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[2013] ZAGPPHC 556
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Afriforum and Another v City of Tshwane Metropolitan Municipality (20665/13) [2013] ZAGPPHC 556 (19 April 2013)
IN
THE
HIGH
COURT OF SOUTHAFRICA
NORTH
GAUTENG HIGH COURT
PRETORIA
CASE
NO
: 20665/13
DATE
:
2013.04.19
Not
reportable
Not
of interest to other judges
Revised
In
the matter between
AFRIFORUM
1
st
Applicant
EVERT
VAN DYK
2
nd
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY Respondent
JUDGMENT
PRINSLOO
J
: This application for interim interdictory relief serves before
me in the urgent court today. The evening before yesterday I heard
argument on the question of urgency and ruled that the matter was
urgent and could be dealt with as such. I also heard argument
on the
merits and reserved judgment until this morning.
This
application is a further development in a long saga flowing from the
respondents decision on 27 September 2007 to change the
name of 27 of
the best-known and most widely used streets in Pretoria. Later the
number of streets was reduced to 25 when two of
the major streets,
Paul Kruger and Pretorius, were left out of the equation. From the
minutes of the meeting of the respondent's
Council ("the
Council”) of 27 September 2007 where the decision to change the
names was passed with a majority vote,
it is clear that there were
deep-rooted and serious differences of opinion ·about the
proposed changes - Nevertheless, the
respondent embarked upon a
public participation process involving,
inter alia,
a request
.for proposals for names ("the new names") to replace the
existing names due to be changed ("the old names”).
I will
later revert briefly to the subject of the public participation
process.
A
number of years later, on 29 March 2012, the respondent resolved to
change the old names to the new names. This inspired the first
applicant (then the only applicant) to launch an urgent application
for interim interdictory relief against the respondent (then
as first
respondent) and three other respondents namely the MEC and Minister
of Public Administration and the Minister of Arts
and Culture. The
latter three respondents indicated that they would abide the decision
of the court. The main relief sought, freely
translated rnto English,
amounted to the following:
“
pending
the finalization of an appl cation to review and set aside the
resolution of the respondent of 29 March 2012 with regard
to the
replacement of the 25 street names the respondent is interdicted and
restrained from replacing any road signs and street
name signs
reflecting the proposed changes.”
The
urgent application came before Tuchten J on 30 April 2012. The
urgency arose because the respondent was in the process of putting
up
the new signs. The respondent contended that no case for urgency had
been made out because the applicant had delayed the launching
of the
application for too Jong. On thisissue the learned judge· said
the following:
"What
happened is that Afriforum reacted promptly on learning ·of
the decision and 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
then delayed for tactical
reasons to communicate that decision to Afriforum.”
It
was ruled that the matter could be heard as one of urgency; During
the hearing It turned out that 8 of the streets were classified
as
provincial roads and respondent undertook not to implement its
decision until the completion of a process by which the respondent
must first consult the provincial authorities.
One
of these 8 streets is Church Street earmarked to have its name
changed to three new names said to apply to three sections of
Church
Street. During the proceedings before me I was left with the
impression that the provincial consultation process has not
yet been
completed. Before Tuchten J the respondent gave a further undertaking
namely that it would not replace any of the old
signs for a period of
six months. Instead it will put up the new names and leave the old
names in place for that period. The effect
of this, so the learned
judge held, was to remove the imminent threat which the applicant
sought to prevent by interdict. It seems
that both sides undertook to
work towards the swift adjudication of the review application so that
it could perhaps be finalized
within the six month period. The
applicant, to this end, also undertook to launch its main review
application within two weeks.
The
learned judge, correctly, held that this arrangement disposed of the
urgent application because the relief sought was directed
at
preventing the respondent from replacing the old with the new, not
from putting
up
new boards and leaving the old ones in place.
The learned judge pointed out that the court hearing the review, if
it succeeds, may
competently order that the new name boards may be
removed too. In this regard reference was made to
Democratic
Alliance v Ethekwini
Municipality
2012 (2) SA 151
(SCA)
where such an order was made after that council's decision to rename
9 streets was reviewed and set aside. See the order
in
Ethekwini
at 154 B-E. In the end, no order was made in the interdict
application before Tuchten J, and the costs were reserved for
decision
in the main application.
