City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July 2016)

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[2016] ZACC 19
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City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July 2016)

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
157/15
In the matter
between:
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
Applicant
and
AFRIFORUM
First

Respondent
EVERT VAN
DYK
Second

Respondent
Neutral citation:
City of Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo
J
Judgments:
Mogoeng CJ (majority): [1] to [78]
Froneman and Cameron
JJ (dissenting): [79] to [162]
Jafta J
(concurring): [163] to [194]
Heard on:
19
May 2016
Decided on:
21 July 2016
Summary:
appealability of interim orders — requirements of an
interim interidict — separation of powers — removal of
street
names prima facie right — irreparable harm —
balance of convenience
ORDER
In the result, the
following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders by Prinsloo J and Jordaan J of the Gauteng Division of
the High Court, Pretoria are set aside and the application
for an
interim interdict is dismissed.
4. The order of the Supreme Court of Appeal awarding costs against
the Tshwane Metropolitan Municipality   is set aside.
5. Each party is to pay its own costs.
JUDGMENT
MOGOENG CJ (Moseneke
DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Nkabinde J and Zondo J concurring)
Introduction
[1]
This case concerns a restraining order granted in favour of
Afriforum and Mr Evert Van Dyk (Afriforum)
[1]
against the City of Tshwane Metropolitan Municipality (Council).
The Council was ordered to stop removing the old street
names in the
Pretoria area and bring back those that had been removed already.
For a proper understanding of the issues in
this matter, a historical
perspective and the implications of the underlying constitutional
vision need to be outlined.  This
is accentuated by Afriforum’s
reliance on the Preamble to the Constitution.
Essential context
[2]
South Africa is literally the last African country to be
liberated from the system that found nothing wrong with the
institutionalised
oppression of one racial group by another for no
other reason but the colour of their skin, shape of their nose and
the length
or texture of their hair.  The underlying reason
advanced for this irrational differentiation was that African people
in particular
and black people in general, were intellectually
inferior, lazy and lesser beings in every respect of consequence.
As a result,
there hardly was any city, town, street, or institution
of note that bore a name that sought to give honour to black people’s

leaders or recognition to their institutions or treasured history.
Everything about the oppressed was dismissively branded
as backward
and inconsequential.  Virtually all recognition and honour was
thus respectively given to and bestowed upon white
history and their
heroes and heroines.  The system was all about the entrenchment
of white supremacy and privilege and black
inferiority and
disadvantage.  No wonder the United Nations resolved that that
system was a crime against humanity.
[3]
More than three centuries from the inception of that system,
South Africans of all races took it upon themselves to create a
platform
for the normalisation or harmonisation of race relations,
democratisation of their country and attainment of peace and social
cohesion.
Against all odds, the nation has admirably come to
the point where impunified violence, racial hatred or subjugation in
all its
manifestations is unlike before seldom openly and proudly
practised.
[2]
[4]
That said, colonialism or apartheid is a system so stubborn
that its divisive and harmful effects continue to plague us and
retard
our progress as a nation more than two decades into our
hard-earned constitutional democracy.  Almost all cities, towns
and
street names continue to reverberate with great sounds of
veneration for the architects of apartheid, heroes and heroines of
our
oppressive and shameful colonial past.  Virtually no
progressive or potentially conciliatory change to city, town or
street
names goes unchallenged.  There are fairly regular
challenges to the equitable distribution of honour to heroes of all
cultural
or racial groups and a concomitant determination to preserve
exclusivity to privilege and meaningful control.  This
highlights
the crucial role of the Preamble to our Constitution,
relied on by Afriforum.
[5]
A preamble is after all a succinct expressionary statement
that sets out a constitution’s purpose and underlying
philosophy.By
design and like all others, our Preamble captures the
essential principles by which we the people seek to govern our
affairs.
It is such a crucial part of our Constitution that, if
only every citizen were to internalise it and live according to its
terms,
our aspirations would most likely be expeditiously realised.
Ours reads in relevant part:
“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in
our diversity.
We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to—
Heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights.”
[6]
Knowing just how deep and engrafted the distrust, divisions
and injustices were in the very being of some of our people from the

days of apartheid, we have made a solemn undertaking to embark on an
all-inclusive constitutional project, geared at achieving
national
unity and reconciliation.  The injustices of the past are not to
be pampered or approached with great care or understanding
or
sympathy.  And the immeasurable damage racism or cultural
monopoly has caused requires that stringent measures be taken
to undo
it.  That approach will help us move away from exclusivity to
opportunities, racial domination and intolerance to
inclusivity,
social cohesion and equitable access to opportunities.
[7]
The normalised demonisation and stigmatisation of heroes and
heroines of our struggle for justice, peace and freedom is now a
thing
of the past.  We the people of South Africa promise to
honour them, presumably the same way heroes and heroines have been
venerated in this country and around the world.  Just as
important is the need to respect white and black South Africans who

played a crucial role in building and developing South Africa into
the modern country of note it now is.  All of us must embrace

and internalise the constitutional reality that this country belongs
to all of us who live in it.  Diversity thus ought to
highlight
the need for unity rather than reinforce the inclination to stand
aloof and be separatist.  An appreciation of the
value addition
or special contribution of diversity, as in other countries, should
strengthen our collective resolve to unite
and tap into the special
skills and experiences of all diverse groups in this country, for the
betterment of all.
[8]
As a people who were not only acutely divided but were also at
war with themselves primarily on the basis of race, one of several

self-imposed obligations is healing the divisions of the past.
The effects of the system of racial, ethnic and tribal stratification

of the past must thus be destroyed and buried permanently.  But
the healing process will not even begin until we all make
an effort
to connect with the profound benefits of change.  We also need
to take steps to breathe life into the underlying
philosophy and
constitutional vision we have crafted for our collective good and for
the good of posterity.  That would be
achieved partly by
removing from our cities, towns, “dorpies”, streets,
parks, game reserves and institutions, names
that exalt elements of
our past that cause grief to other racial groups or reopen their
supposedly healing wounds.  Also,
by removing even some
innocuous names that give recognition only to the history, language,
culture or people of one race, so as
to make way for the heritage and
deserving heroes and heroines of the previously excluded.  This
is to be done sensitively
and in pursuit of inclusivity, unity in
diversity and recognition of the need for a sense of belonging for
all.  We all have
the duty to transform our society.  And
all, black and white, are an essential part of “we the people
of South Africa”
that shoulder the burden to do so.
[9]
Our shared values that underpin our constitutional vision
cannot be achieved when one race almost always has its way or a
near-absolute
monopoly of respect and honour.  That is a recipe
for the illegitimate retention of exclusive privilege, undeserved
domination
of the past and future hostilities as opposed to
inclusivity, reconciliation and the unity in diversity we have
undertaken to pursue
and achieve.  No measure of sophistry,
contortion, or strategy ought to be allowed to entrench any form of
racial domination
or exclusivity to privilege, honour and
opportunities.  For that is inconsistent with our foundational
values and constitutional
vision.  South Africans of all races
must unite to secure a brighter, peaceful, stable and prosperous
tomorrow by allowing
the previously excluded groups, to also be
honoured in their own land.  They too should at long last have a
sense of belonging.
[10]
This case highlights the need to familiarise ourselves with
our vision in the Preamble to our Constitution.  It also sounds

a clarion call to South Africans of all races to take to heart the
foundational values of our Constitution like human dignity,
equality,
the advancement of human rights and freedoms, non-racialism and
non sexism.  When our actions are informed
and driven by
these facets of our constitutional project, then a proposed change of
names of landmarks, streets and institutions
would only attract
constitutionally-inspired and constructive opposition.  Strife
and the consequential deepening of the divisions
of the past would
thus be most likely avoided or minimised.
[11]
All peace and reconciliation-loving South Africans whose
world-view is inspired by our constitutional vision must embrace the
African
philosophy of “ubuntu”.  “Motho ke
motho ka batho ba bangwe” or “umuntu ngumuntu ngabantu”

(literally translated it means that a person is a person because of
others).  The African world-outlook that one only becomes

complete when others are appreciated, accommodated and respected,
must also enjoy prominence in our approach and attitudes to all

matters of importance in this country, including name-changing.
White South Africans must enjoy a sense of belonging.
But
unlike before, that cannot and should never again be allowed to
override all other people’s interests.  South Africa
no
longer “belongs” to white people only.  It belongs
to all of us who live in it, united in our diversity.
Any
indirect or even inadvertent display of an attitude of racial
intolerance, racial marginalisation and insensitivity, by white
or
black people, must be resoundingly rejected by all South Africans in
line with the Preamble and our values, if our constitutional

aspirations are to be realised.
[12]
South Africa still looks very much like Europe away from
Europe.  A very insignificant number of names of our cities,
towns
and streets gives recognition to the indigenous people of this
country and other black people.  Very little recognition or

honour is given to their heritage, history, heroes and heroines in
their own motherland.  This does not reflect but rather
belies a
commitment by all to the spirit of genuine unity, transformation and
reconciliation.
[13]
In this country, names of places and institutions of
importance generally celebrate one-sidedness and at times resonate
with the
legacy of our oppressive past with unbelievable boldness and
alacrity.  Hopefully, this does not signify a disinclination to

change for fear of protestations by retentionists that mere change to
what they cherish, however miniscule, not only poses a threat
to them
and their environment but also denies them a sense of belonging.
For, that position would inadvertently be saying
to those who are
victims of colonialism and apartheid, that they have no legitimate
claim to any sense of belonging whatsoever.
[14]
Our constitutional vision militates against a never-ending
determination to oppose change to city, town or street names.
Through
the Preamble and the entire Constitution we imposed on
ourselves the duty to transform.  Recognition of the injustices
of
the past is neither a slogan nor an empty or meaningless assertion
of recognition.  It heralds an obligation
to actively participate not in the perpetuation but, in the
eradication of the injustices of the past.  Honouring those who

suffered for justice and freedom like Dr Beyers Naude and Advocate
Bram Fischer promises, amongst other things, the naming of streets

and institutions of importance after them.  Respecting those who
worked and developed South Africa recognises the role of
our black
and white compatriots who toiled over the years to make our country
better than it was before.  For indeed South
Africans across
racial lines worked hard to change the country for the better, even
during apartheid.  A belief that South
Africa belongs to all who
live in it united in our diversity, is the antithesis of any
obsession with or exaggeration of the role
and importance of one
racial group above all others.
[15]
Thoroughgoing introspection is thus called for.  Both
black and white South Africans need to strive for the attainment

of our shared values and constitutional aspirations.  It is
impermissible to ever adopt an attitude that seems to suggest
that
some of our people can afford to endure the pain and torture induced
and symbolised by instruments of the colonial and apartheid
legacy,
probably because they have endured them long enough to find them
tolerable, if not somewhat acceptable.  This is even
more so
where others are categorical about their total inability to tolerate
progressive and inclusive instruments like streets
bearing names of
leaders from other cultural groups even temporarily.
[16]
Nothing that objectively encourages or seeks to perpetuate the
stereotypes, prejudice or discriminatory practices of the past is
to
be tolerated.  Inclusivity, unity in diversity, recognition of
the culture and history of white and black South Africans
and
reconciliation are our chosen paths to the prosperous future.
They accelerate social cohesion and the process of healing
the
divisions of the past.  This national project demands that we
reject everything that sustained, entrenched and still promotes

racial discrimination.
[17]
Ours is a country with great potential for enduring peace,
stability and sustainable economic growth.  Much will however
depend
on how we manage our differences as individuals, groups and as
a nation.  Our utterances and actions must always take cue from

the foundational values of and Preamble to our Constitution.
Our commitment to reject the injustices of the past, the disunity
and
pain they brought about must be unwavering and matched by our
actions.  That way and in harmony, we will be able to replace

old names that celebrate people and things that divided and caused us
deep and incalculable pain with new ones that recognise the

previously ignored and unify the nation.
[18]
Our peculiarity as a nation impels us to remember always, that
our Constitution and law could never have been meant to facilitate

the frustration of real justice and equity through technicalities.
The kind of justice that our constitutional dispensation
holds out to
all our people is substantive justice.  This is the kind that
does not ignore the overall constitutional vision,
the challenges
that cry out for a just and equitable solution in particular
circumstances and the context within which the issues
arose and are
steeped.  We cannot emphasise enough, that form should never be
allowed to triumph over substance.  Our
Constitution was never
meant to be a selectively recognised weapon, conveniently produced
and used by some of us only when it could
help advance illegitimate
sectarian interests through legal stratagems.  It was designed
to facilitate justice and equity
for all.  That said, legitimate
individual or sectarian rights and interests may always be vindicated
and appropriately addressed
within the prism of this constitutional
dispensation.
[19]
This then sets the scene for the resolution of a challenge to
the order that seeks to preserve street names that Council believes

are irreconcilable with our constitutional project.
Background
[20]
In 2002, Council adopted policy guidelines relating to the
possible change of street names and heritage sites in the city of
Pretoria
and the surrounding areas.  One of the guidelines that
stood out was that a street name would not be changed unless fifty
one percent of the inhabitants of the ward in which it is located,
agrees.  How it could ever have been possible to change
names in
suburbs or industrial areas that are dominated by those who see
nothing wrong with them, however objectively offensive
the names
might be, remains a mystery.
[21]
In 2007, Council passed a resolution to replace those
guidelines with new ones.  And it was purportedly in terms of
the new
policy guidelines that a decision was ultimately taken to
change 25 of the more than 100 old street names.  The final
decision
was preceded by some consultative meetings held in areas
located in 10 of the 76 wards of greater Pretoria.
[22]
Council in effect says that this change was necessitated by
the dictates of inclusivity, unity in diversity, overdue recognition

of and bestowal of honour to the previously dishonoured as well as
the need to heal the divisions of our past.  Afriforum
has
consistently opposed the mooted changes from the beginning all the
way through to the implementation of Council’s resolution
to
replace old street names like Dr Hendrik Verwoerd, Louis Botha and
Walker with new ones like President Nelson Mandela, Chief
Justice
Ismail Mohamed, Solomon Mahlangu and Steve Biko.  Council’s
decision viewed in context seems indeed to have
been intended to shed
Pretoria of its colonial and apartheid legacy and to introduce those
names that symbolise the pursuit of
justice, peace, unity,
reconciliation, fundamental human rights and freedoms for all our
people.  This should, however, never
be misunderstood to mean
that the end will always justify the means.
[23]
When Afriforum learnt that Council had resolved to replace
some of the old street names with the new, it brought an urgent
application
to restrain Council from doing so.  That application
came before Tuchten J.  He did not have to make any order
because
Council undertook not to take any of the measures objected to
by Afriforum.  The lifespan of this self-restraint was six
months.
Afriforum also undertook to bring an application to
have the decision to change the old street names reviewed within ten
days of
Council’s undertaking.  Whereas Council honoured
its undertaking, Afriforum did not launch its review application as

promised.
[24]
Long after the expiration of the self-imposed six months
moratorium, Council decided to and did implement its resolution to
change
street names.  This prompted Afriforum to launch an
urgent application.  Even then, Afriforum only launched its
review
proceedings seven months after the expiration of the ten day
period.  This it says was a consequence of its hope that an
amicable
solution to the street name change issue could still be
found.
[25]
Council never promised to put that project on hold forever or
indefinitely.  Nor did it undertake not to implement its
decision
without first informing Afriforum.  It is therefore
inappropriate to accuse Council of deliberately taking long to
respond
to Afriforum’s inquiry on whether it was going to
replace old names anytime soon, with a view to ensuring that it would
have
completed that project before Afriforum could take legal steps.
Afriforum’s footprints appear to be all over Pretoria.
It
is highly unlikely that all the street names could have been removed
and replaced without any of its constituents becoming aware
of it and
alerting Afriforum.  The decision to challenge the name-changing
process has always been Afriforum’s to make.
And so was
the timing entirely in its hands.  Its indecision and inaction
cannot properly be blamed on Council.
[26]
Having passed the resolution to change some of the names
arguably linked to the colonial and apartheid legacy, Council
embarked
on the process of implementing its resolution.
Afriforum, however, sees even a temporary removal of the old street
names
as doing violence to what defines the very being of the
Afrikaner people as well as their healthy and peaceful existence.

