Monday, June 04, 2007

Renaming of places
By Itumeleng Phalane

Municipalities have embarked on renaming places in the last few years, primarily because they derive from colonialism and therefore, not in the spirit of the new South Africa. Such names are being replaced by what proponents of name change groups state reflect the history and culture of the indigenous South Africans. Renaming places is also seen as a catalyst to transformation, hence the establishment of the South African Geographical Names Council (SAGNC), a body which was established by section 2 of The South African Geographical Names Council Act 118 of 1998, as amended. The objects of the SAGNC, inter alia, are to ensure the standardisation of geographical names and to facilitate the transformation process for geographical names.

The most recent court ruling on the issue is contained in the judgment in The Chairpersons’ Association v Minister of Arts and Culture (2007) SCA 44 RSA ("Association" v "Minister"). This involved an appeal from a decision of the Pretoria High Court in which the court dismissed the Association’s application for an order reviewing and setting aside the Minister’s approval to change the name of the town Louis Trichardt to Makhado, and the Minister’s decision to reject the Association’s objection against the name change. The main issue in the appeal was whether there had been an adequate process of consultation within the community and with other stakeholders. The Pretoria court found that there had been sufficient consultation but the appeal court in Bloemfontein disagreed on four main grounds.

Firstly, the mayor of the municipality of Makhado announced at a council meeting that the name of the town had to change within a month of having convened that meeting. The following day, the secretary to the mayor issued an instruction to ward councillors that they were to convene people’s forums in their wards within a week of that instruction being given. The court considered this to be short notice but was mute on what should be the ideal notice period. The Act also does not address this issue.

Secondly, there was confusion as to when a public hearing was to be held. The mayor had requested warders to invite stakeholders to attend the public hearing on a certain date but the mayor subsequently issued a notice stating an earlier date. The meeting was held on the earlier date advertised in the notice. The court also found that although meetings were held in various wards of the municipality, they had been poorly attended.

Thirdly, the councillor for the ward that comprised about 50% of the total jurisdictional area of the municipality did not convene any meetings. According to the councillor, this was due to the short notice given. The ward includes the town of Loius Trichardt west of the national road, what is known as the Buys Community and a number of rural communities.

Finally, the Chamber of Commerce had requested the mayor to delay the process in order to hold further discussions about the name change, but this did not happen. Instead the mayor snubbed the Chamber by stating that "we consult politicians, not Chambers".

Upon the municipality and the SAGNC having consulted each other, the latter recommended to the name change to the Director-General (DG) of Arts and Culture. In the DG’s memorandum to the Minister, the former stated that a proper consultation process had been followed. The court found the DG’s statement to have been incorrect and contained a material misstatement of fact, which influenced the Minister’s decision. The court considered the application of section 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which states that "…a court or tribunal has the power to judicially review an administrative action if…the action was taken because…relevant considerations were not considered…". Based on those points, the court found that the Association’s appeal against the Minister’s decision must succeed. In other words, the name of the town remains Louis Trichardt.

The renaming of places is an exercise that is likely to continue for a long time as South Africa continues to redefine itself. Therefore, it is critical for municipalities to be mindful of three procedural steps when introducing a name change, namely, giving sufficient notice as to when public meetings will be held, consulting with as many communities within the municipality and stakeholders as possible, and allowing enough time for public and stakeholder debates before name changes are recommended to the Minister. Failure to do this will result in municipalities having to go back to the drawing board and bearing the costs of long drawn-out litigation.