Picture: THINKSTOCK
Picture: THINKSTOCK

AFTER reading the three judgments of the Constitutional Court in the Afriforum case — the one about changing street names in Pretoria — I was left distressed and unsettled.

It was a difficult case because changing street names is an emotive issue, and yet it came to the highest court by way of an appeal against an interim interdict. Interim interdicts are not generally appealable, which distorted things a bit.

They say hard cases make bad law. I don’t think the judgments are bad law, but I have never seen such a biting exchange between justices of the highest court. There was a dispute between the majority and minority about whether to allow the appeal in the first place. And perhaps the court should have stopped there, since the question of whether the Tshwane municipality acted lawfully when it changed the street names is headed for the Constitutional Court anyway.

But they did not stop there. They got into a further disagreement on whether white people, Afrikaners in particular, can place any reliance on "a cultural tradition founded in history" and whether this will find recognition in the Constitution, or whether, because that history is rooted in oppression, the Constitution will have nothing of it.

Dissenting justices Edwin Cameron and Johan Froneman said they think the Constitution does protect white people’s reliance on their history for their sense of place in SA. They disagreed with Chief Justice Mogoeng Mogoeng’s majority judgment, saying it implied that it was time to stop objections to name changes based on a cultural heritage that is rooted in a history of colonialism, racism and apartheid.

Mogoeng did not respond to this directly in his judgment, and I did not get that implication from it. What he does balk at — in no uncertain terms — is where history or cultural heritage is embraced in a way that excludes or prevents others from embracing their own history and heritage.

Justice Chris Jafta in a lone concurring judgment says: "There can be no justification for recognition of cultural traditions or interests based on a sense of belonging to the place one lives if those interests are rooted in the shameful racist past."

Cameron and Froneman say this statement from Jafta is a "grave insinuation that we seek to justify the protection of cultural rights under the guise of racism. We explicitly state that the Constitution protects culture, yes, but not racism". They say: "We leave history to assess the warrant for that charge." Sjoe!

Froneman and Cameron’s umbrage at Jafta’s remark was not to disagree, it was to say: but that is not what we were saying! I don’t know, but why do they all seem not to be understanding each other?

And when you really get down to it, are they so far apart? I just wonder whether the justices could not have resolved this particular argument in judges’ conference.

Judges must disagree sometimes — dissenting judgments are crucial. As the late justice Ismail Mahomed famously said: "The orthodoxy of yesterday often becomes the heresy of tomorrow." The most famous example of the importance of dissenting judgments is the lone dissent in the US Supreme Court’s Plessy vs Ferguson ruling on segregation laws, which years later laid the basis for Brown vs Board of Education, which repudiated the doctrine of separate but equal.

As the late chief justice Pius Langa also said in 2007, dissent makes judicial deliberation stronger: "If people speak up, the group as a whole is more likely to reach the correct outcome."

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I accept that sometimes this cannot be done behind closed doors, that there are cases in which the group is stronger when the dissent is public. I question whether this is that case.

Maybe, as has been suggested to me, the fact that the justices were able to be so robust is a sign of a strong, resilient democracy.

It is true that in the US, a much older democracy than ours, the Supreme Court justices are brutal and scathing of each other in judgments. But I do not want us to be like the US. I think we are better. I love that when our justices disagree, they do so gently and sensitively. I love that there are no consistent voting patterns in our highest court; that no judge can be easily termed a lefty or a right-wing judge.

I love that in our noisy democracy there is a place for sober, careful and mature deliberation.

• Rabkin is law and constitution writer