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[2011] ZASCA 221
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Democratic Alliance v Ethekwini Municipality (887/2010) [2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1 All SA 412 (SCA) (30 November 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 887/2010
In the
matter between:
THE
DEMOCRATIC ALLIANCE
….............................................................
APPELLANT
v
ETHEKWINI MUNICIPALITY
…...............................................................
RESPONDENT
Neutral
citation:
Democratic Alliance v Ethekwini Municipality
(887/2010)
[2011] ZASCA 221
(30 November 2011)
Coram:
Navsa, Brand, Heher, Maya
et
Cachalia JJA
Heard:
4 November 2011
Delivered:
30 November 2011
Summary: Applications to review decisions by local authority to
change names of streets under its control – not ‘administrative
action’ reviewable under
Promotion of Administrative Justice
Act 3 of 2000
– legality and rationality of decisions
considered
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal High Court, Durban (Ntshangase J
sitting as court of first instance):
1 The appeal is upheld to the extent reflected in paragraph 3.
2 The respondent is directed to pay the costs of the appeal.
3. The order of the court a quo is set aside and replaced by the
following:
‘
(a) The first application, under case
number 6608/2007, is upheld.
(b) The decision of the respondent’s council on 28 February
2007 to rename the following nine streets:
1. Victoria Embankment;
2. Stanger Street;
3. NMR Avenue;
4. Point Road;
5. Alice Street;
6. Grey Street;
7. Broad Street;
8. Commercial Road;
9. M4 (Northern Freeway)
is hereby reviewed and set aside.
(c) The respondent is ordered to remove all signage indicating the
names of the aforesaid streets by any name other than those
set out
in (b) above within three months.
(d) The second application, under case number 10787/2008, is
dismissed.
(e) There shall be no order as to the costs of either application.’
4 The period of three months referred to in 3(c) above shall be
calculated from the date of this Court’s order.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(Navsa, Heher, Maya
et
Cachalia
JJA):
[1] The appellant, the Democratic Alliance, is registered as a
political party in terms of the
Electoral Commission Act 51 of 1996
.
The respondent is the Ethekwini Municipality, established in terms of
the Local Government: Municipal Structures Act 117 of 1998
(Municipal
Structures Act), inter alia for the City of Durban. Though the
appellant is represented on the respondent’s council,
(the
council), it is one of the minority parties. The overall majority is
held by the African National Congress (ANC). The appeal
has its
origin in two decisions of the council. Both decisions stemmed from a
process embarked upon by the respondent to systematically
rename
certain streets, freeways and buildings within its municipal
boundaries. The process took place in two phases. The first
impugned
decision, taken on 28 February 2007, marked the end of phase 1, while
phase 2 ended with the second impugned decision
which was taken on 28
May 2008.
[2] Pursuant to the first decision the council changed the names of
nine streets and named – or renamed – two buildings.
This
led to an application by the appellant in the court a quo during June
2007, for an order setting that decision aside. In September
2008
another minority party represented in the council, the Inkatha
Freedom Party (IFP), sought and obtained the leave of the court
a quo
to join the appellant as the second applicant in that application.
The council’s second decision of 28 May 2008, changed
the names
of 99 streets. This gave rise to a further application by the
appellant and the IFP in the court a quo for the setting
aside of
that decision. When the matter eventually came before Ntshangase J,
the two applications were heard and decided together.
On 3 June 2010
he dismissed both applications, but made no order as to costs. The
appeal against that judgment by the appellant
only – and not
the IFP – is with the leave of the court a quo.
[3] Though disputed by the appellant at an earlier stage of the
proceedings, it is now common cause that the council had the
authority
to assign names to streets, public places and buildings
within its area of jurisdiction, which included the power to rename
these
streets and buildings. To the source of this power I shall soon
return. But for the present, the council’s authority to take
the impugned decisions can be accepted as a fact. In broad outline
the appellant’s objections were against the process that
led to
the impugned decisions. These objections will be best understood
against the background facts. These are largely common
cause. Yet,
there are areas of dispute. Since the appellant sought final relief
in motion proceedings, I am constrained by the
time-honoured approach
of our courts in proceedings of this kind, essentially, to accept the
correctness of the respondent’s
version with regard to the
areas of dispute. Bearing that principle in mind, I propose to set
out the background facts in chronological
fashion. Though this does
not necessarily make for entertaining reading, I found the chronology
of assistance for my own understanding
of the case.
