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[2022] ZAECGHC 22
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Ndumo v Minister of Arts and Culture N.O (CA 81/2020) [2022] ZAECGHC 22 (10 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GRAHAMSTOWN)
CASE
NO.: CA 81/2020
In
the matter between:
SIGIDLA
NDUMO
Appellant
and
THE
MINISTER OF ARTS AND CULTURE
NOMINE
OFFICIO
First
Respondent
THE
SOUTH AFRICAN GEOGRAPHICAL
NAMES
COUNCIL
Second Respondent
MAKANA
MUNICIPALITY
Third
Respondent
JUDGMENT
REVELAS
J
The
appellant appeals against the order of Lowe J, dismissing his
application to review and set aside two decisions of the first
respondent, the Minister of Arts and Culture. The decisions in
question were made in terms of section 10(1) of the South African
Geographical Names Council Act 118 of 1998 (‘the Act’).
The first decision challenged was the approval of the
change of name
of the town Grahamstown to Makhanda. The second decision was the
rejection of the appellant’s objection to
the first
respondent’s approval of the name change in terms of section
10(5) of the Act.
1.
In terms of section 9(1)(d) of the Act, the
Minister responsible for Arts and Culture (in this case, the first
respondent) may accept
or reject a geographical name recommended on
the advice of the second respondent, the South African Geographical
Names Council
Names (the second respondent), who in turn acted on the
recommendations submitted to it by the Eastern Cape Provincial
Geographical
Names Committee (‘the Names Committee’ or
‘PGNC’). The decision was published in the
Government Notice
41738 of 29 June 2018.
Neither
the court
a
quo
,
nor this court was required to consider the appropriateness or merits
of the name change. The primary question to be decided by
the court
a
quo
was,
as the learned judge in that court put it: “
whether
in the required process stipulated for in the legislative matrix,
adequate
consultation with communities and stakeholders took place
.
In this matter then the crucial enquiry at the start is whether the
Names Council having informed the Minister that a proper
consultation
process has been followed was correct, or was incorrect, and (if so,
this being a material misstatement of fact) –
such as to
influence his decision and thus such as to fall within section
6(2)(e)(iii) of PAJA.”
(emphasis
added) In the aforesaid regard, his Lordship referred to the matter
of
Chairpersons’
Association v Minister of Arts and Culture and Others
[1]
This
court is tasked to consider whether the judge in the court
a quo,
in finding that there were no grounds upon which the first
respondent’s decisions could be set aside on review,
misdirected
himself, and sufficiently so, to justify setting the
dismissal if the review aside.
The
Legislation
The
applicable legislation was set out at length in the judgment of the
court
a quo
and it is not necessary to do so in this judgment
but some sections need to be referred to again. Because the applicant
challenged
the validity of an administrative decision, the
application for review was brought in terms of the provisions of the
Promotion
of Administrative Justice Act, Act 3 of 2000 ( ‘PAJA’
).
The
relevant portion of section 6 of the PAJA reads:
“
A
Court o
r tribunal has the power to
judicially review an administrative action if -
………
(e)
the action was taken-
………
(iii)
because irrelevant considerations were
taken into account or relevant considerations were not
considered…
“
The
purpose of the Act is:
“
(t)o
establish a permanent advisory body known as the South African
Geographical Names Council to advise the Minister responsible
for
arts and culture on the transformation and standardisation of
geographical names in South Africa for official purposes, to
determine its objects, functions and methods of work; and to provide
for matters connected therewith.”
Section 1 of the Act
defines “
standardisation”
to mean:
“
(a)
determination of-
the name to be applied
to each geographical feature;
the written form of a
name; and
(b)
the regulation by an appropriate authority of a geographical name,
its written form and its application…"
Section
2(1) of the Act provides for the establishment of the second
respondent and sets out its objectives to be,
inter alia
:
“
(a)
to facilitate the establishment of Provincial Geographical Names
Committees;
(b)
to ensure the standardisation of geographical names;
(c)
to facilitate the transformation process for geographical names;
(d)
to promote the use of standardised South African geographical names
at an international
level…”
Section
9 also sets out the powers and duties of the second respondent:
‘
9(1)
The Council must-
set guidelines for the
operation of Provincial Geographical Names Committees;
set standards and
guidelines for local and provincial authorities in their respective
areas of jurisdiction;
receive proposed
geographical names submitted by State departments, statutory bodies,
provincial governments, municipalities and
other bodies or
individuals;
recommend geographical
names falling within the national competence to the Minister of
approval;
advise the Minister
on-
the standardisation of
proposed new geographical names;
(ii) existing
geographical names not yet standardised;
(iii)
the changing, removing or replacing of geographical names; and
(iv) geographical
names and their orthography;
in consultation with
provincial governments, identify existing geographical names in need
of revision, and co-ordinate requests
for advice on geographical
names and standardisation…’
10.