Thereafter
the applicant did not launch the main application within two weeks
but instead, through Its Chief Executive Officer,
embarked upon talks
with the Executive Mayor \the Mayor") of the respondent with a
view to amicably resolving both the street
name Issue and the issue
involving the threatened change of the name of Pretoria itself. The
first such approach for a meeting
on an Informal basis was made
already on 23 May 2012. The Mayor, in an electronic reply, said
that he was keen on a discussion
•to resolve amicably". The
two leaders met on 24 July 2012 but, on a general reading of a number
of e-man exchanges between
the parties, one is left with he
impression that the CEO was the more eager of the two to make
progress with the talks.
On
30 August 2012 the CEO wrote to the Mayor as follows:
"Just
to remind you that I am waiting for feed-back from you re the ANC1s
stance on a possible agreement regarding the Pretoria
name and street
name issue. Our attorneys are still awaiting my instructing
(sic)
regarding the pending court case we are holding back in a last
ditch effort to reach an agreement.”
On
9 October the negotiations broke down when the CEO referred to clear
signs that the authorities were determined to work towards
changing
the name of the City after all. At this ·point it is useful to
add that the first applicant is a registered non-profit
company and a
well-known nori governmental organization involved in the
protection and development of civil rights within
the context of the
South African Constitution, Act 108 of 1996. It has more than 50 000
members and about 10 000 of those are rate
payers of the respondent.
The
first applicant alleges that its members and employees regularly
travel on the particular streets and are affected by the respondents
decisions now under attack. The second applicant is a rate payer of
the respondent who similarly makes use of the roads and is
affected
by the decisions. After the discussions referred to broke down, the
main review proceedings were launched by way of action
on 13 December
2012 by the two applicants as plaintiffs together with a third
plaintiff, a businessman and rate payer residing
in Charles Street,
one of the streets earmarked for a new name change.
On
the same day, 13 December 2012. the applicants attorney also
delivered a letter to the respondents attorney with the following
request
“
1.
We refer to your telephonic discussion with our Mr Willie Spies on
even date and attach· hereto a copy of the summons
as issued
yesterday in the North Gauteng High Court for your attention.
2.
We kindly request your client to provide an undertaking that the
street name signs, as it appears presently, will not be removed
pending the outcome of the court action.
3.
We await your urgent response herein.”
There
was no response, and a similar request was sent on 17 January 2013
asking for an undertaking “not to remove the names
of streets
renamed pending the outcome of the action for review".
In
a 4 February reply the respondents attorney said he was taking
Instructions and hoped to revert shortly on the question of an
undertaking. He never did. On 4 April the Mayor gave his “state
of the City” address during which he announced that
the boards
with the old names would be removed and added, according to a
newspaper report, that people should by now be accustomed
to the new
names.
This
development caused the applicants attorney to write as follows to the
respondent's attorney the next day, on 5 April 2013:
“
A
further more pertinent issue is the announcement of the Mayor of the
City of Tshwane Metropolitan Municipality yesterday in his
state of
the city address that the former street names which were still left
on the streets to avoid confusion, and to satisfy
the judgment of
Tuchten J granted last year, are to be removed with immediate effect.
We
have previously without success requested your clients undertaking
not to remove the names pending the finalization of the review
process currently underway.
Since
the Mayor has now made his intentions clear, we have no alternative
but to consider an urgent application for an interdict
to have the
status quo
maintained pending the finalization of the review
proceedings.
This
letter therefore serves as an urgent formal request to your client to
reconsider their position and to give us an undertaking
by no later
than close of business today, Friday 5 April 2013, that the removal
of the existing names will be held In abeyance
pending the
finalization of the additional review.
Should
we not receive your response by close of business today, our
instructions are to bring an urgent application for an interdict
to
this effect.
The
answer came on the same day stating that the request for an
undertaking was refused.
The
respondent's attorney also referred to the six month grace period
covered by the undertaking given before Tuchten J,
supra
having
expired indicating that the applicant had "no entitlement to the
old names remaining in place beyond the end of October
2012 when the
six months expired. The question of the six month period (in any
event not part of a court order) was not mentioned
when undertakings
were sought in December 2012 and January 2013. It is difficult not to
see a similarity between this delay in
reacting to a request for an
undertaking and the delay before the previous application as
described by Tuchten J.
supra
.
The
applicants were then inspired to launch this urgent application for
interim interdictory relief on 9 April. The main relief
sought,
freely translated into English is that pending the finalization of
the review action of the respondents resolution of 29
March 2012 to
change the names of the 25 streets, the respondent is to be
interdicted from removing the street signs bearing the
old names.
