WHAT’S IN A NAME?

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

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

Pic­ture: iSTOCK

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