To them it was an assault on their treasured history and heritage
which could not be left unchallenged.  As a result, they

launched a fresh urgent application for an order restraining Council
from removing the old names and directing it to restore those
names
that had already been removed.  The order was granted by
Prinsloo J in those terms, pending the finalisation of the
review
proceedings.
[27]
The rationale behind the grant of the interim order is
essentially this.  The old street names are an historical
treasure and
a heritage so intimate to the very being of the
Afrikaner people that their removal would constitute an infringement
of their right
to enjoy their culture as envisaged by section 31 of
the Constitution.  In other words, what reigns supreme in
Afriforum’s
opposition to the notion that old names be removed,
is that they are an integral part of an irreplaceable and
much-cherished history,
heritage and culture of the Afrikaner
people.  So dear and invaluable are the old street names to
them, that even their temporary
displacement would not only give rise
to inestimable emotional hurt but also to irreparable harm.  The
replacement of old
names with those of black people would according
to Afriforum somehow toxify the environment to the point of
jeopardising the health
of like-minded residents of Pretoria.
The temporary retention of the old names would, they say, give them a
sense of place
and a sense of belonging.
[28]
Additionally, the temporary removal of the old names would
cause them to be forgotten, with the result that by the time
litigation
processes connected to the review are finalised, courts
would in all likelihood conclude that the horse has already bolted
[3]
and that no meaningful purpose would be served by bringing back the
old names.  Furthermore, confusion would reign consequent
upon
the placement of only new names since tourists, residents and
business people would find it difficult to locate their destinations

pending the drafting of new directional maps with new street names or
updating the GPS.  Business people would also have to
change
their stationery at great expense and if the review succeeds change
it back to what it was.
[29]
Aggrieved by Prinsloo J’s order, Council unsuccessfully
sought leave to appeal against it.  It then petitioned the
Supreme
Court of Appeal which granted it leave to appeal to the Full
Court.
[4]
Jordaan J (with Pretorius J and Molefe J concurring) dismissed
Council’s appeal.  An attempt was made to challenge
that
decision but the Supreme Court of Appeal refused leave with
costs.  Hence this application.
In this Court
[30]
The Council’s case is that Afriforum has not satisfied
the requirements for the interim interdict they were granted.

In particular, that it stood to suffer irreparable harm in the event
of the interim order not being granted
[5]
and that the balance of convenience favours them.
[6]
[31]
Afriforum’s approach seems to assume that Council bears
the burden of proof to satisfy the Court that Afriforum is not
entitled
to the interim order.  They maintain that Council
recklessly proceeded with indecent haste to remove old street names
knowing
that an application for a restraining order had been
launched.  Also, that  Council admits that only 10 of the
76 wards
were afforded the opportunity to participate in the
name-changing process.  Furthermore, Afriforum contends that
Council cannot
deny the emotional hurt they would suffer if the order
were not granted.  Very little is said to demonstrate how the
requirements
for granting an interim interdict were satisfied.
There does not seem to be a proper appreciation of the legal reality
that
the onus to prove that the interim order should be granted,
rests on Afriforum itself.  Very little purpose would be served

by an elaborate reproduction of the parties’ submissions.
It will suffice to raise only those pertinent to the issues
to be
determined, in the course of the discussion of the merits.
Leave to appeal
[32]
The portion of the order that restrains Council from removing
the old street names and that which enjoins Council to restore those

already removed to their original position, are so inter-connected or
inter-dependent that one cannot exist without the other.

Afriforum wants all the old street names retained pending the
finalisation of the review proceedings.  The order directing

Council to restore the old names depends for its significance on the
restraining order.  In other words, the reinstatement
of the old
names is meaningless without preventing Council from removing the
remaining old names.  Similarly the plan to preserve
all the old
names by interdicting the removal of the old names, would be
frustrated if the old street names, already removed, are
not brought
back.
[33]
The interim order issued by the High Court and upheld by the
Full Court is therefore one and inseparable.  Its appealability

must be considered on that basis.
[34]
It is not disputed that the pending
review application raises at least four
constitutional
matters.  First is the enjoyment of the
cultural right provided for in section 31 of the Constitution.
Second is the
entitlement to a properly facilitated public
participation process inferentially sought to be sourced from section
152 of the Constitution.
[7]
Third, the review hinges on the constitutional right to just
administrative action.
[8]
The foundation on which the review application
rests thus comprises not only the propriety of the facilitation of
the public participation
process in the renaming of streets and
legality but also the constitutional right embedded in section 31.
These issues are
yet to be pronounced upon on review.  Finally,
the order granted and sought to be defended involves considerations
of separation
of powers.  For, it is a hotly contested issue
whether the court order constitutes a justifiable intrusion into the
exclusive
terrain of the Executive.
[35]
We hold that it was in line with  Council’s
executive powers to govern the city of Pretoria and its
surrounding
areas, that it took a policy decision to replace the old
street names with the new ones it considers appropriate to reflect
our
more inclusive dispensation.  Implementation of that policy
decision was underway when Afriforum applied for and obtained the

interim order that stopped Council dead in its tracks.
[36]
Included in the implementation of the policy decision was the
determination of the budget necessary to effect the change during the

particular financial year.
The
effect
of the order is not only to suspend and frustrate the implementation
of that decision, but also to stretch the budget through,
among other
things, subsequent inflation and the Rand’s loss of value
against major currencies.  Now we know that to
give effect to
the order to bring back the old street names would as at that time
have punched a R2.6 million hole in Council’s
budget.
[37]
The reality of the order is again that Council is forced to
live with that intrusive effect as long as the review proceedings are

pending or remain inconclusive by reason of
likely
appellate processes.  The issues at stake being hotly contested
and emotive, it is very likely that the decision of the review
court
would indeed be taken on appeal by whomsoever loses.  If the
four years it took this interim order to be heard by this
Court be
anything to go by, then Council would have to wait for many years
while the review order is slowly meandering its way
up the appellate
ladder of our court system.
[38]
Realistically, Council would then
have to brace itself for another four or so years of waiting, before
it could carry out its constitutional
and statutory duties.  Not
only would this trench upon its executive powers and budgetary
responsibilities, but that long
period of suspension has a final
effect.  The R2.6 million spent on the restoration of the names
can never be undone.
The same applies to Council’s
inability to spend the R98 million set aside for the name-changing
process.  Council’s
executive powers would have been
encroached on without this Court having considered whether that was
sanctioned by our Constitution.
And these considerations
provide sound bases for appealability.
[39]
The appealability of interim orders in terms of the common law
depends on whether they are final in effect.
[9]
In this connection, it must be borne in mind that the effect of the
restraining and mandatory order granted is to mortify
and prevent
Council from implementing its resolution.  And this is the
resolution taken in terms of its constitutional
[10]
and statutory
[11]
powers.  To say that this amounts to an intrusion by courts into
the domain reserved exclusively for the Executive, would
not be an
overstatement.
[40]
The common law test for
appealability has since been denuded of its somewhat inflexible
nature.  Unsurprisingly so because
the common law is not on par
with but subservient to the supreme law that prescribes the interests
of justice as the only requirement
to be met for the grant of leave
to appeal.  Unlike before,
[12]
appealability no longer depends largely on whether the interim order
appealed against
has
final effect or is
dispositive of a substantial portion of the relief claimed in the
main application.  All this is now subsumed
under the
constitutional interests of justice standard.  The over-arching
role of interests of justice considerations has
relativised the final
effect of the order or the disposition of the substantial portion of
what is pending before the review court,
in determining
appealability.
[13]
The principle was set out in
OUTA
by
Moseneke DCJ in these terms:
“This Court has granted leave to appeal in relation to interim
orders before.  It has made it clear that the operative
standard
is ‘the interests of justice’.  To that end, it must
have regard to and weigh carefully all germane circumstances.

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 restraining order has an immediate and
substantial effect, including whether the harm that flows
from it is
serious, immediate, ongoing and irreparable.”
[14]
The
Deputy Chief Justice also dealt with the role of separation of powers
in relation to appealability as follows:
“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 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.”
[15]
[41]
What the role of interests of
justice is in this kind of application, again entails the need to
ensure that form never trumps any
approach that would advance the
interests of justice.  If appealability or the grant of leave to
appeal would best serve the
interests of justice, then the appeal
should be proceeded with no matter what the pre-Constitution common
law impediments might
suggest.  This is especially so where, as
in this case, the interim order should not have been granted in the
first place
by reason of a failure to meet the requirements.
The Constitution and our law are all about real justice, not mere
formalities.
Importantly, the constitutional prescript of
legality and the rule of law demand that nobody, not even a court of
law, exercises
powers they do not have.  Where separation of
powers is implicated and forbids the grant of the order
sought
to be appealed against, the interests of justice
demand that even an order that is not of final effect or does not
dispose of a
substantial portion of the issues in the main
application, nevertheless be appealable.
[42]
Consequently, although the final effect of the interim
order or the disposition of a substantial portion of issues in the
main application
are not irrelevant to the determination of
appealability and the grant of leave, they are in terms of our
constitutional jurisprudence
hardly ever determinative of
appealability or leave.
[16]
The role of the final effect of an interim order recedes to the
background when an interim order impermissibly trenches upon
the sole
terrain of the other branches of Government.
To
arrest the execution of Council’s policy decision as finally as
the High Court has done before a determination of the grounds
of
review, is too drastic a measure to take in the circumstances.
[17]
It remains the constitutional and statutory responsibility of Council
to determine the fate of the street names, obviously
subject to
facilitation of genuine and appropriate
public
participation
in the name-changing process.  The power to determine how much
of Council’s budget will be used, when and
for what purpose is
also firmly in the hands of Council.
[43]
Operating with the ever-abiding
consciousness of the crucial role separation of powers plays in our
constitutional democracy, courts
should thus be very slow to
interfere with the legitimate exercise of governmental powers save in
the “clearest of cases”
[18]
or where bad faith or corruption or fraud was proved.
[19]
Even the common law recognises that courts should exercise the
power to grant an interdict restraining the exercise of statutory

powers, “only . . . in exceptional circumstances and when a
strong case is made out for relief.”
[20]
This being a case that relates to a grant of such an interdict, it
cannot be treated as an ordinary run of the mill application
for an
interim order.  It is about transformation and the related right
to govern.  All of the above clamour not just
for the
conclusion
that the order is appealable but also that it is
in the interests of justice that leave to appeal be granted to
Council.  But,
there is more.
[44]
The mainstay of Afriforum’s
review
application
is that Council failed
to facilitate a proper public participation process prior to passing
the resolution to change street names.
In support of this,
reliance is placed on its alleged non-compliance with the 2007 policy
guidelines which apparently required
of it to consult all Ward
Committees before street names could be changed. The non-observance
of the principle of legality is also
an integral part of Afriforum’s
case on review.  And these are the issues on which the Full
Court not only entertained
full argument, but also dealt with quite
extensively in its judgment and decided in favour of Afriforum.
Part of what the
Full Court said to this end was that:
“The argument on behalf of the respondent that the appellant
failed to perform a proper public participation process is in
my view
likewise unassailable.”
[21]
[45]
Having resolved the legal basis for public participation in
the name-changing process, it
held
that
Council failed to comply with its 2007 policy guidelines by not
involving Ward Committees city-wide.  And it relied on
Ethekwini
[22]
as authority for its conclusion that it was entitled to interfere
“with a decision of a municipality where the element of

legality is lacking.”
[23]
It thus disposed of the assertion that there have been a series of
illegalities
[24]
including non-compliance with several pieces of legislation in favour
of Afriforum and made an order endorsing the order of the
Court of
first instance.  A punitive costs order was then made purely on
the basis that Council expedited the implementation
of its policy
decision.
[46]
It needs to be repeated that the
review stands or falls on the inadequacy or otherwise of public
participation in the name-changing
process.  And the Full Court
has in essence disposed of all the issues on review.  Very
little, if any, still remains
to be decided.  All the remaining
grounds of review are so dependent on the alleged inadequacy of the
public participation
process and legality for their relevance and
significance that they cannot stand on their own.  And they are
the, (i) failure
to consider the financial implications of changing
street names; (ii) non-compliance with the provisions of the South
African Geographical
Names Council Act,
[25]
National Heritage Resources Act,
[26]
Local Government: Municipal Finance Management Act
[27]
and sections 33 and 41 of the Constitution; (iii) disregard for
the impact of the street name-change on the business community
and
for the Bathopele principles; and (iv) failure to appreciate the
correct
historical context of the
personalities or institutions whose names the old streets bear.
Just as important is the punitive
costs order which the review court
would be unable to reverse.  Even if the relief granted by the
Full Court does not have
a final effect, it does in the very least
dispose of a substantial portion of the issues on review.  A
single Judge review
court would be confronted with a three-Judge
conclusion that Afriforum’s assertion that public participation
was flawed is
unassailable and that legality was not observed in
respect of a series of legislations.  That
predetermination
of key grounds of review inadvertently but
effectively undermines the role and authority of the review court to
resolve these issues.
It is thus in the interests of justice
that the Full Court’s order be appealable for this reason also,
to allow this Court
to clear the decks for the review court.
[47]
Apart from the irreparable harm to
Council
[28]
that flows from being restrained from executing the decision taken in
terms of its constitutional and statutory powers, there are
other
bases for Council’s irreparable harm.  The punitive costs
order made against it is not the subject-matter of review.
And
so it is with the costs ordered by the Court of first instance.
These orders are not subject to reconsideration and confirmation
or
susceptible to alteration by the Court of first
instance
.
They are final in effect.  Council’s prospects of success
are very strong and this is, in terms of our law, an
important factor
to be taken into account in considering appealability and leave to
appeal against interim orders.
[29]
[48]
It is indeed a general principle of
our law that leave to appeal against an interim order would
ordinarily be refused unless the
applicant is able to demonstrate
that irreparable harm would otherwise ensue.  But this is only a
general principle.
And the irreparable harm that Council stands
to suffer if leave were not granted is set
out
not
because that principle necessarily applies to this case but on the
assumption that it does.  It follows that, the order
of the Full
Court is appealable and that leave should be granted.  The
additional basis for appealability is admirably dealt
with by Jafta J
in his strongly reasoned concurring judgment, which we endorse fully.
[49]
To determine whether this is perhaps one of
those cases where “a proper and strong case” or “the
clearest of cases”
has been made out for the interim
relief,
[30]
it is necessary to examine how
Afriforum met the requirements
for the grant of an interim interdict.  Those requirements were
of course set out in
Setlogelo
[31]
and
Webster
[32]
as (i) a
prima facie
right that might be open to doubt; (ii) a
reasonable apprehension of irreparable and imminent harm to the right
if the interdict
is not granted; (iii) the balance of convenience
favourable to the grant of the interdict; and (iv) the absence of any
other adequate
remedy.
Prima
facie right
[50]
Afriforum
relies partly on section
31 of the Constitution as the
prima
facie
right sought to be protected with
the restraining order pending the finalisation of the review
proceedings.  Fortunately,
the right is only required to be
prima facie
,
though open to some doubt.  It need not be clear.
Otherwise there might have been a problem given what a section 31