Section 10 of the Act deals with the
approval and revision of geographical names and provides that:
‘
(1)
The Minister may approve or reject a geographical name recommended by
the Council in terms
of s 9(1)(d).
(2)
A geographical name approved or rejected by the Minister in terms of
ss (1) must be published
in the Gazette.
(3)
Any person or body dissatisfied with a geographical name approved by
the Minister may, within
one month from the date of publication of
the geographical name in the Gazette, lodge a complaint in writing to
the Minister.
(4)
The Minister may refer the complaint to the Council for advice
whether or not to reject
or amend a geographical name so approved.
(5)
The Minister must inform the complainant of the decision on the
complaint and the reason
for the decision.’
11.
The guidelines contemplated in section
9(1)(a) of the Act and the “
policies,
principles and procedures”
formulated in terms of section 9(1)(i) of the Act are those reflected
in the “Handbook on Geographical Names” (“the
guidelines”).
The guidelines establish
“Provincial Geographical Names Committees” (“the
PGNCs” or “the Names Committees”).
The functions of
these committees are to advise local authorities and to work with
them to ensure that the principles of Names
Council are applied.
To make recommendations to the Names Council on the names and
geographical features that fall within
the provincial boundaries. A
PGNC or Names Committee should “
do preparatory work for the
submission of names to the SAGNC, and is responsible for seeing to it
that local communities and other
stakeholders are adequately
consulted.”
13.
The guidelines also deal with the issue of
standardisation. Under the heading “
Why
geographical names should be standardised”,
it
is stated,
inter alia
that:
“…
Names may sound the
same or the spelling of one place name may be very close to that of
another;
Names can be spelled
in different ways;
In a multilingual
country such as South Africa, places often have more than one name.
These situations lead
to misunderstandings and confusion. In order to avoid this,
geographical names are standardised by authorities
throughout the
world.”
14.
Under the heading “Policies for
Standardisation” the guidelines provide the following:
“
Standardisation
is based on:
The current
orthographic (spelling) rules of the languages from which the names
are derived;
The wishes of the
local population provided they are not in conflict with the
principles of the SANGC.
The historical use of
the name.
Redress, where a names
is changed on the basis of historical considerations…”
15.
The guidelines also provide that the second
respondent receives all applications under its jurisdiction and
ensures that proper
consultation has taken place and that the name
meets the second respondent’s requirements in all respects. The
second respondent
takes the final decision on the form or forms of
names and recommends them to the first respondent. Once a name has
been approved
by the first respondent that name has been
standardised.
Factual
Background
12.
The appellant brought the application for
review in his personal capacity as a citizen who had been living in
the town for most
of his life. He was also a joint co-ordinator of
the Keep Grahamstown Grahamstown (“KGG”) campaign, set up
to oppose
the renaming of the town Grahamstown. Mr J.C. McConnachie
was the other co-ordinator of KGG. The campaign was launched after
the
first announcement regarding a name change was made in September
2007.
13.
On 22 September 2007 a “snap poll”
was conducted in the town during which it was established that many
who lived in
the town Grahamstown were against a name change of the
town. Mr McConnachie, on behalf of the KGG wrote to mayor of the
Makana
Municipality, Mr P.M. Kate, that almost 80% of the persons
questioned during the poll were against a name change and did not
find
the name Grahamstown offensive and that a name change would be
divisive and lead to acrimony. The letter also indicated that
the name Grahamstown was no longer associated with Colonel Graham who
live two centuries before. Attached to a further letter from
McConnachie to Kate, were copies of several petitions against a name
change. The KGG also submitted approximately 5000 signatures
from
people who were against a name change. According to the KGG, the poll
covered all racial and cultural groups in Grahamstown
and the
majority of those who participated in the poll were residents of the
townships and rural environs and were mostly not in
favour of a name
change.
14.
The institute of Social and Economic
Research at Rhodes University a conducted an investigation aimed at
gathering attitudes to
a name change. When the institute released its
results and findings, it appeared from these that one third of the
persons who had
taken part in the survey supported a name change and
mostly for the name to be changed to iRhini. The latter name was
apparently
derived from the name Rietfontein, a derelict farm in the
area, many years ago.
