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[2007] ZASCA 44
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Chairpersons' Association v Minister of Arts and Culture and Others (25/2006) [2007] ZASCA 44; [2007] SCA 44 (RSA); 2007 (5) SA 236 (SCA) ; [2007] 2 All SA 582 (SCA) (29 March 2007)
Links to summary
REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 25/2006
Reportable
In
the matter between:
THE
CHAIRPERSONS
’
ASSOCIATION
......................
APPELLANT
and
MINISTER
OF ARTS & CULTURE FIRST
......................
RESPONDENT
THE
CHAIRMAN OF THE SOUTH
AFRICAN
GEOGRAPHICAL NAMES COUNCIL
......................
SECOND
RESPONDENT
THE
MUNICIPALITY OF MAKHADO
......................
THIRD RESPONDENT
CORAM
:
HOWIE P, FARLAM, BRAND, JAFTA et CACHALIA JJA
HEARD
:
19 FEBRUARY 2007
DELIVERED
:
29 MARCH 2007
SUMMARY:
Administrative
Law – PAJA s 6(2)
(e)
(iii)
– name change of Louis Trichardt to Makhado reviewed and set
aside.
Neutral
citation: This judgment may be referred to as
The
Chairpersons’ Association v Minister of Arts and Culture
[2007] SCA
44 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] This is an appeal
from a decision of Legodi J sitting in the Pretoria High Court in
which he dismissed the appellant’s application
for an order
reviewing and setting aside (1) the decision of the first respondent,
the Minister of Arts and Culture, in terms of
s 10(1)
of the
South
African Geographical Names Council Act 118 of 1998
approving the
change of the name of the town Louis Trichardt to Makhado, and (2)
the first respondent’s decision in terms of
s 10(5)
of Act 118
of 1998 to reject the appellant’s objection to his approval of
the said name change.
[2] The judgment on
appeal has been reported: see
Chairpersons’
Association v Minister of Arts and Culture and Others
2006
(2) SA 32
(T). The appellant is the Chairpersons’ Association,
a voluntary association, which according to its Constitution was set
up
‘to promote good corporate governance in a transparent
manner and to promote good relationships amongst all cultural,
racial,
religious and business groups in the greater Makhado
Municipal Area’. The first respondent is the Minister for Arts
and Culture.
The second respondent is the chairman of the South
African Geographical Names Council a body established by s 2 of Act
118 of 1998,
as amended. (In what follows I shall refer to Act 118 of
1998 as ‘the Act’ and to the South African Geographical
Names
Council as ‘the Names Council’.) The third
respondent is the Municipality of Makhado, against which no relief
was claimed
and which was joined as a respondent after the review
proceedings were instituted.
RELEVANT STATUTORY
PROVISIONS
[3] According to its long
title the purposes of the Act are
‘
(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’.
[4] Section 1 is the
definitions section. It contains the following definition of
‘standardisation’
:
‘
In this Act, unless the context
indicates otherwise –
. . .
“
standardisation” means –
(a)
determination
of –
(i) the name to be applied to each
geographical feature;
and
(ii) the written form of that name;
and
(b)
the
regulation by an appropriate authority of a geographical name, its
written form and its application . . .’
[5] Section 2(1) provides
for the establishment of the Names Council. Subsection (2) sets out
the objects of the Names Council, as
follows:
‘
(2) The objects of the Council
are-
(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
international level;
(e)
to
ensure the implementation of standardised geographical names in South
Africa; and
(f)
to
promote awareness of the economic and social benefits of the
standardisation of geographical names.’
