Chairperson Association v Minister of Art and Culture and Others (6063/04) [2005] ZAGPHC 89; 2006 (2) SA 32 (T) (8 September 2005)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)HELD ATPRETORIACase no. 6063/2004Judgement reserved:19/08/05Judgment delivered:08/09/05In the matter between:CHAIRPERSON ASSOCIATION

ApplicantandMINISTER OF ART & CULTURE

1stRespondentCHAIRMAN OF THE SOUTH AFRICANGEOGRAPHIC NAMES COUNCIL

2ndRespondentMUNICIPALITYOFMAKHADO

3rdRespondentJUDGMENTLEGODI J,INTRODUCTION1. This is an application in terms whereof the applicant is seeking forreliefs in the following terms:1.1Reviewing and setting aside the decision of the National Minister of Arts and Culture (hereinafter referred to as the first respondent),in terms of which the first respondentapprovedin terms of Section 10 (1) of the South African Geographical Council Act 118 of 1998,(hereinafter referred to as the Act), the name change of Louis Trichardt town to MAKHADO town on the recommendation of THE SOUTH AFRICAN GEOGRAPHICAL NAMES COUNCIL,(hereinafter referred to as the second respondent.1.2Reviewing and setting aside the decision of the first respondent taken in terms of Section 10 (3) and (4) of the Act,rejecting the applicant's complaint lodged in terms of the provisions of the Act,against the namechange of the town Louis Trichardt to Makhado town.1.3Declaring the provisions of Section 10 (3) and (4) of the Actunconstitutional.2The applicant is said to be an organisation 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 municipality area. The deponent to its foundingaffidavitis one Mr Robert Khoza said to be authorised to depose to theaffidavit in terms of a resolutionpassed by the applicant. The resolutionis signed by its chairperson,Mr Andre Naude,who isalso the attorney for the applicantand Ms Inga Gulfillen as the secretary. The resolution was taken duringa telephone conference on the17 February 2005by the following members of the applicant: Ms Smith, Mr Smail, Mr Gohell, Mr Veldhuysen, Mr Patel, Mr Ahrens, Mr Menne and Ms Gilfellan.3The first respondent is sued in his capacity as the authority which took a decision to approve the change of name in terms of Section 10 (1) of the Act,which section provides that the Minister may approve or reject a geographical name recommended by the Council in terms of Section 9(1)(d) of the Act. The first respondent is also sued in his capacity as the authority which took a decision interms of Section 10(4) of the Act to reject or accept a complaint lodgedin terms of Section 10(3) againstadecisiontakenin terms of Section 10(1). Subsection (3) entitles any person or body dissatisfied with a geographical name approved by the Minister to lodge a complaint in writing to the first respondent within thirty days from the date of publication of the geographical name in the gazette.In terms of subsection (4)the Ministermay reject or amend a geographicalname so approved by himin terms of subsection (1).4The second respondent is a council established in terms of Section 2 of the Act and it is sued in its capacity as an authority which recommended or should have recommendedgeographical name Makhadoto the first respondent in terms of Section 9 (1)(d) of the Act. Section 9(1)(d) provides that the council must recommend geographical names falling within the national competence to theMinister for approval. However,no relief has been sought against the second respondent as it would appear from the reliefssought by the applicant.5The third respondent is sued in its capacity as an authority which hadsubmittedto the second respondentan applicationfor the change name Louis Trichardt town to Makhado town. No relief is been sought against the third respondent and the third respondent was joined as a party after the institution of thesereview proceedings in terms of Rule 53.BACKGROUND6On the25 January 2002the Mayor ofMakhadoMunicipality was summoned by the ProvincialMember of the Executive Committee for Local Government and Housing Department,LimpompoProvince. It wasduring this meeting that the Mayor was told that the name of the town Louis Trichardt like other namesin other towns must be changed. On the30 January 2002,the Mayor at a Council meeting of the Town Council announced that the name of the town must change before the end of February 2002. On the same day,a committee was established by the Mayor to investigate the renaming of the town.7On the31 January 2002the secretary to the Mayor issued an instruction to all ward councillors to convene people's forums in their wardsduringthe period 2 and3 February 2002. In the instruction,the ward councillors were to make sure that SANCO branches, ward committee members, churchleaders, business people, development forums, communities, political parties etc, were invited without fail. The wards councillors were to report to the mayor before the16 February 2002about this process. Ward councillors were also to invite stake holders to attend a public hearingscheduled for7 February 2002at the town's showground.8This instruction or notice of the31 January 2002wasaccompanied by information leaflet which read as follows:RENAMING OF THE TOWN, WRITTEN SUBMISSIONSA."BACKGROUNDThe firstdemocratic elections ofthe 27thApril 1994has ushered in a new political dispensation whichnecessitatestherewriting and correctionof the history ofSouth Africa. Amongst other things, provinces, municipalities, towns, streets, bridges, dams, tunnels and everything whichbears colonial names, has to be renamed. Towns likeLoius Trichardt, Pietersburg, Potgietersrusetceterawere named afterthese Voortrekkersdefeated (sic) the indigenous people who settled there before the arrival of the former. For instance the indigenous people under the late King Mphephu were defeated in1898 bythe commando under General Piet Joubert. The town was then named after the Voortrekker leader, Louis Trichardt. Thereforethe process to rename the town is intended to break with the past history of domination by one racial groups (sic) over other groups. The new name is also intended to identify itself with the political changes which are sweeping throughout the country.BIn identifying the name, you are advised to look at the historical background of the town, the natural features within the municipality, the activities which are taking place around this town, political leaders who fought against domination etcetera.CHoping this little information will be of someassistance to you"9.On1 February 2002the secretary to the Mayor also issued further instructions or notice as follows:"CHANGING OF THE NAME OF THE TOWN"This serves to inform you that the name of the townis about to bechanged before the end of February. You are therefore requested to submit written representations to theOffice of the Mayor, Civic Centre in the Reception Hall, Ground Flooron or beforethe6thFebruary 2002.You may either fax your proposal to015 516 4392.The said proposed list of the name(s) must be signed by the writer(s).10.On the6 February 2002a public meeting took place at the show ground instead of the7 February 2002as it was initially publishedor scheduled. About 110 people are said to have attended. During this meeting 55 names were suggested for the town. The traditional leadership were requested by the mayor to direct the process of consultation. Three names at this meeting emerged as dominant i.e. Makhado, Swongoswi and Hlayanani and eventually the three names were suggested as the names to be debated upon and canvassed to the community.Further public meetings were then announced and scheduled to take place as follows:12 February 2002- Vuwani13 February 2002– Hlanganani14 February 2002- Dzhelele17 February 2002– Zoutpansburg11.On the13 February 2002Mr De Vaal,a resident of the town wrote aletter to the third respondent objecting to the proposed name change. On the21 February 2002ameeting of executive committee of the third respondent was held. This is the committee which was instituted by the Mayor on the30 January 2002. This committee recommended that the town name Louis Trichardtbe changed to Makhado. On the same day, the 21 February 2002,a special meeting of the third respondent was held. The third respondent at this meeting adopted the committee's recommendation and resolved toapply for the change town namefrom Louis Trichardt to Makhado.12.On the26 February 2002the executive committee of the Chamber of Commerce approached the executive committee of the third respondent to raiseobjectionsrelating to the changeof thetownname. On the 27,28 February 2002the secretary of the third respondent wrote a letter to the editors of the Soutpansberger and The Mirror and in the letter the following was stated:"NEW NAME OF THE EDITOR.(sic)The Town Council has taken a decision on21 February 2002that the new name of the town is Makhado. In addition Trichardt Street has been changed to Swongozi; Piet Moller Street to be Tshirululuni Street, Joao Albasini Street to be Hlanganani Street.These changes came after a number of consultative meetings were held throughout the boundaries of the Municipality. It must be known that the town belongs to all residents of the Municipality and not to only one section of the community. (That is to say, the white community, the Indian Community, the coloured community, the Shangaans, Vhavenda and all ethnic groups within this municipality).The Executive Committee of the Sakekamer in Louis Trichardt has approached the Executive Committee of the Municipality onTuesday 26 February 2002whereby it raised its concern 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 the Municipality to listen to the concerns of all its citizens or structures within the Municipality.The Municipality has already sent a report to the MEC for Local Government and Housing Mr M J 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".13.On the27 March 2002and after parties have exchanged letters including a letter by Minister Mufamadi who was approached by Chamber of Commerce and after the first respondent was also contacted by Minister Mufamadi, the third respondent and Chamber of Commerce held a meeting on thenamechange.14.On the2 April 2002Chamber ofCommerce reported to Minister Mufamadi on the meeting of the27 March 2002and requested him to intervene. On the21 May 2002the first respondent, apparently in response to earlier letter by Minister Mufamadi, wrote to Minister Mufamadi, as follows:"With regard to the name change of Louis Trichardt to Makhado my department has been interacting withMakhadoMunicipalityand Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. We will be making an announcement in the near future with regard to applications of name changes in theNorthern Province. For your information the application for the change of name of Louis Trichardt to Makhado was referred back toMakhadoMunicipalityafter the SAGNC discovered that there is anotherMakhadoVillagein the area. To avoid duplication, the applicant should submit a second choice or rename the present Makhado and then allocate the name to the present Louis Trichardt."15.On the25 June 2002the third respondent resolved to change the name "MakhadoTownship" to Dzanani township and that thethirdrespondent should adhere to the decision of21 February 2002andto apply for the change of the name of the townagain.16.On the26 June 2002the third respondent resubmittedto the second respondentapplicationfor thenamechangeof the town. On the second record i.e. a record after the objections were lodged and rejected,therewas another application form for thenamechangeof the town and is dated the28 February 2003with additional motivation for thenamechange.17.On the9 May 2003theDirector General of the first respondent wrote a memorandum to the first respondent in which the application via the second respondent was submitted to the first respondent. On the15 May 2003the first respondent approvedtheapplication for the change of town name, Louis Trichardt to Makhado town.18.On the6 June 2003the decision of the15 May 2003was gazetted as required by the Act. On the30 June 2003the applicant lodged a complaint to the first respondent in terms of Section 10(3) of the Act. The first respondent rejected the complaint as it would appear from a letter received by the applicant or its attorneys on the13 November 2003. Reason for the rejection of the complaint was stated as required by the Act. On the5 March 2004the applicant launched the present application.ISSUES RAISED19.In my view the followingare importantissues raised during these proceedings:-Whether or not the second respondent recommended to the first respondent for the change of the town name Louis Trichardt to Makhado? And if so,-Whether or not the first respondent was under obligation to consider consultation as a requirement for the purpose of deciding whether or not to approve theproposedtown name? And if so,-Whether or not the first respondent applied his mind properly to a requirement for consultation or to put it differently whether or not there was consultation?And if so,whether consultation was properandsufficient?And lastly,-Whether or not the applicant can attack the first respondent's decision on consultationwithoutasking for the reviewof thedecisions ofthe second andthe third respondents?DISCUSSIONS,SUBMISSIONSAND FINDINGS20.Counsel for the respondents conceded that recommendation to the first respondent by the second respondent is a jurisdictional factor derived from the provisions of Section 9(1)(d) read with Section 10(1) of the Act. I have already under introduction referred to the provisions of these sections. In other words, for the first respondent to make a decision under Section 10(1) there must have been a recommendation by the second respondent under Section 9(1)(d). Counsel on behalf of the applicant urged me to find that the second respondent made no recommendation to the first respondent. The effect of this submission,is that the first respondent should be found to have actedunltra vireshis powers and that this issue aloneshoulddispose of the present application.21.For this submission,counsel for the applicant relied heavily on what was said by Squires J in the matter of Ex Parte Porrit 1991(3) SA 866 (NPD) dealing with the word "recommendation" in terms ofSection 124(2)of theInsolvency Act 24 of 1936which requires recommendation by the Master of the Supreme Court before an application for rehabilitation could be granted. Squires J acknowledged the fact that because the word has no special meaning given to it by the legislation, the word would have to bear its normal ordinary interpretation beingto name or speakof a person as worthy of a particular attention or consequence i.e. recommendation is the action of commendingsomeone orsomething as worthy or desirablefor such result. (My own emphasis).Implicit,in this as also pointed out by Squires J will be to consider and weigh the merits and demeritsof thesubjectof recommendation in relation to what is recommended. On behalf of the applicant it was suggested that I should find that no way on the papers is there anything to suggest that the second respondent made a recommendation. It was argued that a recommendation by the Director General did not substitute a recommendation by the second respondent. It is so,that on papers there is nothingspecific by the second respondent saying,"we or I recommend". This,of course must be seen in the light of the totality of the information surrounding the whole application for a change of the name and the ultimate information presented to the first and second respondents. The following factors in my view are of importance:-that on the21 February 2002the name town,Makhado was adopted by the third respondent.-that two application forms for the change of nametown were submitted to the second respondent by thethirdrespondent.-that in the first application form dated26 June 2002and undercolumn1 of the form is written"Proposed name"and underneath it,MakhadoTownis inserted as the proposed name. Column2(i) is written "What is the meaning and language from which the name is derived?"The answer thereto is "the name relates to the late king of theVendapeople, king Makhado". Under column3 of the form a question is asked "For which feature is the proposed name?And the answer inserted is "LouisTrichardtTownshipand all its extensions as well as Louis Trichardt". It isalso important tomention that under column1 of the form there is a column "First Choice" and another column "Second choice". Under first choice Makhado is inserted and under second choice N/A is inserted and I understood this to mean not applicable,-that the second form submitted to the second respondent and dated the28 February 2003is in the same format as the one dated the26 June 2002. The name Makhado is proposed and Makhado is also inserted as the firstchoice. Theother column for thesecond choice is left unfilled.Undercolumn2 and in response to the question "What is the meaning and language from which the name is derived?" it is inserted "Makhado was the king who fought colonialism during the 19thCentury. He has set the people in the far North free, from subjugatism and oppression". Undercolumn3 of this form and in response to a question "For which feature is the proposed name intended?"and the answerinsertedis"Town",-that in the minuted discussion of meetingofthe second respondent dated the14 March 2003which meeting was attended by 19 of itscouncillorswith five apologies "applications for the approval of geographical names" was part of the items on the agenda. Paragraph 8 of the minutes starts by reading as follows:"The chairperson presented the applications submitted by Limpompo for and against the namesMakhadoTownshiptoDzananiTownship, Louis Trichardt toMakhadoTownandDzananiTownshipto Mphephu"The discussion as recorded,further proceeded as follows:"Prof Jenkins raised his concern about the media statement released in December 2002 announcing that the Chairperson of the Limpompo PGNChad approved the change of the above three names. He said that this was done without the Minister having received recommendations on the change of names, and that only the Minister had the right, after receiving recommendations and after a name had been published in the Government Gazette, to publicise that a name had been changed.Advocate Ntsewa, the Chairperson of the Limpompo PGNC, responded that the media had reported his statement incorrectly if they had said that, because in December 2002 the name changes had not been approved. He said that what he had told the media was that the names were to be forwarded to the SAGNC for its recommendation.Prof. LF Mathenjwa presented the applications for and against the change of names fromMpumalanga. He asked for Council's resolution on this issue.Dr Beukes said that a geographical nameshould be approved by the Minster 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 Limpompo andMpumalanga. 