Regrettably, it soon became known, and it is common cause, that
shortly after the announcement,
supra,
was made by the Mayor,
and well aware of the impending interdict application and, it seems,
almost overnight, and at great speed,
the respondent started removing
the signs bearing the old names. This moved the applicants to, on 10
April, file an amended notice
of motion asking for the same relief
but adding a prayer that the old names already removed should be
restored to their earlier
position on the streets
pendente lite.
Indeed,
when the opposing affidavit was filed, belatedly, on 16 April, it
contained a statement that at the time of such filing
the old names
had been removed .already from all 661 normal street name signs and
air 150 green boards affected by the name changes.
Moreover, the
service provider had commissioned the manufacturing of new panels
without the old names for the 141 affected illuminated
street names
signs. It is anticipated that the removal of the old names on all
illuminated street name signs will be completed
by mid May 2013.
On
the strength of this information, it was argued in the opposing
affidavit that the application should be refused because the
relief
sought will be ineffective or largely ineffective. In answer to a
question posed during the hearing, counsel for the respondent,
Mr
Motau, confirmed that the removal of the remaining vestiges of old
names on illuminated street name signs was an ongoing process
uninterrupted by the filing of this interdict application. The
removal operation carried on unabated even after the interdict
application was served as long ago as on 8 April when it was first
sent electronically to the respondents attorney.
According
to an allegation in the opposing affidavit it will cost approximately
R2,6 million to return the removed old names to
their. positions on
the streets. This means that despite the interdict application and
the prayer for the names already removed
to be returned, the
respondent carried on regardless, increasing the potential
restoration costs as the operation progressed and
in the face of at
least the possibility of a restoration order being granted. Moreover,
the respondent was also quite prepared
to incur the removal costs,
the amount of which was not disclosed, in the face of the pending
interdict application and not knowing
what the outcome would be.
I
now turn to an important issue and one strongly relied upon by the
respondent. It can conveniently be termed the separation of
powers
argument. It is common cause that relevant statutory provisions vest
the control over streets within a municipal area and
the authority to
name and rename the streets In the council of that municipality. See
Ethekwini at 159 D-G. Broadly put, it was
argued on 'behalf of the
respondent that it embarked. upon the name changing. project. in
terms of its constitutional and statutory
mandate, did so in terms of
a transparent public participation process, and for this court to
intervene In the performance of those
functions by way of interdict
would be to undermine the constitutional imperative of separation of
powers.
The
respondent relied on the guidelines laid down in
National Treasury
and others v Opposition to Urban Tolling Alliance and Others
2012
(6) SA 223
(CC) where an interdict restraining the Government from
implementing the e-Toll system was challenged and set aside. At 232
B-E
the following is said:
“
In
the present case there can be no doubt that the Impact of the
temporary restraining order is immediate, ongoing and substantial.
The order prohibits SANRAL from exercising statutory powers flowing
from legislation whose constitutional validity is not challenged.
In
particular, the order prevents it from raising revenue through tolls,
a power the statute vests
in
it. The immediate and ongoing
result of the interdict is that the National Treasury, the executive
government, and the National
Legislature will have to allocate R270
million per month to SANRAL in order to meet
its
ongoing
capital and Interest repayments in respect of the GFIP. Thus the
order has wide-ranging consequences for national finances
and the
management of our country's sovereign debt. At the behest of a court
order, the National Executive Is prevented from fulfilling
its
statutory and budgetary responsibilities for as long as the interim
order is in place. In effect, the order compels a re-allocation
of
otherwise budgeted funds to satisfy the financial exigency. Thus
grant of the interdict has a direct and immediate impact on
separation of powers as well as ongoing irreparable financial and
budgetary harm.”
The
Constitutional Court at 235 D-F revisited the well-known requirements
for the grant of an interim interdict set out in
Setlogelo v
Setlogelo
1914 AD 221
and refined in
Webster v Mitchell
1948
(1) SA 1186
W. The test requires that
“
an
applicant that claims an interim interdict must establish
(a)
a
prima facie
right, even if it is open to some doubt;
(b)
a reasonable apprehension of irreparable and imminent harm to the
right if an interdict is not granted;
(c)
the balance of convenience must favour the grant of the interdict;
(d)
the applicant must have no other remedy"
and
went on to say the following at 236 G to 237 D:
“
It
seems to me that It is unnecessary to fashion a new test for the
grant of an interim interdict. The
Setlogelo
test, as adapted
by case law. continues to be a handy and ready guide to the bench and
practitioners alike in the grant of interdicts
in busy magistrates'
courts·and high courts. However, now the test must be applied
cognisant of the normative scheme and
democratic principles that
underpin our Constitution. This means that when a court considers
whether to grant an interim interdict
it must do so in a way that
promotes the objects, spirit and purport of the Constitution. Two
ready examples come to mind. If the
right asserted in a claim for an
interim Interdict is sourced from the Constitution it would be
redundant to enquire whether that
right exists. Similarly when a
court weighs up where the balance of convenience rests, it may not
fail to consider the probable
impact of the restraining order on the
constitutional and statutory powers and duties of the state
functionary or organ of state
against which the interim order is
sought. The balance of convenience enquiry must now carefully
probe whether and to which
extent the restraining order will probably
intrude into the exclusive terrain of another branch of government.