[6] Section 9, which sets
out the powers and duties of the Names Council, reads as follows:
‘
(1) The Council must-
(a)
set
guidelines for the operation of Provincial Geographical Names
Committees;
(b)
set
standards and guidelines for local and provincial authorities in
their respective areas of jurisdiction;
(c)
receive
proposed geographical names submitted by State departments, statutory
bodies, provincial governments, municipalities and other
bodies or
individuals;
(d)
recommend
geographical names falling within the national competence to the
Minister for approval;
(e)
advise
the Minister on-
(i) 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;
(f)
in
consultation with provincial governments, identify existing
geographical names in need of revision, and co-ordinate requests for
advice on geographical names and standardisation;
(g)
communicate
decisions and relevant information on geographical names approved in
terms of section 10 (1) effectively to the various
State departments,
the public, and all other users of geographical names at national and
international level by means of gazetteers,
lists, maps and other
published and electronic media;
(h)
liaise
with-
(i) national and international
organisations concerned with geographical names; and
(ii) cultural, historical and
linguistic organizations;
(i)
in
consultation with the Minister and the Provincial Geographical Names
Committees, formulate policies, principles and procedures,
taking
cognisance of the United Nations resolutions and international
practice with reference to the standardisation of geographical
names;
(j)
perform
any other duty imposed on it by this Act or any other law; and
(k)
not
later than one month before the commencement of each financial year,
submit a business plan containing such information as may
be
prescribed to the Minister for his or her approval.
(2) The Council may-
(a)
exercise
any power conferred on it by this Act or any other law; and
(b)
generally,
do everything which is necessary to perform its duties referred to in
subsection (1).’
[7] It is common cause
between the parties that a change of name in respect of Louis
Trichardt is, as it is described in s 9 (1)
(d)
,
a matter within the national competence.
[8] Section 10, which
deals with the approval and revision of geographical names, reads as
follows:
‘
(1) The Minister may approve or
reject a geographical name recommended by the Council in terms of
section 9 (1) (d).
(2) A geographical name approved or
rejected by the Minister in terms of subsection (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 reasons for the
decision.’
[9] As this is an attack
on the validity of an administrative decision it is also necessary to
refer to s 6 of the Promotion of Administrative
Justice Act 3 of 2000
(to which I shall refer in what follows by using its acronym ‘PAJA’).
Section 6, as far as is
material, reads as follows:
‘
(2) A court or 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 . . .’
GUIDELINES,
POLICIES, PRINCIPLES AND PROCEDURES
[10] It was common cause
between the parties that the guidelines set in terms of s 9 (1)(a)
and the ‘policies, principles and
procedures’ formulated
in terms of s 9 (1)(i) of the Act are to be found in a document
available on the Names Council’s
website a printout of which is
annexed to the founding affidavit.
[11] This document
contains the following paragraphs, which are relevant in these
proceedings:
Provincial Geographical Names
Committees (PGNCs)
Provincial Geographical Names
Committees are established in terms of
Section 2(2)
(a) of the
South
African Geographical Names Council Act (Act
No. 118 of 1998). They
are established by the Provincial department responsible for Arts and
Culture after consultation with the
SAGNC.
Functions of a Provincial
Geographical Names Committee
A PGNC is responsible for advising
local authorities and working with them in ensuring that they apply
the principles of the SAGNC
to the names under their jurisdiction.
A PGNC makes recommendations to the
SAGNC on the names of geographical features that fall within its
provincial boundaries. It should
do preparatory work for the
submission of names to the SAGNC and is responsible for seeing that
local communities and other stakeholders
are adequately consulted.’
‘
Policies for standardisation
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 SAGNC;
the historical use of the name;
redress, where a name is changed on
the basis of historical consideration;
United Nations resolutions on the
standardisation of geographical names;
any other relevant factors which the
SAGNC may identify.
Human rights and the South African
Constitution
Determining a name for a place
requires balancing historical and linguistic considerations,
communicative convenience, the spirit
of a community and the spirit
of the nation.’
‘
Can existing names be
changed?
Geographical names are part of the
historical, cultural and linguistic heritage of the nation, which it
is more desirable to preserve
than destroy.
One of the objects of the SAGNC is “to
facilitate the transformation process for geographical names”.
Application may be made for an
existing geographical name to be changed if the applicant believes
that it does not meet the Policies
and Principles of the SAGNC. The
application must be made on the same form that is used for new names,
and should be accompanied
by a detailed motivation and, where
possible, supporting documents.’
‘
Who may apply for approval
of a name?
All government departments, provincial
government, local authorities, the SA Post Office, property
developers and any other body or
person may apply.
How standardising is done
The SAGNC receives all applications
for the approval of geographical names under its jurisdiction and
ensures that proper consultation
has taken place and that the name
meets the Council’s requirements in all respects.
