Streets named after a country’s heroes and heroines can be a hotly contested and emotive issue, especially in a country such as South Africa, with its colonial and apartheid past. This was illustrated in the recent Constitutional Court case of City of Tshwane Metropolitan Municipality v AfriForum and Another (the “AfriForum case”), which not only dealt with this sensitive topic, but also clarified an important legal issue – whether an interim interdict can be appealed.
Briefly, interdicts order parties to do something or to stop doing something in an effort to avoid irreparable harm. As court cases may take some time to be heard, parties may apply for an interim interdict to provide temporary relief until the court hears the full matter and makes a final order. Due to their temporary nature, interim interdicts are generally not considered to be appealable. But, as the AfriForum case demonstrates, this principle is not cast in stone.
the AfriForum case
The AfriForum case has its roots in a decision by the City of Tshwane Metropolitan Municipality (“CoT”) to change 25 of Pretoria’s old street names, like Dr Hendrik Verwoerd and Louis Botha, to new ones like President Nelson Mandela and Steve Biko “to shed Pretoria of its colonial and apartheid legacy”. NGO AfriForum opposed the changes, viewing them as “an assault” on Afrikaner history and heritage. The organisation and an individual taxpayer (collectively referred to as “AfriForum”) launched a court application to review the CoT’s decision, claiming insufficient public participation. They also applied for an interim interdict to stop the CoT removing the old street names and directing it to restore those it had already removed, pending the outcome of the review.
The interim interdict was granted by the high court, which accepted that the old street names were a historical treasure and heritage “so intimate to the very being of the Afrikaner people” and that even their temporary removal would cause irreparable harm.
Unhappy with this result, the CoT applied to the high court for leave to appeal the interdict, which was initially denied, but later granted after it petitioned the Supreme Court of Appeal (“SCA”). However, this victory was short lived as a full court dismissed the appeal, and the SCA refused leave to appeal the ruling of the full court. The CoT then approached the Constitutional Court, where, on 21 July 2016, it was finally successful. The CoT had argued that AfriForum had not satisfied the requirements for an interim interdict, particularly because it failed to show that it stood to suffer irreparable harm if it was not granted, and that the balance of convenience favoured it. At the centre of the case was the question of whether or not an interim interdict can be appealed.
the Constitutional Court judgment
The court noted that, under the common law, whether an interim order is appealable depends on whether it is final in effect. However, this has changed since the enactment of the Constitution and the courts now need to consider the overarching constitutional standard, which is whether an appeal would best serve the interests of justice.
In the majority judgment written by Chief Justice Mogoeng Mogoeng, the court noted that South Africa still looked “very much like Europe” and the fact that few of the country’s city, town and street names give recognition to black people does not reflect a commitment to the spirit of unity, transformation and reconciliation.
It added that courts should be slow to interfere in the exercise of legitimate government powers by another branch of government; here the CoT, which was responsible for street names in Pretoria. However, this was not an ordinary application for an interim order as it concerned transformation and the related right to govern, and the court found that it was in the interests of justice that the interim interdict was appealable.
The court then considered the requirements for granting an interim interdict and found that the interdict in question should never have been granted. This was because AfriForum had not met the requirement of irreparable harm, and the balance of convenience was also not in its favour.
The court found that the harm claimed by AfriForum – the emotional hurt or suffering caused by a loss of place or sense of belonging and association with the direct environment, even by the temporary removal of the old names – did not hold weight.
“The sense of place and … belonging contended for by AfriForum is highly insensitive to the sense of belonging of other cultural or racial groups. It … 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,” the court said.
And, even if the change of names amounted to harm, it could not be considered irreparable as it was not permanent or irreversible. Should the high court find in AfriForum’s favour in the review, which is yet to be heard, the old names could be reinstated.
The Constitutional Court therefore allowed the appeal and overturned the interim interdict. It is, however, interesting to note that while nine of the court’s judges agreed with this judgment, two did not.
In a minority judgment, justices Johan Froneman and Edwin Cameron acknowledged that continuing the wounds of the past would increase emotional distress, but they did not believe the best way to correct the past injustices was by unjustifiably weakening the “well-established and sensible rules and principles” for appeals against interim interdicts.
Justices Froneman and Cameron noted that many cultural, religious and associational organisations have roots in the country’s oppressive past and they questioned whether these organisations were all constitutional outcasts because of a history tainted by bloodshed or racism. They invited a deeper analysis on this issue.
In response, Justice Chris Jafta (who was one of the judges who made up the majority judgment) issued a third judgment, in which he disagreed with the minority judgment. He said that racist and oppressive traditions have no place in South Africa’s constitutional order and there was no justification for recognising cultural traditions or interests that are rooted in a racist past. Justice Jafta also denied that the majority judgment had weakened the rules and principles for appeals against interim interdicts.
As this case illustrates, the appealability of interim interdicts is an issue that has divided various courts and the country’s top judges. It is therefore significant that we now have clarity on the issue: interim interdicts can be appealed, provided it is in the interests of justice to do so.