15.
On 2 October 2007 a special naming task
team was appointed by the Executive Mayoral Committee of the third
respondent (‘the
Municipality’). It was chaired by
Ms J Wells, a councillor. The other members of the committee were
also municipal
councillors. The general public was invited to submit
their views to this committee.
16.
Later,
Wells informed the naming task team that there seems to be strong
opposition to the name change. The naming task team then
decided that
there was a need to educate people to “
understand
all sides of the issue”
[2]
with the use of videos and written materials because there were
several people in the area who were illiterate and did not know
the
relevant history. Speakers from the names committee undertook to
address any concerns raised. Clearly the committee did not
accept the
outcome of the public’s response. The intention was to complete
the process by the end of March 2008, but somehow
nothing of
significance occurred and the name change issue seemed to have lost
its momentum for a while.
17.
During these early independent polls and
surveys and the process carried out by the Municipality (or the third
respondent) over
the period from 2007 to 2013, the only new name that
was discussed was iRhini. The name Makhanda was never a contender,
until 17
November 2014 when a Mr Mali and a Mr Nonzube submitted
their applications for a name change to the PGNC. Mali, in his
application,
proposed Makhanda as his first choice and Nxele as his
second. Nxele and Makhanda refers to the same Xhosa leader.
Nonzuba
proposed iRhini with Makhanda or Nxele as his second choice.
18.
Both Mali and Nonzube were officials of the
first respondent’s Department. They were entitled to make
application for a name
change as section 9 of the Act permits
applications or proposals by “
state
departments, statutory bodies, provincial governments, municipalities
and other bodies or individuals”
to be received by the SANGC. The respondents maintain that the two
applications started a new name change process and that
the 2007 to
2013 processes were irrelevant to the new process.
19.
In terms of the “
Guidelines,
Policies and Principles”
referred
to above, the consultative process for a geographical change of name
starts with the PGNC working with its metro or district
sub-committees. The committee then invites stakeholders to a
consultative process to be followed by a meeting where dates for
public hearings are proposed and where stakeholders are mandated to
obtain the views regarding the proposed name change from their
members. According to the respondents such a meeting in fact took
place. The meeting was scheduled by the Sarah Baartman District
Municipality (as it was entitled to do in terms of the Guidelines)
and took place on 16 September 2015. The KGG was invited to
attend
this meeting but declined to participate as they held the view that
such a consultative meeting had already taken place
in October 2007.
The appellant argued that the KGG did not have to attend this meeting
because three processes had been completed
argued that and those who
promoted the name change were precluded from repeating the process
until they achieved the desired result
by manipulation.
20.
At the aforesaid meeting, 19 November 2015
was proposed as the date for the hearings where the name change in
question (Grahamstown
to Makhanda) would be discussed but that
meeting did not take place. The explanation given was that it was not
possible, due to
xenophobic attacks that were taking place during
that time. It was then rescheduled and convened on 11 February 2016.
21.
According to respondents, the 11 February
2016 meeting was attended by 165 persons as reflected by the
attendance register, a copy
of which was attached to the answering
affidavit. The appellant, however, pointed out that no details of the
stakeholders present
at the one and only hearing were furnished. The
KGG was also invited to this meeting but declined to attend on the
basis that the
process was unnecessary because the process had
already taken place during 2007 -2013.
22.
The appellant’s assertion that there
was no consultation with the relevant stakeholders and that the third
respondent, the
Makana Municipality, was excluded from the name
changing process, is refuted by the respondents who referred to the
following meetings
which preceded the 11 February 2016 hearing. After
the Mali application, a consultative meeting, which was advertised in
a notice
dated September 2015, was held on 15 September 2015. The KGG
declined to attend. On 3 November 2015, the representatives of the
PGNC and the Makana Municipality held a preparatory meeting. As
referred to hereinbefore, the public hearing scheduled for 19
November 2015, and which could not take place, was eventually
convened on 11 February 2015. The hearing was preceded by a meetings
held on 27 and January 2016 which was attended by representatives of
the Makana Municipality and the respondents’ Department.
On 29
January the aforesaid parties met again but included local
stakeholders. The Sarah Baartman Names Committee (under which
the
Makana Municipality falls) facilitated the renaming process. The
respondents further allege that on 10 February a stakeholder’s
preparatory consultative meeting was held at the Makana Municipality,
which included representatives of the respondents’
department
and the Makana Municipality. The meeting was attended by 54 persons
and nine wards were represented. According to the
respondents, the
notification to the public of these meetings was widely published.