The SAGNC takes the final decision on
the form or forms of names and recommends them to the Minister.
Once a name has been approved by the
Minister, that name has been standardised. It is then published in
the Government Gazette.’
FACTS
[12] On Friday, 25
January 2002, the mayor of the third respondent was summoned to the
office of the Provincial Member of the Executive
Committee for Local
Government and Housing of the Limpopo Province and told that the
names of a number of towns in Limpopo Province,
including that of
Louis Trichardt, had to be changed because, as it was put, these
names ‘reminded us of the history of oppressive
colonial
practices.’
[13] The following
Wednesday, 30 January 2002, at a meeting of the council of the third
respondent (which I shall call in what follows
‘the council’)
the mayor announced that the name of the town had to change before
the end of February 2002, and a sub-committee
was appointed by the
mayor to investigate the renaming of the town.
[14] The next day,
Thursday, 31 January 2002, the secretary to the mayor, Mr NP Magwala,
issued an instruction to all ward councillors
to convene people’s
forums in their wards on Saturday, 2 February 2002, or Sunday, 3
February 2002, and stated that written
submissions had to reach the
secretary’s office before 16 February 2002. The ward
councillors were requested in this communication
to invite all
stakeholders to attend a public hearing on Thursday, 7 February 2002,
at 2 pm at the Louis Trichardt showground hall.
[15] The following day,
Friday, 1 February 2002, Mr Magwala issued a notice in the following
terms:
‘
CHANGING OF THE NAME OF
THE TOWN
This serves to inform you that the
name of the town is about to be changed before the end of February.
You are therefore requested
to submit written representations to the
Office of the Mayor, Civic
Centre in the Reception Hall, Ground Floor
on
or before the
6
th
February 2002.
You
may either fax your proposal to
015
516 4392.
The said proposed
list of the name(s) must be signed by the writer(s).’
[16] On Wednesday, 6
February 2002, [not Thursday, 7 February 2002, the date mentioned in
the communication to the ward councillors
from the secretary to the
mayor] a public meeting took place at the Louis Trichardt showground
hall. It was attended by approximately
110 people. 55 new names were
suggested for the town. The municipal manager requested the
traditional leaders to direct the process.
The dates for regional
public hearings were announced as follows:
12 February 2002 –
Vuwani;
13 February 2002 –
Hlanganani;
14 February 2002 –
Nzhelele;
17 February 2002 –
Zoutpansberg.
[17] The Vuwani meeting
took place on 12 February 2002 and was attended by 51 people. The
Hlanganani meeting was held at Rivoni on
13 February 2002, and was
attended by 59 people. The meeting at Nzhelele was held on 14
February 2002, and was attended by 91 people.
There is no information
in the papers as to whether the Zoutpansberg meeting took place.
[18] In some wards of the
Makhado municipality meetings were held about the name change but
they were poorly attended. In other wards
no meetings were held.
Included among these wards was ward 1. According to the councillor
for the ward this was due to the short
notice given. Ward 1, which
comprises about 50% of the total jurisdictional area of the
municipality, includes the town of Louis
Trichardt west of the
national road, all the businesses in that part of the town, the Buys
Community and a number or rural communities.
[19] On 21 February 2002
the report prepared by the committee appointed to investigate the
renaming of the town was presented to the
municipality’s
executive committee. Its recommendation was that the town’s
name be changed from Louis Trichardt to Makhado.
On the same day the
council resolved at a special meeting to change the name in
accordance with the sub-committee’s recommendation.
[20] On 26 February 2002
a meeting took place between representatives of the Soutpansberg
Chamber of Commerce and the municipality’s
executive council at
which the chamber of commerce was requested to raise its objections
to the name change in writing and the mayor
stated that the name
change would be put on hold until a formal meeting had been held with
the chamber in order that its views could
be heard after which the
matter would be reconsidered.
[21] On 27 or 28 February
2002, Mr Magwala sent a letter to the editor of the Zoutpansberger, a
newspaper circulating in Louis Trichardt,
which contained the
following:
‘
The Executive Committee of the
Sakekamer in Louis Trichardt has approached the Executive Committee
of the Municipality on Tuesday
the 26 February 2002 whereby it raised
its concerns in relation to the change of the name of the town. The
Executive Committee of
Sakekamer has been requested to bring in their
concerns in writing after which a meeting will follow. It is the
policy of this Municipality
to listen to the concerns of all its
citizens of structures within this Municipality.