right entails.  For section 31 basically affirms the enjoyment
of a cultural, linguistic or religious right of a community
and its
members provided that right is exercised consistently with all the
other provisions of the Bill of Rights.
[33]
How this right finds application to street names is not readily
apparent to me.  Happily, as I said, it is acceptable
that the
right may be open to some doubt.  For this
reason
,
I will assume without deciding that
Afriforum
has
established a
prima facie
right.
[51]
Of greater moment appears to be the right
to insist on Council’s facilitation of a proper public
participation process before
changes are effected, in relation to
emotionally charged and potentially divisive developments like street
names.
In principle and in anticipation of predictable
tensions, everything reasonably possible must be done to alleviate
strife or dampen
all likely tensions.  A genuine and properly
facilitated consultative process or public participation exercise is
one measure
that naturally commends itself for adoption whether
required by law or not.
[52]
At the same time, care must be taken not to stultify or
undermine local government’s ability to effect the necessary
changes
by imposing on it too onerous a burden to bear.
Flexibility as opposed to cumbersome rigidity ought to be the
preferred way
to go.  As long as public participation is
objectively genuine and was deliberately designed to gather as wide a
diversity
of views as possible for Council to be fully or reasonably
well-informed about all the key reasons for objection, form must then

never be allowed to prevail over substance.  For, these
processes should never be a sheer box-ticking exercise.  It
should never be the quantity but always the substantive quality and
representivity of particularly the opposing views that determine
the
adequacy or otherwise of the participatory process.  It is the
wide ranging quality of opposing views that must be
allowed to
be properly ventilated and engaged with to avoid unfairness to those
opposed to the proposed change.
[53]
Because Council imposed upon itself the duty to facilitate
presumably a proper public participation process for the removal of
old
street names and the placement of new ones, we assume without
deciding that that process was an essential prelude to the decision

to change street names.
[34]
In principle, it constitutes a sound legal basis to ground a
challenge to the validity of Council’s decision to remove

certain old street names and replace them with new ones, on Council’s
alleged failure to ensure that there was a proper public

participation process.  This is especially so because Council
itself undertook to consult residents before street names were

changed.
[54]
All of this seems to meet the interdictory requirement of a
prima facie
right that is nevertheless open to some doubt.
Irreparable harm
[55]
Before an interim interdict may be granted, one of the most
crucial requirements to meet is that the applicant must have a
reasonable
apprehension of irreparable and imminent harm eventuating
should the order not be granted.  The harm must be anticipated
or
ongoing.
[35]
It must not have taken place already.  To gain a better
understanding of the relevance or appropriateness of Afriforum’s

best efforts to meet this requirement, it is necessary that the
meaning, nature or essence of harm be explored.
[56]
Within the context of a restraining order, harm connotes a
common-sensical, discernible or intelligible disadvantage or peril
that
is capable of legal protection.  It is the tangible or
intangible effect of deprivation or adverse action taken against
someone.
And that disadvantage is capable of being objectively
and universally appreciated as a loss worthy of some legal
protection,
however much others might doubt its existence, relevance
or significance.  Ordinarily, the harm sought to be prevented
through
interim relief must be connected to the grounds in the main
application.
[57]
Afriforum had to satisfy the High Court of its reasonably
entertained belief that harm that is not too complex or mysterious to
understand would befall them and others should the interim order not
be granted.  To this end, the sum-total of their case
is that
the harm they are exposed to is the gradual loss of place or sense of
belonging and association with the direct environment
(living space)
which is known to be of emotional value to people.  Also, that
even the temporary removal of the old street
names, pending the
finalisation of the review proceedings, would cause emotional hurt or
suffering to those who cherish them.
Old names would in the
process fall into disuse and be forgotten.  That they say, would
disadvantage them on the basis that
the horse would have bolted
already by the time the review is decided and the review court would
thus be reluctant to decide in
their favour for that reason alone.
Afriforum contends that the refusal to grant the interim order would
cause them and like-minded
people to suffer irreparable harm, because
of the strong emotional connection to the old names or loss of a
sense of place and
a sense of belonging that would flow from the
removal of old names.
[58]
The sense of place and sense of belonging contended for by
Afriforum is highly insensitive to the sense of belonging of other
cultural
or racial groups.  It is divisive, somewhat selfish and
does not seem to have much regard for the centuries old
deprivation
of “a sense of place and a sense of belonging”
that black people have had to endure.  On this logic, victims of

the deleterious effect of colonialism and apartheid are entitled to
orders directing the authorities to remove names that seem
to
perpetuate the colonial and apartheid legacy on the basis that they
induce irreparable harm.  As for the mind-boggling
proposition
by Afriforum that harm and toxicity that apparently comes with
looking only at the names linked to other racial groups,
very little
room, if any, seems to be left for the acceptance of black people as
fellow human beings deserving of human dignity
and equality, talk
less of honouring them for their pursuit of justice and freedom in
South Africa.  It is very difficult
to appreciate this kind of
harm or apprehended environmental endangerment as deserving of legal
protection.  Whether Afriforum’s
preferred enjoyment of
the cultural rights leaves room for other communities to enjoy their
own and is therefore consistent with
other provisions of the Bill of
Rights, is a question best left open for another day.  That
said, even if what Afriforum says
constitutes harm does in reality
amount to harm, would that harm be irreparable if the interim order
were not granted?  And
when is harm irreparable?
[59]
Irreparable implies that the effects or consequences cannot be
reversed or undone.  Irreparable therefore highlights the
irreversibility
or permanency of the injury or harm.  That would
mean that a favourable outcome by the court reviewing allegedly
objectionable
conduct cannot make an order that would effectively
undo the harm that would ensue should the interim order not be
granted.
[60]
That is not the case here.  Afriforum and its
constituency do not have the right to have the old street names they
treasure
displayed in perpetuity.  On the contrary, Council has
the constitutional and statutory power to change them.  The only

right Afriforum, like all other residents, has is to participate
meaningfully in a properly facilitated process leading up to the

change of street names.  And old street names may still be
reinstated if the outcome of the review proceedings be that the

public participation process was for example not only obligatory but
also flawed in that it was not properly facilitated or was
a sham.
Additionally, if the cultural right sought to be protected through
the interim order would indeed be imperilled by
the removal of the
old street names pending the recommencement of the name-changing
process, that temporary harm could be repaired
by the reinstatement
of those names if the review succeeds.  So, there is adequate
alternative remedy available to Afriforum
even if it were not to be
granted the interim interdict.  It really is a tall order to
grasp why the replacement of the old
street names with the new would
constitute irreparable harm.  Part of the problem here, is that
the kind of irreparable harm
contended for seems to be incapable of
ever being cured by a genuine or properly facilitated public
participation process.
The only appropriate remedy for it is
the near-absolute retention of names that give recognition only to
the colonial and apartheid
legacy or the heritage of the Afrikaner
people to the exclusion of all others.
[61]
Another difficulty that the order granted presents is that it
relates not only to imminent harm but also to past harm.  The

second leg of the order enjoins Council to reinstate street names
that had already been removed.  The legal basis for this

mandatory order was not stated but it certainly runs against the
requirement that the harm be reasonably apprehended to occur in
the
future.  In this case it had taken place already and no case was
made out for its grant.  That segment of the order
should not
have been granted.
Balance of
convenience
[62]
Afriforum is required to establish that the balance of
convenience favours the grant of the interim interdict.  This
requirement
recognises that in an application for a temporary
restraining order there will invariably be at least two competing
interests.
And those interests are inextricably linked to the
harm a respondent is likely to suffer in the event of the order being
granted and the harm likely to be suffered by an applicant if the
relief sought is not granted.
[63]
We now know that Afriforum and their discrete group fear that
the refusal to grant an interim order would cause them emotional
harm.
This is because they consider the old names to be an
integral part of their much-treasured history and heritage.  The

removal of the old street names would deny them a sense of belonging
and weaken their case on review.  It must be said though
that
this must be counter balanced against another reality of great
historical and constitutional consequence.  And that
is that
Pretoria is the capital city of South Africa.  Pretoria does not
belong only to the Afrikaners or white South Africans.
It
equally belongs to all of our people white and black, united in their
diversity.  All racial groups in this country
deserve to have
their culture, heritage, history, heroes and heroines respected and
honoured by all.
[64]
The emotional harm that Afriforum relies on is grounded on a
one-sided notion of a sense of belonging.  The significance of
a
change of 25 old street names, out of the many that lauds their
heritage, must be taken into account.  This is necessary
because
it also gives some sense of belonging to the previously disadvantaged
South Africans who are the overwhelming majority
of the citizens
of Pretoria and South Africa.  Regard must be had to the
fact that places like Pretoria were a part of
what was known as
“white South Africa” during the apartheid era.  And
it is that legacy that is now sought to
be tenaciously held onto with
the aid of an interdict.  Whatever harm Afriforum would suffer
as a result of not granting the
interim order, would be significantly
neutralised by an equally important sense of belonging of the
previously disregarded.
[65]
Afriforum’s reliance on the Preamble to our Constitution
is for reasons outlined in the “essential context” quite

important.  South Africa must truly give a sense of belonging to
all who live in it united in their diversity.  Nothing
that has
the potential to open up wounds and divisions of the past should be
glossed over, tolerated or even inadvertently encouraged.

Equally important is the need to address in a decisive way, the
injustices of the past and to give honour to all South Africans
who
deserve it irrespective of their colour.  Black people like
Nelson Mandela, sought to be honoured through the change of
street
names, are among the many victims of the injustices of the past.  The
Preamble to our Constitution cannot therefore
be legitimately relied
on to perpetuate the exclusion of others from respect and honour.
And it is thus ironic that Afriforum
seeks reliance on this
Preamble in the furtherance of the interests of essentially one
racial group to the exclusion of all others,
even freedom fighters.
And that happens to be the irreparable harm on the basis of
which the interim interdict was granted
and is sought to be
preserved.
[66]
Public participation in any process is but one of the
important aspects of the name-changing process that cannot be
legitimately
ignored.  And it is a process that falls squarely
on the shoulders of the relevant organ of State to fashion out,
depending
on the objective sought to be achieved through it.
The facilitation or genuineness of any public participation process
is
of course subject to judicial scrutiny.  It however ought to
be only in very rare instances that a public participation process

that actually took place but is believed to be flawed for want of
adequate facilitation or participation, would serve as the basis
for
an interim interdict.  The propriety of that process must, as is
the case with law-making public participation processes
that are
expressly provided for in the Constitution, be tested through a
review process or similar proceedings based on the principle
of
legality.  The challenge to the validity of a parliamentary
public participation process is hardly ever preceded by some

restraining order while the review is pending.  The adequacy of
the facilitation of a public participation process is subjected
to
judicial scrutiny only after the legislative process has run its full
course.  The same approach of confining the challenges
to review
proceedings should have been adopted here, regard being had to
separation of powers.
[67]
This is so because Afriforum seeks to stall the process of
implementing a policy decision taken by Council that flows from the
exercise
of its constitutional and statutory executive powers.
Public participation should not be elevated to co governance or

equal sharing of executive and budgetary responsibilities.
Council bears the constitutional
[36]
and statutory
[37]
power to run the affairs of the City.  For this reason, it
cannot serve as the basis for a court to intrude into Council’s

sole operational space that a segment of those it serves, is
displeased with the public participation process Council had
otherwise
facilitated.  The review process is the best avenue to
vindicate whatever rights of Afriforum are implicated.
[68]
Sight should never be lost of the fact that courts are not
meant or empowered to shoulder all the governance responsibilities of

the South African State.  They are co equal partners with
two other arms of State in the discharge of that constitutional

mandate.  Orders that have the effect of altogether derailing
policy-laden and polycentric decisions of the other arms of
the State
should not be easily made.
[38]
Comity among branches of Government requires extra vigilance, but
obviously not undue self-censorship, against
constitutionally-forbidden
encroachments into the operational
enclosure of the other arms.
[39]
This is such a case.
[69]
Council took a decision that was apparently inspired by the
Preamble and foundational values that undergird our constitutional
democracy.
They evidently sought to give realistic expression to our
deliberately self-imposed philosophy, that entails recognition of all

deserving compatriots, national unity, reconciliation and healing the
divisions of the past.  Having, in its view, solicited
a
diversity of views including those of Afriforum and other concerned
residents Council resolved, as it was in law empowered, to
replace
the identified old street names.  It determined and allocated
the budget, enlisted the services of a service provider
and embarked
on the process of implementing its policy decision.  The High
Court nevertheless granted an order restraining
Council from
implementing its decision also directing it to reinstate old names at
the cost of R2.6 million.
[70]
An interim interdict should in these circumstances be granted
in the rarest of cases.  Intrusion into the sphere of operation

reserved only for the other arms of State is an exercise not to be
unreflectingly or over-zealously carried out by a court of law.
It
calls for deeper reflection and caution.  The State operates
better when due deference is shown by one branch to
another,
obviously without approaching its obligations so timidly as to
incorrectly suggest that there is an undue measure of
self restraint.  That said, an attitude that is dismissive
of the constitutional fire-wall around the powers of other
arms of
State is not conducive to the proper observance of separation of
powers and exhibits disregard for comity among the branches
of
Government.
[71]
There is another issue of importance that requires attention.
It is the notion that the mere launch of the application for
a
restraining order or the review proceedings had the legal effect of
automatically restraining Council from erecting street signs
or
removing old street names.
[72]
Afriforum contends that Council was not entitled to remove old
street names in line with its policy decision, pending the outcome
of
its application for an interim order.  The authority for that
proposition is said to be the Supreme Court of Appeal decision
of
Gauteng Gambling Board
[40]
which placed some reliance on
Li Kui Yu.
[41]
Li Kui Yu
sought to prevent “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.”
[42]
As correctly pointed out by
Gauteng Gambling Board
,
Li Kui Yu
was subsequently qualified on the basis that “for an act to
constitute contempt, it was necessary that there be an intention
to
defeat the course of justice.”
[43]
The effect of this authority is that Afriforum was required to
satisfy the Court that Council knew that the interim order
was
certainly going to be granted and its expeditious execution of the
name-changing project was intended to frustrate the enforcement
of
the anticipated court order and thereby defeat the course of
justice.  But, this it failed to do.
[73]
In any event, it is not clear what the Supreme Court of Appeal
eventually made of these decisions.  But, it certainly did not

regard them as authority for the proposition that an apparently
lawful decision may not be implemented purely because an application

has been launched either to interdict implementation or to have the
underlying decision set aside.  Besides, those decisions
could
not even remotely have provided the legal basis for that conclusion.
[74]
In
Gauteng Gambling Board
, the MEC not only harassed
the Board to act in a financially irresponsible and unlawful manner,
to inappropriately accommodate
a private entity in its offices, to
vacate its own expensively and recently-acquired official office
space and move into rented
premises, but she also threatened Board
Members and purported to dismiss them for patently unlawful reasons.
How that could
ever be likened to lawful steps geared at the
enforcement of a challengeable but lawfully taken Council policy
decision is difficult
to understand.  It needs to be stated
categorically, that no aspect of our law requires of any entity or
person to desist
from implementing an apparently lawful decision
simply because an application, that might even be dismissed, has been
launched
to hopefully stall that implementation.  Any decision
to that effect lacks a sound jurisprudential basis and is not part of

our law.  It is a restraining order itself, as opposed to the
sheer hope or fear of one being granted, that can in law restrain.

