On 21 July 2016, three days after the world celebrated the legacy of our former President on Mandela Day, the Constitutional Court delivered its judgment in the highly contentious Tshwane street name change matter. The matter began as an attempt by Afriforum (an Afrikaner rights group) to thwart the efforts of the City of Tshwane’s Metropolitan Council to change the names of about 25 streets in the City of Pretoria which were remnants of a divisive and discriminatory past.

Afriforum brought an urgent interdict against the City of Tshwane, in which they sought to prevent the City from removing the old names pending the outcome of a review of that decision. The City argued that the decision to change the names was in line with their policies which seek to ensure that the City is inclusive and representative of all who live in it. Afriforum alleged that the City had failed to follow proper public participation processes prior to changing the names.

This judgment was so contentious that the Constitutional Court itself was divided along racial lines – with all the black judges concurring with the majority, and the two white judges dissenting. The majority judgment, penned by Chief Justice Mogoeng Mogoeng, stressed the point that the technicalities of the law can no longer be used to stymie transformation and democratic progress. This, Mogoeng opined, was consistent with the spirit of the Constitution.

Giving detailed historical context before dealing with whether or not Afriforum had in fact satisfied the requirements for an interim interdict, Mogoeng took us through our country’s past in order to shed light on why the process for transforming our cities is not only long overdue, but needs to be deliberately embraced by everyone who wishes to see South Africa representing all those who live in it.

The dissenting judgment, written by Justice Froneman, stated that they held the view that the majority judgment could be read to mean that reliance on a cultural heritage that has its roots in colonialism and apartheid was not worth protecting. However, Justice Jafta, in a separate concurring judgment, held the view that this was an incorrect interpretation of the majority judgment and that the point being made is that the Constitution envisaged a clean break from our disgraceful past, and encourages equal respect for all human beings without privileging one culture over another.

South Africa is an anomaly on the continent which has held on to its colonial and apartheid identity in order to assuage the fears of the white minority, thus ensuring that the majority of the black population remain pariahs in the country, cities and towns in which they live. If we are all African, living in a town, street or suburb bearing African names cannot be offensive or toxic to one’s environment despite Afriforum’s submissions. The judgment reinforced the values espoused by the preamble to the Constitution making it clear that the Constitution cannot be used as “a weapon to advance illegitimate sectarian interests.”

With the spate of racially motivated outbursts on social media and other platforms in the past few months, there has been a deafening silence on the root causes of these tensions within our society. So a judgment such as this from the highest court in the land is a welcome clarion call.

Black people are, by and large, still victims of apartheid spatial planning and as a result of superficial and irrational difference; a system was created to restrict integration and unity as much as possible. When a party can appear in court and allege that replacing the names of Afrikaners who were instrumental in the oppression of black people infringes on their cultural rights, it not only exposes the severity of racial prejudice still harboured by some within the white community, but it also shows how far from transformation our society really is.

To ensure that the sense of exclusion is tattooed on the minds of black people forever, there are no markers of significance that celebrate the achievements and history of black people, and where attempts are made to remedy this, they are vehemently opposed by those who see the celebration of diversity as an affront to their cultural rights. Children are taught a skewed version of South African history and it is little wonder that so few aspire to be anything more than what was predetermined by that oppressive system.

It is a fact that cultural symbolism plays an integral psychological and societal role in the shaping of the aspirations and identity of a community. It therefore comes as no surprise that those who have entrenched their identity in a community will go to great lengths to protect that privilege. That is the prevailing fact in Tshwane and other areas of the country. But we do not have to remain so.

The judgment emphasised that the inability of some within our society to tolerate others hampers social cohesion and perpetuates racial discrimination. Our Constitution requires us to break free from the mental, social and cultural restrictions which that repressive system put in place; as it is clear from this judgment, it will not be an easy task – in fact it may require making those who enjoy a certain level of racial and cultural privilege uncomfortable so that the dignity and humanity of those who have been previously excluded is recognised, and celebrated equally.

This is a challenge to society as a whole that we too need to infuse constitutional values in the way we conduct ourselves and in our interactions with each other. As clearly indicated in the judgment, it makes little sense to attempt to push a separatist agenda which runs contrary to the transformative project currently under way. Change is inevitable, and the highest court in the land has reinforced this; it is time to take stock of what role, if any, we are each playing in transforming South Africa for posterity. DM

Photo: Pretoria by E via Flickr

Princess Magopane is an attorney and former law clerk at the Constitutional Court. The opinion advanced in this piece is entirely her own.