate and unhelpful
.
”
On
behalf of the Respondents it was submitted that far from denying that
the removal of the street names were accellerated for the
very
purpose to thwart the pending legal proceedings, and clearly
realising that scurrilous attacks for being
"scandalous,
irrelevant and vexatious"
is
the only possible form of defence available to Appellant, these
passages do not contain a single phrase
-
even a
bald one - which amounts to a
denial. Hence, and as stated in the judgment of the Court below, the
accelerated removal of the old
names is common cause. Indeed, it
continued whilst the matter was being heard, a fact which was also
confirmed during argument
by the Appellant's counsel before Prinsloo
J.
4.20
On the 12
th
of April 2013 the Appellant delivered its plea on the review action
which
was served
on
them on 12 December 2013.
4.21
Only on the 15
th
of April 2013 did the Appellant belatedly deliver an unsigned
answering affidavit per e-mail (some 5 days late) at 18:49, and the

annexures only at 20:17
4.22
On the 16
th
of April 2013 the Respondents delivered their replying affidavit.
4.23
The urgent application to which the
appeal relates was argued on the 17
th
of April 2013 and judgment was delivered on the 19
th
of April 2013.
5.
In the Heads of Argument on behalf of the Appellant the salient facts
are set out as follows:
5.1
The Executive Mayor of the City of
Tswhane Metropolitan Municipality on
4
April 2013 in his State of the City
speech, announced that the old street names in Tshwane would be
replaced with the new names.
This follows a
resolution adopted by the City Council
29 March 2012 to replace 27 street names
.
The
City had on 29 March 2012, resolved at its meeting that
“
1.
That
the proposed street names as submitted hereinunder
be
approved
.
2.
That
concurrence be obtained from Gauteng Provincial Government on the
provincial roads once approved. by Council, and that the
Chairperson:
Section 79 Standing Committee
:
Local
Geographical Names be authorised to lodge with the necessary
applications with the Gauteng Provincial Government.
3.
That Nelson Mandela Drive be extended up to R21 where it meets
Albertina S
i
sulu
Drive, and that the Chairperson
:
Section
79 Local Geographic Names Committee be authorised to lodge with the
necessary applications with the Gauteng Provinc
i
al
Government
.
4.
That
the
Department of City Planning. Transport and Roads be authorised to
proceed with the necessarv administrative actions to give
effect to
the name changes and embark on a process to
inform
the public of the new names
.
(emphasis
added
by
Appellant)
5.
That
the
Department of Marketing and Communications
·
be
authorised to proceed with a campaign to publicise the new names
.
(emphasis
added by Appellant)
6.
That any street name elsewhere in the City that is named after any of
the individuals contained in one above be changed to avoid
any
duplication of names; consistent with the policy.
7.
The Chairperson: Section 79 Local Geographic Names Committee be
authorised to initiate Phase
2
of
the process of changing public
·
names
and street names and that such report
be tabled to the Council no later
than May 2012."
5.3
Subsequent to the above resolution, the respondents instituted
a
review action in this Court on 12
December 2012 seeking to set aside the City's
resolution of 29 March 2012 and that the
City be ordered to remove all
signage
with
i
n
three months of the
order.
5.4
The respondents'
case
in the review action is, essentially,
that there had been a series of illegalities, i.e.failure to comply
with the guidelines set
out by the South African Geographical Names
Council under the provisions under the South Afr_ican Geographical
Names Ad No
.
118
of 1998, s33 and s41 (a),
(g)
and (h) of the Constitution, the
National Heritage Resources Act, 25
of 1999
and the
Local Government: Municipal Finance Management Act,
56 of 2003
. Furthermore, there had been no consultation and/or public
participation process as undertaken by the City in its resolution of