The Municipality has already sent a
report to the MEC for Local Government and Housing Mr MJ Maswanganyi
who will then ensure the
necessary procedures are implemented to have
the new name gazetted. In conclusion I must indicate that the new
name of the town is
MAKHADO.
I hope that the above will clarify all
the misunderstandings concerning this matter.’
[22] On 27 February 2002
the chamber of commerce wrote to Mr Magwala, referring to the letter
he had written to the editor of the
Zoutpansberger and pointed out
that what he had said in the letter was in conflict with what had
been said by the mayor the previous
day at the meeting between
representatives of the chamber of commerce and the executive council.
[23] On 27 February 2002
the chamber also wrote to the mayor and the members of the executive
committee asking for a meeting to be
convened as soon as possible so
that the name change could be discussed with the chamber.
[24] On 11 March 2002 the
chamber wrote to the secretary of the Names Council recording its
objections to the change of name.
[25] On 26 March 2002 the
chairman and vice-chairman had a meeting with the Minister of
Provincial and Local Government, Mr FS Mufamadi,
who then wrote a
letter to the mayor in which he stated that he urged both the chamber
and the council, which he was informed were
to have a meeting on the
following day, to resolve the matter by dialogue and to find a
settlement that would promote unity within
Louis Trichardt and the
Makhado municipal area.
On 27 March 2002 the
meeting between the Executive Committee and the Chamber of Commerce,
to which Mr Mufamadi had referred, took
place. At this meeting the
chairman of the chamber stated that the mayor had agreed that the
name change process would be halted
but that it had not been. The
mayor stated that his office was ready to clarify to the chamber ‘the
process of the name change’.
Later on in the meeting he said:
‘We consult politicians, not Chambers’. He also said that
Mr Mufamadi would be told
that the ward councillor for ward one,
Councillor Helm, had not done her job and that the council would not
revoke its decision.
[26] On 2 April 2002 the
chamber reported what had happened at the meeting of 27 March 2002 to
Mr Mufamadi and requested him to intervene.
[27] Although for some
reason which was not explained the relevant correspondence is not
before the court, it appears that at some
stage prior to 21 May 2002
the council’s proposed name change was considered by the Names
Council which referred it back to
the council because there was
already a Makhado township. The Names Council suggested that to avoid
duplication the council should
either submit a second choice or
rename the existing Makhado and then allocate the name to Louis
Trichardt.
[28] On 25 June 2002 the
council resolved that Makhado Township be renamed Dzanani Township
and that its resolution of 21 February
2002 ‘be adhered to and
that the application in this regard be confirmed with [the Names
Council].’
[29] On 26 June 2002 the
third respondent’s acting municipal manager applied to the
Names Council for the names of Louis Trichardt
and Makhado Township
to be changed to Makhado Town and Dzanani Township respectively.
Subsequently on 28 February 2003 a further
application was made, this
time by the third respondent’s municipal manager, for the name
of Louis Trichardt to be changed
to Makhado. It does not appear from
the record what, if anything, had happened to the application of 26
June 2002, and why a further
application was made on 28 February
2003.
[30] On 14 March 2003 the
Names Council held a meeting at which the applications,
inter
alia,
for
the change of the name of Louis Trichardt to Makhado Township and
Makhado Township to Dzanani Township were considered. The minutes
of
the meeting, which were subsequently signed by the chairperson on 28
May 2003, do not contain a resolution stating that the Names
Council
recommended the proposed name changes and for approval by the first
respondent. What the minutes contain on this point is
the following:
‘
Prof LF Mathenjwa [the
chairperson] then presented the applications for and against the
change of names from Mpumalanga. He asked
for Council’s
resolution on this issue.
Dr Beukes said that a geographical
name should be approved by the Minister after receiving
recommendations from the SAGNC, and whoever
had an objection had an
opportunity to forward it to the Minister after the approved name had
been published electronically and in
the
Government
Gazette.