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", and-lastly,the Director General of the first respondent in his memorandum when he submitted the applications received from the second respondent recommended that the first respondentshouldapprove the names as recommended by the second respondent.22.Recommendation being an action of commending something orsomeone asworthy or desirable for such aresult and in the instant case the result being whether or not the name Makhado town should substitute Louis Trichardt,one should have regard to what was laid before the second respondent. The applications referred to in the meeting of the second respondent are those applications described earlier in this judgment under paragraph 21. Only one name was proposed in the application forms and that isMakhadoTownshipsubstituting Louis Trichardt. The firstparagraph ofminuted record of the second respondent referred to these applications. In these applications the basis for proposing Makhado is clearly stated as reflected in columns 2of both the applicationformsdated26 June 2002and28 February 2002respectively. Counselfor the applicantsuggested that the merits anddemerits of the application werenot considered by the second respondent. Although the applicant did not challenge the decision of the second respondent to recommend, it is clearfrom the minuted recordof the second respondent that objections for example, were considered and it was agreed to bring such objectionsto the attention of the first respondent. I was urged by counsel on behalf of the respondents to find that the Director General'soffice is a secretarial officeof the second respondentestablished in terms of Section 6 of the Act. Subsection 1 thereof provides that the executive functions of the council i.e. the second respondent must be performed by a section established by the Director General in terms of the Public Service Act. Subsection (2)(a) provides that the functions of the section are to performthe administrative and secretarial services. In my view therefore,the Director General would have carried out the mandate of the second respondent in submitting the applications and expressing the mandate as he did. I am satisfied that the second respondent did make a recommendation to the first respondent in regard to the only name whichwas proposed in the application formsby the third respondent.23.This should then bring me to consider the next issue being whether or not the first respondent was under obligation to consider consultation as a requirement in deciding whether or not to approve the nameMakhadoTownshipas a replacement for Louis Trichardt town.Counsel for the first respondent contended that the first respondent was entitled to act within the convine of the operation of theenablingAct.In the Actthereis nothingsuggesting consultation as a requirement, so he argued. Secondly, he argued that the applicantcouldnotattack the first respondent's decision on consultation without having attacked or asked for a relief against the second and or third respondent's decision. Thirdly, he argued that the third respondent as the applicant for the change of the town name and being constituted by councillorswho areelected into office by the people, wereentitledto takeadecision on thenamechangewithout any consultation with or participation by the people.I wasparticularly not impressed with this submission. Whilst the Act may not specificallybestatingconsultation as a requirement, the subject matter being the change of a town name, is a national and sensitive matter. Because of the nature of the subject matter,I do not think,firstly that the firstrespondent could or would have been expected to take such a decision withoutconsidering the issue ofconsultation. Secondly, in my view the same should be applicable when the application islaid before thesecondrespondent for recommendation.Lastly, one would expect,at least that the first respondenttobe satisfied that consultation was conducted. Whilst the councillors of the third respondent might have been elected into office by the people, on a national issue like the change of name of a town, one would expect themto consider thesensitiveof the matter andto revert tothose whohadelected them into officefor a proper mandate. It is however,important to mention that whilst this issue was taken upbycounselfor the first respondent, in his response to the complaints raised in terms of section 10(3), the first respondentwrote as follows:"Aftercareful consideration of your objection and all other information brought to my attention in this matter I hereby inform your objection was rejected. My rejection of your objection which was launched in terms of Section 10 of the South African Geographical Names Act 1998 is basedon the following reasons.-A proper and sufficient consultation was followed before this matter was finalised,-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."24.Clearly,this points to the fact that Minister Ngubane accepted consultation as a requirement.Heconsideredthisin his decision to approve thenamechange.In his answeringaffidavit after the institutionof the proceedings herein, of relevance,he statedas follows:"As appears from the record of proceedings filed on behalf of the Respondent, the proposal to change the name Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed to exert their influence during the democratic process. To some extentthe objections are also based on financial considerations, such as the costs involved in bringing about the change. I considered these objections very carefully, but I was unpersuaded that the willof the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".I am therefore satisfied that consultation is a requirement and the first respondent was obliged to consider it in making the decision to approve the change of town name in the instant case,despite the factthatthere was no specific provision under Section 10of theAct to consider consultation as a requirement.I may well add that in terms ofSection 4(1)of thePromotion of Administrative Justice Act 3 of 2000where an administrative action adversely affects the rights of the public, an administrator, being the first respondent in the instant case, in order to give effect to the right to procedurally fair administrative action, must decide amongst others whether to hold a public inquiry in terms of subsection 2 or to follow a notice and comment procedure in terms of subsection 3 or where the administrator is empowered by any enabling provision to follow a procedure which is fair but different, to follow that procedure. However, because of the nature of the matter, in my view, the first respondent and correctly so, considered consultation. In a way, subsections 3 and 4 ofSection 10envisage some sort of participation by interested or aggrieved parties.25.I now turn to consider the issue whether or not there was a consultation and whether or not the first respondent properly applied his mind to the requirement for consultationandto the application asawhole. Counsel for the respondents strongly argued that the applicant cannot challenge the decision of the first respondent on the lack of consultation or proper consultation without attacking and asking for relief against the second and or third respondent in regard to the process that was followed. I understood this submission,to suggest that inasmuch as the first respondent is not responsible for the process, but rather for approving or rejecting the name change, he cannot be blamed for the alleged flawed processby the second and or third respondent. To this, counsel for the applicant submitted that itwas the improper and unfair exercise of a discretion of the first respondent in approving thenamechange,when he did not have sufficient information to justify proper consultation and failure to apply his mind properly to the issuewhich is being attacked. Again,this submission clearly reverts to the issue,of whether or not thesecond and thirdrespondents followedtheproper process. The submission was that once the decision of the first respondent is reviewed and set aside everything done by the second or third respondentswill fall off. This might be so,however,I do notthink that this is practical. To set aside the decision of the firstrespondentswithout setting aside the decisionsof second and third respondentswould be impracticaland problematic. The least one can do, would be to refer the matter back to the first respondent for reconsideration. However,even ifonewas todo that,the issue whether or not there was a consultation and whether the first respondent had properly applied his mind to it,would first have to be determined.26.The contention on behalf of the applicant was that the first respondentdid notsatisfyhimself that consultation was done.Counsel for the applicantplaced much emphasis on the words"properand sufficientconsultation". He argued that these words are derived from the policies and or guidelines established in terms oftheActand from the letter of the first respondent rejecting the complaints raised in terms of Section 10(3).The policiesand guidelines werewith reference to a document marked RB2 and annexed to the applicant’sinitial founding affidavit. This was said to be guidelines and policies as envisaged in Section 9 dealing with the powers and duties of the second respondent. Subsection (1)(a)thereofprovides that the Council must set guidelines for the operation of Provincial Geographical Names Committees. Subsection (1)(i) thereofprovides that the councilmust 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. This submission,raised afurther issue i.e. whether the said document could be given any legislative status to the extent that the respondents and in particular the second respondent andthe Provincial Geographical Names Committees established in terms of Section 2(2)(a) of the Act,were obliged to comply with the saidguidelines and polices,and thus obliging the first respondent in applying his mind to the recommendation to consider whether or not such guidelines and policies have been complied with. The second, third respondents and Provincial Geographical Names Committees are said to have floated their own guidelines and policies and in particular failedto ensure that local communities and other stakeholders areadequately consulted(my own emphasis). In terms of Section 9(1)(i),the second respondent is responsible for formulating policies, principles and procedures. The document marked RB2 is said to be formulated in terms of subsection (1)(i) referred to above and that therefore it must be given legislative status, so Counsel for the applicant submitted. On behalf of the respondents,it washowever,first submitted that this document has not been proved. Secondly, it was submitted that without it being gazetted in terms of Section 15 of the Interpretation Act 3of1957, the contents thereof can never assume legislative effect. I am convinced that the document is a document produced by the second respondent purportedly in terms of Section 9(1)(i)of the Act. However, as regardto its legislative effect, counsel for the applicant indicated that his endeavour to search or establish whether or not the document was gazetted produced no positive results. For this reason,Icannot find that the respondents or Provincial Geographical Names Committees floated its own or their own guidelines and policieswithlegislative effect. In any event,no relief has been sought against the second and third respondents. As regard the Provincial Geographical Names Committees, the position is that it has not been joined as a party to the proceedings. Inasmuch as the criticism is heavily levelled againstthe second respondent, third respondent and the Provincial Geographical Names Committee, the applicant effectively is asking for the review of their actions. In my view,this cannot be feasible without asking for a specific relief in this regard. However, this would not necessarily relieve the first respondent from applying his mind to whether or not there has been consultation.27.Regarding consultation,it is important to have regard totheentity ortheperson said nottohave been consulted. In his submission,counselfor the applicantindicated that ward 1 of the third respondent was never given time or sufficient time to be heard. Secondly, he submitted that the Hlanganani Concerned Group and theSoutpansberg Chamber of Commerce were not consulted. All these three entities,are not parties to the present proceedings nor did the applicant suggest to beacting on their behalf, save forsupporting affidavitsthathave been obtained from these structures and or organisations. The deponent to the founding affidavit of the applicant is also a chairperson of Hlanganani Concerned Group.28.The applicant in its replying affidavit stated as follows:"What the first respondent should have considered was whether the decision of the Municipal Council complied with the policies,principles, and procedures established by the South African Geographical Names Council in consultation with the first respondent and the Provincial Geographical Names Committee. The fact that the decision was taken by a duly elected Municipal Council is of no moment if the Municipal Council did not comply with the policies, principles and procedures".29.In my view,the first respondent did not have to consider whether or not the decision of the third respondent complied with the policies, principles and procedures,as the document containingsuch policies, principles and procedures,was not provedto be of legislative effect. All what the first respondent had to do was to satisfy himself that there has been consultation. He could not question the decision to apply for a changeof town name. Secondly, such a decision has in any event not been challenged by the applicant. In his letter responding to the objections, the then Minister Ngubane indicated that aftercareful consideration and all other information brought to his attentionhe decided to reject the objections (my own emphasis). He further stressed that a process of and sufficientconsultation was followed before the matter was finalised. This was in responseto an earlier letter ofthe 1stJune 2003which was addressed to the first respondent by the applicant's attorneys.30.It was submitted on behalf of the applicant that it was not clear what information the first respondent had,before he took a decision on the15 May 2003or after the objections,particularly that the record of the proceedings furnished in terms of Rule 53 appears to be incomplete. This might be so, but I do not think that this would be sufficient to suggest that the first respondent had no information on the issue of consultation. The followings appear to have been common cause as having come to the attention of the first respondentwhen he so took the decisions:-that the National Minister of Local Government wrote to the first respondent on the18 March 2002after the Chamber of Commercehad raised objections to the change of the town name with Minister Mufamadi,-that the first respondent replied to this letter on the21 May2002and this was after the meeting of the27 March 2002between the Chamber of Commerce during which the change of name was heatedly debated,-that in the letter of the 21 May 2002 the first respondent indicated to Minister Mufamadi that with regard to the name change of Louis Trichardt to Makhado, his department has been interacting with Makhado Municipality and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. The first respondent further indicated thatthe applications to the name change of name of Louis Trichardtto Makhado was referred to Makhado Municipality after the second respondent had discovered that there was another Makhado Village in the area. He further indicated that the members of the public are encouraged to participate and cooperate with relevant, legitimate and democratically elected structures during consultation at local and provincial