27 September 2007.
5.5
The review has not been adjudicated
upon.
5.6
Following the resolution of 29 March
2012, the respondents on 19 April2012 launched an urgent application
before Tuchten J on 24
April 2012. Tuchten J did not deem it
necessary to make an order
In
light
of the City's undertaking that it would not proceed with the
implementation of its resolution until the completion of a process
by
which the City must consult the provincial government in respect of
the eight affected provincial roads and it would not replace
any of
the other road signs for a period of six months; instead it would put
up the new names and leave the old names in place
for that period.
5.7
Tuchten J did not grant an interdict but
only noted the undertaking made by the City, ie that it would not
remove the old street
signs for a period of six months, effective
from 30 April 2012. That period lapsed on 31 October
2012, having been noted by Tuchten J on
30 April 2012. No extension was granted nor did the parties agree to
extend the "moratorium"
.
5.8
Justice Prinsloo on 19 Apri
l
2013 granted the orders referred to
above. In doing so, Prinsloo J made the following findings
:
5.8.1.
The relief sought by the respondents
would have no meaningful impact on the statutory powers and duties of
the City
.
because
the City would continue with its_ own scheme introduced in April
2012
,
during
the proceedings before Tuchten J {i.e. the undertaking made by the
City that
the
old street names would exist alongside the new street names for
a
period of s
i
x
months as referred to above)
.
5.8.2.
Prinsloo J also criticised the City for
having removed the old street signs, notwithstanding the fact that
there was no bar, whether
statutory
or contractual
,
to
the City removing the old street names. He expressed his
criticism as follows:
“
The
City should have heeded repeated calls not to remove the street signs
but [it] recklessly proceeded with the removal operation,
in the face
of the interdict application, the potential expense of restoring the
old names would also have been saved".
5.8.3.
In ordering the restoration of the
removed old street names
,
Prinsloo
J appears to
j
ustify
his decision based on the fact by the time the review process is
concluded the names of the removed street names would have
fallen
into disuse.
5.8.4.
As the court put it, if the review
process were to stretch over
a
longer
period and finally come before a court of appeal
,
such court may decline to set aside the
actions of the respondent even if found to be unlawful, it may
hold that it is too late and impractical
to unscramble the proverbial egg by
reintroducing the old names years after
the event.
5.9
It is this reason that underlies the decision and the order that the
City reinstate the old street names.
5.10
Prinsloo J also concluded that on the
authority
of
Democratic
Alliance
v Ethekwlni Municipality
2012
(2) SA 151
(SCA) at 159 A-F and
160
C
-
E,
he could order the City to restore
the removed street signs.
"I
see no reason, against this background, why an order directing the
respondent to perform an Act (as foreshadowed in PAJA)
rather than to
refrain from doing so, would not be competent in the circumstances of
this particular case especially given the
manner in which the old
names were removed even in the
face
of
pending interdict application."
6.
Both parties dealt with
the appealabilty
of the order made in the court
a
quo.
On behalf of the Appellant it
was submitted for the following reasons that the order, although
•interim" in form, is actually
final in
effect.
6.1
The City
is
restrained from
implementing
its resolution pending the determination
of the review action. It was submitted that the order effectively
prevents the City from
discharging Its statutory powers and
accordingly undermines the separation of powers doctrine.
6.2
The order directing the City to
reinstate
the
signs
that have
been removed,
effectively anticipates the findings of
the review court that will
·
adjudicate
the
matter.
It means that the City would have to incur
the
costs of reinstating the street signs (a
competence of the review court). The costs attendant to the
reinstatement of the street
names, once incurred are
irreversible
notwithstanding the fact that the review
court might find
in
favour
of the City. That would mean that the
City
would have to Incur further costs of
removing the reinstated street names.
6.3
So, whilst the review court might find
in
favour
of the City, the
issue
of
the costs pertaining to
the
reinstating
of the street signs would
be
moot
(the
immediate,
irreparable
effects
of
the
order).
7.
The Appellant
inter
alia
referred
to
National
Treasury
& Others
v
Opposition to Urban Polling Alliance
&
Others
2012(6)
SA 223 (CC) OUTA) at [25].
"whether
an interim order has
a
final
effect or disposes of
a
substantial portion of the relief
sought in
a
pending
review is a relevant and important consideration.
Yet.
it is not the only or always decisive consideration. It is just as
important to assess whether the temporary standing order
has
an immediate and substantial
effect.
including
whether the harm that flows
from
it is serious. immediate
ongoing and irreparable.
"
(emphasis added by Appellant.)
8.
Reference was also made
·
to
Metlika Trading Ltd and
Others
v Commissioner, South African Revenue
Se1Vlces
2005 (3) SA
1
SCA at 24
where
the court held
that
where
an
interim
order
is
intended
to
have an
immediate effect and will
not
be
reconsidered on the same facts
in the
main proceedings it will generally be
final in
effect
9.
It was submitted that given the
immediate
,
irreversible
and immediate impact of the orders of Prinsloo j, the City should not
be compelled to first undergo the review action
including any appeal
and costs that will attend to those proceedings before the decision
is corrected.
10.
Regarding the Appellant's argument that
the order issued by the court below, although interim, in form, is
actually final in effect
for the reason that the Appellant is
restrained from implementing its resolution pending the determination
of the review action
and that the order effectively prevents the
Appellant from discharging its statutory powers, undermining the
separation of powers
doctrine it was submitted on behalf of the
Respondent that the reasoning of the· Court a
quo
in this regard cannot be
faulted:
The relief granted does not as such interfere with the resolution to
introduce the new names; they have been in place since
April2012 and
will remain so: the new
names were
displayed prominently above the old names and the old names have a
red line drawn through them "to
place
the impact of the change beyond doubt in the eyes of any reasonable
observer”.
(My emphasis.)
11.
The Respondents argued that the
conclusion reached by the Court
a
quo
namely that to allow that
status
quo
to continue
pendente
lite
could have no meaningful impact
on the statutory powers of the Applicant is unassailable.
12.
It was argued on behalf of the
Respondents that the Appellant failed to perform a proper public
participation process. It is
submitted
that their submissions in this regard are supported by the
Constitution, the
Local Government: Municipal Structures Act, No. 117
of 1998
, the
Local
Government:
Municipal Systems Act, No.
32
of
2000
, and the decision of the Supreme Court of Appeal in
Democratic
Alliance v eThekwinl Municipality
2012 (2) SA 151
(SCA).
13.
This argument is raised at paragraphs
19.
·
;
and
19
.
6 of the
founding affidavit. Paragraph 19.6 reads:
“
Die
Respondent
het versuim
om
te
voldoen aan sy eie besluit wat hy geneem het op 27 September 2007 en
die proses wat daarin uitoengesit is met betrekking tot
die hou en
voer van 'n inklusiewe openbare deelname proses”
14.
In paragraph 19-4 of the founding affidavit
a
further complaint is
raised
at
paragraph 19.4 criticizing the Appellant
for having simply set aside and/or
ignored
the pre-existing policy and guidelines
(entitled
policy
Guidelines
for the naming of Public Places and Streets) ("The 2002
Policy''). This was done
by
way
of paragraph 6 of the resolution of 27 September 2007in the following
terms:
“
That
for purpose of this report, the Public Participation Policy
Guidelines for naming of public places and streets
be
set aside
and
that
a
city
wide public participation process involving -
(a)
Ward Committees citv wide:
(b)
Stakeholders;
·
and
(c)
The general public through submissions.
be
approved.
(Emphasis
added by the Respondents
.
)
They
refer to this
as
"the
2007 ppp”
15.
The Respondents' submissions are focussed on the fact that the
Appellant did not even comply with the 2007 PPP
.
They however submit that it
is
necessary
to
have regard
to
the 2002 Policy as it demonstrates that,
at least at that time still, the Appellant properly appreciated
the
immense gravity in cultural, historical,
political and emotional terms, of any process by which the Council
takes
it upon
itself
to re-design and re-invent the historical character of the city
through changing the
names
of
streets
and
public places.
The
Respondents
submit that in accordance with the legal principles applicable to the
interpretation of any document,
including
ones such as the 2007 PPP, the 2002
Policy forms part of the
factual
matrix
in
the
context of which it must be
interpreted.
They refer in
this regard to
National
Joint Municipal Pension
Fund
v Endumeni Municipality 2012(4) SA
593
(SCA) atpar 18 and KPMG Chartel9d
Accountants (SA) v Securefin Ltd
&
Another
2009(4)
_399 (SCA) at 4091- 410B.
16.
The Public Participation Policy
Guidelines of 2002 is attached
as
an
annexure
to the papers
.
The
Respondents have also quoted from this document extensively in their
Heads of Argument. I only quote from this document insofar
as I deem
it necessary as it forms part of the
record
.
It is
a
comprehensive document with an
introduction which
reads:
“
1.
INTRODUCTION
In
order to control and regulate the naming of public places and streets
within the City of Tshwane Metropolitan Municipality's
boundaries,
the Council of the Municipality established an advisory committee in
terms
of
the Local Government: Municipal Structures Act, 1998 (Act 117 of
1998). The advisory committee, which is known
as
the Public Place and Street Names
Committee, was established by the Council of the Municipality by a
resolution dated 6 September
2001"
.
This
is followed by a comprehensive discussion of the applicable
legislation (mainly
from the Local Government
Ordinance of 1939). It then proceeds as follows:
3.
.
GENERAL RULES FOR NAMING PUBLIC PLACES AND STREETS
·
The historical, social, cultural and emotional concerns of the
local residents must be considered.
·
The use of neutral names such as those of trees, birds, minerals
and flowers is recommended.
·
Names should preferably have a South African character of
connection.
The
following are the types of
names
that must be avo
i
ded
:
·
Names of living persons, unless they
are truly
of
national and/or
international
significance.
·
Names
that
are
offensive, vulgar,
blasphemous,
indecent
or
derogatory as regards race, colour, creed or gender.
·
…
·
…
·
…
·
…
·
…
4. GENERAL PROCEDURAL
GUIDELINES FOR NAMING STREETS AND PUBLIC PLACES
·
All
matters
concerning the naming of public
places, streets or
structures
vested In the Municipality and the naming of municipal properties
must be ferred in writing to the
Geomatics Information Office of the
Municipality.
·
Any application for
a
name must include sufficient
information about the name (origin, meaning, pronunciation, etc.) and
the reason for wanting the name.
·
The authorised official must evaluate
the proposed names against the provisions of this policy.
·
All names must
be
presented
t
o
the
community
for their
acceptance. Depending
on the circumstances, names must be presented to the community
through the ward committee, through the local
press or through
a
questionnaire on which signatures are
to be affixed.
·
The Ward Councillors should ;nvite
the members of the Public Place and street Names Committee
to
ward committee meetings
as
observers.
·
All names must
be
referred
to the Public Place and
Street Names Committee, which evaluates and considers the names.
·
The Public Place and Street Names
Committee must forward its recommendations to the Council for
consideration and approval.
·
The relevant municipal departments,
Telkom Ltd, the Surveyor­ General and the Postmaster-General, as
wen as the applicant must
be notified immediately of an approved
name”.
(Emphasis added by the
Respondents.)
17.
The Respondents submit that the central focus is o
n
local residents
and
presentation of proposed name
·
changes
to the community
which
clearly
signify
that in any naming process the
historical,
social
,
cultural
and emotional concerns
of residents
(or the community) of the immediate locality should
be
accorded special weight.
18.
In regard
t
o
the change of street names the 2002 Policy provides:
"6.3
Changing
street
names
·
A street may be renamed in exceptional circumstances only.
·
The application for the renaming of a street must be accompanied
by convincing reasons for it.
·
Renaming must take place in accordance with-
-
the general procedural guidelines and rules for naming public
places and streets: and
-
the additional procedures set out below:
·
A notification of the proposed new name must be published in the
local press.
·
Written comments on the name must be received within 28 days from
the date of publication of the notification.
·
The comments must be included in a report to the Public Place
and Street Names Committee for consideration.
·
The Public Place and Street Names Committee must forward its
recommendations to the Council for consideration and approval.
·
The applicant is held liable for all the costs involved in the
changing of a name (endorsements on general plans, new street name

boards, etc).
·
The residents are liable for all the costs involved in changing
their personal addresses (letterheads, business cards etc).
·
In the spirit of democracy. at
least 51% of the registered voters who live in a street must agree in
writing to
a
change
of the street name
".
(Emphasis added by Respondents
.
)
19.
The Respondents submitted that they quote comprehensively. from the
200 Policy in order to demonstrate the weight it should
be accorded
on account of the comprehensive deliberative exercise which obviously
had led to its creation
.
20.
It is not in issue that the 2002 Policy
was adopted by the Appellant on 25 April 2002. The Respondents point
out that this was 8
years after the advent of democracy in this
country and with full knowledge of what is now presented to this
Court (and to the
public at large by the politicians governing the
Appellant) as
"offensive"
for
having a “
colonial
legacy/apartheid legacy'*
.
In
this
regard
the Respondents refer to paragraph 3 of the 2007 resolution which
reads as follows:
"The
motivation (for changing the street names) is as follows:
The
process intends to undertake
a
comprehensive reconstruction and
transformation of the image of the city with a view to create a new
African Capital City, reflective
of a common heritage, identity and
destiny. This envisaged Capital City will strive to recognise
the
contribution of all in the spirit of
the Freedom Charter and consciously immortalize heroes and heroines
in the process. The process
entails changing of names of streets
..
.in
the City that are offensive or have colonial legacy/apartheid legacy.
"
The
Respondent argues that the Appellant
does
not
explain why, how and at what
stage
subsequent to the introduction of the 2002 Policy (8
·
years
after the advent of democracy in the Republic) offensiveness of a
degree warranting such a drastic re-design of the city centre's