The enquiry must,
alongside other relevant harm, have proper regard
to what may be called separation of powers harm. A court must keep in
mind that
a temporary restraint against the exercise of a statutory
power well ahead of the final adjudication of a claimant's case may
be
granted only in the dearest of cases and after a careful
consideration of separation of powers harm. It is neither prudent nor
necessary to define 'clearest of cases'. However, one important
consideration would be whether the harm apprehended by the claimant
amounts to a breach of one or more fundamental rights warranted by
the Bill of Rights. This is not such a case."
In
the present case the relief sought by the applicants does not, in my
view, have any meaningful impact on the statutory powers
and duties
of the respondent The applicants are not asking for the name changing
process as such to be interfered with or curtailed
pendente
lite.
The new names have
been in place since April2012 and will remain so. Moreover, in terms
of the respondents own scheme, introduced
in April 2012, during the
proceedings before Tuchten J, as explained, the new names are
displayed prominently above the old names
and the old names, to boot,
have a red line drawn through them to place the impact of the change
beyond doubt in the eyes of any
reasonable observer. It is this state
of affairs, already in existence for more than a year, which the
applicants seek to perpetuate
pending the outcome of the review. To
allow this status
quo
to
continue
pendents lite
can have no meaningful
impact on the statutory powers of the respondent, the very architect
of the introduction of the .scheme
in
the first place, let
alone an impact on the National fiscus or any other adverse
consequences as described in
National
Treasury, supra.
All
that. the applicants are seeking is the extension
pendents
lite
of a
status
quo
created by the
respondent itself more than a year ago. Seen like this, and returning
to the test in
Setlogelo,
supra,
there can be no
question of prejudice or harm for the respondent, neither can it be
said that the balance of convenience will favour
the respondent
if
the interim relief is
granted. Had the respondent, as a public body in charge of public
funds, heeded the repeated calls by the
applicants dating back to
December 2012, to maintain the
status
quo pendente lite
instead
of, in my view, recklessly proceeding with the removal operation, in
the face ·of the interdict application, the
potential expense
of restoring the old names would also have been saved.
Returning
to the test in
Setlogelo
and the requirements for the granting
of an interim interdict, J see no inconvenience or irreparable harm
for the respondent If
·the
status quo
created on its
own Initiative, and perhaps also to counter the earlier "urgent
application which came before Tuchten J, is
maintained by the
granting of the relief now sought. l also don't see, for the reasons
mentioned, any “separation of powers
harm” as
foreshadowed by the teamed deputy Chief Justice in
National
Treasury
at 237 B-D
supra.
On
the other hand the harm or inconvenience, real or potential, for the
applicants, including the 10 000 rate payer members of the
first
applicant, if the relief is refused, exceeds that to be suffered by
the respondent if any, if the relief were to be granted.
The
allegation is made in the founding affidavit that removal at present
of the old names will cause confusion or potential confusion
for many
people not yet familiar with the new names. The same applies to
tourists and visitors to the City. There is clear evidence
in the
affidavits presented by the applicants that existing road and street
maps do not yet reflect the new names, and if such
maps were to be
adapted, and the review succeeds, the whole process will have to be
reversed again leading to more confusion and
potential inconvenience
and expense for rate payers, tourists and others such as businessmen
and women, the ratter having the additional
inconvenience and expense
of having to print and perhaps reprint amended letterheads and
stationery.
There
is also another, and what r consider to be significant, issue which
underscores the irreparable harm or potential harm which
the
applicants will or could suffer if the relief were to be refused.
Indeed, this issue also supports the case of the applicants
that they
have a
prima facie
right to relief claimed. The deponent to
the founding affidavit puts it as follows when contending for the
prima facie
right:
“
Verder
het die totale verwydering van bestaande name die effek dat die name
In onbruik kan verval terwyl 'n moontlik uitgerekte
hersieningsproses
homself oor ‘n tydperk van jare uitspeel. Dit kan die
hersieningsproses laat ontaard in bloot ‘n
akademiese
oefening.”