levels before seeking any intervention. It therefore appears from this letter that as during May 2002, the first respondent was firstly appraisedwiththe application for the change of name, secondly that his department was already interacting with the third respondent and the Soutpansberg Chamber of Commerce on matters of procedure, thirdly, he was mindful of the participation by the Communities in the process and lastly to cooperate with elected or representative members of the Communities, and,-that on the9 May 2003few days before the decision was taken by the first respondent the attorneysfor the applicantaddressed a letterto the first respondent. In this letter,the attorney attached a copy of a letter dated the24 February 2003sent to the Chairperson of Provincial Geographical Names Committee. Thisletter,consistsof fourteen pagescontaining representations and submissions. The letter is said to have been written on behalf of Hlanganani Concerned Group as well as Soutpansbergh Chamber of Commerce. Reference is made in the letter to the letter dated the18 February 2003from the third respondent. In the letter of18 February 2003from the third respondent its resolutions of21 February 2002,7 May 2002and29 October 2002were enclosed. The resolution of21 February 2002relates to the change name as indicated earlier in this judgment. Further information was furnished in the letter of the 18 February 2003 and this related to notice of change of name posted at the Civic Centre, and other Municipal/State buildings in the municipal area since 1 February 2003, leaflet requiring comments and proposals that was distributed on the 31 January 2002,1, 4 and 8 February 2002 respectively to various interestedgroups and the media, minutes of the public hearing on the renaming of Louis Trichardt held at the showground, summary of submissions from municipal wards and other structures, minutes, letter or members present at meetings that were held on municipal ward level within the Makhado Municipality's area, that the area consists of thirty five wards, that documents of all wards, save wards 1, 3, 6, 7, 20, 24, 32 and 35 were attached,submissions by Waterval Region residents, Dzanani Region residents (X2), Vavani Region residents, a number of individual submissions, eight in number respectively and minutes of a meeting held on 27 March 2002 between members of the third respondent and Chamber of Commerce.30.1Allofthis,was analysed and criticized in the fourteen page letter of the24 February 2003. I do not intend dealing with the criticism as setout in the letter. Itappears fromthis information that the first respondent as he took the decision on the15 May 2003hadall these information and documentations as per letter of the9 May 2003from the applicant'sattorneys. This information,in my view,comprises the process that was followed. I therefore cannot find that the first respondent had no sufficient informationto apply his mind properly on the matter. It is also important to note that when the first respondent received the letter of the9 March 2003, he responded on the13 May 2003that he had taken the liberty of referring the concerns raised to his Department.30.2Although it is not clear what other information was furnished after his letter of the13 May 2003, the information as supplied bythe attorneys for the applicantreferredtoabove,would have been sufficient to make a decision. After the objections were lodged the first respondent gave his reasons for the rejection of the objection as set out in his letter referred to earlier in this judgment. In thisletter,the first respondent alluded to the fact that he rejected the objection aftercareful consideration of the objection and all other information brought to his attention. In his answering affidavit he stated that he considered the objectionsvery carefully, but that he was unpersuaded. He further indicated that after publication,he again considered the complaints or objections and that they were very much of the same mould as he had considered before. According to the first respondent,no new relevant facts or circumstances were introduced under Section 10(3) and that he therefore rejected the complaints. He also did not deem it necessary to refer the matter back to the second respondent.From this, in my view, itis quite clear that the first respondent considered the objections before his decision on the6 June 2003. The additional information furnished to the first respondent during objection appears in a document titled "INDEX OF DOCUMENTATION ATTACHED TO THE OBJECTION TO THE NAME CHANGE OF LOUIS TRICHARDT TO MAKHADO".Indeed,having regard to this additional information I do notthink anything material cameto the fore which the firstrespondent did not have before,save what was said to be signatories of objection to the name change in the total of 4662. This,of course should be seen in the light of the totality of the information.31.The main objectors appear to have been Chamber of Commerce and Hlanganani Concerned Group. Their objections were brought to the attention of the first respondent before the decision was taken on the15 May 2003and before rejecting the objections. Submission was also made that Ward 1 complainedofinsufficient time given to consider the change of town name. In my view,the first respondent had applied his mind to the application when it was laid before him.32.I was urged to find that the first respondent should have found that there was no sufficient or proper consultation. Again this is an attack on the decisions of the third or second respondent. Thisshort coming,was the main objection to the present proceedings. I have already dealt with this objection.33.Coming back to the issue whether or not the first respondent erred in finding the consultation to be proper or sufficient, the following factors are in myviewimportant:- that the third respondent's decision was not challengedor soughtto be reviewed for lack of proper or sufficientconsultation in thepresent proceedings,- that after the third respondent was instructed by the MEC for LocalGovernment to look into the name change,consultative processwas initiated by the third respondent as set out earlier in thisjudgment.It is important to mention that the deponent to thefounding affidavit of the applicant, who is also said to be achairperson of the Hlanganani Concerned Group attended some ofthe public meetings and proposed a name as well, which name wasnot for retention of Louis Trichardt. A heavily heated debate tookplace during the meeting of the Chamber of Commerce and thethird respondent on the27 March 2002. The issueis obviouslysensitive and it would not have been unexpected to find suchdebates. However, to find disagreements on the issue would not initself amount to improper and or insufficient consultation, and-Ms Helmofthe Democratic Alliance,for example,complainedaboutthe insufficient time given to the councillors to takeinstructions from the political parties' structures. Althoughpeople's forum wasto be held on the 2ndor3rdFebruary 2002,parties were to make written submissions by the16 February 2002.However, as on the16 February 2002Ward 1 made nosubmissions. This should also be seen in the light of the fact thatthe decision was only taken by the first respondent on the15 May2003. In my view,therefore the short time period from the 30 or31 January 2002 to 3rdFebruary 2002 would not have had anyeffect considering the lapse of timefrom February 2002 tillwhenthe decision was taken on the 15 May 2003and lastly, one must have regard to what was said earlier in this judgment under paragraph 30..34.I am therefore satisfied that the first respondentdid not errin finding sufficient consultation to have existed.The process of consultation was of course attacked on another leg,i.e. people werenot asked if they wanted to change the town name, but that instead people were told to come up with alternative name to Louis Trichardt. This appears to be technical. Askingpeople to come up with alternative names to Louis Trichardt would not in itself suggest to people not to insist on the retention of the name Louis Trichardt. Indeed,Soutpansberg Chamber ofCommerce,for example,argued on the retention of the name Louis Trichardt.35.This should immediately bring me to consider the other issue which was stronglyargued on behalf ofthe first respondent.Counselforthe respondents in a somewhat emotionally charged submission argued that the first respondent acted squarely within the framework of the legislation, i.e. he exercisedhis discretion in terms of Section 10 of the Act in deciding whether or not to approve or reject a geographicalnamechange. It was submittedthatthe first respondent'sdiscretion has been exercisedfairly and properly taking into account the following factors:- that Louis Trichardt is the name given to a location inaterritorywhich had been occupied by theVavhenda for hundreds of years,- that the name was perpetuated bythe intrusive regime of the ZAR,- that thereafter it was perpetuated by unlawful white governmentwhich excluded all black people and that it goes beyond saying thatthe name Louis Trichardtis associatedwith white imperialismandexclusively white regimes under which black people sufferedgrievously,- that when the self government territory of Venda was established,the Nationalist Government established an administrative seat andcalled it Thohoyandou, because it is a name held in a high esteemby themajority of thelocal population,- that there can be no doubt that Chief Makhado is held in equal highesteem by the local population. He resisted and fought the ZAR tohis death. To name the most important town in the regionMakhado,fits in with the history, traditions and values of themajority of people in the region.- that when a proper democraticmunicipality was brought about,which encompassed Louis Trichardt, the majority of the people asrepresented in the Municipality accepted the name Makhado anditmakes no sense to allow the third respondent to be called MakhadoMunicipality and not the town Makhadoas well, and- that there is nothing to commend the name Louis Trichardt to themajorityof the people.36.The reaction by counsel on behalf of the respondents appeared to have been prompted by anearlier suggestion that the name Makhado,was a name ofnosignificance and a name which did not exist before Louis Trichardt. To this, I was reminded by counsel on behalf of the respondents that according to history and in particular according to Professor Changuion who had supplied a supporting affidavit to the applicant's application, Louis Trichardt arrived in the area ofSoutbansbergin 1836 and left the area 1837, hardly a year. The history of Makhado as set outin paragraph 35above was also given by Professor Changuion,a retired professor of history who had taught at theUniversityofLimpompofrom 1972 until he retired now recentlyandthat it was thereforeinconceivableand incomprehensible to make a suggestion oftheinsignificant of the name MAKHADO.I find merits to this submission. The history of Makhadoas outlined by Professor Changuion,andthe importance of the name MAKHADO amongst the majority of the people in the area and afar, in my view,surpasses the name of a person LOUIS TRICHARDT, who had stayed in the area for a year only. The first respondent correctly in his answering affidavitas also empowered by Enabling Actindicated that:"The naming of geographicalfeatures is a world phenomenon that is as old as mankind. People have always attached a label or name to their immediate environment in order to assign meaning and give recognition. The significance of geographical names lies not only to mere name changing but also to knowledge systems that go with a geographical features or landscape. A large majority of pre-colonial names carried with them particular meanings: the kind of meanings the indigenous communities attached to their own identities, their relations to immediate environment, both built and natural environments, their relationships with their neighbours".Also paragraph 5 of his founding affidavit Minister Ngubane statedas follows:"There is every reason to restore the dignity and actual freedom of the majority inSouth Africa. Part of the restoration processis torename towns, the names of which serve as a reminder of the oppressive past, and to restore the traditions and cultural and historical values of the black peoples of theRepublicofSouth Africa. In this regard there is no valid reason why the people of the area should remain saddled with name such as Louis Trichardt, which is of no value to them at all and which is foreign to them, merely to be continuously reminded of the acute suffering endured by them for over a hundred years".Lastly,in paragraphs7 and 8 of the founding affidavit the Ministercontinued asfollows:7."The decision to propose the name Makhado for Louis Trichardt was taken by the duly elected Municipal Council of Makhado. The decision is in line with the declared policy of the National Government to promote constructive change to bring about the true freedom of the peoples of theRepublicofSouth Africa. The proposedname Makhado also has the blessing of the Limpompo Government.8.As appears from the record of the proceedings filed on behalf of the Respondents, the proposal to change the name of Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failedto exert their influence during the democratic process. To some extent the objections are also based on financial considerations, such asthe cost involved bringingabout the change. I considered these objections very carefully, but I was unpersuaded that the will of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".37.The court will always be reluctant to invalidate administrative action on procedural grounds and has in this context frequently indicated the importance of not impeding the efficacy of government. Where conflictinginterests have to be reconciled and choices made, proportionality, which is inherent in the Bill of rights, is relevant to determining what fairness requires. Ultimately, procedural fairness depends in each case upon a balancing of various relevant factors, including the nature of the decision, the rights affected by it, thecircumstances in which it is made, and the consequences resulting from it. (See Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools, Eastern Transvaal1999 (2)SA91(CC) paragraph 41, President of the Republic of South African Rugby FootballUnion and Others 2000(1) SA 1 (CC) atparagraph 220 and Minister of Public Works and others V Kyalami Ridge Environmental Association and others2001 (3) SA 1151(CC)paragraphs 102 & 109).In the Minister of Public Works and otherssupra,the department concerned had not informed or consulted with the residents of an area which was to be used for resettlement purposes. The department had however,undertaken to consult with the residents regarding implementation of its decision. Determining what procedural fairness requires in a specific case, Chaskalson J held, requires a proportionality analysis, i.e. a balancingof various relevant factors. One of these,is the circumstances in which the decision is made. Chaskalson J held that although it may have been better and more consistent with the salutary principles of good government, had government informed and consulted with residents before the decision was taken, the decision was not invalid for failure to comply with the requirements of procedural fairness. In the present case however, the first respondent did not only consider the suitability of the name Makhado town, but also considered the concerns raised by other parties. His decision in this regard was not only based on the objections lodged with him, but with the knowledge of the process which was followed bythe third respondent as conveyedto him through submissions ordocuments. I am therefore not satisfied that the applicant is entitled to the relief sought.38.Lastly,I was urged to find that the provisions of Section 10 (3) and (4) were unconstitutional. I was not particularly impressed with this submission by counsel for the applicant. These twosubsectionsare meant to create internal remedy to an aggrieved party. This is a remedy without incurring unnecessary legal costs. What is more,subsection 4 obliges the Minister to furnish reasons for his or her decision. This is to facilitate a better chance for aggrieved partiesto know or decidewhether or not to challenge the decision in a court of law. Of importancehowever, is the fact that the provisions do not impede a party'sright to access to court. Onthe contrary,it paves a way to better accessibility to the court in the sense that a party is equipped with better information regarding the reasons for the decision. These provisions in my view are in line with theprovisions of the Constitution and PAJA. The suggestion that the process in terms of the subsections is not credible,cannotbe the basis to find unconstitutionality. Icannot find the provisions to be unconstitutional.CONCLUSIONI therefore conclude by dismissing the applicant's application with costs, costs to include costs of two counsels for the respondents.M F LEGODIJUDGE OF THE HIGH COURTCOXWELL STEY VISE & NAUDE ATTORNEYSAPPLICANT'S ATTORNEYSPRETORIACOUNSEL:M D DU PREEZTEL NO. (012) 303 7484THE STATE ATTORNEYFIRSTRESPONDENT'S ATTORNEYSPRETORIACOUNSEL FOR FIRST & SECOND RESPONDENTS:J MARITZ SCTEL NO. (012) 303 7747K K KEKANATEL NO. (012) 303 7624