historical character has dawned upon the Appellant's Council. It is
argued, whatever the answer to this might be, by the time that
the
2007 resolution was actually executed, the Appellant did not even
comply with the few sentences and phrases of the 2007 PPP
by which it
summarily jettisoned the thoroughly thought-through and sensitively
formulated 2002 Policy.
21.
Sub-paragraph (a) of the 2007 PPP env
i
sages
that the Public Participation Process was to be conducted with
'Ward
Committees city widen.
It
is argued that given the meagre terms by
wh
i
ch the
2007 PPP displaced the 2002 Policy one must accept in favour of the
Appellant, that on a proper Interpretation of
t
he
2007 PPP, the intention was (at least when that process was decided
upon) that the city wide consultation with the Ward Committees
was
introduced by Appellant as an important requirement, to be thoroughly
complied with, and not merely as
a
piece
of empty lip-service to the constitutionaland statutory propriety
.
22.
It is argued that the Appellant must have realised, when it
formulated the 2007 PPP
,
that
the displacement of the thorough 2002 Policy should be substituted by
a very thorough consultation With the Ward Committees
,
and at any rate the Appellant's
obligation to do so thoroughly is founded on the prescripts of the
Constitutional and statutory
framework which applies
.
23.
The following is pointed out by the Respondents
:
Ward
Committees are established in terms of section
72
of
the Local Government: Municipal Structures Act, No
.
117
of 1998 ("The Structures Act)
.
In
terms of sub-section 3 the very object of the Ward Committee is to
enhance participatory democracy in focal Government. In terms
of
section 73(1) thereof Ward Committees must be established for
each
Ward
in the Municipality.
In
terms of section 16(1) of the Local Government Municipal Systems Act,
No. 32 of 2000 a Municipality must develop a culture of
municipal
governance that complements formal representative Government with a
system of participatory governance
.
Section 17(1)(a) of the latter Act
provides
:
"1
.
Participation by
the
local community in the affairs of the
Municipality
must
take place through :...
(a)
Political structures for
participation in terms of the Municipal Structures Act"
The
latter is a clear reference to Ward Committees. The obligation is
plainly couched in peremptory terms
.
It
is driven by section 152(1)(e) of the Constitution:
"(1)
The objects of local Government
are
-
(e)
To encourage the involvement of communities and community
organizations in the matters of local Government"
Section
·
152
(2) then adds that the Municipality must strive to achieve the
objects set out In sub-section
·
(1).
The
Respondents point out that the constitutional prescript find further
expression in sections 44(3)(g) and 56(3){g) of the Structures
Act
which require an annual report on the involvement of communities and
community organizations In the affairs of the Munic
i
pality
by the Executive Committee and the Executive Mayor respectively. It
does not merely require a reflection of what was done
in general
terms
.
It
is aimed at individual mun
i
cipal
decisions.tn this regard reference was made to Steytler & De
Visser
.
Local
Government Law of South Africa
,
s6,
par 1.8 at p6
-
9
.
It
was further pointed out that in terms of section 73(3) of the
Structures Act
:
"(3)
A metro or local council must make rules regulating –
(a)
the procedure to elect the subsection (2)(b) members of
a
ward committee, taking into account the
need -
(i)
for women to be equitably represented in a ward committee;
and
(ii) for a diversity
of interests in the ward to be represented".
We
were referred t
o
Doctors
for Life lnternational v Speaker of
the
National Assembly
[2006] ZACC 11
;
2006
(6) SA 416
(CC) at par 115 where NgC9bO J said the following:
"(P)articipation
by the public on a continued basis provides vitality to the
functioning of representative democracy.·
It encourages
citizens of the country to be actively involved in public affairs,
identified themselves with the institution of
Government and become
familiar with the Jaws as they are made”.
Reference
was also made to the discussion of Ward Committees
as
a
mechanism designed
for
public participation in Local Government
affairs by Steytler and De
Visser,
Local Government Law of South
Africa.
p 6
-
12 (3), Chapter 6 par 2.5.1.
We
were also referred
to
Democratic
Alliance v
e
Thekwini
Municipality
2012 (2) SA 151
(SCA)
where Brand JA concluded that
decisions of this nature remains justiciable for legality and
rationality notwithstanding the fad
that PAJA does not apply thereto
and that although the Constitution does not expressly require from
Municipal Councils to facilitate
public involvement in their
legislative
and
other processes (as is the case with the National
Assembly and National Council of
Provinces) they are constrained
to
facilitate public participation in the
performance of their executive and legislative functions. Referring
to
Doctors For Life
Brand
JA concluded that this derives firstly from the general
constitutional obligation in terms of s152(1)(a) of the Constitution

o provide democratic and accountable Govemment for local
communities·which publications requires public involvement;
and
secondly there are various statutory provisions which impose the
obligation on municipalities to establish appropriate mechanisms
so
as
to
enable local communities to participate in municipal
affairs
.
24.
The Respondents pointed out that the Appellant's
case
on compliance with its self imposed
obligation as regards the Ward Committees is simply that:
"The
city held several public consultations
at
various
wards
within Its
area
of jurisdiction.
It
has received written and oral representations from members of the
public"
.
It
was correctly submitted
that
there
is
no reference
to
the Ward Committees,
let alone
a
ll
of them, city wide. or otherwise. The representations received are
stated by Appellant to be from members
of the public and not any from the
Ward
Committees.
In
the extra-ordinary provincial gazettes of
28
February 2005 and 19 April 2005 by which
Notices 672 and 1443 of 2005 were published, confirmed the 76 wards
for the Appellant's
jurisdictional area in terms of section 5(2) of
schedule 1 to the Local Government Municipal Structures Ad, No. 117
of 1998. The
boundaries of each of the specific wards
are
shown in the
.
maps appended to the notices.
The
Appellant attaches the minutes of the oral representations received
at the public consultations held at the
"various
wards"
within the jurisdiction
of the Appellant. The meetings were held at the East-Lynne Community
Centre, the Centurion Council Chamber,
Atteridgeville, Bodibeng
Library, City Hall, Mabopane Skilfs Centre, Mamelodi West Community
Hall, Pretoria North
Town
Hall and the venues as indicated in the respective m
i
nutes
.
Each Ward
is established for a specific
area,
and
each
with its own Committee. On Appellants own account, the best which
could be said for it is that meetings were held
in
the geographical
areas
of the 10 Wards where the meetings were
held.
The
Respondents point out that there is no evidence of any communication
between the Appellant and any single Ward Committee at
all. It is
argued that the case pleaded by the Appellant that:
"The
city held several public consultations
at various wards within its
area
of
jurisdicjon
.
..."
is
an express confession to non-compliance with the 2007 PPP
.
25.
On
behalf of the Respondents it was argued that the decision in
eThekwini
offers
dear and direct authority that the appeal should fail. In that matter
the change of certain street names took place in two
phases
.
Nine
streets were
changed
in phase 1 and 99 in phase 2. The outcome of the judgment was based
on the difference between
the
Municipality's
own rules cast in the form of policies. This approach was derived
from the decision of the Constitutional Court in
Doctors
for Life
to
the effect that one of the factors according to which the
reasonableness of any public participatory process which has been
followed is to be determined include the rules adopted by
.
Parliament
itself to facilitate public partic
i
pation
.
The
Respondents pointed out that the MunicipaJity's resolution concerning
phase 1 was set aside by the Supreme Court of Appeal due
to the
failure to observe its own public participation policy which applied
at that stage
.
The
resolution relating to the second phase was accompanied by an
amendment  of the previous policy. The latter required prior

consultation with the addressees and affected persons (as was the
case with the 2002 Policy in this matter).It was deleted and
replaced
with the requirement of consultation with Ward Committees.
It
was further pointed out that in
eThekwini
all
one hundred of the Ward Committees were consulted, of which 76
responded. A task team was then mandated to consider all the
new
names proposed and to prepare a shortlist of no more than a hundred
names. A list of 83 names thus gathered by
the
task
team was again submitted to the Ward Committees. Finally, emanating
from
the latter responses, the task team submitted a report of all the
responses received to a committee dealing with the matter,
which
submitted a final list to the Executive Committee whose
recommendation was ultimately
accepted
by
the Municipality Accordingly all of the Ward Committees were
consulted.
It
was submitted on behalf of the Respondents that the appeal falls to
be dismissed for the very reasons why the municipality failed
in
eThekwlnl
on
the name changing process which formed Phase 1 in that matter: the
Appellant's failure to comply with the
self-imposed public participation procedure per the 2007 PPP.
It
was further submitted that the flaw in Appellant's
case
in
this regard is fatally compounded by the fact that the names finally
decided upon were never submitted to any form of public
participation
process at all as was done in
eThekwini
.
From
a reading of that decision it is clear that the fact that the finally
chosen names were again submitted to a public participation
process
weighed heavily with the Supreme Court of Appeal.
26.
During argument it was submitted on behalf of the .Appellant that it
is not for
this
court to pronounce upon the question whether there was adequate
public participation. It was submitted that it is for the review