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.
In
Chairperson standing Tender Committee and others v J F E Sapela
Electronics (Pty) Limited and others
2008 (2) SA 63
·8
(SCA) at 649 J to 650 F·it was held that in cases of undue
delay, and because there is a public Interest element
in the finality
of administrative decisions and the exercise of administrative
functions, and because of considerations of pragmatism
and
practicality, such a discretion may be exercised against a
justifiably aggrieved litigant.
Another
submission made
in
the founding affidavit in support of the
applicants' case that they have a
prima
facie right to the
interim relief sought is worded as follows:
“
Die
mees voor-die-hand-liggende reg is die reg van kultuurgemeenskappe
om hulle kultuur goedere in beskerming te neem. Die
grondwetlike
regte,soos vervat in artikel33 van die Grondwet is hier ter sprake
asook die grondwetlike grondbeglnsel dat erkenning
te alle tye gegee
moet word aan soweldie onregte van die verlede as aan diegene wat
Suid-Afrika oor jare heen gebou en ontwlkkel
het.”
The
applicants maintain that they have a constitutional right to protect
and preserve their culturaland historical heritage. This
would also
satisfy the requirement set in
National Treasury, supra,
at
237 B-D for interim relief in the face of so-called separation of
powers harm If indeed such harm exists in the particular case
namely
that “one important consideration would be whether the harm
apprehended by the claimant amounts to a breach of one
or more
fundamental rights warranted by the Bill of Rights.”
It
Is also clear, in my view, that the applicants have no alternative
remedy at their disposal to preserve the
status quo
on an
interim basis.
In
the result I have come to the conclusion that the applicants have
made out. a case for the existence of the requirements for
interim
relief. If one were to assume, for the benefit of the respondent,
that this is a case where “separation of powers
harm”
comes into play, the requirement that it should be one of the
“clearest of cases” has probably been met,
as I have
stated, by the fact that the applicants rely,
inter alia,
on a
breach of their fundamental constitutional rights. Where it is
generally not prudent and even frowned upon to delve too deeply
into
the merits of the main review action or application, at this interim
stage, so as not to usurp the function of the trial court,
I will
only make a few brief remarks in considering whether it may be said
that the applicants have made out a “clear case”,
a term
which remained undefined in
National Treasury,
(at 237 B-0).
When
the Council resolved in September 2007 to change the old names and
replace them, broadly speaking, with the names of
"persons
who have contributed to the liberation struggle, persons who have
contributed to freedom of our country, persons who
contributed in the
struggle for gender equality. cultural activists”
it
was clearly stipulated that the Policy Guidelines for the Naming of
Public Places and Streets, as approved on 25 April 2002,
would be
applied and followed for purposes of this name change exercise. These
guidelines are the following:
“
6.3
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 as set out below.
A
notification of proposed new names 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 et
cetera).
The
residents are liable for all the costs involved in changing their
personal addresses (letterheads, business cards et cetera)
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.
The
lengthy minute of the meeting of 27 September 2007 clearly stipulates
that in terms of Council's policy for the renaming of
streets the
following procedure should apply, thereafter prescribing a procedure
including the following:
"In
the spirit of democracy at least 51% of the registered voters who
live/own property in a street, must agree in writing
to a change of
the street name.”
Later
during this meeting of 27 September 2007 a motion was simply proposed
and carried by majority vote to set aside the aforesaid
guidelines
and replace them with
“
a
City wide public participation process involving:
(a)
ward committees City wide;
(b)
stake holders; and
(c)
the general public through submissions be approved for this purpose.”
Since
there was opposition to this proposal the speaker then put the
proposal to the vote and declared result as follows: for 81
against
51. In the right of this outcome of the vote the final resolution was
taken.
This
amendment and abandoning of the prescribed rules for renaming streets
was done without e.g. obtaining the approval of the registered
voters
living in a particular street, 51% of whom had.to agree to the
change. There are a few minutes of public meetings held in
the course
of the replacement public participation process. On a general reading
of these minutes, as pointed out by Mr Groenewald,
who appeared for
the applicants, the public was deeply divided on the issue. No polls
were held and no voting took place to determine
the majority view .of
the public. It is also not clear whether “ward committee's City
wide” and particularly those
representing residents in the
affected streets were property consulted in terms of the resolution
aforesaid. I say no more about
the merits of the main case and will
conclude my remarks on this subject by merely quoting the grounds of
review as crafted in
the founding affidavit:
"'In
breë trekke is die gronde waarop die hersieningsproses geloods
is die volgende:
19.1.