[4] On 29 October 2001 the council adopted a street naming and
renaming policy. Guidelines included in the policy were that, save
in
exceptional circumstances, streets would not be named after living
persons; that every effort should be made to use names of
people who
are from KwaZulu-Natal; and that the adopted names should reflect the
history and cultural diversity of the city. Under
the rubric
‘procedure for the renaming of streets’, the policy
document provided inter alia that:
‘
The
changing of street names [should occur] subject to prior consultation
with the addressees and all other affected parties having
taken
place.’
[5] During both phases of the renaming process, four bodies became
involved, namely, a task team, a subcommittee of the council
referred
to as the Masakhane Committee, the executive committee of the council
(Exco) and the council itself. Apart from the task
team, different
political parties, including the appellant and the IFP, were
represented in the other three bodies. The composition
of the task
team changed over time. But eventually it consisted of officials from
different municipal departments. The functions
of the task team
during each phase were to initiate the renaming process, attend to
the advertising required, scrutinise proposals
and report to the
Masakhane Committee. The Masakhane Committee reviewed the reports
from the task team and made recommendations
to Exco, which in turn
submitted reports and recommendations to council for its
consideration.
[6] Phase 1 of the renaming process commenced on 11 December 2003,
when council noted a resolution by Exco to begin the process
of
renaming nine identified streets, being the streets that were
eventually renamed during this phase. The process was, however,
interrupted by the national and provincial government elections in
2004. During March 2005 the Masakhane Committee decided to restart
the process. From 27 May to 10 June 2005 there were public
advertisements in the print media inviting proposals for new street
names in the respondent’s area. No mention was, however, made
in these advertisements of the nine streets that had already
been
earmarked to be renamed. About 200 submissions were received, but
again the process was interrupted. This time by the local
elections
that took place in March 2006.
[7] On 31 January 2007 the respondent’s mayor, in the course of
delivering his new year’s address to the council, referred
to
the nine streets involved by their new names. When the appellant and
the IFP objected, they were told that these name changes
were mere
proposals which had not been finally decided. During February 2007
notice of phase 1 was pertinently advertised in the
media. The notice
was purportedly given in terms of s 28 of the Local Government
Authorities Ordinance 25 of 1974 (KwaZulu-Natal)
whereas it should
have referred to s 208 of that Ordinance. It conveyed the
message that on 28 February 2007, the council
would ‘consider a
proposal to change the names of certain streets in Durban as set out
hereunder: . . ’. Then followed
a list of the nine streets
involved with their suggested new names, which happened to be the
same as those alluded to by the mayor
in his new year’s
address. In conclusion the notice stated that ‘all persons or
organisations having an interest in
the proposal are invited to
comment in writing to the under-mentioned address within seven days
(7) of the date of this notice’.
[8] According to Mr Michael Sutcliffe, the respondent’s city
manager, who deposed to the answering affidavits on its behalf,
a
large number of proposals were made consequent upon the advertised
notice. The minutes of the meetings held by the various bodies
involved, were annexed to the answering affidavit. They reflect that
the task team then considered the proposals and resolved to
recommend
the new names which happened to be those already stated in the
advertised notice. After by-passing the Masakhane Committee,
Exco
repeated the same recommendation – save for one exception –
to the council and on 28 February 2007 this recommendation
was
accepted by the latter. The minutes also reflect that at the meetings
of both Exco and the council, the decisions were opposed
by the
appellant and the IFP and that they were eventually taken by a
majority vote after extensive debate.
[9] Finally the minutes of the various meetings reflect that although
buildings referred to as the New Stadium and the International
Convention Centre in Durban were not mentioned in the advertised
notice, new names for these buildings were recommended by Exco
and
accepted by council. Sutcliffe’s explanation why these new
names were not mentioned in the advertised notice was that
these were
new names and thus not part of the renaming process. Though the facts
relied upon by Sutcliffe were disputed by the
appellant, I am bound
by the well-established rules pertaining to motion proceedings, to
accept the correctness of the respondent’s
version. Hence the
names of these two buildings play no further part in this judgment.