To suggest otherwise, reduces the actual grant of an interdict to a
superfluity.
[75]
For these reasons, there was no obligation on Council to
desist from removing old street names upon becoming aware that an
urgent
application for a restraining order had been filed.  Only
sheer choice or discretion, but certainly not any legal obligation
or
barrier, would lead to action being desisted from in anticipation of
a successful challenge or application for an interdict.
[76]
In conclusion, Afriforum failed to meet the requirement of
irreparable harm.  And the balance of convenience weighs heavily

in favour of the dismissal of the application for an interim order.
Afriforum’s case is extremely weak.  The interdict
was
granted and the appeal against it dismissed by the Full Court with
little regard for Afriforum’s duty to meet the requirements
of
an interim interdict and considerations of separation of powers.
Both Prinsloo J and Jordaan J were unable to explain
satisfactorily
how the requirements of irreparable harm and balance of convenience
were met.  The interim interdict should
not have been granted in
the first place.  And the Supreme Court of Appeal should have
granted leave to appeal.  Instead
it dismissed the application
with costs.
[77]
Leave to appeal will thus be granted and the appeal upheld.
Order
[78]
In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders by Prinsloo J and Jordaan J of the Gauteng Division of
the High Court, Pretoria are set aside and the application
for an
interim interdict is dismissed.
4. The order of the Supreme Court of Appeal awarding costs against
the Tshwane Metropolitan Municipality is set aside.
5. Each party is to pay its own costs.
FRONEMAN J and
CAMERON J:
[79]
The wounds of colonialism, racism and apartheid run deep.
Understandably so, as the Chief Justice’s judgment (first
judgment) so passionately shows.  And insensitivity to the
continuing wounds by many of us who were not subject to these
indignities
can only exacerbate the fraughtness.  So it is with
humility that we dissent, but dissent we must.
[80]
The first reason for doing so is this.  Correction of the
injustices of the past is not best served by attenuating
well-established
and sensible rules and principles for hearing
appeals against the grant of temporary interdicts.  Granting
leave to appeal
here extends existing doctrine considerably.
Both on the facts and the law we do not consider this justified.
[81]
The second reason is that the implication that may be drawn
from the first judgment is that any reliance by white South Africans,

particularly white Afrikaner people, on a cultural tradition founded
in history, finds no recognition in the Constitution, because
that
history is inevitably rooted in oppression.  The oppressive
history is there.  But the constitutional discountenancing
of a
cultural history many continue to treasure has momentous implications
for a substantial portion of our population.  It
invites deeper
analysis.
[82]
It is best to start with the issue of leave to appeal against
temporary interdicts.
Leave to appeal
[83]
It is by now settled law that the operative standard for
determining whether leave to appeal should be granted is “the
interests
of justice”.
[44]
That the order is temporary is not in itself determinative of whether
the interests of justice call for leave to appeal to
be granted.
[45]
A number of cases in this Court have enumerated a collection of
non-exclusive factors that need to be considered when determining
the
interests of justice.
[46]
[84]
One is “whether allowing the appeal would lead to
piecemeal adjudication and prolong the litigation or lead to the
wasteful
use of judicial resources or costs”.
[47]
The counterpart of this consideration is whether “the fact that
a final determination of the main dispute between the
parties, which
decisively contributes to its final resolution, might be more
expeditious and cost-effective”.
[48]
[85]
In
TAC I
, it was pointed out that the effect of
granting leave would “defeat the very purpose” of the
interim order:
“The ordinary rule is that the noting of an appeal suspends the
implementation of an order made by a court.  An interim
order of
execution is therefore special relief granted by a court when it
considers that the ordinary rule would render injustice
in a
particular case.  Were the interim order to be the subject of an
appeal, that, in turn, would suspend the order.”
[49]
The judgment
continued:
“[F]or an applicant to succeed in such an application, the
applicant would have to show that irreparable harm would result
if
the interim appeal were not to be granted –a matter which
would, by definition, have been considered by the court below
in
deciding whether or not to grant the execution order.  If
irreparable harm cannot be shown, an application for leave to
appeal
will generally fail.”
[50]
Although made in the
context of interim execution orders, the same principles apply to
other temporary orders.
[51]
[86]
With these statements in mind it is necessary to return to
some of the more prosaic facts, not dealt with extensively in the
first
judgment.  The
status quo ante
(pre-existing
situation) when Afriforum launched the review application on 12
December 2012 was that the contested street signs
displayed both the
proposed new names (at the top of the sign) and the old names
(crossed out below them).  After Tshwane’s
Mayor announced
the go-ahead for the permanent removal of the old, crossed-out names
on 5 April 2013, Afriforum launched its second
application for a
temporary interdict to prohibit their removal.
[87]
After the application was launched but before it was heard,
the applicant (Municipality) removed the old, crossed-out signs
virtually
overnight.  This necessitated an amendment to the
relief sought, namely to
restore
the pre-existing boards, so
as to contain both the old and new names, as before.
[88]
On 19 April 2013 the High Court granted a temporary
interdict.  That contained two parts.  A prohibitory part
which restrained
the Municipality from further removing old,
crossed-out names from street and road signs.  And a mandatory
part which ordered
the Municipality to restore those crossed-out
street and road signs that had already been removed.  The
Supreme Court of Appeal
granted leave to appeal against this order to
the Full Court.  The Full Court dismissed the appeal with costs
on 26 May 2015.
A further application to the Supreme Court of
Appeal, for special leave, was dismissed on 3 August 2015.
After
that the Municipality approached this Court for leave to
appeal. The review application has still not been heard, close to
four
years after it was launched.
[89]
The temporary interdict the High Court granted has thus not
been put into operation.  By utilising an appeal process against

what was supposed to be a temporary order pending finalisation of the
real dispute between the parties, in the review application,
the
Municipality has managed to implicate judicial resources in the
Supreme Court of Appeal (twice), the High Court (twice, before
a
total of four judges) and now seeks to do so again in this Court.
And if it succeeds here, the relief it may obtain will
still not be
final.  So, after more than three years of litigation about the
temporary order, the resolution of the real,
substantive issue
between the parties in the main review application still awaits its
turn through the judicial process.
[90]
We can hardly think of an example that more fittingly
illustrates the unnecessary prolongation of litigation and the
wasteful expense
of judicial resources and costs.  All would
have been better served by a speedy final determination of the main
dispute between
the parties.  That would have contributed
decisively to a final resolution of the parties’ real dispute.
And it
would have been infinitely more expeditious and
cost-effective.
[91]
This sorry history of stop-start litigation is sufficient
reason, on its own, not to grant leave.  But there are other
reasons
too.
[92]
As we have seen, this Court’s jurisprudence requires the
Municipality to show that irreparable harm would result if this
interim
appeal is not granted.
[52]
The application for leave is against the order of the Full Court, but
that makes little difference, because the Full Court
confirmed the
High Court’s temporary order.  The application for leave
remains one for leave against a temporary order,
not a final one.
The fact that leave to appeal was granted and an appeal heard by the
Full Court is a further factor counting
against granting leave,
rather than prolonging the process even further.
[93]
The irreparable harm the Municipality alleges it will sustain
is the R2.6 million it would allegedly cost for it to restore the
old, crossed-out signs.  This, it says, is part of the temporary
interdict that is final in effect.  There are a number
of
reasons why this argument cannot avail the Municipality.
[94]
First, the expenditure to restore the crossed-out signs is not
“final in effect” in the manner hitherto required by our

courts in relation to the appealability of the granting of temporary
orders.  For well over sixty years, since the decision
in
Pretoria Garrison Institutes
,
[53]
the test for appealability of an interim order has been this: the
order is purely interlocutory and not appealable—
“unless it is such to ‘dispose of any issue or any
portion of the issue
in the main action or suit
’ or,
which amounts, I think, to the same thing, unless it ‘irreparably
anticipates or precludes
some of the relief which would or might
be
given at the hearing
’.  The earlier
judgments were interpreted in that case and a clear distinction was
given that regard should be had,
not to whether one party or the
other has by the order suffered an inconvenience or disadvantage in
the litigation which nothing
but an appeal could put right, but
to
whether the order bears directly upon and in that way affects the
decision in the main suit
.”
[54]
[95]
The R2.6 million expenditure, which has its origin in the
Municipality’s own removal of the old, crossed-out signs,
virtually
overnight, after the proceedings were launched, will not
feature as an issue in the main review application at all.
Under
the authorities its effect therefore does not qualify as “final
in effect”.
[96]
There is another reason why that order is not final in
effect.  It was always open to the Municipality to approach the
High
Court, after the initial granting of the interim order, to show
that the order would work great hardship on it or that circumstances

have changed materially.
[55]
The High Court would have been entitled to reconsider its earlier
order, and rescind or amend it.  One of the options
that might
have been open to it was to make the order conditional on Afriforum
indemnifying the Municipality for the damages it
might suffer if the
Municipality prevails in the main proceedings.
[56]
That is what the Municipality should have done, rather than
enmeshing the successful applicant, and the courts, in a series
of
exhausting appeals.
[97]
But, as we saw, finality and appealability are no longer
dispositive.  The broader interests of justice are.  It is
common
cause that the Municipality took down the crossed-out old
signs and erected the new signs, without the crossed-out old ones, in

a hurry after it became aware that the second application for a
temporary interdict had been launched.  Nowhere in its extensive

affidavits has it explained why it did this.  The inference that
it was done in order to thwart the order is natural and probable.

If done for that purpose, the Municipality’s conduct would have
been in contempt of court.
[57]
But that is not the present point.  The point is that, in doing
what it did, the Municipality knowingly took a risk.
That was
the risk that, in accordance with existing law, it might have to bear
the consequences of its hasty intervention.
In other words, the
Municipality itself created the irreparable harm it now complains of.
[98]
The first judgment also appears to regard the reasoning of the
Full Court in the appeal, to the effect that it considered
Afriforum’s
contentions on the lack of public participation as
unassailable, as showing the finality and hence appealability of that
order.
[58]
We disagree.  It is not the reasoning, but the order itself that
determines appealability.
[59]
And the order at issue confirms the High Court’s
temporary
order.  That order remains temporary – and the review
court is not bound by the findings or reasoning of the Full Court
on
the merits of the review application.
[99]
We have now had the opportunity of reading the separate
concurrence of Jafta J (third judgment).  He seeks to counter
our perspective
that to grant leave here attenuates well-established,
sensible rules and principles for hearing appeals against the grant
of temporary
interdicts and that it considerably extends existing
doctrine. The third judgment holds that because leave was granted to
the Full
Court, which heard the appeal, appealability issues in
relation to the grant of temporary orders disappear.  We
differ.
The first appeal simply makes matters worse.  The
Full Court order itself is a temporary order.  In
accordance with
this Court’s jurisprudence, the burden on the
Municipality – to show irreparable harm before interests of
justice considerations
could permit an appeal against a temporary
order – is more difficult, not easier.  The Municipality
in the appeal before
the Full Court had (an unusual) second bite
at the cherry.  It now wants a third.
[100]
At the end of all this, nineteen judges – four in the
High Court, four in the Supreme Court of Appeal (in the applications

for leave), and eleven in this Court – would have been involved
in deciding a preliminary, temporary order.  We hope
this does
not become the norm.
[101]
That brings one to the contention that the temporary order
infringed upon the Municipality’s executive or legislative
powers.
We have difficulty in discerning how.
[102]
The interdict does not order the new names to be removed.
It seeks merely to preserve the situation existing at the time the

main review application was brought in December 2012.  That was
that the street or road signs with both the new names and
the
crossed-out old names below them should remain.  So, until the
review application is heard and finally determined, there
is no
infringement of any constitutional or legislative competence of the
Municipality.  It is entirely free to determine
the names of
streets and roads.  The new names are there for all to see, with
the crossed-out ones indicating what the old
names were.
[103]
The High Court merely restored the
status quo ante
–
the mandatory interdict did not meddle in the domain of the
Executive.  In fact, it showed deference to the position
as it
existed at the point the review was brought.  The order does not
trench on the Municipality’s constitutional and
statutory
powers.  It merely plays the role a temporary interdict should,
which is to maintain the status quo.
[104]
There is thus no “serious, immediate, ongoing and
irreparable [harm]”
[60]
to the Municipality’s constitutional and legislative powers,
nor is the impact of the order “immediate, ongoing and

substantial”
[61]
in relation to those powers.
[105]
But apart from this purely factual aspect, the separation of
powers argument suffers from a further fracture.  As far as we

are aware, there has been no case in this Court where leave to appeal
has been granted against the granting of a temporary order
where the
exercise of executive or legislative power requires public
participation and the proper extent of public participation
is at the
heart of the parties’ dispute.
[106]
OUTA
,
[62]
upon which the first judgment relies, was very far from the case
before us now.  It involved a decision by the South African

National Roads Agency that had to be made within the framework of
government policy decided by the National Cabinet.
[63]
It was not and could not be contended that the determination of
policy by the Cabinet required public participation of the
sort to
which the Municipality committed itself here.  Though notice
requirements in promulgating the toll road system were
at issue in
the main review, the issue before the High Court was the balance of
convenience between motorists, who would pay tolls
that may
eventually be found unlawful,
[64]
and government, that needed to recoup the costs of the roads sought
to be tolled:
“The harm and inconvenience to motorists, which the High Court
relies on, result from a national executive decision about
the
ordering of public resources, over which the executive government
disposes and
for which it, and it alone
, has the public
responsibility.  Thus, the duty of determining how public
resources are to be drawn upon and re-ordered lies
in the
heartland of executive-government function and domain
.”
[65]
[107]
Nor were
ITAC
,
[66]
UDM
,
[67]
or
Glenister I
[68]
anything like this case.  The powers at issue in each all lay
within the exclusive competencies of either the National Executive
or
Legislature.
[69]
Of course, this Court has recognised that public participation may be
a requirement of our participative democracy, starting
with
Doctors
for Life.
[70]
But none of those cases involved appeals against temporary
orders where public participation was a prized value.
[71]
[108]
The Municipality raises no challenge to its own requirement of
public participation in the renaming process for streets or roads.