Dat daar nie 'n behoorlike openbare deelname proses gevolg is voor
die besluite geneem is deur die respondent nie. (Dit sl.uit
in die
felt dat die spesifiekeinwoners van die strate nie behoorlik geken is
en ,ook nie in die lig daarvan· dat die straatname
van 'n
hoofstad sekerlik die inwoners van beide die provinsie en die land in
die bre raak1 breer openbare deername toegelaat is
nie.)
19.2.
Dat daar nie behoorlike oorweging was of 'n behoorlike
oorwegingsproses in plek gestel is by wyse van enige van die komitees
van die respondent met betrekking tot die besluite nie.
19.3.
Dat die respondent se raad versuim het om te voldoen aan sy eie
straatnaambeleld soos afgekondig in September 2008 en/of Junie
2009.
19.4.
Dat die respondent klaarblyklik tydens 'n raadsvergadering gehou op
27 September 2007 sy eie openbare deelname bereidsriglyne
met
betrekking tot die verandering van straatname en·openbare
pfekke tersyde gestel het en/of geignoreer het. (Dit sal aangevoer
word dat die respondent se raad nie geregtig was om sodanige wysiging
of uitsluiting van openbare deelname prosesriglyne te doen
sonder
behoorlike kennlsgewing van die voorneme om sodanige beslult te neem
nie en/of dat sodanige besluit arbitrer of irrasioneel
was.)
19.5.
By 'n vergadering van die respondent se raad gehou op 27 September
2007 het die respondent se Raad besluit om 'n ondersoek
te doen
met betrekking tot die lewensvatbaarheid (insluftende die finansiële
implikasies) met betrekking tot die verandering
van straatname en die
beglnsels rondom openbare deelname met betrekking tot die verandering
van straatname. Die respondent se raad
het versuim om te voldoen aan
die bogenoemde besluite.
19.6.
Die respondent het versuim om te voldoen aan sy eie besluit wat hy
geneem het op 27 September 2007 en die proses wat daarin
uiteengesit
is met betrekking tot die hou en voer van •n inklusiewe openbare
deelnamproses.
19.7.
Die respondent se raad het versuim om te voldoen aan die riglyne
gestel by die Suid-Afrikaanse Geografiese Naamraad in terme
van die
bepalings van die Suid AfriJcaanse Geografiese Naamraadwet, Wet
118 van 1998, alternatiewelik die Suid-Afrikaanse
Geografiese
handboek oor geografiese name.
19.8.
Die besluite wet die respondent geneem het is strydig met die
bepalings van onder andere artikels 33 en 41 (1)(g) en (h) van
die
Grondwet van die Republiek van Suid Afrika.
19.9.
Die besluite wat geneemis, is strydig met die bepalings van die
NasJonale Erfenis Hulpbronnewet, wet 25 van 1999 en spesiftek
artikels 3, 5 en 8 daarvan.
19.10.
Die besluite wat geneem is, is strydig met die bepalings van die
“Plaaslike Regering: Munisipale Finansiele Bestuurswet
56 van
2003" en spesifiek insoverre as wat die respondent versuim het
om behoorlike oorweging te skenk aan die omvang van
die uitgawes wat
betrokke is by die naamsverandering en/of die respondent uit 'n
ekonomiese, altematiewelik sosio-ekonomiese oogpunt,
kan bekostig om
sulke geweldige onkostes aan te gaan.
19.11.
Dat die besluite bereik is sander om behoorlike oorweging te
gee of enigsins te oorweeg wat die gevolge sal wees vir
die besighede
en indiwidue in daardie betrokke strate met betrekking tot reeds
gedrukte skryfbehoeftes, bemarkingsmateriaal. ander
goedere en
naamborde wat straatname vertoon.
19.12.
Dat die respondent relevante oorwegings geignoreer het enirrelewnte
oorwegings inaggneem hetin die bereik van die besluite
en speslfiek
dat die besluite daartoe sallei dat daar ekonomiese
groei,ontwikkellng enwerkskepping sou wees en dat die besluit
in lyn
is met deelnemende demokrasie, “Batopele” en dat dit
behoorlike plaaslike regering sal bevorder. In die alternatief
sal
dit aangevoer word dat daardie oorwegings irrelevant en/of
irrasioneel was vir doeleindes van die besluite.