23.
The public hearings were advertised
in the Daily Dispatch and Herald newspapers, published in East
London, Grahamstown and Port
Elizabeth (not in Grocott’s Mail,
a Grahamstown newspaper) inviting responses to the proposal to have
Grahamstown’s
name changed to Makhanda. It was also
advertised on the local radio station.
24.
On 14 May 2016, there was a further
publication by the PGNC, seeking public comment on the proposed
names. Thereafter the PGNC’s
sub-committee considered
objections and made recommendations to the PGNC. In response to
the 17 May 2016 advertisement, the
KGG submitted a letter of
objection. The KGG in its letter referred to the
Chairpersons’
Association v Minister of Arts and Culture
judgment which held that before a proposal of a name change could be
considered, proper consultation with local communities and
stakeholders must take place. The KGG asserted that such consultation
did not take place in the present case and therefore the
name change
would not withstand judicial scrutiny.
25.
The reasons given for this view was that
the one and only meeting or hearing held on 11 February 2016, where
the proposal of the
name change to Makhanda was adopted, was poorly
attended by a mere 84 people (as opposed to 165 people as reflected
by the attendance
register) and those who attended were not
representative of the local communities. Furthermore, during the
2007-2013 period, the
majority of the persons in the community were
against a name change and the Committee ought to have had regard to
the outcome of
the three processes conducted during the aforesaid
period. The KGG also complained that they were not given access to
the reasons
behind the name change applications and decried the fact
that the applicants for the new name change were officials of the
Eastern
Cape Arts and Culture Department.
26.
In the same letter of objection to the
Names Committee, the KGG levelled the following accusation: “
The
ECPGNC had to be seen to go through the motions of a consultation
process, however, the Naming Task Team of the Makana Municipality,
which was specifically appointed for that purpose, did the bidding of
the ECPGNC in conducting the necessary process with a mandate
to
deliver a predetermined outcome in favour of a name change. After
matters did not go according to plan and the Makana Municipality
was
unable to deliver on its mandate to deliver a predetermined outcome
in favour of name change. The ECPGNC in fact announced
in 2008 that
the colonial names of all towns in the Eastern Cape were to be
changed and the name Grahamstown was prominent in a
‘dirty
dozen’ list.”
The aforesaid
views and the nature of objections raised by the KGG are to a large
extent the appellant’s present views.
27.
On 20 November 2017 the chairperson of the
Names Committee, Ms P Nazo, issued a response on behalf of the
respondents’ department.
It was headed: “
Responses
to Public Objections – Public Hearings held on 11 February 2019
in Grahamstown.”
This document
was addressed to the KGG, the Grahamstown Residents Association and
the members of the two aforesaid organisations
who had objected to
the name change from Grahamstown to Makhanda. In this seven-page
document, responding to the objections raised
by the KGG, Nazo stated
that at the 11 February meeting, there was not “
a
single dissenting view”
on the
proposed naming of Grahamstown to Makhanda. She emphasised that the
meeting was widely advertised on posters, in newspapers
and radio.
Furthermore the stakeholders’ representatives had been mandated
to facilitate meetings of their constituencies
and to impart all the
information gathered at the first consultative meeting (16 September
2015) and to use such information to
solicit views from its members.
She also asserted that the appeal to history to make a case for
keeping names associated with colonialism,
such as the name
Grahamstown “
is a blatant defence
and affirmation of colonialism and racial discrimination.”
Nazo
also expressed her scepticism regarding the accuracy of the KGG’s
high number of signatories objecting to the name change
who were
allegedly from the rural areas. The objectors were also advised of
their right of appeal to be exercised in 30 days should
they be
dissatisfied with her response.
28.
Thereafter, after objections were
considered (according to the respondents). The PGNC sub-committee
suggested that Grahamstown be
renamed Makhanda. On 20 November 2017,
the PGNC responded to the objections.
29.
On 29 January 2018 the chairperson of the
PGNC invited objectors to attend a meeting scheduled for 15 February
2018 in Grahamstown
to reconsider objections. On 20 April 2018 the
Names Council convened a special meeting, made its recommendations to
the first
respondent and on 5 June 2018 the first respondent approved
the name change.
The
Appellant’s Case
30.
