Tshwane City v Afriforum and Another

• Jurisdiction: South Africa
• Citation: 2016 (6) SA 279 (CC)

Tshwane City v Afriforum and Another
2016 (6) SA 279 (CC)

2016 (6) SA p279

Citation	2016 (6) SA 279 (CC)
Case No	CCT 157/15; [2016] ZACC 19
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Heard	May 19, 2016
Judgment	July 21, 2016
Counsel	T Motau SC (with L Kutumela) for the applicant.; RJ Raath SC (with RJ Groenewald) for the respondents.

Flynote : Sleutelwoorde B

Appeal — Appealablity — Interim interdict — Interdict ordering local authority, pending review of its decision to change street names, to stop changing street signs and restore those already changed — Application for leave to appeal directly to Constitutional Court — Common-law requirements for C appealability of interim orders subsumed under constitutional 'interest of justice' standard — Leave to appeal against interim interdict must be granted if in interests of justice — Constitution, s 167(6)(b).

Constitutional law — Human rights — Right to freedom of religion, belief and opinion and rights relating to cultural, religious and linguistic communities — Whether Constitution recognising interests or rights based on a D sense of belonging to place one lives, rooted in a particular history — Constitution, s 31(1).

Constitutional law — Separation of powers — Interim interdict ordering local authority, pending review of its decision to change street names, to stop changing street signs and restore those already changed — Interdict E offending against principle of separation of powers — In interests of justice to grant leave to appeal directly to Constitutional Court — Whether appeal should be upheld — Balance of convenience favouring organ of state where interdict intruding on separation of powers.

Constitutional practice — Appeals to Constitutional Court — In what cases F — Interim interdict — Common-law requirements for appealability of interim orders subsumed under constitutional 'interests of justice' standard — Leave to appeal must be granted if in interest of justice regardless of common-law impediments — General requirement that applicant must show irreparable harm not applying where in interests of justice to grant leave to appeal — Constitution, s 167(6)(b). G

Interdict — Interim interdict — Irreparable harm — What constitutes — Not irreparable if harm complained of could be reversed by final order.

Interdict — Interim interdict — Balance of convenience — Competing rights or interests — Whether right or interest based on sense of belonging to place one lives, rooted in particular history, deserving of legal protection — H Balance of convenience favouring organ of state where interdict would intrude on separation of powers — Constitution, s 31(1).

Headnote : Kopnota

Section 167(6)(b) of the Constitution provides that 'a person, when it is in the interests of justice and with leave of the Constitutional Court', must be allowed 'to appeal directly to the Constitutional Court from any other court'. I

At issue in this case was whether to allow leave to appeal to the Constitutional Court against a High Court interim interdict, and if so whether the appeal should be upheld. The interim interdict was in favour of Afriforum and one Mr Van Dyk (hereinafter referred to together as Afriforum) pending a review instituted by them of the City's decision to change street names. J

2016 (6) SA p280

A The basis for the review application was that the City's name-changing process lacked sufficient public participation; for the interdict it was inter alia that Afriforum (and the like-minded people it represented) would in the interim suffer irreparable harm because of the strong emotional connection to the old names or loss of a sense of place and of belonging that would flow from the removal of old names.

B It ordered the City, pending the review, to stop removing old signs (which included both the original names, albeit crossed out, and the new names) and replacing them with signs reflecting only the new names; and also to restore those signs already replaced. The order had earlier been upheld on appeal (with leave of the Supreme Court of Appeal) by a full bench of the High Court. The present application followed the SCA's refusal of the City's application for special leave to appeal against the full court's decision.

C The majority decision (the first judgment) and a separate concurring judgment (the third judgment) granted leave to appeal, and upheld the appeal on the basis that Afriforum had not met the requirements for an interim interdict, specifically that they did not show that they would suffer irreparable harm if the interim order were not made or that the balance of convenience favoured them.

D Held as to leave to appeal

The appealablity of interim orders

The common-law requirements for the appealability of interim orders — whether the interim order appealed against had a final effect or was dispositive of a substantial portion of the case — had been subsumed under the constitutional E interests of justice standard. If granting 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. The interests of justice and this standard alone applied to the adjudication of applications for leave to appeal. (Paragraphs [40] – [41] and [179] at 294A/B – 295F and 329D – F.)

F (The first judgment also endorsed the third judgment's additional reasons for appealabilty (see [48] and [193]).)

The principle that leave to appeal against an interim order would ordinarily be refused unless the applicant was able to demonstrate that irreparable harm would otherwise ensue, was only a general principle and did not necessarily G apply in this case, but assuming it did, the City nevertheless did show irreparable harm. (Paragraphs [33], [40] and [47] – [48] at 291I, 294B – C and 297G – 298D.)

(The minority judgment held that this requirement arose before interests of justice considerations would permit an appeal against an interim order — see [92] – [104].)

H The separation of powers as a relevant consideration

Operating with the ever abiding consciousness of the crucial role separation of powers plays in our constitutional democracy, courts should be very slow to interfere with the legitimate exercise of governmental powers, save in the clearest of cases or where bad faith, corruption or fraud was proved. Here the order and the likely appellate processes had a final effect in that they I mortified and prevented the City from implementing its name-change policy, and so intruded onto its constitutional and statutory powers. Where separation of powers was implicated and forbade the granting of the order sought to be appealed against, the interests of justice demanded that even if the common-law requirements were not met, an interim interdict would nevertheless be appealable. (Paragraphs [39] and [41] – [43] at 293B – 294A J and 295D – 296C.)

2016 (6) SA p281

Held as to merits of the appeal A

Irreparable harm

Irreparable implies that the effects of the harm could not be reversed. Even if what Afriforum claimed constituted harm, it was not irreparable because the review court could reinstate the old names if the review were successful. (Paragraphs [57] and [59] – [60] at 300F – H and 301D – I.) B

(The minority judgment held that for the purposes of an interim order, irreparable harm was established when the final order would not be capable of curing the prima facie established harm suffered in the interim. It also took issue with the first judgment's reservations at [56] – [58] that the harm complained of was deserving of legal protection, and held that 'on general principle', the Constitution created scope for recognising an interest or C right based on a sense of belonging to the place one lives, rooted in a particular history — see [118] – [128] and [140] – [143]; the third judgment at [164] – [176] held that there was no such right if rooted in oppressive cultural traditions.)

Balance of convenience

This requirement recognised that there were at least two competing interests, D inextricably linked to the harm likely to be suffered by the unsuccessful party. As to Afriforum's alledged harm, whatever harm they would suffer as a result of not being granted the interim order, would be significantly neutralised by an equally important sense of belonging of the previously disregarded.

Public participation should not be elevated to co-governance. The City had the E constitutional and statutory power to run its affairs. For this reason a court should not intrude into the City's sole operational space when a segment of those the City served was displeased with the public-participation process it had otherwise facilitated. Judicial scrutiny of adequacy of public participation process should have been confined to the review challenge, regard being had to the separation of powers. (Paragraphs [62], [64] and [66] – [67] F at 302B – C, 302F – H and 303B – H.)

Cases Considered

Annotations

Case law

African Wanderers Football Club (Pty) Ltd v Wanderers Football Club G 1977 (2) SA 38 (A): referred to

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dicta in paras [22] and [23] applied

Atkin v Botes 2011 (6) SA 231 (SCA) ([2011] ZASCA 125): referred to H

Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054 (C): applied

Braham v Wood 1956 (1) SA 651 (N): dicta at 655A – C and 655H applied

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): dictum in para [40] applied

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