Nowhere in its affidavits does it backtrack.  It stands by the
process.  Rightly so.  Public participation in a
municipal
council’s naming of streets has been recognised by the Supreme
Court of Appeal in
Ethekwini
[72]
as a requirement that may be challenged on the principle of
legality.
[73]
[109]
Public participation in street-renaming as a requirement of
the principle of legality is thus unchallenged.  That being so,

separation of powers vanishes as a premise in granting leave.
That must follow, since otherwise it predetermines the very
question
that is the subject of the review application.  And
OUTA
tells us that should not be done.
[74]
[110]
The temporary order does not infringe upon the Municipality’s
budgetary powers at all.  The Municipality’s budget
may be
affected by the ultimate decision in the review application –
but that consequence cannot restrict a court’s
determination of
a disputed legal issue.  As stated in
Blue Moonlight
:
“This court’s determination of the reasonableness of
measures within available resources cannot be restricted by budgetary

and other decisions that
may well have resulted from a mistaken
understanding of constitutional or statutory obligations
.”
[75]
[111]
Hence the temporary order nowise infringes on the
Municipality’s legislative or executive competences.  But
even if it
did, granting leave against a temporary order creates
further difficulties.
[112]
This case involves an organ of State at local government
level.  The decision on whether it is in the interests of
justice
for this Court to grant leave when a municipality’s
decision to rename streets is temporarily interdicted cannot, it
seems
to us, depend on what the names were before the proposed change
and what they may be after.
[113]
Nor can it depend on how big the municipality is.  So it
seems to us that the preliminary question whether it is in the
interests
of justice to grant leave must be the same whether the
changes are of the kind here, namely highly contentious, or much less
contentious.
[114]
Postulate this situation.  All the facts and court
processes are similar to those here, with only this exception.
The
case involves a small municipality.  And it has decided to
rename its streets, previously known as First to Twenty-sixth
Streets,
A to Z Streets.  The proportion of the budget it uses
to do this is the same as in the present case.  A group of
residents
seek a temporary order to prevent this, pending a review
application.  The municipality reacts in the same way as here.

Assume further that the court that initially granted the temporary
interdict did so wrongly.
[115]
Would we grant leave?  Surely not.  But we have to
treat like cases alike.  So on our understanding of the first
judgment we would have to.
[116]
Perhaps then the thrust of the first judgment is that
intervention on appeal will be countenanced only where the objection
to the
renaming impedes the transformation to which the Constitution
commands our society.
[117]
That brings us to the second reason for this dissent.
This is the implication that any reliance by white South Africans,
particularly
white Afrikaner people, on a cultural tradition founded
in history finds no recognition in the Constitution, because that
history
is rooted in oppression.
Is culture
inevitably tainted by historical injustice?
[118]
The broad premise of the first judgment is that the time has
come to stop objections to name changes based on a cultural heritage

that is rooted in a history of colonialism, racism and apartheid.
[119]
Afriforum may protest at the first judgment’s
characterisation of their historically rooted sense of place and
belonging as
“highly insensitive to the sense of belonging of
other racial groups”.  It will jib at the suggestion that
it
“is divisive, somewhat selfish and does not seem to have
much regard for the centuries-old deprivation of ‘a sense of

place and a sense of belonging’ that black people have had to
endure”.
[120]
But for that Afriforum has largely itself to blame.  In
its founding affidavit Afriforum repeatedly refers to the
Municipality’s
attempts at correcting “
so-called
‘historical injustices of the past’”.  It
supplies evidence that the old street names were of—
“historical figures of Pretoria, artisans, business people,
surveyors who played a central role in the layout as it currently

exists, prominent figures in history (most have made their
contributions long before the
so-called
apartheid), city
fathers and legal practitioners (including attorneys, advocates,
magistrates and even a judge).  It is clear
that these people
played a direct and positive role in the city as it exists today. It
would therefore be grossly inaccurate to
suggest that these persons
have a direct connection with the
so-called
historical
injustices.”
[121]
So-called!  This embodies the kind of insensitivity that
poisons our society. There
were
historical injustices.
Apartheid was all too real.  And it was profoundly pernicious.
These facts are not “so-called”
figments of black
people’s imagination. Pretoria was created as the capital of an
Afrikaner Republic that expressly subordinated
black people.
[76]
It became the capital city of a South Africa that grossly magnified
that discrimination by systematic segregation and exclusion.

Until just decades ago, black people could not own and live in
property along Pretoria’s beautiful jacaranda-lined streets.

The historical figures after which those streets were named benefited
directly from the fact that they, unlike black people, could
own and
live on city properties.
[122]
Those benefits have not dissipated.  They still accrue
primarily to white residents.  Their historical advantage in
acquiring
property in the past dwells on, in deep systemic privilege
and injustice.  To deny these realities or avert one’s
eyes
to them lays one open to a charge that what one seeks to protect
is not culture, but a heritage rooted in racism.  The
Constitution
protects culture, yes, but not racism.
[77]
[123]
So we disagree profoundly with Afriforum’s view of
history.  And we think it would be better for white Afrikaans
people,
and indeed everyone else, to find their sense of place and
belonging, not only in the past, but also in a shared future, one the

Constitution nurtures and guards for all of us, together, united in
our diversity.  But does that entitle us to say that Afriforum

members’ sense of belonging, place and loss is not real and
that it should not
also
be recognised under the Constitution?
The answer is No.
[124]
And that is where we must part from the first judgment.
On general principle, we think the Constitution creates scope for
recognising an interest or right based on a sense of belonging to the
place where one lives, rooted in its particular history, and
to be
involved in decisions affecting that sense of place and belonging.
Whether that strictly falls within the cultural,
environmental or
citizenship rights in the Bill of Rights, or a combination of them,
still needs to be explored.
[78]
At this, still-interim, stage, the existence of the right in this
broad form is enough.
[125]
But once it is accepted that a right or interest of that kind
may exist, it cannot be negated by either saying that the basis of

the sense of belonging does not advance society as a whole, or that
its enjoyment is so ephemeral that its loss can never be
irreparable.
The first judgment does both.
[126]
In asserting their right to a sense of belonging and place
based on historical affinity to Pretoria, Afriforum’s members
have
done no wrong.  They have committed no crime.  The
Preamble to the Constitution states that South Africa belongs to all

who live in it, united indeed, but “in our diversity”.
Indeed, recognising and preserving cultural rights is
important in
our constitutional society.  This helps ensure that minorities,
including cultural, linguistic or ethnic minorities,
feel included
and protected.  This is not only to safeguard their interests.
It is to preserve cultural diversity that
is of value to the
country’s identity.  Cultural rights, whether of the
Islamic community, the VhaVenda, or seTswana
speakers, are integral
to a sense of identity, self-worth and dignity.
[127]
The third judgment takes us to task for what we have said in
relation to cultural rights.
[79]
These statements were “not necessary”, because our
judgment “proceeds to make a number of conclusions on

associational cultural rights which go beyond the question whether
the Full Court’s order was appealable”.
[80]
As is apparent from what we have stated, this is not accurate.
[128]
We make no definite conclusions on associational rights under
the Constitution.  We state merely that, on general principle,

the Constitution creates scope for recognising an interest or right
based on a sense of belonging to the place where one lives,
rooted in
its particular history.  From this may flow a right to be
involved in decisions affecting that sense of place and
belonging.
But whether that falls within the cultural, environmental or
citizenship rights in the Bill of Rights, or a combination
of them,
remains to be explored.
[81]
That is precisely why these proceedings are inapposite and premature.
[129]
It is a grave insinuation that we seek to justify the
protection of cultural rights under the guise of racism.
[82]
We explicitly state that “[t]he Constitution protects culture,
yes, but not racism”.
[83]
We find it regrettable that the third judgment then proceeds to state
that “there can be no justification for recognition
of cultural
traditions or interests ‘based on a sense of belonging to the
place where one lives’ if those interests
are rooted in the
shameful racist past,” as if that was what we sought to
justify.  We leave history to assess the warrant
for that
charge.
[130]
What does concern us is the broad statement in the third
judgment that embraces the implication of the first judgment, that
any
reliance by white South Africans, particularly white Afrikaner
people, on any historically-rooted cultural tradition finds no
recognition
in the Constitution, because that history is inevitably
rooted in oppression.
[84]
[131]
What does that mean in practical terms?  Does it entail
that, as a general proposition, white Afrikaner people and white
South
Africans have no cultural rights that pre-date 1994, unless
they can be shown not to be rooted in oppression?  How must that

be done?  Must all organisations with white South Africans or
Afrikaners as members now have to demonstrate that they have
no
historical roots in our oppressive past?  Who decides that, and
on what standard?
[132]
This will be of concern not only to white South Africans, or
to Afrikaners.  It may also be of concern to those who take
pride
in the achievements of King Shaka Zulu, despite the
controversy about his reign,
[85]
and those who nurture the memory of Mahatma Gandhi’s struggles
in South Africa, despite some repugnant statements about black

Africans.
[86]
Our country has a rich and complex history.  It has meaning for
each of us, in diverse ways, which the Constitution
accommodates and
respects.  The complexities of history cannot be wiped away, and
the Constitution does not ask that we do
so.
[133]
What is more, no case was made that Afriforum was a racist
organisation, or that its members are all racists.  They were
never
called to defend that accusation on the papers, nor in oral
argument.  The first and third judgments appear to assume that

they are.  Does this entail that, from now on, Afriforum and its
members are branded as racist?  If they are, they have
not been
given an opportunity to contest that allegation.
[134]
There are many cultural, religious or associational
organisations that have roots in our divided and oppressive past.
Are
they all now constitutional outcasts, merely because of a history
tainted by bloodshed or racism?  If that is what the
Constitution
demands, we would wish to see a longer, gentler and more
accommodating debate than happened here.
[135]
The first judgment asserts that this diversity—
“ought to highlight the need for unity rather than reinforce
the inclination to stand aloof and be separatist”.
[87]
That kind of unity,
it says, can be achieved partly—
“by removing from our cities, towns, ‘dorpies’,
streets, parks, game reserves and institutions, names that exalt

elements of our past that cause grief to other racial groups or
reopen their supposedly healing wounds.  Also, by removing
even
some innocuous names that give recognition only to the history,
language, culture or people of one race, so as to make way
for the
heritage and deserving heroes and heroines of the previously
excluded.”
[88]
And—
“[a]ll peace and reconciliation-loving South Africans whose
world-view is inspired by our constitutional vision must embrace
the
African philosophy of ‘ubuntu’. ‘Motho ke motho ka
batho ba bangwe’ or ‘umuntu ngumumtu ngabantu’

(literally translated it means that a person is a person because of
others).  The African world-outlook that one only becomes

complete when others are appreciated, accommodated and respected,
must enjoy prominence in our approach and attitudes to all matters
of
importance in this country, including name-changing.  White
South Africans must enjoy a sense of belonging.  But unlike

before, that cannot and should never again be allowed to override all
other people’s interests.”
[89]
[136]
With much of this we agree.  But from a perspective of
constitutional rights and values, these assertions are highly
problematic.
The Constitution allows the Executive and
Legislature at national, provincial and local levels to formulate
policies, legislate
them into law, and execute and administer them
when so done.  They may choose to do so by changing the names of
cities, towns
and streets to reflect our diversity.  Or they may
decide not to do so.  The Constitution allows them to make their
own
choice; it does not prescribe what choice to make.  And the
Constitution certainly does not allow the Judiciary to prescribe

those choices.
[137]
Again, we agree that it would be beneficial if all South
Africans approached matters with appreciation and respect for
others.
But the Constitution does not impose that as an
obligation on citizens, either by enjoining the adoption of the
ubuntu world-view,
or otherwise.  And, again, the Constitution
does not allow the Judiciary to impose that obligation generally,
least in the
naming of streets, which falls within local authorities’
constitutional competence.
[138]
There are other portions of the first judgment that suggest
that the national project of attaining inclusivity, unity in
diversity
and reconciliation makes suspicious or doubtful the kind of
sense of space and belonging that Afriforum claims.  We have
already
pointed out that the Constitution generally does not mandate
the imposition of a particular conception of this national project
by
the courts, and particularly not in relation to a local government
competency to rename streets.  But, on its own terms,
this
conception also carries within it the destruction of its objective of
inclusivity.
[139]
Consider this.  What is the effect of a failure to
embrace ubuntu, by evincing appreciation of and respect for others?

Does the person lose his or her constitutional protections?  The
first judgment seems to suggest Yes.  This lies in its
finding
that even if Afriforum members had the kind of right they claimed –
a sense of historic belonging and space –
their loss of that
sense can never qualify as irreparable harm.  But this denial of
that kind of possibly irreparable harm
is not extended in our law to
other infringements of rights whose loss cannot be quantified in
material terms.
Did Afriforum
establish irreparable harm?
[140]
In cases where money is not at stake, the harm consists, when
interim relief is considered, in the applicant’s temporary
disablement
from enjoying the right.
[90]
During the oral hearing, counsel for the Municipality was asked
whether a parent claiming access to a child for a weekend
a fortnight
before the trial determination of the parents’ respective
rights of access would suffer irreparable harm if that
access was
thwarted.  He said No.  Consonantly with his case, he had
to.
[141]
But the answer was wrong.  The harm is irreparable.
This follows from the nature of interim interdict proceedings.

The first requisite is that a “right” must be
established, even if open to doubt.  If not, then there can be
no interim interdict, just as there cannot be a final interdict in
due course.  If the right is established, albeit open to
doubt,
then the next question arises.  The second requisite is that
that right is being breached, or that a breach of it is
anticipated.
If no breach, again, no interdict.  If a breach is occurring, or
is anticipated, the next question arises.
The third requisite
is that the grant of a final interdict or other relief in the main
proceedings will not be able to make good
the interference with that
right in the period until the right is finally established.  It
is in this sense that the harm
must be irreparable.
[142]
This question arises only because there is a right, and
because it is being breached, or its breach is feared, with the
consequence
that an interdict will be granted.  Without the
first two findings there can be no interdict.
[143]
The third question – about irreparability – arises
only because it has already been found, albeit open to some doubt,

that there has been an unlawful act that will warrant a final
interdict in due course.  So the third question is not: is there

harm?  That has already been established.  The question is:
will the
prima facie
established harm suffered in the interim
be reparable once a final interdict is granted?
[144]
To return to the question put to counsel – that parent
will never have that weekend again, nor will the child.  The
fact
that the trial is imminent changes nothing.  Nor does the
fact that a final interdict will in due course ensure that no further

harm is done.  Subject to the balance of convenience, it is not
up to a court to pronounce upon the value to be placed on
the
deprivation of the parent’s
prima facie
established
right to see the child.  Indeed, the fact that a final interdict
will be granted should the right be finally established,
itself
demonstrates that harm has been suffered until that time.  The
question, thus, is whether the harm that has been suffered
until a
final interdict is granted is capable of being reversed then.
[145]
If the right is vindicated in the later trial, in other words,
if the parent lost the right to have the child for that weekend, the

harm suffered by the parent by not having the child
that weekend
can never be repaired.  If the right exists, subject to balance
of convenience considerations, the harm is in being deprived
of that
right.  And it is irreparable if the deprivation of that right
in the interim cannot be repaired once a final interdict
is granted.
This will seldom be the case where the harm is not manifested in
pecuniary terms.
[146]
It is for these reasons that in vindicatory proceedings the
deprivation in the interim of the right of ownership is presumed to
be irreparable.
[91]
A court does not evaluate the qualitative value to the applicant of
the right of ownership of a picture pending a final determination
of
its ownership.  Whether the picture would have been hanging on a
wall, and whether a court sees value in viewing it, or
even whether
the picture would have been held under lock and key in a cupboard, is
all immaterial to irreparable harm.  Once
it is found that the
right of ownership of the picture has been
prima facie
established, the loss of the right to hang it on the wall, or to hide
it from view, are not capable of being restored.
[147]
And we do not think, in general terms, that it is appropriate
for a court to do a qualitative evaluation of the harm an applicant

asserts when weighing whether the harm asserted is irreparable.
The court may not ask, “what harm will you suffer if
you don’t
see your child this weekend?”, or “what harm will you
suffer if you do not have the picture, which
is in the cupboard
anyhow?”  “If you win at the trial, you’ll see
the same child again, or have your picture
back in the cupboard.”
The harm is that the parent is denied the right to see the child
that
weekend
, or denied the right to have the picture, whether in the
cupboard or elsewhere, while the first proceedings are underway.