[10] Phase 2 started in March 2007 when the task team published new
notices in major local newspapers calling on the public to
put
forward proposals for the renaming of roads, streets, freeways,
municipal buildings, parks and public places within the area
of the
respondent’s jurisdiction. The same notice was conveyed by
posters placed in the more than 40 public offices of the
respondent
and at municipal libraries in its area. The notices also reflected
the policy considerations contained in the council’s
policy
document of October 2001. So, for example, it stated that names of
living persons would only be used in exceptional circumstances;
that
new names would recognise the history and cultural diversity of the
city; and so forth.
[11] A total of 245 proposals were received. Some were disqualified
as not adhering to the criteria of the policy document. Of
those
which did qualify, the task team prepared a list of 181 new names
which was then tabled at the Masakhane Committee meeting
of 18 April
2007. At that meeting the committee resolved to publish the list of
names and invite public comment. Since the 181
names were found to
contain a number of duplications which were removed, a list of 176
was published for comment in the major local
newspapers circulating
in the area. The published list contained the old names of 176
streets with the proposed new names alongside
them. In conclusion the
notice invited comments to these new names within 21 days of
publication.
[12] The notice elicited 27 645 responses which, by all
accounts, was beyond expectation. The task team prepared a schedule
which summarised the substantive submissions and objections received.
The schedule was then presented to the Masakhane Committee.
Due to
the large number of responses, this committee recommended that the
period for public comment should be extended for another
month to 23
June 2007. That recommendation was endorsed by Exco and eventually
confirmed by a council decision of 29 May 2007.
At the same meeting
of the council it was also decided to accept a recommendation by Exco
to amend the street names policy which
was adopted on 29 October
2001. According to the amendment, the requirement of prior
consultation with the addressees and affected
persons during the
renaming process was deleted and replaced with the requirement of
consultation with ward committees. From the
minutes of the council
meeting as well as the preceding Exco meeting where the amendment was
recommended, it appears that the amendment
was vigorously opposed by
the appellant and the IFP but eventually adopted by majority vote.
[13] Sutcliffe’s explanation for the amendment to the policy
was essentially twofold. Firstly, that the 2001 policy was adopted
in
the context of isolated renaming requests and before the council
started to contemplate a city-wide renaming of streets. Secondly,
that the policy was adopted at a time when ward committees were not
yet in existence. These committees were only established in
the
respondent’s area on 21 April 2007 pursuant to Part 4 of
Chapter 4 of the Municipal Structures Act. After the inauguration
of
the ward committees, Sutcliffe explained, it made more sense to
consult with these committees rather than with individual addressees,
particularly with regard to a city wide renaming process which was of
interest to people beyond those living in a particular street.
What
is more, Sutcliffe continued, the requirement of consultation with
addressees carried its own inherent difficulties. While,
for example,
freeways have no apparent addressees, roads in which there are
informal settlements with a dynamic population may
have thousands of
unidentified persons who would qualify as addressees.
[14] After the meeting of the council in May, the extension of the
public comment period to 23 June 2007 decided upon at that meeting
was also published and received considerable media coverage. On 4
June 2007 Sutcliffe sent a notice to the ward committees instructing
them to consider the proposed phase 2 names on the lists that he
enclosed and to submit their comments by 25 June 2007. Of the
100
committees 76 responded. On 21 August 2007 the task team was mandated
to consider all the new names proposed, including those
submitted
during the extended period and to prepare a shortlist of no more than
100 names. At the end of August 2007 the task team
submitted a list
of 83. This was sent to the ward committees on 17 September 2007.
They were given until 12 October 2007 to respond.
[15] On 28 November 2007 the task team submitted a report of all the
responses received to a meeting of the Masakhane Committee.
According
to the minutes of that meeting, the committee considered the report
thoroughly and then adjourned for further discussion
in order to
allow party caucuses to consider the proposals. On 13 February 2008
some political parties had still not submitted
their comments and
they were given an extension to do so until 18 February 2008.