The appellant has set out several grounds
of appeal. It was contended on his behalf that learned judge in the
court
a quo
erred as follows:
31.
The appellant contended that the first
respondent failed to consider the earlier processes which ran from
2007 to 2013 and the public’s
response thereto. The
consultative process (the new process) which commenced in 2015 was
entirely inadequate and in fact amounted
to no consultation at all
and was thus a fatal irregularity. The learned judge in the court
a
quo
therefore erred in not finding
accordingly. It was submitted that that the court
a
quo
erred in not finding that the 2007
– 2013 processes, which were concerned with the principle of a
name change, and was overwhelmingly
rejected, ought to have been
considered. It was also contended that no weight was attached to the
independent enquiry by the Institute
for Social and Economic
Research, which showed that there was limited minority support for a
name change and the preferred name
was Rhini.
32.
The
appellant also argued that inadequate consideration was given to the
principles set out and the approach adopted in
Chairpersons
Association v Minister of Arts and Culture and Others
[3]
.
Furthermore, the learned judge erred in finding that, notwithstanding
the approach adopted in the aforesaid judgment, that adequate
proper
consultation is only that which is reasonably necessary to give those
referred to a reasonable chance of being heard. The
appellant is of
the view that the bar is much higher.
33.
It was further contended that the learned
judge ought to have found that the failure by the PGNC to consult
with the local municipality
(the third respondent) in respect of the
proposed name change was a fatal irregularity which required the
review and setting aside
of the first respondent’s decision.
34.
The appellant also submitted that the
failure by the first respondent to advise the public of its right to
lodge a complaint within
one month of his final decision amounted to
a fatal procedural irregularity, which ought to have resulted in
setting aside the
first respondent’s decisions on review.
35.
The appellant contends that learned judge
erred in failing to find that there were material errors of fact on
which the First Respondent
relied for his decision
inter
alia,
his belief that the previous
three consultative processes over six years related to a change of
name of the Municipality and not
the town; The appellant argued that
the court
a quo
ought
to have found that the first respondent’s motivation for having
no regard to the previous processes was premised on
this mistaken
belief, which, on its own, rendered the decision reviewable. The
appellant argued that the first respondent’s
decision was
therefore reviewable under section 6(2)(f)(ii) of PAJA for its lack
of rationality and under section 6(2)(a)(iii)
of PAJA.
36.
The appellant stressed that no reason was
given for the rejection of the name iRhini and insufficient reasons
were furnished for
the granting of Mali’s application to have
the name changed to Makhanda. According to the appellant, the
name change
was based on offensiveness and not historical reasons. It
was submitted that the court
a quo
ought to have given appropriate consideration to the manifestation of
bias on the part of both the PGNC and the second respondent,
which
was
inter alia,
to be seen in the fact that the name Makhanda was preferred to the
exclusion of the name Rhini.
37.
The appellant referred to the fact that the
first respondent had misstated certain historical contexts. The
appellant also suggested
that the name change was based on
“offensiveness” and not for historical reasons and
contended that there was a reasonable
suspicion of bias on the part
of the PGNC and the second respondent. In addition it was submitted
that the reasons given by these
bodies for their recommendations to
the first respondent were not rationally connected to the information
placed before them and
upon which the first respondent relied.
Accordingly, the argument went, the decision of the first respondent
was also reviewable
in terms of section 6(2)(f)(ii) of PAJA.
38.
At this juncture it is convenient to
point out that there are indeed inaccuracies in the first
respondent’s account of the
history of the name Grahamstown.
However, when the appeal was argued, both sides were
ad
idem
that the town was named
Grahamstown in honour of the colonial military and the name
Grahamstown was no longer pursued by the appellant.
The appellant
only challenges the procedure followed in changing the name
Grahamstown to Makhanda. Accordingly the findings made
by the Lowe J
that the new name was chosen for considerations of redress and thus
not offensive, is no longer in issue.
39.
The judge
a
quo
is criticised for not finding that
Mr Mali’s application did not comply with the applicable
regulations in that it lacked
detail (reasons for the choice of name)
and stating in the application that it was for historical reasons was
not in compliance
with the prescripts the Act.
40.
The appellant challenged the first
respondent’s decisions also on the basis that for the lack of
standardisation, since the
name of the relevant municipality and the
name of the town differed in spelling, being Makhana and Makhanda
respectively. It was
submitted that the second respondent and the
PGNC therefore did not follow the mandatory prescripts for the
standardisation of
names in the Act. Accordingly, the first
respondent did not apply his mind to the contradictory spelling.