court to decide. In this regard it was pointed out on behalf of the
Respondents that this very matter is raised by the Appellants
in
their Notice of Appeal. Paragraph 5.2 and 5.3 of
the
said notice reads:
“
I
n
making the above findings the Court disregarded the following:
5.2
The appellant had undertaken an extensive participation process
in compliance with the resolution of
27 September 2007.
5
.
3
Public participation process does not require agreement with the
proposed street name changes but a demonstration that the views
of
the residents of the City were sought and that they were afforded
sufficient and reasonable opportunity to make representations.
It
was submitted that the Appellant thus introduced this aspect within
the realms of this appeal and therefor cannot be heard to
argue that
this court of appeal cannot pronounce on this aspect
.
I
agree with this submission.
27.
One of the main contentions raised by the Appellant is that the court
a quo overstepped the boundaries of the separation of
powers
.
This argument is to the following
effect:
SEPARATIONOF
POWERS HARM
28.
On behalf of the Appellants it was
argued that the Constitution (in Chapter 7) provides that the local
sphere of government consists
of municipalities which must be
established for the whole of the te
r
ritory
of the Republic
.
The
executive and legislative authority of
a
munic
i
pality
is vested in its Municipal Council.
29.
Section 151(3) provides that a municipality has the right to govern
,
on
its own
i
nitiative,
the local government affairs of its community, subject to national
and provincial legislation, as provided for in the
Constitution. The
national or a provincial government may
·
not
compromise or impede a municipality's ability or right to exercise
its
powers
or perform its functions
.
30.
Under section 152 the objects of local
government are
to provide democratic
and accountable government for local communities
.
to ensure the
provision of services to
communities in a sus1ainable manner, to promote social and economic
.
development,
to promote
a safe
and
healthy environment and
.
to
encourage the involvement of
communities and community organisations in the matters of local
government
.
(My
emphasis.)
31.
The powers and functions of a local municipality are s
et
out in section 156. A municipality has
executive authority in respect of, and has the right to administer
the local government matters
listed in Part B of schedule 4 and Part
B of schedule 5 and any other matter: assigned to it by national or
provincial legislation.
A municipality may make and administer
by-laws for the
effective
administration of the matters which it has the right to administer.
32.
Part B of schedule 5 provides that municipal roads fall under the
competency of the local government sphere. The Policy Guidelines
for
the Naming of Public Places and Streets ("the 2002 Policy")
provides for the establishment of an advisory committee
known as the
public place and street names committee established by the council of
the City by resolution dated 6 September 2001.
33.
Under section 63(1) of the Local Government Ordinance, 17 of 1939,
the
Council
shall have the control and management of all roads, streets, etc.
34.
Under paragraph 6. 3 of the Policy, a street may be renamed
in exceptional
circumstances
only.
The application for the
renaming of a street must be accompanied by convincing reasons for
it. The renaming must take place in
accordance with the general procedural
gu
i
delines
and rules for naming public places and streets and the additional
procedure set out below
.
That
procedure provides that
a
notification
of the proposed
.
new
name must be published in
the
local press. Written comments on the name must be received within 28
days from the date of publication of the notification
.
The comments must be
included in a report to the public place
and street names committee for consideration and the committee must
forward its recommendations
to the council for consideration and
approval.
35.
It was submitted on behalf pf the Appellant that when the City
resolved on 29 March 2012 to replace street names it was acting

pursuant to the Constitution read with the Local Government Ordinance
and its own Policy. It was accordingly exercising a statutory
power.
The City was therefore implementing a resolution which was taken
pursuant to a powe
r
it
derives
from
the Constitution and the Ord
i
nance
.
We were ref
e
r
r
ed
to The
National
Treasury
&
Others
v
Opposition
to Urban PolIing Alliance
&
Others
2012(6) SA 223 (CC) at [26]
(OUTA)
where
the following was said in
connection
with the court's obligations when faced with adjudicating the
exercise of statutory powers
:
"A
court must also be alive to and carefully consider whether the
temporary restraining order would unduly trespass upon the
sole
terrain of other branches of government even before the final
determination of the review grounds. A court must be astute
not to
stop dead the exercise of executive or legislative power before the
exercise has been fully successfully and finally impugned
on review
.
This approach
accords
well with the comity the courts
owe
to other branches of government
,
provided they act lawfully. Yet
another important consideration is whether in deciding an appeal
against an interim order, the Appellate
Court would
in
effect usurp the role of the
review court. Ordinarily the Appellate Court should avoid
anticipating the outcome of the review, except
perhaps where the
review has no prospects of success whatsoever."
36.
At paragraph [44] the court said the following:
"The
common-law annotation to the Setlogelo test
is
that courts grant temporary
restraining orders against the exercise of statutory
power
only in exceptional cases and when a
strong
case for that relief has been made out. Beyond the common-law,
separation of powers is an even more Vital tenet of our
constitutional
democracy.
This
means that the Constitution requires courts to ensure that all
branches of government set within the law. However; courls In
tum
must refrain from entering the exclusive terrain of the executive and
the legislative branches of government unless the intrusion
is
mandated by the Constitution itself.
(emphasis
added by Appellant.)
37.
Addressing the question of the
irreparability of harm, the Court said,
"[53]
OUTA had to show
a
reasonable
apprehension of irreparable harm if the interim relief were not
granted
.
The
High Court found that it was self-evident that the aggrieved
commuters would suffer
irreparable
harm,
although difficult and impossible to gauge in the In real terms. They
would be left to pay
"excessive
toll monies which they cannot afford"
without adequate alternative routes to avoid the tolls.
The
High Court recognised that there
would
be
a
financial drain on car-rental companies
that are members of the South African Vehicle Renting and Lessing
Association in particular
and on members of the third, fourth and
fifth respondents
.
_
The High Court accepted that there would
be financial hardship to tens of thousands of motorists and
businesses. It recorded that
there had been widespread protests and
exceptionally high levels of concern and resistance on the part of
thousands of aggrieved
motorists."
38.
The court rejected
as
not
persuasive enough the submission that, should the review be
successful, SANRAL will be obliged to refund the millions of
aggrieved
motorists the toll charges
.
It
held that it is questionable why the harm motorists are likely to
face is irreparable. Should the decision to impose toll on
the roads
be set aside by a court, there is no reason why the affected
motorists would not have an enrichment claim to recover
toll so paid
to Sanral
or
why the National Executive Government or Sanral would validly resist
paying the toll charges.
39.
ln determining whether the requirement of the balance of convenience
had been satisfied, the court said the following:
"[55]
A court must
be
satisfied
that the balance of convenience favours the granting of a temporary
interdict. It must first weigh the harm ta be endured
by an
applicant, if interim relief is not granted
,
as against the harm respondent
will bear, if the interdict is granted.
Thus a court must
assess
all relevant factors carefully in
order
to
decide where the balance of
convenience
rests
.
[63]
There is yet another very important consideration when the balance of
convenience
is
struck.
It relates to separation of powers. In ITAC
we
followed earlier statements in
Doctors for Life and warned that
"Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government,
courts may usurp
that power or function by making
a
decision of their preference. That
would frustrate the balance of power implied in the principle of
separation of powers. The primary
responsibility of a
court is not to make decisions
reserved for or within the domain of other branches
·
of
government, but rather to ensure that the concerned branches of
government exercise their authority within the bounds of the

Constitution. This would especially be so where the decision in Issue
is policy-laden as well as polycentric.”
40.
The Constitutional Court warned that it did not mean that an organ of
State was immunised from judicial review only on account
of
separation of powers.
It
affirmed that the exercise of all powers is subject to constitutional
control.. In appropriate cases an interdict may be granted
against it
For instance, if the revie'll)I' court in due course were to find
that SANRAL acted outside the law then it is entitled
to grant
effective interdictory relief. That would be so because the decision
of SANRAL would in effect be contra to the law and
thus void
.
41.
The Constitutional Court went on to
state that when it
evaluates where
the
balance of convenience rests,
a
court must recognise that it is invited
to restrain the exercise of statutory power within the exclusive
terrain of the executive
or legislative branches of government. It
must assess carefully how and to what extent its interdict will
disrupt executive or
legislati.ve functions conferred by the law and
thus whether its restraining order will implicate the tenet of
division of powers.
While a court has the power to grant a
restraining order of that kind, it does not really do so, except when
a proper and strong
case has been made out for the relief and, even
so, only in the clearest of
cases
.
42.
Furthermore, a court must carefully
consider whether the grant 6f the temporary restraining order pending
a review will cut across
or prevent the proper exercise of a power or
a duty that the law has vested in the authority to be Interdicted.
Thus courts are
obliged to recognise and assess the impact of
temporary restraining orders when dealing with those matters
pertaining to the best
application, operation and dissemination of
public resources. What this means is that a court is obliged to ask
itself not whether
an interim interdict against an authorised State
functionary is competent but rather whether it is constitutionally
appropriate
to grant the interdict.(OUTA, supra, at paras [63], [64],
(65] and [66].)
43.
The Appellant submitted,
based
on the above that the interdict granted
by Prinsloo J stops dead the exercise of the City's powers even
before that exercise has
been fully successfully and finally impugned
on review
.
44.
It was further submitted that it also
undermines the comity the courts owe to
other branches of government provided
they act lawfully.
45.
It was submitted that in granting the
interdict, Prinsloo J
entered
the
terrain of local government, in particular insofar as it pertains to
municipalvotes and the change of names and that such an
intrusion was
not mandated by the Constitution itself. It was a usurpation of the
City's powers.
46.
It was submitted all this happened
in.the context where the respondents had not made out a proper and
strong
case
for
the interdict, nor was this the
"clearest
of cases".
47.
In answer to the
argument that the separation of powers
rule was overstepped
the Respondents
argued as follows:
48.
The principle that the Courts should pay
respect, or deference, to the Executive is closely allied to the
principle of separation
of powers between the Legislature, the
Executive and the Judiciary.
49.
lt was submitted that the Appellant's
case
in
this regard is without foundat
i
on.
It was argued, as with all legal principles, the rule is not
limitless. In th
i
s
regard we were
r
eferred
to
Kalil v Mangaung Mun
i
cipality
2014 (5) SA 123
(SCA) at par 3
where
Leach JA held:
"[3]
The resolution that the Appellant sought to prohibit the municipality
from adopting on 30 May 2013 (but which was in fac
t
passed
after the application was
dismissed
in the court below) involved the approval of an increased rate to be
applied on commercial properties in the municipal
area
.
In
this court as well as in the court below, the municipality relied
upon the Constitutional Court’s warning that courts are
to be
conscious of the
'
vital
limits on judicial authority and the Constitution design to leave
certain matters to other branches of government" and
should not
interfere
'
in
the processes of other branches of government unless to do so is
mandated by the Constitution.
(The
learned judge referred to Glenister
v
President of the Republic of South Africa & Others 2009(1) SA 287
(CC) (2009) (2) BCCLR 136 par 34 and the
authority
there cited
.
)
I accept that the principle unhesitatingly, but it
i
s
now axiomatic that the exercise of a public power must comply with
the Constitution and the doctrine of legality. (The learned
judge
referred
to Albutt v Centre for the Study of Violence and Reconciliation &
Others 2010(3) SA 293 (CC) (5) BCLR 391 par 49 and
Gauteng Gambling
Board and Another v MEC for Economic Development, Gauteng
2013
(5) SA 24
(SCA) para 1.) And where those in government, whether
national, provincial or municipal, act beyond the constraints of the
law
a court should not hesitate to declare their actions illegal,
thereby controll
i
ng
and regulating public power. (Reference was made
to
Affordable Medicines Trust and Others v Minister of
Health
and Others
.
2006(3)
SA 247 (CC) pa
ra
48
-
49.)
As the decision the Appellants sought to impugn was not
administrative in nature it could not be assailed on the grounds of

