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2012
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[2012] ZAGPPHC 71
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Afriforum v City of Tshwane Metropolitan Municipality and Others (21681/2012) [2012] ZAGPPHC 71 (30 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: 21681/2012
DATE:30/04/2012
In
the matter between:
AFRIFORUM
.................................................................................................................
Applicant
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
….............................
First
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
LOCAL
GOVERNMENT
GAUTENG
...........................................................
Second
Respondent
MINISTER
OF ARTS AND
CULTURE
.............................................................
Third
Respondent
MINISTER
OF PROVINCIAL AND
LOCAL
GOVERNMENT
................................................................................
Fourth
Respondent
JUDGMENT
This
is an urgent application for a temporary interdict. The applicant
("Afriforum"), a company not for profit which strives
to
protect and promote constitutionally guaranteed human rights, is
aggrieved by a decision of the first respondent ("the
City")
to rename certain major streets within its jurisdiction. In terms of
its notice of motion, Afriforum seeks an order
interdicting the City,
pending the determination of a review application in relation to the
decision of the City on 29 March 2012
regarding the replacing of the
25 street names in Pretoria to be instituted within a time to be
determined by this court, from
replacing (om te vervang) any route or
direction indicators or street name signs in relation to the streets
concerned.
2.
Only the City opposes the application, the other respondents having
formally given notice that they abide the decision of the
court.
3.
Names in this context have become politically controversial.
Afriforum believes that the renaming process, which is not restricted
to streets but extends to the very name of the city itself, is being
conducted in such a manner that it constitutes an assault
on the
cultural heritage of a section of the community and thus violates the
right to dignity of those concerned.
4.
At the same time, Afriforum recognises that the City wishes to give
recognition to those persons who played an important part
in the
history of the broad community of South Africa by giving the names of
such persons to streets in the city and by renaming
those streets
whose names give offence or stand in the way of nation building.
5.
The City, under its present democratically elected political
leadership, believes for its part that the street names within its
jurisdiction reflect an earlier dominant culture and do not take
account of the democratic transformation our country has undergone
and is still undergoing.
6.
The issue of road names is, at a political level, linked to the
issue of the very name of the city itself. The greater part
of the
city which was formerly called Pretoria has been renamed Tshwane. The
city of Pretoria is now restricted to a few blocks,
in one of which
this court is situated. So unless one is being pedantic, the very
name of the city itself which an individual chooses
to use involves
to some degree a political choice.
7.
The courts have no place in the dispute at a political level. Even
if Afriforum is correct in its general criticism of the way
the
renaming process has gone, a matter on which I express no opinion, as
Brand JA remarked in The Democratic Alliance v Ethekwini
Municipality
[2011] ZASCA 221
para 38 ... bad politics is something for the
electorate to decide. It is not for this court, or any other court,
to interfere
in the lawful exercise of powers by the council on that
basis.
8.
The urgency in relation to the application arises because the City is
in the process of putting up new road signs to give effect
to its
decision. The City objected to the matter's being heard as one of
urgency. The main contention in this regard is that Afriforum
delayed
too long in bringing its urgent application and that the urgency is
thus self-created by Afriforum. 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 name 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.
9.
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. Ail's fair in love and war, according to
the poet and,
perhaps, that is so in politics as well. But not in litigation. I
exercise the discretion conferred upon me by rule
6(12)(a) in favour
of Afriforum and rule that this matter be enrolled and heard as one
of urgency.
10.
An applicant for an interim interdict must establish a clear right
or at least a prima facie right, as well as an apprehension
of
irreparable injury and the absence of an ordinary or alternative
remedy. The applicant must then establish that the balance
of
convenience is in its favour. The balance of convenience is
determined by weighing the prejudice to the applicant if the
interdict
is withheld against the prejudice to the respondent if the
interdict is granted.
11.
Under the decision of the City which Afriforum wishes to attack, a
total of 25 roads are to be renamed. Of those eight are
provincial
roads, in respect of which the City gave an undertaking in open court
that it would not proceed with the implementation
of its decision
until the completion of a process by which the City must consult the
provincial government. These eight roads include
Church Street, about
which Afriforum feels particularly strongly. In regard to the
provincial roads, there is no imminent threat
of harm of any kind,
let alone any irreparable harm. Afriforum has in regard to the
provincial roads an alternative remedy: it
may engage the provincial
authorities in an attempt to persuade them to withhold their consent
to the renaming of the provincial
roads.
12.
The papers show that the renaming process in respect of Genl Louis
Botha Drive has already taken place. The road has been renamed
January Masilela Drive. Afriforum seeks no relief in relation to this
road and is content that the new road signs remain in place
pending
its review.
13.
In open court, counsel for the City undertook further that the City
would not replace any of the other road signs for a period
of six
months. Instead, it will put up the "new" names and leave
the "old1 names in place for that period. The effect
of this
undertaking, which conditionally on the failure of its application
for an urgent interdict, Afriforum accepted, is that
there is no
imminent threat of the very harm which Afriforum seeks to prevent by
interdict.
14.
In regard to Afriforum's proposed review, counsel for the City
undertook that the City would cooperate with Afriforum to ensure
the
swift adjudication of the review by the court and counsel for
Afriforum similarly undertook to institute the proposed review
application within two weeks of the date of this judgment. The
parties were agreed that the proposed review could, if all concerned
cooperated, probably be heard in August 2012.
15.
In my view the undertaking to leave the "old" name boards
in place disposes of the present urgent application because
the
relief sought by Afriforum is directed at preventing the City from
replacing the old with the new, not from putting up the
new boards
and leaving the old ones in place. Afriforum's notice of motion says
as much. Because it may be expected that the court
will pronounce
finally on the rights of the parties during the period in which the
City will leave the old name boards in place,
there is no threat of
imminent harm. The court hearing the review may competently order
that the new name boards be removed. Such
an order was made in The
Democratic Alliance v Ethekwini Municipality, supra.
16.
Counsel for Afriforum criticised the decision to put up the new
street names but leave the old ones in place on the ground that
having two names would cause confusion. I do not agree. In the
multi-lingual, multi-ethnic empires of old central and eastern
Europe, it was the norm for towns to have more than one name. The
name used by any particular person depended in large part on the
community with which he or she associated himself or herself.
1
Whether this is a useful historical model for our country is not for
this court to say but the practice does not seem to have caused
any
confusion. I do not think the public will in the circumstances
described be confused if a street has two, clearly signposted
names.
17.
These conclusions render it unnecessary for me to consider the other
grounds raised by the City in opposition to the application.
18.
I make the following order:
1.
The undertakings by the applicant and by the first respondent
described in this judgment are noted.
2.
Subject to such undertakings, no order is made on the application.
3.
The costs of this application are reserved for decision by the court
which hears the applicant's review application.
NB
Tuchten
Judge
of the High Court 30 April 2012
AfnforumTshwane21681
12
1
For
example, Bratislava in present day Slovakia was known to German
language speakers as Pressburg and Klaipeda in modern Lithuania
was
called Memef by German language speakers. In our own country,
Kaapstad has for years also been
known
as Cape Town,
without discernable distress
to the inhabitants of that city.