The Council agreed with Dr Beukes and
decided that the Unit should bring to the Minister’s attention
that there were objections
to the name changes from Limpopo and
Mpumalanga. For example, the application for the change of name
Jeppe’s Reef
to
Embhojeni
should
be recommended but sent to the Minister with a note saying that there
was an objection to it.’
[31] On 9 May 2003 the
Director-General of the Department of Arts and Culture wrote a
memorandum to the first respondent, which, as
far as is material, is
in the following terms:
‘
GEOGRAPHICAL NAMES
RECOMMENDED BY THE SOUTH AFRICAN GEOGRAPHICAL NAMES COUNCIL (SAGNC)
MEETING OF 14 MARCH 2003 FOR THE APPROVAL BY
THE MINISTER
INTRODUCTION
The SAGNC held a business meeting on
14 March 2003. At this meeting twenty-two names were recommended for
your approval.
DISCUSSION
2. The table of the recommended names
is attached as Annexure A.
3. Out of the twenty-two recommended
names, nineteen have a political significance and are of public
interest (Annexure B).
4. The SAGNC would like to bring to
your attention the correspondence you received from different
stakeholders with regard to the
change of name from Louis Trichardt
to Makhado (Annexure C).
5. The SAGNC would also like to give
you assurance that despite all objections and concerns regarding the
name change, a proper consultation
process was followed.’
. . .
RECOMMENDATION
6. It is recommended that you approve
the names as recommended by the SAGNC.’
[32] Among the list of
new names which according to the Director-General had been
recommended for approval were Dzanani and Makhado:
these two names
were also included in the list of names with a political
significance.
[33] On 15 May 2003 the
first respondent approved the recommendations contained in paragraph
6 of the Director-General’s memorandum.
[34] Two government
notices dealing with the change of name of,
inter
alia,
Louis
Trichardt were published in the Government Gazette: viz Government
Notice 712 of 6 June 2003 in which it was stated,
inter
alia,
that
the first respondent approved the place name Makhado in respect of
the former Louis Trichardt ‘on the advice
of
the Names Council’, and Government Notice 864 of 20 June 2003
in which it was stated that the approval was given on 15 May,
again
‘on the advice’
of
the Names Council. (It is clear that the first Government Notice was
incorrect and that it was replaced by the Government Notice
of 20
June 2003, which correctly reflected the decision made by the first
respondent.)
[35] On 30 June 2003 the
appellant’s attorney objected in terms of s 10 (3) of Act 118
of 1998 to the change of the name of
the town of Louis Trichardt to
Makhado. In an undated letter received by the appellant on 13
November 2003 the first respondent rejected
the appellant’s
objection. The reasons he gave in support of this decision were the
following:
‘
A process of and sufficient
consultation was followed before this matter was finalized;
publication in the Government Gazette
was done in accordance with the Act; and
the approved name is not in conflict
with the principles and policies of the South African Geographical
Names Council.’
APPELLANT’S
CONTENTIONS
[36] The appellant’s
attack on the validity of the name change was based on three main
contentions: viz (1) that the Names Council
had not made a
recommendation to the first respondent in terms of s 9 (1)(d) of the
Act for the change of the name of Louis Trichardt
to Makhado; (2)
that the application for the name change had not been preceded, as it
should have been, by proper consultation with
all interested parties;
and (3) that the first respondent in considering the objection under
s 10 (3) did not properly apply his
mind to the objections and if he
had done so he would have realised that a proper consultation process
had not been followed. The
appellant also sought an order declaring s
10(3) and 10(4) of the Act to be unconstitutional.
[37] In support of the
contention that there had to be proper consultation before there was
a name change the appellant relied on
the paragraphs in the
guidelines in which the functions of the Provincial Geographical
Names Committees are set out and in which
it is explained how
standardising is done.
[38] The attack on the
constitutionality of s 10 (3) and 10 (4) of the Act was based on the
contention that it is ‘inappropriate
and not transparent that
the same administrator reviews his own decision’.
