Introduction
In Pretoria, there is a street named Hendrik Verwoerd Drive. Understandably, this is controversial. For the last few years, Afriforum has resisted the City of Tshwane’s efforts to rename this and other streets, arguing, among other things, that the cultural rights embodied in the Constitution stand in the way of renaming streets named after Afrikaner historical figures. In the recent Tshwane street-naming case, Justices Cameron and Froneman stated that this may be true. In this brief, I respectfully disagree.
A caveat: Much has been written about the street-naming case. Particularly, there has been much debate, both among the Constitutional Court’s judgments and in the press, about the extent to which the Constitution protects cultural artifacts or practices grounded in our racist past, or the extent to which it should. I will not be joining this debate. I make a narrower, more legal point: that, subject to a few exceptions, the changing of street names probably does not infringe constitutional rights.
The Bill of Rights does not protect street names
In their minority judgment, Justices Cameron and Froneman stated that, ‘on general principle, the Constitution creates scope for recognising an interest or right based on a sense of belonging to the place where one lives, rooted in its particular history.’ From this, they argued that the Afrikaner community (or the subset thereof represented by Afriforum) may have ‘a right to be involved in decisions affecting that sense of place and belonging.’ Thus, Afrikaners may have a right to be involved in decisions changing the names of streets named after Afrikaner historical figures, such as Hendrik Verwoerd. This right may flow from ‘the cultural, environmental or citizenship rights in the Bill of Rights, or a combination of them’. But it is unlikely that these rights have anything to do with street names.
First, citizenship rights. Section 20 of the Constitution provides that ‘[n]o citizen may be deprived of citizenship’ and various other sections in the Bill of Rights grant only to citizens the rights to enter South Africa, to a passport, to freedom of trade, occupation and profession, and to a number of political rights, such as the right to vote. It is hard to see how any of these rights create a right ‘based on a sense of belonging’ grounded in history.
Secondly, environmental rights. Section 24 grants everyone the right to an environment ‘that is not harmful to their health or wellbeing’ and ‘to have the environment protected … through reasonable and other legislative measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.’
Some have argued that section 24 deals not only with the natural environment, but also with the built environment. [1]. While this may be true (although the references in the section to ‘pollution and ecological degradation’, ‘conservation’ and ‘ecologically sustainable development’ suggest otherwise), it is difficult to imagine how changing a street name could be harmful to anyone’s ‘health or wellbeing’.
Finally, cultural rights. Throughout the street-naming litigation, Afriforum has maintained that ‘die reg van kultuurgemeenskappe om hulle kultuurgoedere in beskerming te neem’ (the right of cultural communities to have their cultural goods protected) stands in the way of Tshwane renaming Hendrik Verwoerd Drive. But I think that this is unlikely, and a close examination of the relevant parts of the Bill of Rights, and the Constitutional Court’s case law, shows why.
Two sections of the Bill of Rights protect cultural rights. Section 30 grants everyone the ‘right to use the language and to participate in the cultural life of their choice’ and section 31 provides that ‘[p]ersons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community … to enjoy their culture, practise their religion and use their language’. In Pillay, O’Regan J held that these sections protect culture in the sense of ‘the way of life of a particular community’ and ‘the rights of individuals within communities to pursue cultural practices’. The court also emphasised that cultural rights are generally associational – in that a person does not exercise them alone, but along with other people.
Thus understood, it seems clear that a street name, chosen by the state, is not protected by the Constitution’s cultural rights. A street name is not a way of life or a cultural practice. It is also not a practice shared between people. It is an administrative decision made by the state. And the fact that the name may be cherished by certain members of a particular cultural community does not change this.
Do we need a cultural right to street names?
So the Constitution does not grant any community a cultural, rights-based claim on what a street name should be. But should it? No. First, the Constitution contains a number of provisions that, if followed, ensure that street names are changed in a way that is democratic and inclusive. Administrative action (including the renaming of streets) must be lawful, reasonable and give adequate notice to those affected by the decision. The municipality must allow for reasonable public participation. And, as the recent local elections have shown, municipal councils are elected in a vibrant democratic process. Secondly, South Africa’s many cultural communities don’t require a cultural right to place-names. Cultural practices are constitutionally protected. We have eleven official languages, and municipalities ‘must take into account the language usage and preferences of their residents’. The idea that any of South Africa’s cultures need a constitutional right to cultural street names does, I think, a disservice to the richness of South Africa’s cultural scene.
The above does not mean that the Constitution does not protect one’s ‘sense of belonging to the place where one lives, rooted in its particular history’ at all, as Justices Cameron and Froneman put it. Home and property rights prevent the state from hounding communities out of their homes. Hate speech based on race, ethnicity or religion receives no constitutional protection.
So there seems to be no cultural, environmental or citizenship right to a particular street name. The only way in which the Bill of Rights might protect a cultural attachment to street names is through section 9, which prohibits unfair discrimination on the basis of, among other things, culture. Thus, section 9 would prohibit the renaming of streets in a way that constitutes unfair cultural discrimination. For example, if the City of Tshwane were to rename all its streets to commemorate only Zulu, or only Afrikaans, or only Xhosa historical figures, this might be unfair discrimination and therefore unconstitutional. Section 9 would not, however, prevent the renaming of places to ensure that all of South Africa’s cultures are equitably represented. It would only prevent the unfair favouring of one culture, or unfair discrimination against another, in the street-naming process.
Conclusion
Assuming the above argument is correct, what is the status of the ‘right or interest’ asserted by Justices Cameron and Froneman? The answer: it does not bind the Constitutional Court or any of our lower courts. This is because it is a minority judgment. In addition, the right or interest was only tentatively proposed by the minority justices, and the Chief Justice, writing for the majority, was sceptical of its existence, holding that it was not ‘readily apparent’ to him how section 31’s cultural right would apply to street names.
In short: it is unlikely that the Constitution grants cultural communities cultural rights to street names. In addition, this is not an approach that subsequent courts should approach, and one that they probably do not have to. South Africa’s many cultures do not need a cultural right to street names.
Piet Olivier
Legal Researcher
piet@hsf.org.za
[1] For example, Iain Currie and Johan de Waal The Bill of Rights Handbook 5ed (2005).
