WHAT’S IN A NAME?
Forum 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 is appealable.
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 SA 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 Tshwane municipality, 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 — 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 had no place in SA’s constitutional order and there was no justification for recognising cultural traditions or interests that were rooted in a racist past. He also denied that the majority judgment had weakened the rules for appeals against interim interdicts.
As this case illustrates, the appealability of interim interdicts is an issue that has divided courts and top judges. It is significant that we now have clarity on the issue: interim interdicts are appealable, provided it is in the interests of justice to do so.
The court noted that, under the common law, whether an interim order is appealable depends on whether it is final in effect