That harm is irreparable even if the court places no value on seeing
children or having pictures in cupboards – and even
if the
child in question were to be obnoxious or the cupboard were to be
permanently locked.
[148]
That weighing is properly and necessarily done when the
balance of convenience is assessed.  It is there that the extent
of
the interim harm to the applicant, if final relief is in due
course granted, is weighed against the interim harm to the
respondent,
if final relief is refused.  That weighing lies
within the discretion of the lower court, and, as we have shown, is
rarely
appealable.
[149]
It is the loss in the interim of the rights attaching to
ownership, or to parenthood, that cannot be repaired.  A court
does
not evaluate the worth of enjoying that right.  It is the
loss of the rights attaching to ownership, or parenthood, in
themselves,
that are presumed to be irreparable, because in fact they
can never be restored.
[150]
The question the first judgment poses is not whether the harm
will be reparable, but whether there is any harm at all.  In
effect, it asks: “where is the harm?”
[92]
But if there is no harm, there are no grounds for a final interdict,
because the unlawful breach of the applicant’s
right inflicts
no harm.  If Afriforum establishes in the main proceedings that
the Municipality acted unlawfully, there can
be little doubt that it
may be finally interdicted from acting on its unlawful decision.
That being so, the harm is established,
and the question before us is
whether its unlawful act that endures in the interim can be undone.
The fact that further harm
to the applicant’s right to lawful
action can be prevented for the future is immaterial.
[151]
So, in our view, this Court should not be asking the question
“where is the harm?”  If it has been established,

although open to some doubt, that the Municipality is obliged to
follow certain procedures in changing the street names, and that
it
has not done so, then the harm is the unlawful act itself.
[152]
And, as we have suggested, the implications are broader than
street names, important as they are.  It is an issue of the rule

of law.  Afriforum has a right to adherence by the Municipality
to the rule of law.  And it is entitled to insist upon
it from
the time its right to adherence to the rule is established, even
though open to some doubt, and not only from the time
adherence to
the rule is finally established.  The Court should not suggest
that adherence to the rule of law in some cases
is of no value.
It is always of value.  And non-adherence is not capable of
reversal.
[153]
That will be relevant when weighing the balance of convenience
– the harm to the applicant if he or she ultimately succeeds
in
obtaining a final interdict, against the harm to the respondent if
the claim does not succeed, but that is a different matter,
falling
within the discretion of the court from which the interdict is
sought, and is not the inquiry before us.  The duty
of a court
in the present context, subject to balance of convenience
considerations, is to uphold a
prima facie
established right,
not to discount it as having no value.  The value lies in
upholding rights.
[154]
The first judgment denies this logical consequence in relation
to Afriforum’s asserted right.  It does so, first, because

of its characterisation of the nature and extent of the right and,
second, because the content of the right is not consonant with
its
conception of how best unity in diversity is achieved.  Neither
is justified.
Afriforum’s
asserted right of cultural and historic belonging
[155]
The first judgment approaches Afriforum’s asserted right
of cultural and historic belonging as an assertion of an entitlement

in perpetuity.  This cannot be, it says: “Afriforum and
its constituency do not have the right to have the old street
names
they treasure displayed in perpetuity.”
[93]
If that was indeed what Afriforum’s case was, we would agree
that it cannot be sustained.  But it is not.
[156]
As we understand its case it is much more modest in nature.
It contends that its cultural and historical sense of belonging
gives
it the additional kind of right or interest, outside that relied upon
in the review application, which
OUTA
requires in applications
for temporary orders.
[94]
Afriforum did not deny that the Municipality was entitled to change
the street names.  What it says is that it must
do so properly –
and that, until it does so, its members are entitled to the cultural
entitlements that flow from the existing
street names that have so
much meaning for them.  It bears repetition that it did not ask
for the temporary removal of the
new names, only that the old
crossed-out ones remain below them.  It is the taking away of
the old names that causes the harm,
not the remaining of the new
names.  And the period during which the old names were removed
and they felt the loss of belonging
can never be restored, just as in
the case of the parent and child in which that parent will never have
that weekend again, nor
the child.  Recognising this does not
imply that the harm must in all cases trump the other requirements
for temporary orders.
If the picture would have been in the
cupboard anyway, the court takes that into account in weighing the
balance of convenience.
The balancing exercise between the harm
suffered and other considerations must be done in the “balance
of convenience”
exercise and the ultimate discretion in
deciding whether to grant a temporary interdict.
[157]
So, to deny the harm is really to assert that there can be no
right of the kind Afriforum relies on.  It is better, we think,

to confront the issue of recognition of the kind of right Afriforum
asserts head on.  Then the nuances and difficulties of
the
“dilemma of difference”; the idea of different
fundamental rights underlying a broader notion of equal citizenship;

and the interrelation between individual and community in asserting
reliance on cultural rights,
[95]
may be openly addressed.  All this is by-passed by the first
judgment’s assertion that there is only one proper way
to
achieve unity in diversity under the Constitution.
[158]
In so doing it excludes Afriforum’s members not only
from the judicial process, as is the case here, but also from their
concerns
being respected in the Municipality’s own
participation process.  This is not an inevitable choice that
the Constitution
requires.  The Constitution is broad and
inclusive enough for our unity in diversity to survive even by
recognising and including
those who differ radically and wrongly from
the one espoused in the first judgment, and for recognition that the
historical past
of white people also includes much not to be ashamed
of.
[96]
[159]
We started off this judgment by stating that we write this
dissent in a spirit of humility.  It is difficult to recognise
the
rights and entitlements of those who deny the historical
injustices of our past and who dub them “so-called”
historical
injustices.  But recognition and tolerance of
difference, even radical difference, is what, in our view, the
Constitution
demands of us.  It is not consonant with the values
of the Constitution to deny constitutional protections to people
because
of the content of their beliefs, views and aspirations.
[160]
In the context of same-sex marriages, Sachs J declared in
Fourie
:
“A democratic, universalistic, caring and aspirationally
egalitarian society embraces everyone and accepts people for who
they
are.  To penalise people for being who and what they are is
profoundly disrespectful of the human personality and violatory
of
equality.  Equality means equal concern and respect across
difference.  It does not presuppose the elimination or

suppression of difference.  Respect for human rights requires
the affirmation of self, not the denial of self.  Equality

therefore does not imply a levelling or homogenisation of behaviour
or extolling one form as supreme, and another as inferior,
but an
acknowledgment and acceptance of difference.  At the very least,
it affirms that difference should not be the basis
for exclusion,
marginalisation and stigma. At best, it celebrates the vitality that
difference brings to any society. . . .
At issue is a need to
affirm the very character of our society as one based on tolerance
and mutual respect.  The test of
tolerance is not how one finds
space for people with whom, and practices with which, one feels
comfortable, but how one accommodates
the expression of what is
discomfiting.
As was said by this Court in
Christian Education
there are a
number of constitutional provisions that underline the constitutional
value of acknowledging diversity and pluralism
in our society, and
give a particular texture to the broadly phrased right to freedom of
association contained in section 18.
Taken together, they
affirm the right of people to self-expression without being forced to
subordinate themselves to the cultural
and religious norms of others,
and highlight the importance of individuals and communities being
able to enjoy what has been called
the ‘right to be different’.
In each case, space has been found for members of communities
to depart from a majoritarian
norm.”
[97]
[161]
Should members of Afriforum not be given the same kind of
space when renaming streets they hold dear is at issue?  Would
the
transformation of our society under the Constitution be
endangered if they were given that space?  For our part, we very
much
doubt it.  It may merely suggest the growing power of our
democracy.
Conclusion
[162]
For these reasons we would refuse leave to appeal.
JAFTA J:
[163]
I have had the benefit of reading the judgment of Mogoeng CJ
(first judgment) and the joint judgment of Froneman J and Cameron J

(second judgment).  I agree that leave must be granted and also
support the rest of the order proposed by the Chief Justice.

I disagree that the granting of leave here attenuates
“well-established and sensible rules and principles for hearing
appeals
against the grant of temporary interdicts” as suggested
in the second judgment.  Nor do I accept that the granting of

leave “here extends existing doctrine considerably”.
On the contrary, I am persuaded by reasons advanced by the
Chief
Justice in support of the order.  But I propose to add my own
reasons in support of that order.  And what is stated
in this
judgment relates to conclusions made in the second judgment and
reasons advanced in their support.
Historically
oppressive traditions
[164]
I am also troubled by the statement in the second judgment
which implies that a cultural tradition founded in history rooted in
oppression may find recognition in the Constitution.  And it
cannot be gainsaid that the oppression we are talking about here
was
based on race and therefore was racist to the core.  Its central
and yet false pillar was that the white race was superior
to other
races.  As many authorities show the Constitution creates a
clean break from our ugly past of racial oppression by
emphatically
rejecting discrimination based on race and the humiliation and
indignity suffered by black people at the hands of
their white
compatriots.  In the very first case to be heard by this Court
Mahomed J said:
“The South African Constitution is different: it retains from
the past only what is defensible and represents a decisive
break
from, and a ringing rejection of, that part of the past which is
disgracefully racist, authoritarian, insular, and repressive,
and a
vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos expressly

articulated in the Constitution.  The contrast between the past
which it repudiates and the future to which it seeks to commit
the
nation is stark and dramatic.”
[98]
[165]
How can that unquestionably transformative Constitution be
expected to recognise cultural traditions rooted in the racist past?

The answer must be, if there is such expectation, that it is
misplaced.  The fact that the oppressive racist history exists

at the level of fact does not mean that it deserves any recognition
in the Constitution.  Therefore, the implication which
the
second judgment says may be drawn from the first judgment, would be
the correct one.
[166]
In light of our racist past, the prohibition on unfair
discrimination, and equality were placed at the centre of our
constitutional
order.  To underscore this point, equality is not
only guaranteed as a right but also constitutes an important value
underpinning
the Constitution and the democratic order.
[99]
In
Hugo
this Court proclaimed:
“
The prohibition on unfair
discrimination in the interim Constitution seeks not only to avoid
discrimination against people who are
members of disadvantaged
groups.  It seeks more than that.  At the heart of the
prohibition of unfair discrimination
lies a recognition that the
purpose of our new constitutional and democratic order is the
establishment of a society in which all
human beings will be accorded
equal dignity and respect regardless of their membership of
particular groups.  The achievement
of such a society in the
context of our deeply inegalitarian past will not be easy, but that
that is the goal of the Constitution
should not be forgotten or
overlooked.
”
[100]
[167]
It was the shameful racist past properly described in the
first judgment which led to streets and buildings in every town in
this
country, including Pretoria, reflecting exclusively the names of
white people.  Black people were precluded from residing in

these areas which constituted nearly 90% of the entire country.
They were forced to live in segregated townships designed
exclusively
for black people and usually far from towns and cities in which they
were regarded as providers of labour and nothing
more.
[168]
In
Brink
this Court declared that the equality clause
must be understood in the context of that painful past which was
described in these
terms:
“
As in other national
constitutions, section 8 [in the Interim Constitution] is the product
of our own particular history.  Perhaps
more than any of the
other provisions in chapter 3, its interpretation must be based on
the specific language of section 8, as
well as our own constitutional
context.  Our history is of particular relevance to the concept
of equality.  The policy
of apartheid, in law and in fact,
systematically discriminated against black people in all aspects of
social life.  Black
people were prevented from becoming owners
of property or even residing in areas classified as ‘white’,
which constituted
nearly 90% of the landmass of South Africa; senior
jobs and access to established schools and universities were denied
to them;
civic amenities, including transport systems, public parks,
libraries and many shops were also closed to black people.  Instead,

separate and inferior facilities were provided.  The deep scars
of this appalling programme are still visible in our society.
It
is in the light of that history and the enduring legacy that it
bequeathed that the equality clause needs to be interpreted.
”
[101]
[169]
It is against this context that the first judgment must be
understood.  The cultural rights guaranteed by section 31 of the

Constitution must also be construed not only in the context of
section 31(2) but also in the setting of our past.
[102]
Section 31(2) pronounces that the guaranteed cultural rights may not
be exercised in a manner inconsistent with any provision
of the Bill
of Rights.  Therefore there can be no justification for
recognition of cultural traditions or interests “based
on a
sense of belonging to the place where one lives” if those
interests are rooted in the shameful racist past.
[170]
There can be no gainsaying that names like Kaferkraal are so
offensive that they have no place in our constitutional order.