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

HELD AT

PRETORIA

Case no. 6063/2004Judgement reserved:19/08/05Judgment delivered:08/09/05In the matter between:CHAIRPERSON ASSOCIATION

ApplicantandMINISTER OF ART & CULTURE

1stRespondentCHAIRMAN OF THE SOUTH AFRICANGEOGRAPHIC NAMES COUNCIL

2ndRespondentMUNICIPALITYOFMAKHADO

3rdRespondentJUDGMENTLEGODI J,INTRODUCTION

Case no. 6063/2004

Judgement reserved:

19/08/05

Judgment delivered:

08/09/05

In the matter between:CHAIRPERSON ASSOCIATION

ApplicantandMINISTER OF ART & CULTURE

1

st

RespondentCHAIRMAN OF THE SOUTH AFRICANGEOGRAPHIC NAMES COUNCIL

2

nd

Respondent

MUNICIPALITY

OF

MAKHADO

3

rd

JUDGMENT

LEGODI J,

INTRODUCTION

1. This is an application in terms whereof the applicant is seeking forreliefs in the following terms:1.1

1. This is an application in terms whereof the applicant is seeking for

reliefs in the following terms:

1.1

Reviewing and setting aside the decision of the National Minister of Arts and Culture (hereinafter referred to as the first respondent),in terms of which the first respondentapprovedin terms of Section 10 (1) of the South African Geographical Council Act 118 of 1998,(hereinafter referred to as the Act), the name change of Louis Trichardt town to MAKHADO town on the recommendation of THE SOUTH AFRICAN GEOGRAPHICAL NAMES COUNCIL,(hereinafter referred to as the second respondent.