non-compliance with the
Promotion of Administrative Justice Act 3 of
2000
. Consequently, in seeking relief, they relied solely upon the
legality principle. The matter thus turned on whether the
municipality's
2013114 budget could lawfully be adopted
.
"
50.
It was submitted that the finding of the Judge a
quo
at p 428 line 10
-
p
43
2
line 15 cannot. be faulted: The Appellants decision to introduce the
new names were not affected by the order of the Court
a
quo
at all. It only concerned the
retention of the old names pending the review, and that with a red
line drawn across them to place
the impact of the change beyond doubt
in the eyes of any reasonable observer - a state of affairs which had
already been in existence
for more than a year which the Respondents
merely sought to perpetuate pending the outcome of the review. I
agree with this submission.
The finding of Prinsloo J was not to the
effect that the new names must be removed.
51.
The Respondents further argued both in
eThekwini
and in this matter the Appellant's
decision stands to be reviewed on the basis of its failure to comply
with the procedure which
it has designed itself. In a very real sense
the Court will be paying deference to the Appellant as branch of the
Executive by
holding it to the procedures which
it
had created itself - exactly as was
done
in
eThelcwini,
and
by the Constitutional Court in Doctors
for
Life, following the failure of
Parliament to comply with its own Public Participation Rules.
52.
On behalf of the Respondents it was
pointed out that deference also applies in the opposite direction in
that the executive should
also respect the judiciary. Reference was
made to the Appellant's accelerated removal of the historical names
in the face of the
impending legal proceedings referred to above
.
53.
It was argued that deference cuts both
ways, as does the separation of powers. It ill-behoves the Appellant
to raise the deference
rule where it has
flagrantly attempted to subvert and
undermine the proper and effective functioning of this Court. It has
done so twice in a manner
which itself stands
as
a violation of the separation of powers.
The Appellant's strategy to avoid an effective Court order- a repeat
of what occurred in
the proceedings before
Tuchten J - is common cause. It was
submitted that the comments of the Supreme Court of Appeal in
Gauteng
Gambling Board
v
MEC
for
Economic Development, Gauteng
2013 (5) SA 24
(SCA) is on all fours
with this matter insofar as the Appellant's attempts to thwart the
relief sought by
the
Respondents, and with it any order of the Court below, is concerned.
54.
In
Gauteng
Gambling Board
the
Board
("the GGB") and the MEC were at loggerheads following the
former's refusal of the latter's instruction (found, and
indeed
ultimately admitted, to be illegal), to accommodate a commercial
company favoured by the MEC in its building. The MEC's
umbrage
resulted in her telephoning the chairperson of the GGB informing him
that she expected the entire Board to resign. They
refused. On 16
January 2012 she wrote a
letter
to each member of the Board requesting reasons as to why she should
not terminate his or her membership of the
·
Board,
giving them two days to respond. It appeared that at the meeting held
on the same day than her letter of 16 January 2012
the MEC informed a
meeting of chief executive officers of the provincial entities over
which she held oversight that she intended
to fire the Board and
appoint an administrator. This was confirmed by her In her
opposing affidavit of 25 January 2012.
The letter of 16 January 2012 prompted the GGB to launch an urgent
application on 18 January
2012 for an interim interdict,
inter
alia
preventing the MEC from
carrying out her threat to dissolve the Board. On 23 January 2012
after
the
application was launched
and,
allegedly before the MEC became aware thereof, she dismissed the
entire Board. In a letter communicating the dismissal another
reason
was raised for the step, i.e. that the GGB had refused to move from
its newly erected building in Bramley to the offices
of the
Provincial Department for Economic Development.
55.
The application for the Interim Interdict was thwarted by the MEC's
tennination of the membership of all the members of the
Board which
was effected after the litigation was launched but before the matter
was heard. On 26 January 2012 when the urgent
interdict and
associated application for final relief was set down the parties
agreed that the MEC's decision would be stayed and
that the parties
would attempt to settle the dispute in terms of the
Inter-Governmental Relations Framework Act of 1995.That attempt

however
failed
and the matter proceeded to the application for final relief.
56.
The Supreme Court of Appeal found against the MEC on the merits. The
dissolution of the GGB was unlawful,
inter
alia
on account of the ulterior
motive to install the commercial enterprise in the GGB's building
.
57.
On behalf of the Respondent it was submitted that the following
comments of Navsa JA, are directly applicable to the matter
at hand,
pertaining to the MEC's manipulative actions following the launching
of the urgent application in order to thwart
the
impending judicial procedure.
"[49]
......it is
necessary to say
something
to demonstrate the oourt
'
s
displeasure at the manner in which the MEG behaved, over and above
the manner in which she terminated the membership of all the
members,
more particularly her conduct subsequent to the litigation being
launched. It is true that the board is bound by the MEC's
denial that
she had not actually seen the court papers for a few days after they
had been served. Her behaviour and that of her
department were
strange indeed. Her HOD knew of the threat of litigation and knew of
the litigation once it had occu11Bd. The application
papers were not
immediately brought to the MEC's attention. This is strange behaviour
by a department which primarily should be
concerned about the proper
functioning of the board. One is driven to the conclusion that it was
convenient for the MEC not to
have sight of the application and
supporting documents. The MEC appointed an administrator almost
immediately after dissolving
the board
.
The respondent, while not actively
associating himself with the MEC's prior conduct nevertheless went
ahead and appointed and the
purported successors. This was done even
though the present appeal was pending.
[50]
More than
a
century
ago Mason J in
Li Kui Yu v
Superintendent of
Labourers
1906
TS
181
said the following (at 194):
‘
That
being
so, it is impossible for me to pass over without some notice what is,
I consider, an offence of a serious kind, namely that
of interfering
with the administration of justice by taking an action which is
bound
to
prevent
the Court
granting
a
remedy'_
[51]
The decision in
Li Kui Yu was
qualified In Roberts
v
Chairman,
Local Road Transportation Board, and Another
(1)
1980
(2) SA 472
(CJ at
488
on the basis that, for an act to constitute contempt, it was
necessary that there be an intention to defeat the course of justice.
[52]
Our present constitutional order is such that the state should be
a
model
of compliance. It and other litigants
have a duty not to frustrate the enforcement by courts of
constitutional rights. In Tswelopele
Non-Profit
Organisation
&
Others
v City of Tshwane Metropolitan Municipality
&
Others
2007(6) SA 511 (SCA) in para
17 this court stated the
following:
‘
This
places intense focus on the question of remedy, for though the
Constitution speaks through its norms and principles, it acts
through
the relief granted under it. And if the Constitution is to be more
than
merely
rhetoric, cases such as this demand an effective remedy, since (in
the oft-cited words of Ackermann J in Fose v Minister
of Safety
&
Security)
'without effective remedies for breach, the values underlying and the
right entrenched in the Constitution cannot properly
be upheld or
enhanced”
'Particularly
a
country
where
so
few
have the means to enforce their rights through the courts, it is
essential that on those occasions when the legal process does
establish that an infringement of an
entrenched right has
occurred,
it be effectively vindicated”
[53]
In para 27 of the same case the following appears:
‘
Vindication
Kriegler J noted, "recognises that a Constitution has as little
or
as
much weight
as
the
prevailing political culture affords it". Essentially, the
remedy we grant should aim to Instil recognition on the past
of the
Governmental agencies that participated in the unlawful operation
that the occupiers, too, are bearers of constitutional
rights, and
that official conduct violating those rights tramples not only on
them
but
on all.
The
remedy
should instil humility without humiliation, and should bear the
instructional message that respect for
the
Constitution
protects and enhances the rights of all. It
is
a
remedy special to the Constitution, whose engraftment on the
mandament would constitute an unnecessary superfluity'
[54]
In the present case the best that can be said for the MEC and her
department is that their conduct, although veering toward
thwarting
the relief sought by the board, cannot conclusively be said to
constitute contempt of court. However, that does not excuse
their
behaviour. The MEC
,
in
her responses to the opposition by the Board, appeared indignant and
played the victim. She adopted this attitude while acting
in flagrant
disregard of constitutional norms. She attempted to tum turpitude
into rectitude. The special costs order, namely,
on the attorney and
client
scale,
sought by the board and Mafojane is justified . However, it is the
taxpayer who uftimately will meet
those costs
.
It
is time for courts to seriously consider holding officials who behave
in the high-handed manner described above, personally liable
for
costs incurred. This might have a sobering effect on truant pubic
office bearers. Regrettably, in the
present case, it was not prayed for
and thus not addressed”
58.
Those stringent comments were prefaced by reference to the following
principles of constitutional legality set out at the commencement
of
the judgment:
"
[1]
Our country is
a
democratic
state founded on the supremacy of the Constitution and the rule of
law. It is central to the conception of our constitutional
order that
the legislature, the executive and judiciary, in every sphere
am
constrained by the principle that
they may have exercise no power and perform no function beyond that
conferred on them by law.
This is the principle of legality, an
Incident of the
rule
of
Jaw. Public administration must be accountable and transparent
.
All public office bearers .judges
included, must at all times be aware that principally they
served the populace and the national
interest
.
This
appeal is
a
story
of provisional government not acting in accordance with these
principles"
.
59.
In
Kalil
v
Mangaung Municipality
supra,
the Supreme Court of Appe
a
l
referred to
Gauteng Gambling Board
in
support of similar criticism of
officialdom whose representatives
litigated obstructively, by way of unsubstantiated bald denials:
“
As
this Court
stressed
in
Gauteng
Gambling Board,
our
present
constitutional
order imposes a duty upon state officials not to frustrate the
enforcement by Courts of Constitutional rights".
(At
par 30 and further
.
)
The
Respondents dealt
in
their
supplementary founding affidavit dealing With Appellant's strategy to
frustrate the functioning of the Court. It was submitted
that it was
treated in the answering affidavit in no more than a scurrilous
complaint that those allegations, which Appellant clearly
cannot
deny, were
scandalous,
irrelevant, and vexatious, as well as bald. It was submitted that
Appellant's presentation of its
case
in
this manner is even more deserving of such trenchant criticism
.
60.
It was submitted on behalf of the Respondents that such machinations
by officialdom to
avoid
judicial
control can of course be performed as much by cynical legal processes
instituted,
as
by strategies devised to deprive the Courts from the ability to
afford justice to those entitled to it In regard to manipulative