19.13.
Die besluite is bereik onder omstandighede waar die respondent nie
behoorUke ooiweging gegee het aan die besware wat geopper
Is teen die
besluite nie.
19.14.
Die besluite blyk gebaseer te wees op feitlik verkeerde oorwegings
en/of aannames met betrekking tot die persone na wie die
ou
straatname vernoem is en hulle beweerde betrokkenheid by sogenaamde
historiese ongeregtighede.
19.15.
Dat die besluite veronderstel is, en/of voorgehou is om sosiale
samewerking in Pretoria te bevorder en as 'n katallsator
te dien vir
samewerking en deelname terwyf die besluite inderdaad die
teenoorgestelde effek mag hê,
19.16.
Dat die besluite en proses wat die respondent gevolg het nie voldoen
aan die ligaliteitsbeginsel nie en derhalwe te..Syde
gestel en
hersien behoort te word.”
It
may be informative to very briefly dwell on some of the particulars
of the individuals after whom the streets were originally
named and
which names are now to be replaced by categories of persons as I have
referred to. The 25 .names, and I will only deal
with a few of them,
are the following, Schoeman, Van der Walt, Andries, D F Malan,
Prinsloo, Generaal Louis Botha, Skinner, Church,
Leah Mangope, Lukas
Mangope, Jacob Maree, Walker/Charles, Queen Wilhelmina,
Mears/Beatrix/Noortrekker, Hendrik Verwoerd, Hans Strydom,
Mitchell,
Esselen, Vermeulen, Schubart, Potgieter, Proes, Michael Brink,
Duncan, Zambezi.
The
applicant, in crafting the founding affidavit, presented biographical
details of some of these individuals and I will only select
a few for
the sake of brevity. The deponent to the founding affidavit alleges
that intensive research was done into the background
of these
individuals and authorities generally recognised on the subject, such
as Tom Andrews and Jan Ploeger, who researched the
street and place
names of old Pretoria, were consulted. They are generally recognised
as authoritative on the subject. I mention
very briefly only a few of
the names and their origins.
Kerkstraat
or Church Street is about 12 kilometres long. ft is now set to be
renamed over three sections with different names. It
is generally
accepted that the origin of this street is coupled with Church
Square
..
•
where the name also originates from because one of the
first churches in Pretoria was built on the Church Square. There is
no political connotation, so it is submitted, and I agree, with this
name and the proposed change has already been the source of
dismay
expressed by a number of members of the community and members of
churches and church organizations. It is alleged that the
proposed
change of this name cannot be rationalfy connected to the final
decision to change street names.
Michael
Brink was born in the Cape in 1889 and he stayed in the present
Rietfontein for more than 25 years. He was the Mayor of
lnnesdal for
9 years and a member of the provincial council. Michael Brink Street
In Gezina is named after him as is Michael Brink
Park in Sunnyside.
He was clearly a prominent and important citizen of this City and
there is no connection between him and the
last apartheid government.
Zambezi
is a street named after the Zambezi river, the fourth longest river
in Africa, and it is not clear on what basis that name
has to be
changed.
Beatrix
is named after Beatrix Dori Meintjies, born in 1885, the eldest
daughter of Edward Phillip Arnold Eddy Meintjies the son
of Stephanus
Jacobus Meintjies 1819-1887. Meintjies street in Sunnyside Is named
after Eddy Meintjies. Stephanus Meintjies was
an attorney and later
an advocate of this court.
Mears
street is named after James Edward Mears who landed in Durban from
London in 1840. He later married Johanna Raaths, a cousin
of the
voortrekker leader Genit Maritz. Mears came to Pretoria in 1870 and
bought a portion of the farm Elandspoort where he surveyed
or founded
Pretoria's first suburb, Sunnyside, in 1875. Voortrekkers Road is
named after the- voortrekkers. Mitchell Street -is
named after George
Mitchell of Edinburgh Scotland who was a surveyor responsible for
surveying Pretoria West.
Schoeman
street is named after Commandant-General Stephanus Schoeman 1810 to
1890. Van der Walt Street is named after Andries Petrus
Jocobus van
der Walt born In 1814. Andries Street is named after Generaal Andries
Wilhelmus Jacobus Pretorius voortrekker leader
1798 to 1853. Skinner
Street is named after William Skinner born in 1828 who came to this
country in 1840 and built the first Church
and the Raadsaal in 1857.