Ultimately, deliberations of the Masakhane Committee
finally took
place on 14 May 2008. According to the minutes of that meeting the
committee reinserted further names, previously
removed from the
recommended shortlist, to make up a new list of 100 which it then
recommended to Exco. Though Exco endorsed the
recommendation, council
decided, at its meeting of 28 May 2008, to change the names of 99
streets in its area. That is the decision
which the appellant and the
IFP sought to set aside in their second review application.
[16] Departing from this factual premise, the appellant’s
objections were in broad outline that:
(a) no proper public consultation process preceded either of the
decisions in relation to phase 1 or phase 2;
(b) no proper deliberative process took place in any of the
committees or the council itself with reference to these decisions;
(c) the council had failed to comply with its own street naming
policy of 29 October 1991 and with the guidelines set out by the
South African Geographical Names Council under the provisions of the
South African Geographical Names Council Act 118 of 1998
.
[17] For the primary legal basis of its challenge to both decisions
the appellant relied on the Promotion of Administrative Justice
Act 3
of 2000 (PAJA). The respondent denied, however, that PAJA finds
application because, so it contended, the impugned decisions
do not
constitute ‘administrative action’ contemplated in PAJA
as an essential prerequisite for all judicial review
in terms of that
Act. The court a quo considered the issue thus arising for the most
part of its judgment. Eventually it agreed
with the argument of the
respondent. Hence it concluded that PAJA is not applicable. On appeal
the issue was again raised by the
appellant. Soon after the
commencement of his argument before us, counsel for the appellant,
however, conceded that the decision
of the court a quo on this aspect
could not be faulted.
[18] In the light of the concession, which in my view was rightly
made, I propose to deal with the issue without elaboration. The
definition of ‘administrative action’ in PAJA expressly
excludes the executive and legislative functions of a municipal
council. The question is therefore whether the impugned decisions
constituted the exercise of an executive or a legislative function
by
the council, on the one hand, or administrative action, on the other.
The starting point in answering this question seems to
lie in the
determination of the nature of the impugned decisions and the source
of the council’s authority under which these
decisions were
taken. As I see it, that source is to be found, firstly in ss 151 and
156, read with part B of Schedules 4 and 5
of the Constitution;
secondly in s 83(1) of the Municipal Structures Act; and thirdly
in s 208 of the Local Authorities
Ordinance 25 of 1974 (KZN).
The import of these provisions, in short, is to vest the control over
streets and public places within
a municipal area – and
pertinently the authority to name and rename these streets and public
places – in the council
of that municipality.
[19] The impugned decisions were therefore taken by the council in
the exercise of direct authority – as opposed to delegated
authority – which has its origin in the Constitution itself.
These decisions were taken by the elected members of the council,
in
open plenary session and by majority vote, as contemplated by
s 160(3)(
c
) of the Constitution. Moreover, the impugned
decisions were clearly influenced by political considerations for
which the elected
members are politically accountable to the
electorate. According to
Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 41 these are all pointers away from ‘administrative
action’ (See also
Mazibuko v City of Johannesburg
2010
(4) SA 1
(CC) para 130). As the decision in
Fedsure
also
implies, the fact that a particular decision is not incorporated in a
bye-law, does not in itself exclude it from the category
of
‘legislative functions’. (As to the nature of the
decisions in
Fedsure
, see paras 1 and 11-16.)
[20] There is further authority for the proposition that a decision
taken by a politically elected deliberative assembly whose
individual
members could not be asked to give reasons for the manner in which
they had voted, does not constitute ‘administrative
action’.
This is to be found in decisions such as
Steele v South Peninsula
Municipal Council
2001 (3) SA 640
(C) at 644D and
Van Zyl v
New National Party
2003 (10) BCLR 1167
(C) paras 48-54. Since the
decisions under consideration bear all these hallmarks, I think it
can be accepted with confidence that
they do not constitute
administrative action under PAJA. The further somewhat intricate
question as to whether these decisions
should be categorised as the
exercise of an executive function as opposed to a legislative
function, is one we do not have to decide.
As long as these decisions
do not qualify as ‘administrative action’, PAJA does not
apply.