litigation, we
were referred
to
Permanent Secretary, Department of Welfare, EC v Ngxuza
2001 (4) SA 1184
(SCA) at par 15
where
Cameron JA said the following
:
"All
this speaks of contempt for people and process that does not befit an
organ of Government under our constitutional dispensation.
It is not
the
function
of the Courts to criticize Govemment’s decisions in the
area
of
social policy. But when an organ of Government invokes legal
processes to impede the rightful claims of its citizens, it not
only
defies the Constitution, which commands all organs of Stats to be
loyal to the Constitution and requires the public administration
to
be conducted on the basis that the 'people's needs must be responded
to'. It also misuses the mechanisms of the law, which it
is the
responsibility of the courts to safeguard. The province's approach to
these proceedings was contradictory, cynical. expedient
and
obstructionist. It conducted the case as though it were at war with
its own citizens...,,
61.
It was submitted that the order of the Court a quo to reinstall the
street name signs so hastily removed for the specific purpose
of the
destruction of the Court's ability to grant redress where it is due
was
fully
justified by the abovementioned principles.
62.
lt was further submitted that the Respondents'
case
in
this
regard
is
strongly
supported by the provisions of section 173 of the Constitution in
terms of which the Court has the inherent power to protect
and
regulate its own process. It was submitted that the wide field of
implementation of section 173 by our Courts is demonstrated
by the
following examples.
63.
The inherent power created for the courts to regulate their own
process,
taking
into account what is in the interest of justice, was applied by the
Constitutional Court in order to limit the claim by the
State that
certain
documentation
should be protected from publication on account of national
security
.
See
Independent Newspapers v Minister for Intelligence
Services 2008(6) SA 31(CC) par 53 and further.
Disclosure of some
of the documents was ordered.
64.
In
South African Broadcasting Corporation Ltd v National
Director of Public Prosecutions
[2006] ZACC 15
;
2007
(1)
SA 523
(CC) the Constitutional Court emphasized that a discre
t
ion
exercised in terms of section173, aimed as it is at the power of the
Court to regulate its own process, will only be overturned
on appeal
in narrow circumstances as it is not for a Court of appeal to second
guess the assessment according to which
the discretion was exercised by the
lower court.
65.
It was po
i
nted
out by the Respondents that although it has been stressed by the
Constitutional Court tha
t
the
powers created by section173 should be
exercised with caution
,
(see
Phillips
v The National Director of Publi
c
Prosecutions
2006(1) SA
505
(CC) at par 47)
an
analysis of the decisions to that effect will show that such caution
is mainly aimed at the part of section 173 which refers
to the
development of common--law, and not t
h
e
emphasis of
that
section upon the
i
nherent
power of the Courts to protect and regulate their own process in the
interests of justice. Section 173 may even found an
order for the
dismissal of an action on account of the delay or want of prosecution
- although the power will be used sparingly
and only in exceptional
circumstances to that end
as
it
seriously impacts on the Constitutional and common-law right of
a
plaintiff to have
a
dispute
adjudicated upon. However, the court
will exerc
i
se
such power In
circumstances where there
has been a clear abuse of the process of court
.
In this regard we were referred to
Sanford
v Haley N.O.
2004(3)
SA 296 (C) at par 8
.
66.
Applying
section 173, the Supreme Court of Appeal crafted a procedure for the
conduct of class actions. It was done with Parliament
failing to
create the necessary statutory prescriptions in accordance with the
recommendations of the South African Law Commission,
of a judicial
commission of enquiry into the matter, and what the Court referred to
as
academic voices·
which
over many years have not been heard by Parliament. See
Children'
Rescue
Centre
·
Trust
v Pioneer Food (Pty) Ltd
2013 (2) SA 213
(SCA),par 15 and further.
The procedure adopted on the basis
of section 173 was accepted by the Constitutional Court as proper and
warranted
in
Mukaddam
v Pioneer
Foods
(Pty) Ltd 2013(5) SA 89 (CC)
,
although it overturned the decision
o
f
the
Supreme Court of Appeal in denying certification
for
Mukaddam.
67
.
Section 173 enables
a
Superior Court to lay down a process to
be folowed
i
n
particular cases, even if that process deviates from what Its ru
l
es
prescr
i
bed
.
It
may in the interests of justice departs from its own rules
.
See
PFE International v Industrial
Development Corporation of South Africa Ltd
2013(1)
SA 1 (SCA), par 30 and
Mukaddam v
Pioneer Foods (Pty) Ltd
201
3(5)
SA 89 (CC) par 39
.
68.
Accordingly,
·
section
173 empowers the Court to order the making available the record
pertaining to
a
decision
of
a
functionary
exercising a public power
in tandem
with, and independent of, Rule 53
.
Democratic Alliance v Acting National
Director of Public Prosecution
2012(3)
SA 486 (SCA),par 37.
69.In
Coetzee
v
National Commissioner of Police
2011
(2)
SA 227
(GNP)
at par 102 the Court based an order for costs
de
bonis propriis
against certain
police officers involved in an unlawfularrest on section 173.
In
Nyathi
v MEC for Department of Health, Gauteng
2008
(5) SA 94
(CC) the Constitutional Court
referred
inter
alia
to
section 173 in devising an order compelling the Provincial Department
to make payment of some 200 outstanding debts, following
a
declaration of section 3 of the State
Liability
Act
as
unconstitutional.
The order provided
inter
alia
as
follows:
“
The
Second Respondent is required to provide this Court on affidavit with
a
plan
of the steps it will take to ensure speedy settlement of unsatisfied
Court orders by no later than 31 July 2008"
71.
In
Qwelane
v Minister of Justice & Constitutional
Development
2015
(2) SA 493
(GJ) at para 6
- 11the Court, relying on section 173, decided that Itis competent
for a Judge of the High Court
to
hear
equality proceedings and High Court proceedings based on a
constitutional challenge (of the provisions in terms of which the