The aforesaid omission
was therefore reviewable in terms of section
6(2)(b) of PAJA and the judge
a quo
ought to have found accordingly.
The
Respondents’ Case
41.
Their case can be succinctly stated. With
regard to the three 2007 to 2013 processes conducted by the
Municipality in conjunction
with the Names Committee, the Respondents
stated that these processes were irrelevant to the new process
started by Mr Mali, and
that in this new process, the Act and the
Guidelines were adhered to. The respondents also challenged the
appellant’s interpretation
of the relevant legislation, i.e.
the Names Act.
Discussion
42.
During this name change saga which
commenced in 2007, those opposed to the name change were motivated by
a range of considerations
such as the unnecessary costs of a name
change in a town where such funds could be spent on the town’s
infrastructure, the
loss in revenue concomitant with the name change
as Grahamstown’s name was associated with the Grahamstown Arts
Festival
and other well-known events and its University. Objectors
also included those persons with a cultural and historical attachment
to the old name of the town. Those who were in favour of the name
change to Makhanda, appeared to have been motivated by political,
cultural and historical and considerations. Then there were those who
did not wish to express a view either way because of a lack
of
interest, or because they lacked the necessary knowledge of the
history behind the names in question. This last-mentioned category
no
doubt caused some concern for the supporters of the second category
and particularly the naming task team, in circumstances
where the
first category (
inter alia,
the
KGG) was successful in drumming up substantial support in the form of
thousands of signatures. Hence the plan to educate the
public was
suggested by Wells’ naming task team in 2007. What happened to
those plans is not clear, but eight years later
Mr Mali’s
application opened the name change issue for a second time and
started a new process.
43.
The question that arises is whether the
fact that no name change was achieved during 2007 and later years,
precluded anyone from
applying for a specific name change. The
appellant seems to be of the view that there is indeed such a
prohibition. Clearly, the
Act contains no such prohibition. The
question of a name change only becomes finite once the first
respondent publishes his approval
or rejection of a geographical name
in the Government Gazette. As I understand it, the appellant is of
the view that the snap poll
results, the outcome of the independent
survey and the incomplete process of the naming task team were the
last word on the matter.
The applicant’s contention that
80% of those who were interviewed during the early “snap poll”
were against the
name change could not be disputed, but as was
pointed out in the judgment of the court
a
quo
, the details and demographics of
the poll were unexplained as was its relevance to the new
application. Later, 10 000
complaints were obtained from
those opposed to the name change and sent to the first respondent by
registered post in a box.
44.
The appellant contended that because no
consultative process took place in terms of the Act, the review ought
to have succeeded.
The appellant, albeit in his capacity as
co-ordinator of the KGG, was invited to attend the 16 September 2015
and 11 February
2016 meetings, but declined to attend. Having made
such an election it is hardly open to the appellant to complain that
there was
no consultation at all. The respondents contended that
preparatory and other meetings were held as well, and a proper
process with
adequate consultation took place. As demonstrated above,
that cannot be gainsaid.
45.
The learned judge
a
quo
described the KGG’s
non-participation in the processes which commenced with the new
application for a name change as “
unfortunate,
unwise and intransigent”
and
pointed out that the KGG’s (and thus the appellant’s)
inclusion right at the start of the Mali process, was ill
advised
considering its previous deep involvement and substantial
representative nature. The learned judge, correctly in my respectful
view, observed that the first respondent could hardly be blamed for
the KGG’s failure to participate and “
then
only entered the fray at a later state submitting a
‘comment/objection’ in response to the newspaper
invitations
to comment or object dated 17 May 2016”.
46.
The participation of the appellant or the
KGG was necessary from the outset in the new process. It would have
been the ideal opportunity
for the co-ordinators to scrutinise the
details of the stakeholders, such as whether they indeed were
stakeholders and whether
they represented the communities fairly and
accurately. There were also other meetings and hearings held which
the KGG also declined
to attend. Had they participated in the process
they would have been in a better position ascertain whether there was
political
manipulation in the renaming process, and thus whether the
process was tainted with bias. The Act entitles any government
department,
which would include the respondents’ department, to
apply for a name change as was done in the present matter. That
of course opens the door for possible political manipulation which
can taint the whole process with bias. A finding of political
manipulation and bias must be based on more than suspicion. Evidence
is required. As stated before, the appellant and the KGG Campaign
saw
fit not to attend important meetings held in accordance with the
prescribed legislation. Absent parties are not in a position
to
provide such evidence. Some of the utterances of the first respondent
regarding Colonel Graham are rather emotive and may cause
some to
have a suspicion of bias. The language must also be seen in
context as Lowe J explained when interpreting the applicable
legislation. Several of the name changes in the country have
led to bitter disputes with very strong feelings expressed on
both
sides. However not too much should be read into it, since all parties
are entitled to their views on this contentious issue.