Yet such names may form part of where one lives and be linked to his
or her sense of belonging.  The retention of offensive
names
under the guise of exercising cultural rights should be rejected by
all people who embrace our constitutional dispensation.
As
Mahomed J remarked:
“What the Constitution expressly aspires to do is to provide a
transition from these grossly unacceptable features of the
past to a
conspicuously contrasting—
‘future
founded on the recognition of human rights, democracy and peaceful
co-existence and development opportunities for
all South Africans,
irrespective of colour, race, class, belief or sex.’”
[103]
[171]
By making many of the remarks which the second judgment finds
objectionable, the first judgment articulates the repudiation of the

shameful past by the Constitution and its “aspirationally
egalitarian ethos” which was affirmed in
Makwanyane
and
many other decisions of this Court
.
It is the
Constitution itself which defines how transformation of our society
should be pursued and not the first judgment which
merely serves as
its mouthpiece.  It cannot be gainsaid that it is the primary
duty of this Court to interpret the Constitution
so that the other
arms of government which are charged with the responsibility of
driving the transformation project may know what
exactly those
responsibilities entail.
[104]
When the Court declares what the Constitution envisages, it does not
impermissibly intrude into their terrain and “prescribe
to them
what choices to make”.
[172]
While the second judgment declares that it does not agree with
Afriforum’s view of history, it proceeds to make a number of

conclusions on associational cultural rights which go beyond the
question whether the Full Court’s order was appealable.
[105]
In my respectful view this is not necessary.  More so in light
of the fact that the second judgment itself is not certain
whether
what is engaged is an interest or a right.  In this regard, the
second judgment says:
“And that is where we must part from the first judgment.
On general principle we think the Constitution creates scope
for
recognising an interest or right based on a sense of belonging to the
place where one lives, rooted in its particular history,
and to be
involved in decisions affecting that sense of place and
belonging.”
[106]
[173]
If indeed what is implicated is merely an interest and not a
right, its existence did not support the granting of an interdict in

the first place, for an interdict is not granted to preserve an
interest but a right which may be irreparably harmed, pending the

final determination of the parties’ rights in the main
proceedings.  Hence the requirement that the applicant for an

interdict must establish at least a
prima facie
right in order
to succeed.
[174]
Moreover, an examination of sections 30 and 31 of the
Constitution does not support the right to a sense of belonging to
the place
where one lives which is rooted in its particular history.
These sections guarantee specific rights.  Section 30 guarantees

the right to participate in the cultural life of one’s
choice.
[107]
Whereas section 31 entrenches the associational right of persons
belonging to a cultural community to enjoy their culture.
[108]
But both sections create internal limitations to the exercise of each
of these rights.  These rights may not be enjoyed
or exercised
“in a manner inconsistent with any provision of the Bill of
Rights”.  This means that these rights
may not be
exercised in a manner that discriminates unfairly or demeans the
dignity of other people.  That is why racist and
oppressive
cultural traditions have no place in our constitutional order, even
though they may exist in history.  In contrast,
such traditions
belong in the dust-bins of history where they ought to be buried.
[175]
The internal modifiers of both rights limit their scope.
This is a clear indication that any claim to the enjoyment of culture

may not include an entitlement to racist and oppressive cultural
traditions of the colonial and apartheid era.  Recognition
of
racist traditions is inconsistent with our constitutional order which
seeks to establish “society in which all human beings
will be
accorded equal dignity and respect regardless of their membership of
particular groups”.  And thus in
Makwanyane
Sachs J
pronounced:
“
Constitutionalism in our
country also arrives simultaneously with the achievement of equality
and freedom, and of openness, accommodation
and tolerance.  When
reviewing the past, the framers of our Constitution rejected not only
the laws and practices that imposed
domination and kept people apart,
but those that prevented free discourse and rational debate, and
those that brutalised us as
people and diminished our respect for
life.
”
[109]
[176]
Therefore an interpretation of our Constitution advanced in
the second judgment, to the effect that “the Constitution
creates
scope for recognising an interest or right based on a sense
of belonging to the place where one lives”, rooted in
oppression
is untenable.  It does not conform with the clean
break from the history characterised by discrimination, humiliation
and
indignity suffered by black people and which the Constitution
loudly rejects.  In unmistaken terms the Constitution commits

our nation to reject all disgraceful and shameful practices and
traditions of the apartheid era and embrace equalitarian ethos
in
pursuit of transformation of our society into a caring one in which
everyone enjoys equal rights and opportunities to realise
fully their
individual potential as members of society.
Appealability
[177]
An impression is created in the second judgment that the first
judgment considerably extends existing doctrine on whether leave to

appeal should be granted against temporary interdicts.  This,
concludes the second judgment, is not justified by the facts
and the
law.  In my respectful opinion this conclusion is incorrect.
[178]
Having rightly stated that the standard for determining
whether leave should be granted in this Court is that of the
interests of
justice, the second judgment proceeds to conflate that
standard with the common law test to the effect that the order that
is purely
interlocutory is not appealable.
[110]
In so doing the second judgment overlooks fundamentally that the
common law standard does not apply in this Court.
[179]
The interests of justice and this standard alone applies to
adjudication of applications for leave to this Court.
[111]
This is so because that standard is prescribed by the Constitution.
Section 167(6) of the Constitution provides:
“National legislation or rules of the Constitutional Court must
allow a person, when it is in the interests of justice and
with leave
of the Constitutional Court—
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other court.”
[180]
It is apparent from this provision that all matters whether
brought directly to this Court as a court of first instance or on
appeal,
reach the Court with its leave.  Although the
Constitution permits legislation and the rules to regulate access to
the Court,
significantly the constitutional injunction is that such
legislation or rules must allow a litigant to bring a matter to this
Court
subject to two conditions only.  These are the interests
of justice and the leave of the Court.  I agree with the second

judgment that by now our law is settled on what the interests of
justice entail.  The fact that at common law an interlocutory

order is generally not appealable is but one of the many factors that
go into the pot when determining if in a particular case,
it is in
the interests of justice to grant leave.
[181]
It does not mean that once it is shown that the order appealed
against is interlocutory and that it has no final effect, then leave

must be refused as a matter of law.  Far from it.  This
Court must still determine whether, despite the nature of the
order,
it will be in the interests of justice to grant leave.  The
nature and effect of the order alone are not determinative
of the
issue.  Therefore reliance placed on
Pretoria Garrison
Institutes
is misplaced.
[112]
For obvious reasons that decision was not based on section 167(6) of
the Constitution.  Nor did it address legislation
or the rules
of this Court that give effect to that provision of the Constitution.
[182]
But another jurisprudential flaw in applying the common law
test is this.  Here the temporary interdict granted by Prinsloo

J was appealed to the Full Court with leave of the Supreme Court of
Appeal.  Therefore, the question of its appealability
is
irrelevant for present purposes.  This is because the Supreme
Court of Appeal has already determined that issue.
It came to
the conclusion that the order was appealable and granted leave to the
Full Court.  That order by the Supreme Court
of Appeal is not
challenged before us nor could it be impugned, because that horse has
long bolted.
[183]
Once the Supreme Court of Appeal granted leave, the Full Court
was obliged to adjudicate the appeal.  The argument that was

advanced before that Court on appealability was irrelevant.
That Court could not refuse to hear the matter even if it held
the
view that the order was not appealable.  It was bound by the
order of the Supreme Court of Appeal that allowed an appeal
against
Prinsloo J’s order.
[184]
Moreover the appeal before us, as the first judgment mentions,
lies against the order of the Full Court and not of the Court of
first instance.  The Full Court did not issue a temporary
interdict.  That was the order of the Court of first instance

which was upheld on appeal.  In these proceedings the City seeks
to appeal against the order of the Full Court in terms of
which its
appeal was dismissed with costs on a punitive scale of attorney and
client.  The second judgment overlooks this
fundamental point
and proceeds on the footing that we are called upon to determine if
the temporary interdict is appealable.
But that is practically
impossible in the present circumstances.  We cannot and it is
not competent for us to unscramble that
egg at this late hour.
[185]
It could be open to this Court to consider the appealability
point in respect of the interdict if leave was rejected by the other

courts and the Full Court did not adjudicate the appeal.
Affirming this principle this Court proclaimed in
Mabaso
:
“[W]here an application for leave to appeal to the Supreme
Court of Appeal is refused by the President of the Supreme Court
of
Appeal, a refusal which is ordinarily unaccompanied by reasons, any
subsequent appeal to this Court is considered to be an appeal,
not
against the decision of the Supreme Court of Appeal, but against the
High Court decision, and the time for lodging the appeal
is duly
extended. This is consistent with the jurisprudence of this Court
under the earlier rules.”
[113]
[186]
But even at common law, the principle that an interlocutory
order is not appealable is applied flexibly.  The rule is that
even the so-called purely interlocutory orders are appealable with
the leave of the court which had issued the order.  Thus
in
Oliff
the Appellate Division remarked:
“This matter must, therefore, stand over to enable the
plaintiff to apply within twenty -one days of this judgment to

the Court
a quo
for leave to appeal.  If that Court
grants such leave and the order granting leave is lodged with the
Registrar of this Court,
we, having heard argument on the merits,
will be in a position to deliver a judgment on the merits and to make
an appropriate order
as to costs.  If the Court
a quo
refuses leave to appeal and the order refusing such leave is lodged
with the Registrar of the Court, this matter will, without
any
further order of this Court, be deemed to have been struck off the
roll with costs.”
[114]
[187]
In that context the main issue was whether the court of appeal
had jurisdiction to entertain an appeal against a temporary order
and
that it would have the jurisdiction if leave was granted by the court
of first instance.  Consistent with this principle
in
McLean
the Court said:
“I think a summary judgment under our rule of Court 22 is a
purely interlocutory order or judgment. . . .  It is an
accepted
principle of our law that a litigant should exhaust his remedies in
the
forum
having jurisdiction before appealing to higher
tribunal . . . .
So here an aggrieved defendant should exhaust his remedies under rule
22 before appealing against a summary judgment unless, for
some good
reason, he can persuade the Judge
a quo
to give him leave to
appeal.”
[115]
[188]
And later the principle was further explained by the Appellate
Division in
Engineering Management Services
in these terms:
“In a wide and general sense the term ‘interlocutory’
refers to all orders pronounced by the Court, upon matters
incidental
to the main dispute, preparatory to, or during the progress of, the
litigation.  But orders of this kind are divided
into two
classes: (i) those which have a final and definitive effect on
the main action; and (ii) those, known as ‘simple
(or purely)
interlocutory orders’ or ‘interlocutory orders proper’,
which do not . . . .
Statutes relating to appealability of judgments or orders (whether it
be appealability with leave or appealability at all) which
use the
word ‘interlocutory’, or other words of similar import,
are taken to refer to simple interlocutory orders.
In other
words, it is only in the case of simple interlocutory orders that the
statute is read as prohibiting an appeal or making
it subject to the
limitation of requiring leave, as the case may be.  Final
orders, including interlocutory orders having
a final and definitive
effect, are regarded as falling outside the purview of the
prohibition or limitation.”
[116]
[189]
Two important issues emerge from this statement of the law.
The first is that the genesis of the prohibition against an appeal
in
relation to an interlocutory order is a statute.  The same
applies to a limitation that subjects such appeal to the requirement

of leave.  The second is that this statutory prohibition or
limitation applies to simple or purely interlocutory orders only.

The final orders and interlocutory orders “having a final and
definitive effect”, are regarded as falling outside the
purview
of the prohibition or limitation.
[190]
This means undoubtedly that final orders and interlocutory
orders with final effect are appealable without leave from the court
that granted the order subject to an appeal.  But for a litigant
to appeal against a simple interlocutory order, she requires
leave of
the court of first instance.  Absent that leave there can be no
appeal.  But if leave is granted, the appeal
must be
entertained, regardless of the fact that it is against a purely
interlocutory order.  Here that issue was determined
by the
Supreme Court of Appeal when it granted leave to the Full Court.
[191]
For reasons already mentioned that principle cannot apply to
cases brought to this Court because its jurisdiction is not derived

from statute but the Constitution itself.  It is the
Constitution that says access to this Court is subject to leave being

granted by the Court.  No legislation can change that.  In
contrast appeals to other courts are subject to leave being
granted
by a court other than the court to which the appeal lies.  For
example, the Full Court entertains appeals only where
leave is
granted by the court of first instance, or, as was the case here, by
the Supreme Court of Appeal.  The Supreme Court
of Appeal in
turn adjudicated appeals with leave of the court against whose order
the appeal lies or with its own leave.
This illustrates that
the position of this Court is unique.
[192]
But even if the order that was appealed was that of the Court
of first instance, that is the temporary interdict itself, I would

support the granting of leave here for all the reasons articulated in
the first judgment.  Just like the Supreme Court of
Appeal that
granted leave to appeal against the same interim interdict.  The
common law rule that an appeal against an interim
order reaches the
appeal court if leave is granted by the court of first instance
cannot apply in respect of this Court because
no court has authority
to grant leave to it.  Consequently the judgment extends no
principle.  Nor was any such rule
or principle attenuated by the
first judgment to correct injustices of the past.  On the
contrary the judgment exercises a
constitutional power duly conferred
on this Court by section 167(6) of the Constitution.
[193]
To sum up, the criticisms in the second judgment levelled at
the judgment of the Chief Justice cannot be sustained and as a result

are not warranted.  I have illustrated that a construction of
the Constitution as recognising racist cultural traditions is

mistaken.  Equally ill-conceived is the proposition that by
granting leave the Chief Justice extends existing doctrine and

attenuates well-established principles precluding appeals against
temporary interdicts.  This is so for a number of reasons.

First, the only standard that applies to applications for leave to
this Court is the interests of justice and derives from the

Constitution and not the common law.  Second, the appeal mounted
by the City is against the order of the Full Court and not
the
temporary interdict.  Third, the common law itself does not
prohibit an appeal against a temporary order or an interim
interdict
but requires leave to be granted by the court of first instance.
Fourth, that principle cannot apply here because
no other court has
the power to grant access to the Constitutional Court.  Fifth,
the decision of the Supreme Court of Appeal
to grant leave here still
stands, as it was never challenged.
[194]
Consequently I support the order made in the first judgment
and the reasons advanced to motivate it on the merits.
For the Applicant: T
Motau SC, L Kutumela
instructed by
Gildenhuys Malatji Inc
For the Respondents:
R J Raath SC, R J Groenewald
instructed by Hurter
Spies Inc
[1]
The respondents will be referred to as “Afriforum”
throughout the judgment.  This should by no means be
misunderstood
as a sign of disrespect or disregard for Mr Van Dyk.
It is done purely for convenience.
[2]
There has been numerous but comparatively fewer and less frequent
open or public incidents of blatant racism over the years.
[3]
National Treasury and Others v Opposition to Urban Tolling
Alliance and
Others
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (
OUTA
) at para 50
.
[4]
See
City of Tshwane Metropolitan Municipality v Afriforum and
Another
[2015] ZAGPPHC 1056 (Full Court judgment).
[5]
OUTA
above n 3 at para 53.
[6]
Id at para 50.
[7]
I assume without deciding that
Democratic Alliance v Ethekwini
Municipality
[2011] ZASCA 221
;
2012 (2) SA 151
(SCA) (
Ethekwini
)
could be relied on as authority for the proposition that this
section is the constitutional basis for public participation at
the
local government level.
[8]
Section 33 of the Constitution.
[9]
OUTA
above n 3 at para 24.  See also
Zweni v Minister
of Law and Order
1993 (1) SA 523
(A) (
Zweni
) at paras
532J-533A,where the Court stated that:
“[F]irst, the decision must be final in effect and not
susceptible of alteration by the Court of first instance; second,
it
must be definitive of the rights of the parties; and, third, it must
have the effect of disposing of at least a substantial
portion of
the relief claimed in the main proceedings.”
[10]
Section 151 of the Constitution states:
“Status of municipalities
(1)
The local sphere of government
consists of municipalities, which must be established for the whole
of the territory of the Republic.
(2)
The executive and legislative
authority of a municipality is vested in its Municipal Council.
(3)
A municipality has the right to
govern, on its own initiative, the local government affairs of its
community, subject to national
and provincial legislation, as
provided for in the Constitution.
(4)
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.”
[11]
Section 63(1) of the Local Government
Ordinance 17 of 1939 reads as follows:
“
The council shall have the control and
management of all—
(a) roads, streets, thoroughfares, bridges, overhead
bridges, subways, including foot pavements, footpaths, side-walks,
and lanes;
(b) squares and other open spaces, gardens, and other
enclosed spaces;
(c) culverts, and ferries;
(d) dams, canals, reservoirs water-courses, and
water-furrows;
which have been or shall be at any time be set apart
and appropriated by proper authority for the use and benefit of the
public,
or to which the inhabitants of the municipality shall at any
time have or acquire a common right. . . .”
Section
69(1)(a) reads as follows:
“The Council may from time to time cause the houses, buildings
or erections fronting upon all or any public places to be
marked
with such number as it thinks fit, and may cause the name, by which
any public place is to be known, to be put up or painted
on a
conspicuous part of any house, building, fence, wall or place
fronting thereon, and may further at its distraction change
or vary
such number or name, whether or not such name or number existed
before the commencement of this Ordinance, and any change
or
variation in the name of any public place shall forthwith be
notified by the council to the Surveyor-General who shall make
the
necessary alterations on the general plan of the township; provided
that no change in the name of a public place shall be
made except
with the consent of the Administrator after reference to the
Surveyor-General. . . .”
[12]
See
Zwen
i above n 9 at paras 532J-533A.
[13]
South African Informal Traders Forum and Others v City of
Johannesburg and Others; South African National Traders Retail
Association
v City of Johannesburg and Others
[2014] ZACC 8
;
2014 (4) SA 371
(CC);
2014 (6) BCLR 726
(CC) (
Informal Traders
)
at para 17 states that:
“This provision [section 167(6) of the Constitution] makes it
plain that the Court has a wide appellate jurisdiction on

constitutional matters.  It may decide whether to hear an
appeal from any court on any constitutional dispute provided it

serves the interests of justice to do so.  There is no
pre-ordained divide between appealable and non-appealable issues.