Equality 'Court proceedings were brought) in
one
consolidated
case
in the dual capacity of High Court Judge
and duly designated Equality Court Judge
.
72.
It was submitted that the power of the Courts to protect their own
process provided for in section 173 is coupled to a duty
to act where
the Rule of Law itself is threatened by attempts of a branch of the
Executive to subvert and undermine the judicial
capacity to deliver
justice.
73.
It
was further submitted that in the present matter it ill-behoves the
Appellant to complain that it would cost R2,6m to comply
- and that
in
the
context of an exercise which on Its own account was costing it R98m.
It was submitted that absent an order such as that issued
by the
Court below, members of the Executive who may happen to be like
minded, especially for purposes of political gain, will
no doubt be
encouraged to act accordingly whenever it may suit those purposes.
74.
It was submitted that the order of the Court
a
quo
that
the hastily removed name plates are to be r&-installed, is fully
warranted as a measure to protect the Court's process.
75.
With regard to the order directing the
City to restore the removed street signs within two months of the
order it was submitted
on behalf of the Appellant that the powers of
the review court have been pre-empted by the court a quo.
HAS THE POWERS OF THE
REVIEW COURT HAVE BEEN PRE-EMPTED?
76.
On
behalf of the Appellant it is argued that
-
in the review action, the respondents
seek the relief that the decision of the City Council of 29 March
2012
referred
to
above be reviewed and set aside and that the City
be
ordered to remove all signage indicating
the new street names within two months.
77.
Prinsloo
J justified his decision to order the restoration of the old sign
names
as
follows:
77.1
He
recognised that a similar order was granted in
Ethekwini;
77.2
He recognised that PAJA did not apply
but nonetheless found that there was no reason why an order directing
the City to perform
an act rather than to refrain from doing so,
would not be competent in the circumstances of this particular case
especially given
the manner in which the old n
a
mes
were removed been in the face of the pending interdict application.
77.3
He found that such an order would
probably also comfortably resort under
"appropriate
relief'
as
intended
by the provisions of section 38 of the Constitution.
77.4
He found that such an order may also be
especially indicated in this case, where the respondent is carrying
on with the removal
exercise, so that the granting of a prohibitory
interdict in respect of what may be left of the old names may not
afford sufficient
protection to the applicant.
78.
The
Appellant advanced the following reasons that the finding is
erroneous.
78.1
It
was argued there is simply no comparison between the
eThekwini
case
and
the application before Prinsloo J.
78.2
The
eThekwini
matter was determined by the Supreme
Court of
Appeal
dealing with the legality of municipality's decision to change
street
names in Durban. The case did not deal
with the granting of an interim
lnterdict. Therefore to an extent that
the Court purported to be bound by
eThekwini
in
granting the interim relief, such reliance is unfounded
.
78.3
The decision was that of
a
review court. and not an urgent court
adjudicating whether it should grant interim relief. But more
importantly, e
Thekwini is
authority
for the proposition that the review court is at large to order a city
council where the latter fails to comply with applicable
regulatory
Instruments,
to
review and set aside the decision of the City to rename street names
and to order the municipality o remove all signage indicating
the
names of the new street names.
79.
The
respondents in the review application
seek
to review and set aside the decision
·
to
rename the streets and to remove the signage bearing the old street
names. Itis common
cause
that
that lies within the competency of the review court.
80.
The review court has in fact
been
called upon to determine the legality of
the resolution
·
of
29 March 2012 and any conduct flowing from that resolution
including removing the old signage and
replacing that with the new signage.
81.
We were referred to
South
African Informal Traders Forum and Others v City of Johannesburg and
Others
2014(4) SA 371 CC; at [22]
where the following was said:
"Another
consideration is whether the interim relief would thwart the judicial
role of the review court. The order sought by
the applicants before
this court would not anticipate any part of the main proceedings to
be determined before the High Court in
Part B. Nor would it prejudice
such proceedings. On the contrary, without an order from this court,
the damage in the interim would
be so severe that the applicants'
ability
.
to
obtain relief from the High Court in Part B would substantially be
rendered nugatory. The order sought now is thus no more than
a
'status quo order' granted in the interests of justice 'to prevent
what might otherwise be substantial prejudice'"
82.
It was submitted on the authority
·
of
this case that when Prinsloo J ordered the City to restore the old
street names, he effectively anticipated the findings and
decision of
the court that will adjudicate the review action.
83.
It
was submitted that this is so in particular in the light of the
following
:
83.1
When
the application was heard the City had already commissioned
a
service provider to attend to the
removal of the old signage.
83.2
The old signage had been removed from all 661
normal
metal
street
name and all 115 green boards affected
by the name changes.
83.3
The
City's
service
provider
had commissioned the manufacturing of new panels without the old
names for 141 affected illuminated
street
name signs
.
83.4
To order the City to restore the old
signage would cost it R2,6 million
.
84.
On behalf of the Respondents it was argued that the argument that the
order “
effectively anticipates
the findings
of
the
review Court that will adjudicate the matter"
i
s
without foundat
i
on.
No Court dealing with a prayer for final relief is bound to
a
previous order granting interim relief
.
It would be highly surprising if the
Appellant would at the trial set down for
22
April 2016 accept that that Court would
not be entitled to undo the retention of the old names as granted by
the interim order.
The review proceedings are primarily
·
aimed
at
the introduction of the new names
.
Only if that
succeeds
,
will the ancillary relief for the
reinstatement of the old names
apply
.
There is no question of some form of
irreversibility
as
submitted by the Appellant.
85.
The
Respondents submitted that the costs to be incurred by the Appellant
in executing the order is attributable to the Appellant's
attempts to
frustrate the Court's ability to grant relief
.
This
is a product of the fact that the Court should defend and protect its
own procedures. In a very real sense
of the
word it is the Court's own interests which are at stake. The
Appellant cannot be heard to establish appealability by lifting