[21] This conclusion does not mean, however, that these decisions are
immune from judicial review. The fundamental principle, deriving
from
the rule of law itself, is that the exercise of all public power, be
it legislative, executive or administrative – is
only
legitimate when lawful (see eg
Fedsure
para 56.). This tenet
of constitutional law which admits of no exception, has become known
as the principle of legality (see eg
Cora Hoexter
Administrative
Law in South Africa
117). Moreover, the principle of legality not
only requires that the decision must satisfy all legal requirements,
it also means
that the decision should not be arbitrary or irrational
(see eg
Pharmaceutical Manufacturers of South Africa: In re ex
parte President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 85;
Affordable Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA
247
(CC) at paras 74-75).
[22] Departing from these well established principles, the appellant
contended that the impugned decisions were illegal in that
they fell
foul of statutory requirements and that they also failed to meet the
rationality test. As to the former, it is not the
appellant’s
case that the decisions were not taken in accordance with procedural
requirements that are prerequisites to their
validity, ie that they
suffered from what has become known as a ‘manner and form’
deficiency (see eg
King v Attorneys’ Fidelity Fund Board of
Control
2006 (1) SA 474
(SCA) paras 17-18). The objection is that
the decisions were not preceded by a process of public participation
required by statute.
I propose to deal with this objection first.
[23] The Constitution places a specific duty on the National Assembly
(s 59(1)) and on the National Council of Provinces (s 72(1))
to facilitate public involvement in their legislative and other
processes. The same is expressly required from provincial
legislatures
– by s 118(1) of the Constitution – but
not from municipal councils. Nonetheless, as I see it, municipal
councils
are also constrained to facilitate public participation in
the performance of their executive and legislative functions. In my
view that constraint derives, first, from their general
constitutional obligation – under s 152(1)(
a
) of
the Constitution – to ‘provide democratic and accountable
government for local communities’ which by implication
requires
public involvement (see eg
Doctors for Life International v
Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para
145). Second, there are various statutory provisions which impose the
obligation on municipalities to establish appropriate
mechanisms so
as to enable local communities to participate in municipal affairs
(see eg s 17(2) and
s 51(1)(e)
of the
Local Government:
Municipal Systems Act 32 of 2000
).
[24] It stands to reason, I think, that the yardstick as to whether,
in given circumstances, the requirement of public participation
had
been satisfied by a municipal council cannot be different from the
one applied with reference to the constitutional obligations
imposed
on the Houses of Parliament. That yardstick was succinctly formulated
thus by Ngcobo J in
Doctors for Life International
para 145:
‘
. . .
[T]he duty to facilitate public involvement must be construed in the
context of our constitutional democracy, which embraces
the principle
of participation and consultation. Parliament and the provincial
legislatures have broad discretion to determine
how best to fulfil
their constitutional obligation to facilitate public involvement in a
given case, so long as they act reasonably.
Undoubtedly, this
obligation may be fulfilled in different ways and is open to
innovation on the part of the legislatures. . .
. ‘
And para 146:
‘
In
determining whether Parliament has complied with its duty to
facilitate public participation in any particular case, the Court
will consider what Parliament has done in that case. The question
will be whether what Parliament has done is reasonable in all
the
circumstances. And factors relevant to determining reasonableness
would include rules, if any, adopted by Parliament to facilitate
public participation, the nature of the legislation under
consideration and whether the legislation needed to be enacted
urgently.
Ultimately, what Parliament must determine in each case is
what methods of facilitating public participation would be
appropriate.
In determining whether what Parliament has done is
reasonable, this Court will pay respect to what Parliament has
assessed as being
the appropriate method. In determining the
appropriate level of scrutiny of Parliament’s duty to
facilitate public involvement,
the court must balance, on the one
hand, the need to respect parliamentary institutional autonomy, and
on the other, the right
of the public to participate in public
affairs. In my view, this balance is best struck by this Court
considering whether what
Parliament does in each case is reasonable.’
(See also
Matatiele Municipality v President of the Republic of
South Africa
[2006] ZACC 12
;
2007 (1) BCLR 47
(CC) paras 50-56.)