Reviewing and setting aside the decision of the National Minister of Arts and Culture (hereinafter referred to as the first respondent),

in terms of which the first respondent

approve

d

in terms of Section 10 (1) of the South African Geographical Council Act 118 of 1998

,

(hereinafter referred to as the Act), the name change of Louis Trichardt town to MAKHADO town on the recommendation of THE SOUTH AFRICAN GEOGRAPHICAL NAMES COUNCIL

(hereinafter referred to as the second respondent.

1.2

Reviewing and setting aside the decision of the first respondent taken in terms of Section 10 (3) and (4) of the Act,rejecting the applicant's complaint lodged in terms of the provisions of the Act,against the namechange of the town Louis Trichardt to Makhado town.

Reviewing and setting aside the decision of the first respondent taken in terms of Section 10 (3) and (4) of the Act

rejecting the applicant's complaint lodged in terms of the provisions of the Act

against the name

change of the town Louis Trichardt to Makhado town.

1.3

Declaring the provisions of Section 10 (3) and (4) of the Actunconstitutional.

Declaring the provisions of Section 10 (3) and (4) of the Act

unconstitutional.

2

The applicant is said to be an organisation 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 municipality area. The deponent to its foundingaffidavitis one Mr Robert Khoza said to be authorised to depose to theaffidavit in terms of a resolutionpassed by the applicant. The resolutionis signed by its chairperson,Mr Andre Naude,who isalso the attorney for the applicantand Ms Inga Gulfillen as the secretary. The resolution was taken duringa telephone conference on the17 February 2005by the following members of the applicant: Ms Smith, Mr Smail, Mr Gohell, Mr Veldhuysen, Mr Patel, Mr Ahrens, Mr Menne and Ms Gilfellan.

The applicant is said to be an organisation set up to promote good corporate governance

in a transparent manner a

nd to promote good relationships amongst all cultural, racial, religious and business groups in the greater Makhado municipality area. The deponent to its founding

affidavit

is one Mr Robert Khoza said to be auth

orised to depose to the

aff

idavit in terms of a resolution

passed by the applicant

. The resolution

is signed by its chairperson

Mr Andre Naude

who is

also the a

ttorney for the applicant

and Ms Inga Gulfillen as the secretary. The resolution was taken during

a telephone conference on the

17 February 2005

by the following members of the applicant: Ms Smith, Mr Smail, Mr Gohell, Mr Veldhuysen, Mr Patel, Mr Ahrens, Mr Menne and Ms Gilfellan.

3

The first respondent is sued in his capacity as the authority which took a decision to approve the change of name in terms of Section 10 (1) of the Act,which section provides that the Minister may approve or reject a geographical name recommended by the Council in terms of Section 9(1)(d) of the Act. The first respondent is also sued in his capacity as the authority which took a decision interms of Section 10(4) of the Act to reject or accept a complaint lodgedin terms of Section 10(3) againstadecisiontakenin terms of Section 10(1). Subsection (3) entitles any person or body dissatisfied with a geographical name approved by the Minister to lodge a complaint in writing to the first respondent within thirty days from the date of publication of the geographical name in the gazette.In terms of subsection (4)the Ministermay reject or amend a geographicalname so approved by himin terms of subsection (1).

The first respondent is sued in his capacity as the authority which took a decision to approve the change of name in terms of Section 10 (1) of the Act

which section provides that the Minister may approve or reject a geographical name recommended by the Council in terms of Section 9(1)(d) of the Act. The first respondent is also sued in his capacity as th

e authority which took a decision in

terms of Section 10(4) of the Act to reject or accept a complaint lodge

in terms of Section 10(3) against

a

decision

taken

in terms of Section 10(1). Subsection (3) entitles any person or body dissatisfied with a geographical name approved by the Minister to lodge a complaint in writing to the first respondent within thirty days from the date of publication of the geographical name in the gazette

.

I

n terms of subsection (4)

the Minister

may reject or amend a geographical

name so approved by him

in terms of subsection (1).

4

The second respondent is a council established in terms of Section 2 of the Act and it is sued in its capacity as an authority which recommended or should have recommendedgeographical name Makhadoto the first respondent in terms of Section 9 (1)(d) of the Act. Section 9(1)(d) provides that the council must recommend geographical names falling within the national competence to theMinister for approval. However,no relief has been sought against the second respondent as it would appear from the reliefssought by the applicant.

The second respondent is a council established in terms of Section 2 of the Act and it is sued in its capacity as an authority which recommended or should have recommended

geographical name Makhado

to the first respondent in terms of Section 9 (1)(d) of the Act. Section 9(1)(d) provides that the council must recommend geographical names falling within the national competence to the

M

inister for approval. However

no relief has been sought against the second respondent as it w

ould appear from the reliefs

sought by the applicant.

5

The third respondent is sued in its capacity as an authority which hadsubmittedto the second respondentan applicationfor the change name Louis Trichardt town to Makhado town. No relief is been sought against the third respondent and the third respondent was joined as a party after the institution of thesereview proceedings in terms of Rule 53.

The third respondent is sued in its capacity as an authority which had

submitted

to the second respondent

an application

for the change name Louis Trichardt town to Makhado town. No relief is been sought against the third respondent and the third respondent was joined as a party after the institution of th

e

s

review proceedings in terms of Rule 53.

BACKGROUND6

BACKGROUND

6

On the25 January 2002the Mayor ofMakhadoMunicipality was summoned by the ProvincialMember of the Executive Committee for Local Government and Housing Department,LimpompoProvince. It wasduring this meeting that the Mayor was told that the name of the town Louis Trichardt like other namesin other towns must be changed. On the30 January 2002,the Mayor at a Council meeting of the Town Council announced that the name of the town must change before the end of February 2002. On the same day,a committee was established by the Mayor to investigate the renaming of the town.

On the

25 January 2002

the Mayor of

Makhado

Municipality was summoned by the Provincial

ember of the Executive Committee for Local Government and Housing Department

Limpompo

Province

. It was

during this meeting that the Mayor was told that the name of the town Louis Trichardt like other names

in other towns must be changed. On the

30 January 2002

the Mayor at a Council meeting of the Town Council announced that the name of the town must change before the end of February 2002. On the same day

a committee was established by the Mayor to investigate the renaming of the town.

7

On the31 January 2002the secretary to the Mayor issued an instruction to all ward councillors to convene people's forums in their wardsduringthe period 2 and3 February 2002. In the instruction,the ward councillors were to make sure that SANCO branches, ward committee members, churchleaders, business people, development forums, communities, political parties etc, were invited without fail. The wards councillors were to report to the mayor before the16 February 2002about this process. Ward councillors were also to invite stake holders to attend a public hearingscheduled for7 February 2002at the town's showground.

31 January 2002

the secretary to the Mayor issued an instruction to all ward councillors to convene people's forums in their wards

during

the period 2 and

3 February 2002

. In the instruction

the ward councillors were to make sure that SANCO branches, ward committee members, church

leade

rs, business people, development forums, communities, political parties etc, were invited without fail. The wards councillors were to report to the mayor before the

16 February 2002

about this process. Ward councillors were also to invite stake holders to attend a public hearing

scheduled for

7 February 2002

at the tow

n's showground

8

This instruction or notice of the31 January 2002wasaccompanied by information leaflet which read as follows:

This instruction or notice of the

wa

accompanied by information leaflet which read as follows:

RENAMING OF THE TOWN, WRITTEN SUBMISSIONSA.

RENAMING O

F THE TOWN, WRITTEN SUBMISSIONS

A.

"BACKGROUND

"

The firstdemocratic elections ofthe 27thApril 1994has ushered in a new political dispensation whichnecessitatestherewriting and correctionof the history ofSouth Africa. Amongst other things, provinces, municipalities, towns, streets, bridges, dams, tunnels and everything whichbears colonial names, has to be renamed. Towns likeLoius Trichardt, Pietersburg, Potgietersrusetceterawere named afterthese Voortrekkersdefeated (sic) the indigenous people who settled there before the arrival of the former. For instance the indigenous people under the late King Mphephu were defeated in1898 bythe commando under General Piet Joubert. The town was then named after the Voortrekker leader, Louis Trichardt. Thereforethe process to rename the town is intended to break with the past history of domination by one racial groups (sic) over other groups. The new name is also intended to identify itself with the political changes which are sweeping throughout the country.BIn identifying the name, you are advised to look at the historical background of the town, the natural features within the municipality, the activities which are taking place around this town, political leaders who fought against domination etcetera.CHoping this little information will be of someassistance to you"

The first

democratic elections of

the 27

th

April 1994

has ushered in a new political dispensation which

necessitates

the

rewriting and correction

of the history of

South Africa

. Amongst other things, provinces, municipalities, towns, streets, bridges, dams, tunnels and everything which

bears colonial names

, has to be renamed. Towns like

Loius Trichardt

, Pietersburg, Potgietersrus

etcetera

were named after

these Voortrekkers

defeated (sic) the indigenous people who settled there before the arrival of the former. For instance the indigenous people under the late King Mphephu were defeated in

1898 by

the commando under General Piet Joubert. The town was then named after the Voortrekker leader, Louis Trichardt. Therefore

the process to rename the town is intended to break with the past history of domination by one racial groups (sic) over other groups

. The new name is also intended to identify itself with the political changes which are sweeping throughout the country.