itself by its own bootstraps
.
86.
It
was
further argued on behalf of the Appellant that the horse has already
bolted.
87.
It was argued Prinsloo J ordered the
City to restore the street names that had already been removed when
the matter was heard
.
He
found that there was no reason why such an order could not be made
especially in the light the City
was on
course
with
the
removals
even
whilst the matter was being heard. It was submitted
that
Prinsloo J
erred
in ordering the City to restore
the
removed names. In this regard we were
referred to
National Treasury Others
v Opposition to Urban Tolling Alliance
&
Others
2012(6)
SA 223
(CC)
at
[50].(OUTA) "An interdict is meant to prevent future conduct and
not decisions already made
.
"
88.
The
act of removing street
signs
had
already happened
.
661
street names signs had been removed. 150 green boards had been
removed. The City1s service provider had already commissioned
the
manufacturing of 141 new street name signs. The proverbial horse had
bolted
.
89.
It
was argued that the relief sought and eventually granted by Prinsloo
J is the same as the relief sought in the main
review
action. It means that the harm
complained of was not irreparable in the circumstances so that an
interim
pendents lite
order
should have been granted.
90.
We
were referred to the following dictum in OUTA:
“
[50]
Under
the Setlogelo test of
a
prima
facie right a claimant must establish is not merely the right to
approach a court in order to review an administrative decision.
It
is a right which. if not protected
by
an interdict. irreparable harm would ensue.
An
interdict is meant to prevent future conduct and not decisions
already made."
Quite apart from the
right to review and to set aside impugned decisions, the applicants
should have demonstrated a prima facie
right that is threatened by an
impending or imminent irreparable
harm. The right to review
the impugned decisions did not require any preservation pendente
lite."
(emphasis added by Appellant)
91.
At
paragraph [53]:
"OUTA
had to show a reasonable apprehension of irreparable harm if the
interim relief was not granted
.
"
92.
On behalf of the Appellant it was argued that the harm claimed by the
respondents in this matter was not irreparable in a
sense
that unless an interim interdict was
granted, irreparable harm would ensue
.
The claimed harm was eminently
repairable at
t
he
instance of a rev
i
ew
court determining the matter
.
93.
On
behalf of the Respondents it was argued that the question of
irreparable harm
,
alternative
remedy and balance of convenience must be dealt with together due to
the ambivalence of Appellant's content
i
ons.
It was argued the Appellant conflates them with each other
,
and the ambivalence is to a degree which
render the arguments presented self-refuting
.
Thus the argument that
"the
horse has (already) bolted
cannot be
reconciled at all with the argument that the Respondents have an
alternative remedy and suffer no irreparable harm as
the review court
can grant the necessary relief to the Respondents.
94.
The
Respondents argued that the Appellants argument that
"t
he
horse had already bolted",
referring
to the extensive acts performed by the Appellant to remove the old
names and install new
"green
boards
"
etc
.
Yet, they i
m
media
t
ely
t
h
e
reafter
argu
e t
hat
no
i
r
r
epa
r
able
harm has b
ee
n
shown
as
"the
claimed harm was eminently repairable at
the instance of
a
review
Court determining the matter'
.
95.
The Respondents submitted the following
is obvious: If indeed matters have reached a stage where the Court
can no longer assist
the Respondents (the
specific situation indicated by
references in our jurisprudence to the fact that
the horse has bolted)
then
that principle will be
a fortiori
applicable by the time when the
review Court considers the matter.
96.
The Respondents argue that it is
incomprehensible how this argument is to be reconciled with the
argument that Respondents suffer
no irreparable harm
as
it
will
be entitled to redress by the review Court.
97.
The degree of merit established by an
Applicant for an interim interdict for
a
clear right is weighed against the
balance of convenience
.
So
that the stronger the prospects of success, the less need for the
balance of convenience to favour the Applicant In this regard
we were
referred to
E
r
asmus
p E 8-11.
98
.
Further in regard to the balance of
convenience
it
wa
s
submitted that on account of this
Court's constitutional right (and duty) to protect its own process,
and with it the Rule of Law,
the Appellant cannot be heard to
literally require the Court to have regard to its own machinations to
manufacture
''inconvenience"
for itself by its desperate attempts
to beat the Respondents to the judicial goalposts through the
feverishly accele
rat
ed
removal of the
historic
nameplates. Both the Appellant's arguments on balance of convenience
and the
"the horse has bolted”
theme, based as they are on the
calculated strategy to thwart the Court proceedings, seal their own
fate. The strategy is nothing
but an attempt by the Appellant to lift
itself by its proverbial bootstraps through:
Removing
the names in all haste before the Court can pronounce on it;
Then
arrive at Court arguing that the names had already been removed, and
that it would be prejudiced by an order replacing
same
as
it would be costly and cumbersome;
that
therefore
the balance of convenience favours it;
and
that the horse has in any event bolted.
99.
The Respondents point out that the grounds of appal do not cover an
attack on the Respondents.,
prima
facie
rights. Accordingly, and quite
rightly so, neither does the Appellant's heads of argument. There is
no attack on appeal on the Respondents'
right to a retention of the
old names. The degree of merit established by an Applicant for an
interim interdict for a clear right
is weighed against the balance of
convenience. So that the stronger the prospects of success, the less
need for the balance of
convenience to favour the Applicant.
As there is no attack on the
Respondents' right to retention of the old names,
balance of convenience does not come
into play.
100.
The Appellant's rely on the decision In
“
OUTA
”
where the Constitutional Court linked cons
i
derations
of balance of convenience to the separation of powers doctrine. The
Appellant then refers to the discussion in OUTA where
it was stated
that the Court must assess how and to what extent the interdict will
disrupt executive or legislative functions conferred
by the law and
thus whether its restraining order will implicate the tenet of
division of powers.
101.
It
was submitted that the position which the Court had to deal with in
OUTA is a far cry from the situation
in
casu
.
The
interim order issued by the Court of first instance in OUTA had the
direct consequence of summarily terminating the ability
of SANRAL to
collect toning revenues. The delay in
implementing tolling had by then already
cost R2,7 billion, representing 40% of SANRAL's estimated 2012 toll
revenue, whilst its
average monthly expenditure would amount to R601
million for the 2012/2013 financial year. (OUTA at par 58.) This is
to be compared
with the situation here,where it only concerns the
retention of the old names as an interim measure without affecting
the Appellant's
decision to introduce the new names at all. As
pointed out by the Judge a
quo
the
retention of the old street name signs, with
a
red line drawn across them,·underneath
the new names.
102. I
t
was submitted that in OUTA only the extreme and far
-
reaching
consequence of the interim order granted by the Court of first
instance moved the Constitutional Court to link the separation
of
powers, which is
a
consideration
which goes to merit
,
to
balance of convenience
,
which
is a procedural
consideration normally
considered separately from the me
r
its,
namely the question whether the
Applicant for an interdict has shown a
prima
facie
right.
103.
Dealing
with the requirement of irreparable harm it was argued on behalf of
the Respondents that it
is
well
established that if an Applicant can establish
a
clear right
his apprehension of
Irreparable harm need not be established. See
Setlogelo v
Setlogelo
1914 AD 222
at 227 and
Edrei Investments 9 Ltd .(in
liquidation) v Dis-Chem Pharmacies (Pty) Ltd
2012(2) 553 (ECP) at
557C - H. It was submitted that the Respondents' case on Appellant's
failure to
conduct a proper public
participation process established a clear right in the full sense of
the word. However, the principle
does
not apply only where a clear right has conclusively been shown. It
comes into play even If the case made
out for relief approaches a clear right,
though not conclusively established.
Thus,
in
Eriksen
Motors (Welkom) Ltd
v
Protea Motors Warrenton
&
Another
1973(3)
SA 685 (A) at 691C - G Holmes JA
,
dealing with the abovementioned
passage
from
Setlogelo
v
Setlogelo,
commented:
“
The
foregoing
.
considerations
are not individually decisive, but are interrelated; for example, the
stronger the Applicant's prospects of success
the
less
his need to rely on prejudice to himself'.
104.
It was argued moreover, this
case
concerns actions undertaken by the
Appellant already since April 2013 when the urgent application was
heard by the Court a quo.
The review trial has been set down for
hearing on 22 April 2016. There is always the possibility of further
postponements and/or
appeals, including appeals by the Appellant such
as this one
.
There
is no reason why the constitutional rights of the Respondents should
be subjected to the actions of the Appellant which forms
the subject
matter of this case for such prolonged periods. Especially in the
face of the attempts made by the Appellant to create
exactly that
position through the accelerated removal of the street names
.
105.
The
Respondents submitted no doubt when the review trial is heard, the
Appellant will only be harping on the
horse
has bolted"
theme, again
relying on the fruits of its own attempts to subvert the judicial
process, no longer acknowledging that the Court is
still
"at
large"
to allow the relief
sought
.
CONCLUSION:
106.
Regarding
the appealability of the order of the court
a
quo
the
arguments raised by the Respondents seems to be unassailable. The
relief granted does not interfere with the resolution to introduce

the new names; they have been in place since April 2012 and will
remain so. The new names were displayed prominently above the
old
names and the old names have a red line drawn through them
"to
place the impact of the change beyond doubt in the eyes of any
reasonable observer".
Had the
order been to the effect that the new names had to be removed
pendente.lite
the
situation would have been different. The conclusion reached by the
Court a
quo
that
to allow that
status quo
to
continue
pendente lite
could
have no meaningful impact on the statutory powers of the Applicant is
unassailable.
107.
The
argument on behalf of the Respondents that the Appellant failed to
perform
a
proper
public participation process is in my view likewise unassailable. The
2007 PPP
inter alia
referred
to Ward Committees
city wide
to
be involved. On its own papers the Appellant failed to do so. The
argument on behalf of the Respondents that the Local Government

Municipal Systems Act provides (in addition to the 2007 policy)
public participation is also sound.
The
Respondents in argument concentrated on the fact that meetings were
held in only a few Ward Committees. There is also in my
view no or
very little
indication
that “Stakeholders" (which w0uld certainly Include those
who reside in or do business in the affected streets)
were consulted.
Although the 2002 Policy which
inter
alia
was to the effect that a
majority of 51% of them had to be in favour of the name change
(creating a legitimate expectation that
they would be consulted) was
repealed by the 2007 policy the 2007 still required consultation with
such stakeholders.
108.
The decis
i
on
in
eThekweni
is
in my view clear autho
ri
ty
that
a
court
can interfere with a decision of a municipality where the element of
legality is Jacking. I am of the view that the attempt
by the
Appellant that
eThekwenl
is
distinguishable from the present matter
does not hold water
.
109.
The argument on behalf of the Appellant that the separation of powers
rule has been overstepped has in my view effectively
been answered by
the Respondents. Furthermore,
as
illustrated by the respondents, our
courts have
in
fact in the past set aside decisions of local authorities Where the
element of legality was lacking
.
A
striking example is the judgement of the Supreme Court of Appeal in
eThekweni.
I
furthermore agree that the decision in OUTA
is distinguishable from this
case
for the reasons advanced by the
Respondents.
110.
I
am in agreement with the Respondents that the Appellant is itself
guilty of transgressing the separation of powers rule by attempting

to thwart the court process as illustrated above
.
111.
I
am in further agreement with the Respondents that the powers of the
review court have not been pre-empted. The review court will
not in
any way be bound by the ruling made by Prins
l
oo
J.
112.
I
am further of the view that the Respondents have satisfied the
elements for an interim interdict by illustrating Irreparable harm,

no altemative remedy and balance of convenience. During argument it
was contended on behalf of the Appellant that the Respondents
indeed
had an alternative remedy namely the review court. There is in my
view no merit in this
submission
.
The old street names were hastily
removed by the Appellant at the time. The Respondents illustrated an
interest in preventing the
Appellant to do so and to preserve the
status quo
.
113.
After
due consideration of all the arguments before us Iam of the view that
the appeal must fail.
114.
The
Respondents submitted
that
the
appeal should be dismissed with costs, including the costs of two
counsel. It was further submitted that such costs should be
granted
on an attorney and client scale: A punitive order for costs is
warranted by both the Appellant
'
s
attempts to frustrate the effective functioning of this court, and
the late filing of its heads of argument.
115.
Prinsloo
J was requested to make a similar cost order. The conduct of the
Appellant was also referred to before him. He however
reserved costs
for the court dealing with the final determination of the issues in
this
case.
116.
In
granting leave to appeal to
this
court
the Supreme Court of Appeal remarked as follows regarding costs
:
"The costs order of the court a
quo
in dismissing the application for
leave to appeal is set aside AND the costs of the application for
leave to appeal in this court
and the court
a
quo
are
costs
in
the appeal."
117.
I
agree
with
the submission on behalf of the Respondents that this appeal is a
separate self standing procedure and that the costs should
follow the
outcome of this appeal.
118.
As
indicated
the
Respondents ask for a cost order on
a
punitive
scale.
In this regard they
inter
alia
refer to the attempt by the
Appellant to frustrate the process of the court
.
Reference was made to the
Gauteng
Gambling Board
matter and the
remarks made in that matter by the Supreme Court of Appeal.
I
am in agreement with these submissions.
119.
In the result the following order is made:
The
appeal is dismissed with costs, including costs of two counsel on an
attorney and client scale.
___________________
E
Jordaan
Judge
of the High Court
___________________
C
Pretorius
Judge
of the High Court
I
agree
___________________
Judge
of the High Court.
I
agree
.
[1]
A summarised reference in chronological sequence is set out in the
chronology (attached to the Respondents' heads Of argument)

relating·to the respective e-mails and the subject thereof.