Jacob Mare is named after Jacobus Phillipus Mare, member of the
Transvaal Volksraad who lived between
1823 and 1900. Esselenis named
after Ewald August Esselen 1858 to 1918 a jurist and politician.
former judge and also a member
of the Volksraad for Potchefstroom.
Vermeulen is named after the Brothers Vermeulen, Jacob, or Kooitjie
and Hendrik. Hendrik was
a mason who worked in the Pretoria area in
1848 and was involved with surveying the town and Jacob was the first
vegetable and
cattle farmer.
Schubart
was named after Anton Frederik Schubart 1830 - 1898 a Dutch immigrant
who came to Pretoria or to Cape Town in 1854. He
later settled in
Potchefstroom and did valuable work as a secretary of a school
committee and later as secretary of State.
Proes
was named after Bernard Cornelius Ernst Proes an advocate and general
agent from the Netherlands who lived from 1831 to 1872.
The
general trend when considering the biographical details of the others
largely corresponds with the details which I have briefly
quoted.
They are generally people
from
days gone by and they played a
central role in founding and developing this City.
In
all these circumstances, in my view, there are clear signs of a
bona
fide
arguable case.
I
gave some consideration to the question whether it would be
appropriate to grant the· second leg of the relief sought1
namely an instruction for the old names to be restored in their
former places. J R De Ville Judicial Review of Administrative Action
in South Africa, when dealing with mandatory interdicts on page 369,
points out that
section 8(1)(aXii)
of the
Promotion of Administrative
Justice Act 3 of 2000
, or PAJA, allows a court to grant an order
•directing the administrator to act in the manner the court
...requires.”
It
appears that PAJA does not apply In this case. See Ethekwini at 159
A-F. However, as stated in Ethekwini by the Supreme Court
of Appeal
at 160 C-E after dealing with the conclusion that PAJA does not apply
to decisions of this nature:
"This
conclusion does not mean, however, that these decisions are immune.
from judiciaI review. The fundamental principle,
deriving from the
rule of raw itself, is that the exercise of all public power; be it
legislative, executive or administrative,
is only legitimate when
lawful… this tenet of constitutional law which admits of no
exception has become known as the principle
of legality ... Moreover,
the principle of legal ty not only requires that the decision must
satisfy all legal requirements, it
also means that a decision should
not be arbitrary or irrational ...”
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 the pending interdict
application.
Moreover,
where the applicants complain about an infringement of their
fundamental constitutional rights, an order such as the one
sought,
would probably also comfortably resort under “appropriate
relief” as intended by the provisions of
section 38
of
Constitution of South Africa, Act 108 of 1996. Such an order may also
be especially indicated in this case, where the respondent
is
carrying on with the removal exercise, perhaps even as I am
delivering this judgment, 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 applicants.
I
have already pointed out that a similar order was granted in
Ethekwini under comparable circumstances, although only at the appeal
stage.
I
make a few remarks about the costs of this application. Although
tempted to grant an adverse costs order against the respondent
in
view of its conduct as I have described it, I recognise that there is
compelling authority for the proposition that in a case
like this,·
where the final outcome of the dispute will only be known once the
main action has been disposed of, it would
be prudent not to grant
costs at this stage but to reserve the costs for decision by the
·court dealing with the final review
action.
In
all the circumstances I make the following order:
1.
Pending the final adjudication of the review action under case
No.7191012012 regarding the respondent's decision of 29 March
2012,
and the finalization of any appeals flowing therefrom:
1.1.
The respondent is interdicted and restrained from removing street and
road signs bearing the old names of streets forming the
subject of
the review action; and
1.2.
The respondent is ordered, within two months from the date of this
order, to restore and replace such signs bearing such old
names to
their positions on the streets prior to them having been removed
therefrom by the respondent or those acting on its behalf.
2.
The
costs of this application are reserved for decision by the court
hearing the final review action.
CASE
NO: 2066512013
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
PRETORIA
13 June 2013
BEFORE
THE HONOURABLE MR JUSTICE PRINSLOO
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY APPLICANT
AND
AFRIFORUM
1
ST
RESPONDENT
EVERT
VAN DYK
2
ND
RESPONDENT
HAVING
HEARD counsel for the parties and having read the application for
leave to appeal against the judgment of the Honourable
Justice
Prinsloo
delivered on
19 April 2013.
IT
IS ORDERED
1.
Application for leave to appeal is dismissed.
2.
Applicant is to pay the costs which will include costs flowing from
the employment of senior counsel
BY
THE COURT
______________
REGISTRAR
MA