CONTENTIONS
ADVANCED BY COUNSEL FOR FIRST AND SECOND RESPONDENTS
[39] Counsel for the
first and second respondents submitted that on a proper
interpretation of the Act different considerations apply
to the
transformation of geographical names from those which apply to their
standardisation. This case, they contended, was concerned
with the
concept of transformation, which relates to the rejection of names of
towns by the community and the acceptance of a new
name acceptable to
the community with reference to its history and cultural values.
[40] They contended
further that it was no accident that s 9(1)(c) of the Act empowers a
municipality to submit a proposal for a name
change to the Names
Council. They submitted that this may obviously be done to achieve
transformation and that ‘(t)his provision
of the Act coincides
with the capacity of a municipality to represent its community as a
consequence of democratic principles.’
They argued further that
the scheme of the Act does not provide for consultation in the case
of a name change which would achieve
transformation as opposed to
standardisation. Dealing with the guidelines set by the Names
Council, they contended that they only
applied to cases where place
names were being standardised and not where they were being
transformed.
[41] It was also argued
on behalf of the first and second respondents that the evidence was,
as they put it, ‘overwhelming’
that the Names Council
duly and properly considered the proposal and recommended the change
of name to the first respondent.
[42] Another contention
advanced by counsel for the first and second respondents, supporting
in this regard the approach adopted by
the court
a
quo,
was
that the appellant’s attack on the first respondent’s
decision to approve the name change recommended by the Names
Council
was materially defective because it had not sought to take on review
the council’s decision to propose the name change.
That
decision, it was submitted, is valid and of full force and effect.
The Names Council was not entitled to question the validity
of the
council’s decision to apply for a change of name. What the
Names Council was enjoined to do, they submitted was ‘to
consider the merits of the application and to recommend or not that
the change of name be brought about by the Minister.
DISCUSSION
[43] I do not think there
is any merit in the submission that it was ‘no accident’
that s 9(1)(c) of the Act empowers
a municipality to submit a
proposal for a name change and that that provision indicated that a
municipal council being, as it were,
a representative of the
municipal community could propose a name change of a transformatory
nature which the Names Council had to
consider on its merits, without
paying any regard to the question as to whether there had been an
adequate process of consultation
within the community. The first
point to notice in this regard is that s 9(1)(d) not only provides
for name changes to be proposed
by municipalities but also by,
amongst others, ‘other bodies and individuals’. Secondly
the guidelines clearly apply
both to standardising (in the narrow
sense) and transformatory name changes. That this is so appears
clearly from the reference in
the paragraph headed ‘Policies of
Standardisation’ to ‘redress’, where a name is
changed on the basis of
historical consideration. It also appears
from the statement in the paragraph headed ‘Human Rights and
the South African Constitution’
that determining the name for a
place requires ‘balancing historical and linguistic
considerations, . . ., the spirit of a
community and the spirit of
the nation’ and the inclusion of a reference to the
‘transformation process’ in the
paragraph headed ‘Can
existing names be changed?’ Thirdly, it is difficult to
understand why the council would have required
consultation, for
example, on a question such as whether the correct spelling of
‘Messina’ should be “Musina”,
but not have
required consultation with those affected by the change of name of a
place such as Louis Trichardt, the chief town in
an area inhabited by
persons belonging to various ethnic and linguistic groups.
[44] I also reject the
contention that the appellant’s application was defective
because the appellant had not sought to review
the council’s
decision to propose the name change. The proposal as such changed
nothing: it did not adversely affect the rights
of any person and had
no direct, external legal effect and was accordingly not covered by
the definition of ‘administrative
action’ in s 1 of PAJA.
It was of no greater significance than any individual’s
proposal.
[45] In my opinion the
statement in the guidelines that the Names Council ‘ensures
that proper consultation has taken place’
is akin to a promise
made by a public authority to follow a certain procedure, about which
the Privy Council said the following in
Attorney-General
of Hong Kong v Ng Yuen Shiu
[1983]
2 AC 622
(PC) at 638E-F:
‘
When a public authority has
promised to follow a certain procedure, it is in the interest of good
administration that it should act
fairly and implement its promise,
so long as implementation does not interfere with its statutory duty.
The principle is also justified
by the further consideration that,
when the promise was made, the authority must have considered that it
would be assisted in discharging
its duty fairly by any
representations from interested parties and as a general rule that is
correct.’