B

In identifying the name, you are advised to look at the historical background of the town, the natural features within the municipality, the activities which are taking place around this town, political leaders who fought against domination etcetera.

C

Hoping this little information will be of some

assistance to you"

9.

On1 February 2002the secretary to the Mayor also issued further instructions or notice as follows:

On

1 February 2002

the secretary to the Mayor also issued further instructions or notice as follows:

"CHANGING OF THE NAME OF THE TOWN"This serves to inform you that the name of the townis about to bechanged before the end of February. You are therefore requested to submit written representations to theOffice of the Mayor, Civic Centre in the Reception Hall, Ground Flooron or beforethe6thFebruary 2002.You may either fax your proposal to015 516 4392.The said proposed list of the name(s) must be signed by the writer(s).10.

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

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).

10.

On the6 February 2002a public meeting took place at the show ground instead of the7 February 2002as it was initially publishedor scheduled. About 110 people are said to have attended. During this meeting 55 names were suggested for the town. The traditional leadership were requested by the mayor to direct the process of consultation. Three names at this meeting emerged as dominant i.e. Makhado, Swongoswi and Hlayanani and eventually the three names were suggested as the names to be debated upon and canvassed to the community.Further public meetings were then announced and scheduled to take place as follows:

6 February 2002

a public meeting took place at the show ground instead of the

as it was initially publishe

or scheduled

. About 110 people are said to have attended. During this meeting 55 names were suggested for the town. The traditional leadership were requested by the mayor to direct the process of consultation. Three names at this meeting emerged as dominant i.e. Makhado, Swongoswi and Hlayanani and eventually the three names were suggested as the names to be debated upon and canvassed to the community.

Further public meetings were then announced and scheduled to take place as follows:

12 February 2002- Vuwani13 February 2002– Hlanganani14 February 2002- Dzhelele17 February 2002– Zoutpansburg11.

12 February 2002

- Vu

wani

13 February 2002

– Hlanganani

14 February 2002

- D

zhelele

17 February 2002

– Zoutpansburg

11.

On the13 February 2002Mr De Vaal,a resident of the town wrote aletter to the third respondent objecting to the proposed name change. On the21 February 2002ameeting of executive committee of the third respondent was held. This is the committee which was instituted by the Mayor on the30 January 2002. This committee recommended that the town name Louis Trichardtbe changed to Makhado. On the same day, the 21 February 2002,a special meeting of the third respondent was held. The third respondent at this meeting adopted the committee's recommendation and resolved toapply for the change town namefrom Louis Trichardt to Makhado.

Mr De Vaal

a re

sident of the town wrote a

letter to the third respondent objecting to the proposed name change. On the

21 February 2002

meeting of executive committee of the third respondent was held. This is the committee which was instituted by the Mayor on the

. This committee recommended that the town name Louis Trichardt

be changed to Makhado. On the same day, the 21 February 2002

a special meeting of the third respondent was held. The third respondent at this meeting adopted the committee's recommendation and resolved to

apply for the change town name

from Louis Trichardt to Makhado.

12.

On the26 February 2002the executive committee of the Chamber of Commerce approached the executive committee of the third respondent to raiseobjectionsrelating to the changeof thetownname. On the 27,28 February 2002the secretary of the third respondent wrote a letter to the editors of the Soutpansberger and The Mirror and in the letter the following was stated:

26 February 2002

the executive committee of the Chamber of Commerce approached the executive committee of the third respondent to raise

objections

relating to the change

of the

town

name

. On the 27,

28 February 2002

the secretary of the third respondent wrote a letter to the editors of the Soutpansberger and The Mirror and in the letter the following was stated:

"NEW NAME OF THE EDITOR.(sic)The Town Council has taken a decision on21 February 2002that the new name of the town is Makhado. In addition Trichardt Street has been changed to Swongozi; Piet Moller Street to be Tshirululuni Street, Joao Albasini Street to be Hlanganani Street.These changes came after a number of consultative meetings were held throughout the boundaries of the Municipality. It must be known that the town belongs to all residents of the Municipality and not to only one section of the community. (That is to say, the white community, the Indian Community, the coloured community, the Shangaans, Vhavenda and all ethnic groups within this municipality).The Executive Committee of the Sakekamer in Louis Trichardt has approached the Executive Committee of the Municipality onTuesday 26 February 2002whereby it raised its concern 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 the Municipality to listen to the concerns of all its citizens or structures within the Municipality.The Municipality has already sent a report to the MEC for Local Government and Housing Mr M J 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".13.

NEW NAME OF THE EDITOR

(sic)

The Town Council has taken a decision on

that the new name of the town is Makhado. In addition Trichardt Street has been changed to Swongozi; Piet Moller Street to be Tshirululuni Street, Joao Albasini Street to be Hlanganani Street.These changes came after a number of consultative meetings were held throughout the boundaries of the Municipality. It must be known that the town belongs to all residents of the Municipality and not to only one section of the community. (That is to say, the white community, the Indian Community, the coloured community, the Shangaans, Vhavenda and all ethnic groups within this municipality).

The Executive Committee of the Sakekamer in Louis Trichardt has approached the Executive Committee of the Municipality on

Tuesday 26 February 2002

whereby it raised its concern 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 the Municipality to listen to the concerns of all its citizens or structures within the Municipality.

The Municipality has already sent a report to the MEC for Local Government and Housing Mr M J 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".

13.

On the27 March 2002and after parties have exchanged letters including a letter by Minister Mufamadi who was approached by Chamber of Commerce and after the first respondent was also contacted by Minister Mufamadi, the third respondent and Chamber of Commerce held a meeting on thenamechange.

27 March 2002

and after parties have exchanged letters including a letter by Minister Mufamadi who was approached by Chamber of Commerce and after the first respondent w

as also contacted by Minister Mu

famadi, the third respondent and Chamber of Comme

rce held a meeting on the

change

14.

On the2 April 2002Chamber ofCommerce reported to Minister Mufamadi on the meeting of the27 March 2002and requested him to intervene. On the21 May 2002the first respondent, apparently in response to earlier letter by Minister Mufamadi, wrote to Minister Mufamadi, as follows:

2 April 2002

Chamber of

Commerce reported to Minister Mu

famadi on the meeting of the

and requested him to intervene

. On the

21 May 2002

the first respondent, apparently in response to earlier letter by Minister Mufamadi, wrote to Minister Mufamadi, as follows:

"With regard to the name change of Louis Trichardt to Makhado my department has been interacting withMakhadoMunicipalityand Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. We will be making an announcement in the near future with regard to applications of name changes in theNorthern Province. For your information the application for the change of name of Louis Trichardt to Makhado was referred back toMakhadoMunicipalityafter the SAGNC discovered that there is anotherMakhadoVillagein the area. To avoid duplication, the applicant should submit a second choice or rename the present Makhado and then allocate the name to the present Louis Trichardt."

"With regard to the name change of Louis Trichardt to Makhado my department has been interacting with

Municipality

and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. We will be making an announcement in the near future with regard to applications of name changes in the

Northern Province

. For your information the application for the change of name of Louis Trichardt to Makhado was referred back to

after the SAGNC discovered that there is another

Village

in the area. To avoid duplication, the applicant should submit a second choice or rename the present Makhado and then allocate the name to the present Louis Trichardt."

15.

On the25 June 2002the third respondent resolved to change the name "MakhadoTownship" to Dzanani township and that thethirdrespondent should adhere to the decision of21 February 2002andto apply for the change of the name of the townagain.

25 June 2002

the third respondent resolved to change the name "

Township

" to Dzanani township and that the

third

respondent should adhere to the decision of

and

to apply for the change of the name of the town

again

16.

On the26 June 2002the third respondent resubmittedto the second respondentapplicationfor thenamechangeof the town. On the second record i.e. a record after the objections were lodged and rejected,therewas another application form for thenamechangeof the town and is dated the28 February 2003with additional motivation for thenamechange.

26 June 2002

the third respondent resubmitted

application

for the

of the town. On the second record i.e. a record after the objections were lodged and rejected

there

s another application form for the

of the town and is dated the

28 February 2003

with addi

tional motivation for the

17.

On the9 May 2003theDirector General of the first respondent wrote a memorandum to the first respondent in which the application via the second respondent was submitted to the first respondent. On the15 May 2003the first respondent approvedtheapplication for the change of town name, Louis Trichardt to Makhado town.

9 May 2003

Director General of the first respondent wrote a memorandum to the first respondent in which the application via the second respondent was submitted to the first respondent. On the

15 May 2003

the first respondent approved

application for the change of town name, Louis Trichardt to Makhado town.

18.

On the6 June 2003the decision of the15 May 2003was gazetted as required by the Act. On the30 June 2003the applicant lodged a complaint to the first respondent in terms of Section 10(3) of the Act. The first respondent rejected the complaint as it would appear from a letter received by the applicant or its attorneys on the13 November 2003. Reason for the rejection of the complaint was stated as required by the Act. On the5 March 2004the applicant launched the present application.

6 June 2003

the decision of the

was gazetted as required by the Act. On the

30 June 2003

the applicant lodged a complaint to the first respondent in terms of Section 10(3) of the Act. The first respondent rejected the complaint as it would appear from a letter received by the applicant or its attorneys on the

13 November 2003

. Reason for the rejection of the complaint was stated as required by the Act. On the

5 March 2004

the applicant launched the present application.

ISSUES RAISED19.

ISSUES RAISED

19.

In my view the followingare importantissues raised during these proceedings:

In my view the following

are important

issues raised during these proceedings:

-

Whether or not the second respondent recommended to the first respondent for the change of the town name Louis Trichardt to Makhado? And if so,

Whether or not the first respondent was under obligation to consider consultation as a requirement for the purpose of deciding whether or not to approve theproposedtown name? And if so,

Whether or not the first respondent was under obligation to consider consultation as a requirement for the purpose of deciding whether or not to approve the

proposed

town name? And if so,

Whether or not the first respondent applied his mind properly to a requirement for consultation or to put it differently whether or not there was consultation?And if so,whether consultation was properandsufficient?And lastly,

Whether or not the first respondent applied his mind properly to a requirement for consultation or to put it differently whether or not there was consultation

?