47.
The stance of the KGG, and the appellant,
who must be included in that stance by virtue of his position as
co-ordinator of that
campaign, undermined their opposition to the
name change by their non-participation. As the learned judge
a
quo
put it: “
The
fact remains that it was invited to be part of the consultation
process at the outset and declined to participate in that process
–
thus willingly and deliberately depriving the Minister, Names
Committee and participants, at the commencement of the process,
of
the benefit of its views and standpoints. It appears now however to
complain thereof from the shadows”.
48.
The court
a
quo
found that there was sufficient
notification of the consultative meetings called by the naming
committee of the second respondent
(in four newspapers, three radio
broadcasts and publice posters) and thus the fact that there was a
comparatively low attendance
rate at these meetings did not matter.
The respondents contended that they could not be responsible for the
number of people who
attended the meetings which were widely
advertised. In my view, the crucial question to ask is to what extent
the individuals who
attended the meetings were representative of
their communities? Those who were absent from the meeting are not in
a position to
dispute the allegation that they were sufficiently
representative of the communities. On the respondents’ the
wards version
were indeed represented.
49.
The proposition that the naming process was
procedurally and fatally irregular because there was no consultation
with the local
municipality has no merit. It is based on an
inaccurate statement of fact. As can be seen above under the heading
Background Facts,
there were indeed meetings with the local
municipality. It was party to the proceedings.
50.
The appellant’s challenge directed at
the first respondent’s omission to inform the public that
complaints could be
lodged within a month after the first respondent
published the name change in the gazette as provided for in section
10(3) of the
Act, was in my view properly dealt with by Lowe J. The
omission was held to have no impact on the substance of the decision
“
having no influence on the
outcome.”
It was also pointed out
that the first respondent’s decision as gazetted was the final
one, subject to a form of internal
appeal that would be considered by
the same official and the decision can be taken without guidance from
the second respondent.
The first respondent was acutely aware of the
opposition to the name change and the extent of it. In my view, the
omission in question
is not reviewable.
51.
The first respondent’s belief that
the 2007 to 2013 processes regarding name change was in relation to
the local municipality,
and not the actual town of Grahamstown, does
not render the procedure embarked upon since the Mali application,
reviewable either.
The earlier processes were of no relevance to the
one the first respondent had before him. It was an entirely a new
application
and given all the complaints the first respondent
received and responded to, he could hardly have believed that the new
application
was unopposed.
52.
It does not assist the appellant to
distance himself from the KGG Campaign at this stage. As I understood
the arguments of the appellant
on appeal, the appellant presently
supports the name change for Grahamstown to be iRhini. That was not
the case before the first
respondent. He was presented with a case
where the position of those who were ardently opposed to the name
change, was that the
geographical name Grahamstown must remain
unchanged. iRhini was not an issue.
53.
The appellant complained that Mali’s
application and support for the name Makhanda was not accompanied by
sufficient detail
to substantiate his choice of name and no reasons
were given by the first respondent for not favouring iRhini as the
new name.
Mali stated in his application that he chose Makhanda and
Nxele as names for historical reasons. Makhanda or Nxele (the same
person),
was a historical figure. If the Mali application indeed
lacked sufficient detail, it is hardly a reviewable defect in the
proceedings
and the learned judge
a
quo
’s reasoning in this regard
was not a misdirection. The fact that no reasons were given for
not proposing the name iRhini
is not a reviewable flaw either.
Nonzube, the other applicant, applied for the name iRhini as first
choice, but Makhanda or Nxele
was his second choice. In these
circumstances, where both applicants supported the name Makhanda, not
giving reasons as to why
iRhini was not chosen does not constitute a
ground for review. The KGG was informed that the decision to propose
the name Makhanda,
was unanimously reached at the meeting of 11
February 2016. Lowe J correctly held that this issue was in any event
outside the
purview of the application before him.
54.