[25] Applied to the impugned decisions under consideration the
enquiry is therefore whether the council acted reasonably in
facilitating
public involvement. As appears from the quoted dicta by
Ngcobo J, one of the considerations in deciding this question is
whether
the council complied with its own rules. I find an
appropriate starting point to the enquiry in the street naming policy
which
council adopted on 29 October 2001. It will be remembered that
according to that policy the changing of street names would be
‘subject
to prior consultation with addressees and all other
affected parties having taken place’. We also know that the
procedure
was subsequently amended by a resolution of council on 29
May 2007 to the effect that the words ‘consultations with
addressees’
be replaced by ‘consultation with ward
committees’. I shall return to the amendment when dealing with
phase 2. It is
apparent, however, that when the decision with regard
to phase 1 was taken on 27 February 2007, the naming policy of 21
October
2001 was still operative in its unamended form.
[26] Equally apparent is the fact that with reference to phase 1, the
council had not complied with that policy, nor did it implement
the
new policy. That much is common cause. It is therefore clear that the
council had failed to satisfy its own demands of reasonableness.
The
respondent did not suggest that this failure was of no consequence.
That suggestion would hardly be open to it since it deviated
from its
own prescription. Moreover, the respondent tendered no explanation
for this failure on the part of the council. What is
clear is that it
was not dictated by urgency. It will be remembered that the name
change of the nine streets in question were considered
more than
three years before the decision was actually taken.
[27] The argument on behalf of the respondent, which was apparently
accepted by the court a quo, was that it had nevertheless done
enough
to satisfy the dictates of reasonableness. I do not agree with this
argument. The first indication that the names of streets
within the
respondent’s area may change was conveyed by notices in the
press during May and June 2005. However, these advertisements
did not
mention the names of the nine streets involved, even though they had
already been earmarked for change. They consisted
of no more than a
general invitation to propose new street names in the respondent’s
area. In the circumstances these advertisements
could hardly be
regarded as proper notice to the public of the impugned decision
which was to follow nearly two years later. The
first public notice
of this decision came in February 2007. This notice identified the
nine streets under consideration and their
proposed new names. It did
not invite any suggestions for alternative names. It only informed
the public that these were the new
names the council would consider
at the end of that month. More significantly, it afforded members of
the public only seven days
to submit written comment. The appellant’s
objection was that the time period was inadequate in that it provided
insufficient
time for the receipt and compilation of objections;
research into the background of the old and new names; and so forth.
The validity
of this objection, it seems to me, is dictated by common
sense.
[28] There is no explanation for this unreasonably short notice
period. Again the reason could obviously not be ascribed to urgency.
As I have said, the proposal to change the names of these nine
streets had already been mooted more than three years earlier. What
is more, the procedure adopted is in stark contrast with that which
was to follow in phase 2. We know that during the latter phase
the
eventual decision was preceded, for example, by a notice conveyed in
the press and by posters placed in the respondent’s
offices
throughout its area of jurisdiction. When the proposed new names had
been identified, the public was first given 21 days
and then another
month to comment. Ward committees were then consulted and they were
also given a month to respond. Finally party
caucuses were allowed
ample time to consider and discuss the proposed new names before
phase 2 eventually terminated in the council’s
decision of 28
May 2007.
[29] In short, the manifest unreasonableness of the public
participation process adopted during phase 1 is illustrated by what
the council itself regarded as reasonable during phase 2. It follows,
that in my view, council’s decision of 28 February
2007, to
change the names of the nine streets involved did not satisfy the
legal obligation imposed on it to engage in a reasonable
public
participation process. In consequence, the decision failed the
legality test and therefore falls to be set aside.
[30] This brings me to phase 2. In this instance the appellant again
raised the objection that the respondent had failed to apply
the
policy reflected in the council resolution of 29 October 2001 by
failing to consult with street addressees. But this time the
objection falters because of the formal amendment of the policy by
the subsequent council decision of 29 May 2007 which substituted
addressees with ward committees. There is no suggestion that the
amendment was invalid for reasons pertaining to either substance
or
procedure. Such suggestion would in any event be untenable. The
reasons for the amendment given by Sutcliffe appear to be eminently
sensible. What the appellant did contend was that the amendment could
not find application midway through a name change process
which had
already started. But I cannot see why not. The amendment occurred
before the process had reached the stage where it would
take effect,
ie before consultation with either the addressees or ward committees
was required. It is common cause that the ward
committees were then
consulted. Hence the requirements of the amended policy had been met.