[46] The guideline is
that before a proposal for a name change, even one of a
transformatory nature, is considered, adequate consultation
with
local communities and other stakeholders must take place. In all the
circumstances I think it clear that this guideline should
have been
implemented in the case of the Louis Trichardt name change. It is
clear from the summary of the facts set out above that
such
consultation did not take place. Apart from the short notice given of
meetings to be held by ward councillors, the holding of
the meeting
advertised for 7 February 2002 on 6 February 2002, the refusal to
hold back the process during the discussions with the
chamber of
commerce and the statement by the mayor that ‘we consult
politicians, not Chambers’, there was the assertion
by the
mayor that the councillor for ward one had not done her job: which
amounted to an admission that her ward (which it will be
recalled
comprises about 50% of the total jurisdictional area of the
municipality, including the town of Louis Trichardt west of
the
national road, all the businesses in that part of the town, the Buys
Community and a number of rural communities) was not consulted.
Whether it was the councillor’s fault or not is neither here
nor there; the failure to consult is not disputed.
[47] It follows from what
I have said that the statement in the Director-General’s
memorandum, which was before the first respondent
when he approved
the name change, to the effect that a proper consultation process had
been followed was incorrect and was indeed
a material misstatement of
fact, which clearly influenced the first respondent in coming to the
decision he did (as appears from
the reasons he later gave when he
rejected the appellant’s objection to the name change).
[48] Under the law as it
was before PAJA it was held by this court in
Pepcor
Retirement Fund v Financial Services Board
2003
(6) SA 38
(SCA) at paras 47 and 48 that a material mistake of fact
was a ground for judicial review, provided the fundamental
distinction between
appeal and review was not blurred or eliminated.
Cloete JA said (at para 47) that the doctrine of legality requires
that the power
conferred on a functionary to make decisions in the
public interest should be exercised properly, ie on the basis of the
true facts.
In the
Pepcor
case it
was held that the distinction referred to was not blurred or
eliminated because the Registrar of Pension Funds, whose decision
was
being reviewed and to whom material misstatements of fact had been
made, was entitled to act on the assumption that the correct
facts
had been placed before him. In this case the first respondent was
entitled to assume that the fact conveyed to him by the
Director-General,
viz that there had been proper consultation, was
correct. In my opinion the legal position as set out in the
Pepcor
case
based as it is on the principle of legality still applies under PAJA,
s 6(2)(e)(iii) of which provides that administrative action
taken
because ‘irrelevant considerations were taken into account or
relevant considerations were not considered’ can
be set aside
on review. Where a decision is based on a material misstatement of
fact it is clear that that subparagraph applies.
[49] It follows from what
I have said that even if one accepts that the Names Council did
recommend the name change to the first respondent
(which I am
prepared to assume for the purposes of this judgment) the first
respondent’s decision to approve the name change
clearly cannot
stand. This conclusion renders it unnecessary to decide whether the
appellant’s contention that the first respondent
lacked the
power to approve the name change because the Names Council had failed
to make a recommendation in this regard is correct.
[50] In view of the fact
that I have come to the conclusion that the appellant’s attack
on the first respondent’s decision
under s 10(1) must succeed
it is unnecessary to deal with the attack on his decision to reject
the appellant’s complaint lodged
in terms of s 10(3). This is
because the first respondent’s powers under s 10 (4) read with
(5) are simply to reject or amend
a name previously approved and not
to validate an invalid decision made by him. It is also unnecessary
to consider whether the appellant’s
contentions regarding the
constitutionality of s 10(3) and 10(4) of the Act are well-founded.
ORDER
[51] The following order
is made:
1. The appeal is allowed
with costs.
2. The order of the court
a quo
is
set aside and replaced by the following:
‘
1. The decision of
the first respondent in terms of
section 10(1)
of the
South African
Geographical Names Council Act 118 of 1998
, and published in
Government Notice 864 of 20 June 2003, to approve the change of the
geographical name of the town Louis Trichardt
to Makhado is reviewed
and set aside.
2. The first and second
respondents are ordered to pay the costs of the applicant jointly and
severally.’
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
HOWIE
P
BRAND
JA
JAFTA
JA
CACHALIA
JA