Tshwane City v Afriforum and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
• Judgment Date: 21 July 2016
• Citation: 2016 (6) SA 279 (CC)
• Docket Number: CCT 157/15 [2016] ZACC 19
• Hearing Date: 19 May 2016
• Court: Constitutional Court
• Counsel: T Motau SC (with L Kutumela) for the applicant. RJ Raath SC (with RJ Groenewald) for the respondents.

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring): A

Introduction

[1] This case concerns a restraining order granted in favour of Afriforum B 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 C

[2] South Africa is literally the last African country to be liberated from the system that found nothing wrong with the institutionalised oppression D 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 E 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 F 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 G 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 are — unlike before — seldom openly and proudly practised. [2]

H [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

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

of apartheid, heroes and heroines of our oppressive and shameful A 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. B

[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 C 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; D

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 E 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 F 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 G 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 H heroines of our struggle for justice, peace and freedom are 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 I 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 J

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

A 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 B 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 C 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 D 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 E 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 F 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 G 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 H 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 I 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 J philosophy of 'ubuntu'. 'Motho ke motho ka batho ba bangwe' or

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

'umuntu ngumuntu ngabantu' (literally translated it means that a person is a person A 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...