The court
a
quo
did not regard the different
spellings of the name of the local municipality, Makana and its town
name Makhanda as a reviewable
breach of the standardisation policies
under the Act. Once the name change to Makhanda was published in the
Government Gazette,
it became standardised. As was pointed out,
this “error“could easily be rectified by an amendment of
the spelling
of the name of the Makana Municipality without any
difficulty. As a ground for review this point has no merit.
1.
The fact that the box containing thousands
of signatures against the name change was uncollected may appear
suspicious in the circumstances,
but I am unable to find that any
bias was proved. Clearly the first and second respondents were well
aware of the very substantial
opposition to the name change,
especially by the KGG. The appellant stated in the founding
affidavit that “
The KGG’s
final objection in response to the publication of the notice on the
29th of June 2018 was submitted to the Minister
electronically on the
19th of July 2018 and sent by post on the 23rd of July 2018
”.
Even though the box of complaints was not attended to by the first
and second respondents, they were made well aware of
the complaint by
the KGG which was set out in a very comprehensive letter.
Reference was made to the e-mails containing individual
complaints
that were too voluminous to send with the letter, but would be
delivered the offices of the Department of Arts and Culture.
Copies
of the covering letters from the KGG and an attorney, which covered
the objection to the notice, including an index all
the relevant
annexures referred to in the objection, were all attached to the
letter.
2.
The first responded stated that he
had regard to the complaint of the KGG dated 19 July 2018 and which
constituted the “
lodging of a
complaint”
referred to in section
10 of the Act. However, as the court
a
quo,
found, many of the supporting
emails referred to predate the first respondent’s decision. The
remaining emails should have
been addressed to and sent directly to
the first respondent. Hence the court held the non-receipt of the box
with the complaints
to be irrelevant. In my view, that was not
a misdirection.
3.
Much correspondence was received from
the KGG setting out all the considerations and reasons for the
opposition, even though none
of the opposing parties attended the
relevant meetings. What was conveyed to the first respondent was that
the communities were
sufficiently represented at these meetings.
4.
The appellant, like the KGG before him,
wishes to enforce the outcome of two processes which were not
conducted in accordance with
the procedures set out in the Act (the
2007 snap poll, the independent survey) and the abandoned process
which started with the
third respondent’s naming task team
chaired by Wells. The stance adopted by the appellant is simply put,
that the winner
of the dispute is the party with the most signatures
and that should be the last word on the matter. That cannot be.
Grahamstown
spans a very large area with a population far greater
than the approximately 15000 persons who were against the name
change. According
to the respondents, the various wards were
sufficiently represented and opted for a name change. As stated
before, the appellant’s
failure to participate in the process
commencing with the Mali application limited the grounds upon which
he could successfully
challenge the decisions taken by the first
respondent.
5.
For all the aforesaid considerations the
appeal cannot succeed.
Costs
6.
Relying
on the decision in
Biowatch
Trust v Registrar, Genetic Resources and Others,
[4]
Lowe
J held that the application for review raised genuine constitutional
issues relevant to the Act and the Bill of Rights and
these issues
were raised
bona
fide.
Accordingly,
it had to be taken into account when making an appropriate costs
order. The learned judge also took into account that
the appellant
was 70 years old. Very little had changed when the appeal was argued.
Accordingly, this court should have the same
approach.
7.
Lastly, I wish to apologise sincerely for
the very late delivery of this judgment. The reason therefore are
personal and it would
serve no purpose to set those reasons out
herein. The legal representatives of the parties are however free to
contact me in this
regard, should they wish to do so.
8.
In the circumstances, the following order
do issue:
The
appeal is dismissed.
E
REVELAS
JUDGE
OF THE HIGH COURT
I
agree
M
JOLWANA
JUDGE
OF THE HIGH COURT
I
agree
L
RUSI
JUDGE
OF THE HIGH COURT (ACTING)
Counsel
for the Appellant :
Adv I.J Smuts SC and Adv G Brown
Instructed
by
:
Wheeldon
Rushmere
& Cole Inc.
Counsel
for the Respondents
:
Adv A
Beyleveld SC and Adv Nogantshi
Instructed
by
: Whitesides
Date
of hearing
: 26 April
2021
Date
judgment delivered :
10 March
2022
[1]
2007
(5) SA 236
(SCA) paragraphs [47] to [50]
[2]
Per
“Draft Report from Name Task Team Chairperson Clr J Wells”
for discussion at meeting on 29 January 2008”
[3]
2007
(5) SA 236
(SCA)
[4]
2009
(6) SA 232
(CC)