Provided a dispute relates to a constitutional matter, there is no
general rule that prevents this Court from hearing an appeal
against
an interlocutory decision such as the refusal of an interim
interdict.  However, it would be appealable only if
the
interests of justice so demand.  Thus, this Court would not
without more agree to hear an appeal that impugns an interlocutory

decision, especially because such a decision is open to
reconsideration by the court that has granted it.  Doing so
would
be an exception rather than the norm.”
[14]
OUTA
above n 3 at para 25.
[15]
Id at para 26.
[16]
Id at para 25.
[17]
See generally
OUTA
above n 3 at paras 25, 26 and 27.
[18]
OUTA
above n 3 at para 47.
[19]
Id at para 71.
[20]
Gool v Minister of Justice and Another
1955 (2) SA 682
(CPD)
at paras 688F and 689B-C.  This authority was endorsed by
OUTA
above n 3 at para 43.
[21]
Full Court judgment above n 4 at para 107.
[22]
Ethekwini
above n 7.
[23]
Full Court judgment above n 4 at para 108.
[24]
In paragraph 5.4 of the Full Court judgment it says:
“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

African Geographical Names Act No. 118 of 1998, section 33 and
section 41(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.”
[25]
118 of 1998.
[26]
25 of 1999.
[27]
56 of 2003.
[28]
See
Minister of Health and Others v Treatment Action Campaign and
Others (No I)
[2002] ZACC 16
;
2002 (5) SA 703
(CC);
2002 (10)
BCLR 1075
(CC) (
TAC 1
) at paras 5 and 12, the Court had this
to say about the grant of leave to appeal against an interim order:
“The ordinary rule is that the noting of an appeal suspends
the implementation of an order made by a court.  An interim

order of execution is therefore special relief granted by a Court
when it considers that the ordinary rule would render injustice
in a
particular case.  Were the interim order to be the subject of
an appeal, that, in turn, would suspend the order.”
. . .
“[F]or an applicant to succeed in such an application, the
applicant would have to show that irreparable harm would result
if
the interim appeal were not to be granted  –– a
matter which would, by definition, have been considered by
the Court
below in deciding whether or not to grant the execution order.
If irreparable harm cannot be shown, an application
for leave to
appeal will generally fail.”
[29]
See
Informal Traders
above n 13 at para 20.
[30]
OUTA
above n 3 at paras 66 and 71.
[31]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[32]
Webster v Mitchell
1948 (1) SA 1186 (WLD).
[33]
Section 31 of the Constitution provides that
:
“
(1) Persons belonging to a cultural,
religious or linguistic community may not be denied the right, with
other members of that
community
—
(a)
to enjoy their culture, practise
their religion and use their language; and
(b)
to form, join and maintain
cultural, religious and linguistic associations and other organs of
civil society.
(2)
The rights in subsection (1) may
not be exercised in a manner inconsistent with any provision of the
Bill of Rights.”
(3)
[34]
We leave open the question whether
Ethekwini
above n 7 was
correctly decided.
[35]
OUTA
above n 3 at para 25.
[36]
See above n 4.
[37]
See above n 5.
[38]
International Trade Administration Commission v SCAW South Africa
(Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
) at para 95.
[39]
See
OUTA
above n 3 at para 71.
[40]
Gauteng Gambling Board and Another v MEC for Economic
Development, Gauteng Provincial Government
[2013] ZASCA 67
;
2013
(5) SA 24
(SCA) (
Gauteng Gambling Board
) at para 51.
[41]
Li Kui Yu
v Superintendent of Labourers
1906 TS 181
at
194.
[42]
Id.
[43]
Roberts v Chairman, Local Road
Transportation Board
1980
(2) SA 472
(C) at 488.
[44]
OUTA
above n 3 at para 25.
[45]
Albutt v Centre for the Study of Violence and Reconciliation
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
22.
[46]
Id at para 24.  See also
Informal Traders
above n 13 at
para 20.
[47]
Informal Traders
above n 13 at para 20(g).
[48]
Albutt
above n 45 at para 23.
[49]
TAC I
above n 28 at para 5.
[50]
Id at para 12.
[51]
Informal Traders
above n 13 at para 21.  See also
Machele and Others v Mailula and Others
[2009] ZACC 7
;
2010
(2) SA 257
(CC);
2009 (8) BCLR 767
(CC) (
Machele
) at paras
22-5; and
Cronshaw and Another v Fidelity Guards Holdings (Pty)
Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(SCA) (
Cronshaw
) at
691C F.
[52]
TAC I
above n 28 and
Machele
above n 51.
[53]
Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839 (A).
[54]
Id at 870.  See also
Cronshaw
above n 51 at
690D-G; and
African Wanderers F.C. v Wanderers F.C.
1977 (2)
SA 38
(AD) at 48B-H.
[55]
Atkin v Botes
[2011] ZASCA 125
;
2011 (6) SA 231
(SCA) at para
12; and
Informal Traders
above n 13 at para 17.
[56]
C
ronshaw
above n 51 at 690I-691A.
[57]
SA Reserve Bank v Khumalo
[2010] ZASCA 53
;
2010 (5) SA
449
(SCA) (
Khumalo
).
[58]
First judgment at [46].
[59]
Khumalo
above n 57 at para 4.
[60]
OUTA
above n 3 at para 25.
[61]
Id at para 27.
[62]
Id.
[63]
Id at para 2.
[64]
Though they were not – the Supreme Court of Appeal dismissed
the review application against the tolls, and there was no
appeal to
this Court:
Opposition to Urban Tolling Alliance v South African
National Roads Agency Ltd
[2013] ZASCA 148; [2013] 4 All SA 639
(SCA).
[65]
OUTA
above n 3 at para 67.
[66]
ITAC
above n 38.
[67]
President of the Republic of South Africa and Others v United
Democratic Movement and Others (African Christian Democratic Party

and Others Intervening; Institute for Democracy in South Africa and
Another as Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) (
UDM
).
[68]
Glenister v President of the Republic of South Africa and Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC)
(
Glenister I
).
[69]
Id at para 2;
ITAC
above n 38 at paras 4-7 and
UDM
above n 67 at para 5.
[70]
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12)
BCLR 1399
(CC) at paras 89, 101 and 111.
[71]
For cases dealing with the importance and value of public
participation, see
Moutse Demarcation Forum and Others v
President of the Republic of South Africa and Others
[2011] ZACC
27
;
2011 (11) BCLR 1158
(CC);
Merafong Demarcation Forum and
Others v President of the Republic of South Africa and Others
[2008] ZACC 10
[2008] ZACC 10
; ;
2008 (5) SA 171
(CC);
2008 (10) BCLR 968
(CC);
and
Matatiele Municipality and Others v President of the Republic
of South Africa and Others
(2) [2006] ZACC 12
[2006] ZACC 12
; ;
2007
(6) SA 477
(CC);
2007 (1) BCLR 47
(CC) (
Matatiele
).
[72]
Ethekwini
above n 7 at paras 23-4.
[73]
Id at paras 18-21.
[74]
OUTA
above n 3 at paras 48 and 52.
[75]
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
[2011] ZACC 33
;
2012 (2) SA
104
(CC);
2012 (2) BCLR 150
(CC) (
Blue Moonlight
) at para 74.
[76]
Article 9 of the Constitution of the South African [Transvaal]
Republic provided:
“The people are not prepared to allow any equality of the
non-white with the white inhabitants, either in Church or State.”
[77]
In
Gauteng Provincial Legislature In re: Gauteng School Education
Bill of 1995
[1996] ZACC 4
;
1996 (3) SA 165
(CC);
1996 (4) BCLR
537
(CC) at paras 39 and 40, Kriegler J remarked in relation to the
use of the Afrikaans language in education:
“Dit is en bly egter ’n skans teen verswelging van enige
minderheid se gemeenskaplike kultuur, taal of godsdiens.

Solank ’n minderheid daadwerklik wagstaan oor sy
gemeenskaplike erfgoed, solank is dit sy onvervreembare reg om eie
onderwysinstellings
ter behoud van kultuur, taal of godsdiens tot
stand te bring.
Daar is egter twee belangrike voorbehoude.  Ten eerste is die
slotwoorde van die betrokke subartikel ondubbelsinnig; daar
mag geen
diskriminasie op grond van ras wees nie.  Die Grondwet bied dus
geen beskerming vir rassevooroordeel op die onderwysterrein
nie. ’n
Gemeenskaplike kultuur, taal of godsdiens met rassisme as ’n
wesenselement het geen konstitusionele aanspraak
op die vestiging
van afsonderlike onderwysinstellings nie.  Die Grondwet beskerm
verskeidenheid, nie rassediskriminasie
nie.”
Translation:
“However, it is and remains a bulwark against the swamping of
any minority’s common culture, language or religion.
For
as long as a minority actually guards its common heritage, for so
long will it be its inalienable right to establish
educational
institutions for the preservation of its culture, language or
religion.  There are, however, two important qualifications.

Firstly, the concluding words of the subsection in question
are unequivocal; there must be no discrimination on the ground
of
race.  The Constitution gives no protection therefore against
racial prejudice in the field of education.  A common
culture,
language or religion having racism as an essential element has no
constitutional claim to the establishment of separate
educational
institutions.  The Constitution protects diversity, not racial
discrimination.”
[78]
For a general discussion see Firoz and Cachalia “Right to
Culture” in Cheadle, Davis and Haysom (eds)
South African
Constitutional Law – The Bill of Rights
(Butterworths,
Durban 2002) at 25.3; Chaskalson et al
Constitutional Law of
South Africa
2
ed (Juta & Co Ltd, Cape Town 2005)
chapter 58 and Currie and De Waal
The Bill of Rights
Handbook
6
ed (Juta & Co Ltd, Cape Town 2013)
chapter 28.
[79]
See [172] of the third judgment, citing [121] to [124] .
[80]
Id.
[81]
See above n 78.
[82]
See [169] of the third judgment.
[83]
See [122].
[84]
See [164] of the third judgment.
[85]
Thompson
A History of South Africa
4 ed (Yale University
Press, New Haven & London 2014) at 87:
“In transforming the farming society of south-eastern Africa,
the Mfecane wrought great suffering.  Thousands died
violent
deaths.  Thousands more were uprooted from their homes.
Village communities and chiefdoms were eliminated.
A century
later, Solomon Tshekiso Plaatje, a Motswana, started his novel
Mhudi
with tragic events in the Mfecane.  Yet, in Thomas Mokopu
Mofole’s well known novel
Chaka
, written in Sesotho and
translated into English, German, French, and Italian, and in an epic
poem by Masizi Kunene, the name
of Shaka has passed into African
literature and the consciousness of modern Africans as a symbol of
African heroism and power.”
[86]
The sometimes ghastly racist things Mahatma Gandhi said about black
South Africans are collated from his collected works
at:
http://atlantablackstar.com/2015/03/31/not-all-peaceful-13-racist-quotes-gandhi-said-about-black-people/
accessed on 1 July 2016.
.
Despite this, under
the democratic government a square in Johannesburg was formally and
ceremoniously named after Gandhi.
[87]
See [7] of the first judgment.
[88]
Id at [9].
[89]
Id at [11].
[90]
Corium (Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd
1993 (1)
SA 853
(C) at 857J-858J;
Bamford v Minister of Community
Development
1981 (3) SA 1054
(C); and
Braham v Wood
1956
(1) SA 651
(D&CLD) at 655A-C and H.
[91]
Stern & Ruskin NO v Appleson
1951 (3) SA 800
(W) at 813B;
and
Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2)
SA 382
(D) at 384F-G.
[92]
See [56] to [58] of the first judgment.
[93]
See [60] of the first judgment.
[94]
OUTA
above n 3 at para 41.
[95]
See the discussions referred to above n 78.
[96]
In his famous “I am an African” speech in Parliament at
the adoption of the Constitution, then Deputy President Mbeki

included these people and features of history:
“I am an African.
…
I am formed of the migrants who left Europe to find a new home on
our native land. Whatever their own actions, they remain still,
part
of me.
…
I am the grandchild who lays fresh flowers on the Boer graves at St
Helena and the Bahamas, who sees in the mind’s eye
and suffers
the suffering of a simple peasant folk, death, concentration camps,
destroyed homesteads, a dream in ruins.
…
I am he who made it possible to trade in the world markets in
diamonds, in gold, in the same food for which my stomach yearns.”
For the full
version see
http://www.unisa.ac.za/default.asp?Cmd=ViewContent&ContentID=25146
accessed on 1 July 2016.
[97]
Minister of Home Affairs and Another v Fourie and Another
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC)
(
Fourie
) at paras 60-1.  See also
Premier, Mpumalanga
v Executive Committee, Association of State-Aided Schools, Eastern
Transvaal
[1998] ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) at para 1, where the Court observed:
“This case highlights the interaction between two
constitutional imperatives, both indispensable in this period of
transition.
The first is the need to eradicate patterns of
racial discrimination and to address the consequences of past
discrimination
which persist in our society, and the second is the
obligation of procedural fairness imposed upon the government.
Both
principles are based on fairness, the first on fairness of
goals, or substantive and remedial fairness, and the second on
fairness
in action, or procedural fairness.  A characteristic
of our transition has been the common understanding that both need

to be honoured.”
[98]
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262.
[99]
See sections 1, 7, 9 and 36 of the Constitution.
[100]
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC); 1997 (6) BCLR (CC) 708 at
para 41.
[101]
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996
(6) BCLR 752
(CC) at para 40.
[102]
Section 31 provides:
“1 Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of
that
community—
(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
2 The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.”
[103]
Makwanyane
above n 98 at para 262.
[104]
Second judgment at [80].
[105]
Second judgment at [121] to [124].
[106]
Id at [124].
[107]
Section 30 provides:
“Everyone has the right to use the language and to participate
in the cultural life of their choice, but no one exercising
these
rights may do so in a manner inconsistent with any provision of the
Bill of Rights.”
[108]
See above n 102.
[109]
Makwanyane
above n 98 at para 391.
[110]
Second judgment at [83] to [98].
[111]
Informal Traders
n 13 above.
[112]
See above n 53.
[113]
Mabaso v Law Society of the Northern Provinces
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 18; and
Swartbooi and Others v Brink and Another
(1)
[2003]
ZACC 5
;
2003 (5) BCLR 497
(CC) at para 3-4.
[114]
Oliff v Minnie
1952 (4) SA 369
(A) at 376B-D.
[115]
Mclean v Wood NO
1953 (1) SA 215
(C) at 217-18.
[116]
South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd
1977
(3) SA 534
(A)
(
Engineering Management Services
)
at 549G – 550A.