A

nd if so

whether consul

tation was proper

sufficient

nd lastly,

Whether or not the applicant can attack the first respondent's decision on consultationwithoutasking for the reviewof thedecisions ofthe second andthe third respondents?

Whether or not the applicant can attack the first respondent's decision on consultation

without

asking for the review

decisions of

the second and

the third respondent

s?

DISCUSSIONS,SUBMISSIONSAND FINDINGS20.

DISCUSSIONS,

SUBMISSIONS

AND FINDINGS

20.

Counsel for the respondents conceded that recommendation to the first respondent by the second respondent is a jurisdictional factor derived from the provisions of Section 9(1)(d) read with Section 10(1) of the Act. I have already under introduction referred to the provisions of these sections. In other words, for the first respondent to make a decision under Section 10(1) there must have been a recommendation by the second respondent under Section 9(1)(d). Counsel on behalf of the applicant urged me to find that the second respondent made no recommendation to the first respondent. The effect of this submission,is that the first respondent should be found to have actedunltra vireshis powers and that this issue aloneshoulddispose of the present application.

Counsel for the respondents conceded that recommendation to the first respondent by the second respondent is a jurisdictional factor derived from the provisions of Section 9(1)(d) read with Section 10(1) of the Act. I have already under introduction referred to the provisions of these sections. In other words, for the first respondent to make a decision under Section 10(1) there must have been a recommendation by the second respondent under Section 9(1)(d). Counsel on behalf of the applicant urged me to find that the second respondent made no recommendation to the first respondent. The effect of this submission

is that the first respondent should be found to have acted

unltra vires

his powers and that this issue alone

sh

ould

dispose of the present application

21.

For this submission,counsel for the applicant relied heavily on what was said by Squires J in the matter of Ex Parte Porrit 1991(3) SA 866 (NPD) dealing with the word "recommendation" in terms ofSection 124(2)of theInsolvency Act 24 of 1936which requires recommendation by the Master of the Supreme Court before an application for rehabilitation could be granted. Squires J acknowledged the fact that because the word has no special meaning given to it by the legislation, the word would have to bear its normal ordinary interpretation beingto name or speakof a person as worthy of a particular attention or consequence i.e. recommendation is the action of commendingsomeone orsomething as worthy or desirablefor such result. (My own emphasis).Implicit,in this as also pointed out by Squires J will be to consider and weigh the merits and demeritsof thesubjectof recommendation in relation to what is recommended. On behalf of the applicant it was suggested that I should find that no way on the papers is there anything to suggest that the second respondent made a recommendation. It was argued that a recommendation by the Director General did not substitute a recommendation by the second respondent. It is so,that on papers there is nothingspecific by the second respondent saying,"we or I recommend". This,of course must be seen in the light of the totality of the information surrounding the whole application for a change of the name and the ultimate information presented to the first and second respondents. The following factors in my view are of importance:

For this submission

counsel for the applicant relied heavily on what was said by Squires J in the matter of Ex Parte Porrit 1991(3) SA 866 (NPD) dealing with the word "recommendation" in terms ofSection 124(2)of theInsolvency Act 24 of 1936which requires recommendation by the Master of the Supreme Court before an application for rehabilitation could be granted. Squires J acknowledged the fact that because the word has no special meaning given to it by the legislation, the word would have to bear it

Section 124(2)

Insolvency Act 24 of 1936

s normal ordinary interpretation being

to name or speak

of a person as worthy of a particular attention or consequence i.e. recommendation is the action of commending

someone or

something as worthy or desirable

for such result

. (My own emphasis).

Implicit

in this as also pointed out by Squires J will be to consider a

nd weigh the merits and demerit

subject

of recommendation in relation to what is recommended. On behalf of the applicant it was suggested that I should find that no way on the papers is there anything to suggest that the second respondent made a recommendation. It was argued that a recommendation by the Director General did not substitute a recommen

dation by the second respondent. It is so

that on papers there is nothing

specific by the second respondent saying

"we or I recommend". This

of course must be seen in the light of the totality of the information surrounding the whole application for a change of the name and the ultimate information presented to the first and second respondents

. T

he following factors in my view are of importance:

that on the21 February 2002the name town,Makhado was adopted by the third respondent.

t

hat on the

the name town

Makhado was adopted by the third respondent.

that two application forms for the change of nametown were submitted to the second respondent by thethirdrespondent.

hat two app

lication forms for the change of name

town were submitted to the second respondent by the

respondent.

that in the first application form dated26 June 2002and undercolumn1 of the form is written"Proposed name"and underneath it,MakhadoTownis inserted as the proposed name. Column2(i) is written "What is the meaning and language from which the name is derived?"The answer thereto is "the name relates to the late king of theVendapeople, king Makhado". Under column3 of the form a question is asked "For which feature is the proposed name?And the answer inserted is "LouisTrichardtTownshipand all its extensions as well as Louis Trichardt". It isalso important tomention that under column1 of the form there is a column "First Choice" and another column "Second choice". Under first choice Makhado is inserted and under second choice N/A is inserted and I understood this to mean not applicable,

hat in the first application form dated

and under

column

1 of the form is written

"Proposed name"

and underneath it

Town

is inse

rted as the proposed name. Column

2(i) is written "

What is the meaning and language from which the name is derived?

The answer thereto is "

he name relates to the la

e king of the

Venda

people, king Makhado

. Under column

3 of the form a question is asked "

For which feature is the proposed name?

nd the answer inserted is "

Louis

Trichardt

and all its extensions as well as Louis Trichardt

". It is

also important to

mention that under column

1 of the form there is a column "

First Choice

" and another column "

Second choice

". Under first choice Makhado is inserted and under second choice N/A is inserted and I understood this to mean not applicable

that the second form submitted to the second respondent and dated the28 February 2003is in the same format as the one dated the26 June 2002. The name Makhado is proposed and Makhado is also inserted as the firstchoice. Theother column for thesecond choice is left unfilled.Undercolumn2 and in response to the question "What is the meaning and language from which the name is derived?" it is inserted "Makhado was the king who fought colonialism during the 19thCentury. He has set the people in the far North free, from subjugatism and oppression". Undercolumn3 of this form and in response to a question "For which feature is the proposed name intended?"and the answerinsertedis"Town",

hat the second form submitted to the second respondent and dated the

is in the same format as the one dated the

. The name Makhado is proposed and Makhado is also inserted as the first

choice

. The

other column for the

second choice is left unfilled

U

nder

2 and in response to the question "

What is the meaning and language from which the name is derived

" it is inserted "

Makhado was the king who fought colonialism during the 19

Century. He has set the people in the far North free, from subjugatism and oppression

". Under

3 of this form and in response to a question "

For which feature is the proposed name intended

?"

and the answer

inserted

is

"Town

",

that in the minuted discussion of meetingofthe second respondent dated the14 March 2003which meeting was attended by 19 of itscouncillorswith five apologies "applications for the approval of geographical names" was part of the items on the agenda. Paragraph 8 of the minutes starts by reading as follows:

hat in the min

u

ted discussion of meeting

of

the second respondent dated the

14 March 2003

which meeting was attended by 19 of its

councillors

with five apo

logies "applications for the approval of geographical names" was part of the items on the agenda. Paragraph 8 of the minutes starts by reading as follows:

"The chairperson presented the applications submitted by Limpompo for and against the namesMakhadoTownshiptoDzananiTownship, Louis Trichardt toMakhadoTownandDzananiTownshipto Mphephu"The discussion as recorded,further proceeded as follows:"Prof Jenkins raised his concern about the media statement released in December 2002 announcing that the Chairperson of the Limpompo PGNChad approved the change of the above three names. He said that this was done without the Minister having received recommendations on the change of names, and that only the Minister had the right, after receiving recommendations and after a name had been published in the Government Gazette, to publicise that a name had been changed.Advocate Ntsewa, the Chairperson of the Limpompo PGNC, responded that the media had reported his statement incorrectly if they had said that, because in December 2002 the name changes had not been approved. He said that what he had told the media was that the names were to be forwarded to the SAGNC for its recommendation.Prof. LF Mathenjwa presented the applications for and against the change of names fromMpumalanga. He asked for Council's resolution on this issue.Dr Beukes said that a geographical nameshould be approved by the Minster 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 Limpompo andMpumalanga. 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", and-

"The chairperson presented the applications submitted by Limpompo for and against the names

to

Dzanani

, Louis Trichardt to

to Mphephu"

The discussion as recorded

further proceeded as follows:

"Prof Jenkins raised his concern about the media statement released in December 2002 announcing that the Chairperson of the Limpompo PGNC

had approved the change of the above three names. He said that this was done without the Minister having received recommendations on the change of names, and that only the Minister had the right, after receiving recommendations and after a name had been published in the Government Gazette, to publicise that a name had been changed.

Advocate Ntsewa, the Chairperson of the Limpompo PGNC, responded that the media had reported his statement incorrectly if they had said that, because in December 2002 the name changes had not been approved. He said that what he had told the media was that the names were to be forwarded to the SAGNC for its recommendation.Prof. LF Mathenjwa 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 Minster 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 Limpompo and

. 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 tha

t there was an objection to it", and

lastly,the Director General of the first respondent in his memorandum when he submitted the applications received from the second respondent recommended that the first respondentshouldapprove the names as recommended by the second respondent.

l

astly

the Director General of the first respondent in his memorandum when he submitted the applications received from the second respondent recommended that the first respondent

should

approve the names as recommended by the second respondent.

22.