[31] I have already given a rather laborious account of all the steps
taken by the respondent to facilitate public participation
during
phase 2. Repetition of the exercise can hardly serve any useful
purpose. Suffice it to say that what the respondent did
during phase
2 cannot, in my view, be categorised as unreasonable. The appellant’s
further objection was that the respondent
had failed to indulge in a
consultative process with opposition parties in the various
committees and at the level of council itself.
Apart from the
questionable legal validity of this objection, it is simply not borne
out by the facts. On the contrary, the minutes
of the meetings of the
various committees and of the council reflect comprehensive debates
between council members representing
the different political points
of view. The appellant’s real objection appears to be that it
and the other minority parties
had been outvoted by the ANC which
holds the overall majority. That, however, is inherent in the
democratic process. It resulted
in a political decision for which the
ANC must account to the electorate. For this Court to review that
decision would offend the
doctrine of the separation of powers, which
is inherent to our constitutional democracy.
[32] The appellant’s further contention that the council’s
decision during phase 2 had failed the legality test, rested
on the
standards and guidelines set by the South African Geographical Names
Council. This council (the Names Council) was established
in terms of
the
South African Geographical Names Council Act 118 of 1998
. In
terms of
s 9(1)(
b
) of the Act, the Names Council’s
only power in relation to local authorities is to set standards and
guidelines. Its power
to recommend names to the responsible Minister
– who is the Minister for Arts and Culture – in terms of
s 9(1)(
d
) is restricted to names falling within ‘the
national competence’. In terms of s 12(3) of the Act, the
Minister
is empowered to make regulations about any matter that is
permitted or required to be prescribed by the Act. Regulations were
indeed
promulgated in terms of s 12 (see Government Notice R339
in
Government Gazette
of 7 March 2003). But these regulations
do not deal with any standards and guidelines for local authorities.
[33] What the appellant relied on was a booklet published by the
Names Council. The booklet itself confirms that the Names Council
has
no jurisdiction over names of streets under the control of local
authorities. It however records that the same policies and
principles
established by the Names Council apply to all geographic names,
including those that do not fall under its direct control.
The
principle referred to in the booklet pertinently relied on by the
appellant is that ‘names of living persons should generally
be
avoided’.
[34] I find the booklet a rather curious document with questionable
legal status. In
Chairpersons’ Association v Minister of
Arts and Culture
2007 (5) SA 236
(SCA) this Court accepted that
the booklet is generally binding. But the acceptance was based on an
assumption to that effect by
the parties involved in that case (see
para 10 of the judgment). This Court was therefore not required to
determine the legal status
of the booklet. In this matter I again
find it unnecessary to decide the question. This is so because, in my
view, the appellant’s
objection is in any event unwarranted on
the facts. The principle on which it pertinently relies is no more
than a guideline which
contains no absolute injunction against the
use of the names of living persons. All it says is that these should
generally be avoided.
It seems that only a small number of the names
adopted by the council in phase 2 are those of living persons. As I
see it, the
appellant has therefore failed to establish a case that
the respondent did not ‘generally’ avoid names of this
kind.
[35] While referring to policy guidelines, it will be remembered that
the council adopted its own guidelines which provided, for
instance,
that every effort should be made to use names of people who are from
KwaZulu-Natal and to adopt names which reflect the
history and
cultural diversity of the city. Though the appellant raised the
objection in its papers that the new names adopted
during phase 2 did
not follow these guidelines, no specific challenge of illegality was
mounted on this basis. Perhaps the appellant
realised that, due to
the tentative nature of the guidelines – which required no more
than ‘that every effort should
be made’ –
insignificant deviations from them could hardly be said to render the
impugned decision unlawful. But, be
that as it may, absent any
pertinent challenge on this basis, it cannot be entertained.
[36] I now turn to the appellant’s objection against the
council’s decision in phase 2 which is based on irrationality.
On the appellant’s papers this objection was raised within the
narrow parameters that the decision as a whole was irrational.
Conversely stated, the objection was not aimed at individual name
changes. Whenever objections were raised against specific names
they
were pertinently prefaced by the introduction that this was done ‘by
way of example’. In this light the attempt
by the appellant’s
counsel in argument before us to extend the rationality challenge to
particular name changes, can therefore
not be entertained. The reason
is obvious. Had these attacks been raised on the appellant’s
papers, the respondent may well
have been able to explain why that
particular name had been chosen.
[37] As to the rationality challenge against the decision in
principle, involving the names of 99 streets, it has by now become
well established that the rationality standard does not have a high
threshold. All it requires is that the impugned decision must
be
aimed at the achievement of a legitimate government object and the
chosen method to achieve that object. The standard does not
require
that the decision is reasonable, fair or even appropriate. It is of
no consequence that the object could have been achieved
in a
different or better way (see eg
Prinsloo v Van der Linde
1997
(3) SA 1012
(CC) para 36;
Pharmaceutical Manufacturers supra
para 90;
Law Society of South Africa v Minister of Transport
2011
(1) SA 400
(CC) paras 32-35).
[38] The rationale given by the respondent for the council’s
decision to embark upon a process of renaming streets under
its
control is that the existing names reflect a single and narrow
historical perspective essentially of a colonial past. The legitimacy
of that governmental object can hardly be doubted. Equally obvious,
in my view, is the rational connection between the achievement
of
that object and the decision in principle to change the names of 99
out of the thousands of streets under the respondent’s
control.
Clearly the determination of just which streets should be renamed and
what new names chosen admits of no right answer
and is inherently
political. That is reflected in the polar-contrasting perspectives
taken by the appellant and the respondent
in relation to the
individual names. The appellant contended that some of the new names
are provocative and insensitive. It is
apparent, however, that these
denouncements derive from the appellant’s political
perspective, which is obviously not shared
by the majority party.
From a political point of view, the appellant may be right, but bad
politics is something for the electorate
to decide. It is not for
this court, or any other court, to interfere in the lawful exercise
of powers by the council on that basis.
[39] It follows that in my view the appellant’s first
application, which was for the review of the council’s decision
in phase 1 should have succeeded, but that the court a quo’s
dismissal of the second application, pertaining to the decision
in
phase 2, should be upheld. It follows that with reference to the
first application, the appeal should succeed which means that
the
appeal is substantially successful and that the costs of the appeal
should follow that event. What remains is the issue of
costs in the
court a quo. Though both applications were dismissed by the court a
quo, it made no order as to costs. In doing so
it was clearly guided
by the principle established by the Constitutional Court, eg in
Biowatch Trust v Registrar Genetic Resources
2009 (10) BCLR
1014
(CC) para 95, that private litigants seeking to protect their
constitutional rights should not be mulcted in costs, even when they
are unsuccessful in doing so. With regard to the second application
where the appellant was successful, I think that order should
stand.
As to the first application which should, in my view, have succeeded,
the result would ordinarily be that respondent should
pay the costs.
I do not believe, however, that in all the circumstances that result
would be fair. The two applications were argued
together and the
papers bearing upon the second application, where the respondent was
the successful party, were substantially
more voluminous that those
pertaining to the first. In consequence I conclude that, despite our
interference on the merits cost
order of the court a quo should
stand.
[40] For the reasons the following order is made:
1 The appeal is upheld to the extent reflected in paragraph 3.
2 The respondent is directed to pay the costs of the appeal.
3. The order of the court a quo is set aside and replaced by the
following:
‘
(a) The first application, under case
number 6608/2007, is upheld.
(b) The decision of the respondent’s council on 28 February
2007 to rename the following nine streets:
1. Victoria Embankment;
2. Stanger Street;
3. NMR Avenue;
4. Point Road;
5. Alice Street;
6. Grey Street;
7. Broad Street;
8. Commercial Road;
9. M4 (Northern Freeway)
is hereby reviewed and set aside.
(c) The respondent is ordered to remove all signage indicating the
names of the aforesaid streets by any name other than those
set out
in (b) above within three months.
(d) The second application, under case number 10787/2008, is
dismissed.
(e) There shall be no order as to the costs of either application.’
4 The period of three months referred to in 3(c) above shall be
calculated from the date of this Court’s order.
_______________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: H P Jefferys SC
Instructed by Goodrickes, Durban
Honey Attorneys Inc, Bloemfontein
RESPONDENTS: A M Stewart SC
V Naidu
Instructed by Lina Mazibuko Attorneys, Durban
Matsepes Inc, Bloemfontein