Recommendation being an action of commending something orsomeone asworthy or desirable for such aresult and in the instant case the result being whether or not the name Makhado town should substitute Louis Trichardt,one should have regard to what was laid before the second respondent. The applications referred to in the meeting of the second respondent are those applications described earlier in this judgment under paragraph 21. Only one name was proposed in the application forms and that isMakhadoTownshipsubstituting Louis Trichardt. The firstparagraph ofminuted record of the second respondent referred to these applications. In these applications the basis for proposing Makhado is clearly stated as reflected in columns 2of both the applicationformsdated26 June 2002and28 February 2002respectively. Counselfor the applicantsuggested that the merits anddemerits of the application werenot considered by the second respondent. Although the applicant did not challenge the decision of the second respondent to recommend, it is clearfrom the minuted recordof the second respondent that objections for example, were considered and it was agreed to bring such objectionsto the attention of the first respondent. I was urged by counsel on behalf of the respondents to find that the Director General'soffice is a secretarial officeof the second respondentestablished in terms of Section 6 of the Act. Subsection 1 thereof provides that the executive functions of the council i.e. the second respondent must be performed by a section established by the Director General in terms of the Public Service Act. Subsection (2)(a) provides that the functions of the section are to performthe administrative and secretarial services. In my view therefore,the Director General would have carried out the mandate of the second respondent in submitting the applications and expressing the mandate as he did. I am satisfied that the second respondent did make a recommendation to the first respondent in regard to the only name whichwas proposed in the application formsby the third respondent.

Recommendation being an action of commending something or

someone as

worthy or desirable for such a

result and in the instant case the result being whether or not the name Makhado town should substitute Louis Trichardt

one should have regard to what was laid before the second respondent. The applications referred to in the meeting of the second respondent are those applications described earlier in this judgment under paragraph 21. Only one name was proposed in the application forms and that is

substituting Louis Trichardt. The first

paragraph of

minuted record of the second respondent referred to these applications. In these applications the basis for proposing Makhado is cle

arly stated as reflected in column

s 2of both the application

s 2

forms

dated

respectively. Counsel

for the applicant

suggested that the merits and

demerits of the application were

not considered by the second respondent. Although the applicant did not challenge the decision of the second respondent to recommend, it is clear

from the minuted record

of the second respondent that objections for example, were considered and it w

as agreed to bring such objections

to the attention of the first respondent. I was urged by counsel on behalf of the respondents to find that the Director General

's

office is a secretarial office

of the second respondent

established in terms of Section 6 of the Act. Subsection 1 thereof provides that the executive functions of the council i.e. the second respondent must be performed by a section established by the Director General in terms of the Public Service Act. Subsection (2)(a) provides that the functions of the section are to perform

the administrative and secretarial services. In my view therefore

the Director General would have carried out the mandate of the second respondent in submitting the applications and expressing the mandate as he did. I am satisfied that the second respondent did make a recommendation to the first respondent in regard to the only name which

was proposed in the application forms

by the third respondent.

23.

This should then bring me to consider the next issue being whether or not the first respondent was under obligation to consider consultation as a requirement in deciding whether or not to approve the nameMakhadoTownshipas a replacement for Louis Trichardt town.Counsel for the first respondent contended that the first respondent was entitled to act within the convine of the operation of theenablingAct.In the Actthereis nothingsuggesting consultation as a requirement, so he argued. Secondly, he argued that the applicantcouldnotattack the first respondent's decision on consultation without having attacked or asked for a relief against the second and or third respondent's decision. Thirdly, he argued that the third respondent as the applicant for the change of the town name and being constituted by councillorswho areelected into office by the people, wereentitledto takeadecision on thenamechangewithout any consultation with or participation by the people.I wasparticularly not impressed with this submission. Whilst the Act may not specificallybestatingconsultation as a requirement, the subject matter being the change of a town name, is a national and sensitive matter. Because of the nature of the subject matter,I do not think,firstly that the firstrespondent could or would have been expected to take such a decision withoutconsidering the issue ofconsultation. Secondly, in my view the same should be applicable when the application islaid before thesecondrespondent for recommendation.Lastly, one would expect,at least that the first respondenttobe satisfied that consultation was conducted. Whilst the councillors of the third respondent might have been elected into office by the people, on a national issue like the change of name of a town, one would expect themto consider thesensitiveof the matter andto revert tothose whohadelected them into officefor a proper mandate. It is however,important to mention that whilst this issue was taken upbycounselfor the first respondent, in his response to the complaints raised in terms of section 10(3), the first respondentwrote as follows:

This should then bring me to consider the next issue being whether or not the first respondent was under obligation to consider consultation as a requirement in deciding whether or not to approve the name

as a replacement for Louis Trichardt town.

Counsel for the first respondent contended that the first respondent was entitled to act within the conv

i

ne of the operation of the

enabling

Act.

In the Act

is nothing

suggesting consultation as a requirement, so he argued. Secondly

, he argued that the applicant

could

not

attack the first respondent's decision on consultation without having attacked or asked for a relief against the second and or third respondent

's decision

. Thirdly, he argued that the third respondent as the applicant for the change of the town name and being constituted by councillors

who are

elected into office by the people, were

entitled

to take

decision on the

without any consult

ation with or participation by the people

I was

particularly not impressed with this submission. Whilst the Act may not specifically

be

stat

ing

consultation as a requirement, the subject matter being the change of a town name, is a national and sensitive matter. Because of the nature of the subject matter

I do not think

firstly that the first

respondent could or would have been expected to take such a decision without

considering the issue of

consultation. Secondly, in my view the same should be appl

icable when the application is

aid before t

he

second

respondent for recommendation

Lastly, o

ne would expect

at least that the first respondent

be satisfied that consultation was conducted. Whilst the councillors of the third respondent might have been elected into office by the people, on a national issue like the change of name of a town, one would expect them

to consider the

sensitive

of the matter and

to revert to

those who

had

elected them into office

for a proper mandate. It is however

important to mention that whilst this issue was taken up

by

counsel

for the first respondent, in his response to the complaints raised in terms of section 10(3)

, the first respondent

wrote as follows:

"Aftercareful consideration of your objection and all other information brought to my attention in this matter I hereby inform your objection was rejected. My rejection of your objection which was launched in terms of Section 10 of the South African Geographical Names Act 1998 is basedon the following reasons.-

"After

careful consideration of your objection and all other information brought to my attention in this matter I hereby inform your objection was rejected. My rejection of your objection which was launched in terms of Section 10 of the South African Geographical Names Act 1998 is base

on the following reasons.

A proper and sufficient consultation was followed before this matter was finalised,

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."

24.

Clearly,this points to the fact that Minister Ngubane accepted consultation as a requirement.Heconsideredthisin his decision to approve thenamechange.In his answeringaffidavit after the institutionof the proceedings herein, of relevance,he statedas follows:

Clearly

this points to the fact that Minister Ngubane accepted consultation as a requirement

He

considered

this

in his decision to approve the

change.

In h

is answering

affidavit after the institution

of the proceedings herein

, of relevance,

he stated

as follows:

"As appears from the record of proceedings filed on behalf of the Respondent, the proposal to change the name Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed to exert their influence during the democratic process. To some extentthe objections are also based on financial considerations, such as the costs involved in bringing about the change. I considered these objections very carefully, but I was unpersuaded that the willof the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".

As appears from the record of proceedings filed on behalf of the Respondent, the proposal to change the name Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed to exert their influence during the democratic process. To some extent

the objections are also based o

n financial considerations, such as the costs involved in bringing about the change. I considered these objections very carefully, but I was unpersuaded that the will

of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".

I am therefore satisfied that consultation is a requirement and the first respondent was obliged to consider it in making the decision to approve the change of town name in the instant case,despite the factthatthere was no specific provision under Section 10of theAct to consider consultation as a requirement.I may well add that in terms ofSection 4(1)of thePromotion of Administrative Justice Act 3 of 2000where an administrative action adversely affects the rights of the public, an administrator, being the first respondent in the instant case, in order to give effect to the right to procedurally fair administrative action, must decide amongst others whether to hold a public inquiry in terms of subsection 2 or to follow a notice and comment procedure in terms of subsection 3 or where the administrator is empowered by any enabling provision to follow a procedure which is fair but different, to follow that procedure. However, because of the nature of the matter, in my view, the first respondent and correctly so, considered consultation. In a way, subsections 3 and 4 ofSection 10envisage some sort of participation by interested or aggrieved parties.

I am therefore satisfied that consultation is a requirement and the first respondent was obliged to consider it in making the decision to approve the change of town name in the instant case

despite the fact

that

there was no specific provision under Section 10

Act to consider consultation as a requirement.

I may well add that in terms ofSection 4(1)of thePromotion of Administrative Justice Act 3 of 2000where an administrative action adversely affects the rights of the public, an administrator, being the first respondent in the instant case, in order to give effect to the right to procedurally fair administrative action, must decide amongst others whether to hold a public inquiry in terms of subsection 2 or to follow a notice and comment procedure in terms of subsection 3 or where the administrator is empowered by any enabling provision to follow a procedure which is fair but different, to follow that procedure. However, because of the nature of the matter, in my view, the first respondent and correctly so, considered consultation. In a way, subsections 3 and 4 ofSection 10envisage some sort of participation by interested or aggrieved parties.

Section 4(1)

Promotion of Administrative Justice Act 3 of 2000

Section 10

25.

I now turn to consider the issue whether or not there was a consultation and whether or not the first respondent properly applied his mind to the requirement for consultationandto the application asawhole. Counsel for the respondents strongly argued that the applicant cannot challenge the decision of the first respondent on the lack of consultation or proper consultation without attacking and asking for relief against the second and or third respondent in regard to the process that was followed. I understood this submission,to suggest that inasmuch as the first respondent is not responsible for the process, but rather for approving or rejecting the name change, he cannot be blamed for the alleged flawed processby the second and or third respondent. To this, counsel for the applicant submitted that itwas the improper and unfair exercise of a discretion of the first respondent in approving thenamechange,when he did not have sufficient information to justify proper consultation and failure to apply his mind properly to the issuewhich is being attacked. Again,this submission clearly reverts to the issue,of whether or not thesecond and thirdrespondents followedtheproper process. The submission was that once the decision of the first respondent is reviewed and set aside everything done by the second or third respondentswill fall off. This might be so,however,I do notthink that this is practical. To set aside the decision of the firstrespondentswithout setting aside the decisionsof second and third respondentswould be impracticaland problematic. The least one can do, would be to refer the matter back to the first respondent for reconsideration. However,even ifonewas todo that,the issue whether or not there was a consultation and whether the first respondent had properly applied his mind to it,would first have to be determined.

I now turn to consider the issue whether or not there was a consultation and whether or not the first respondent properly applied his mind to the requirement for consultation

to the application as

whole. Counsel for the respondents strongly argued that the applicant cannot challenge the decision of the first respondent on the lack of consultation or proper consultation without attacking and asking for relief against the second and or third respondent in regard to the process that was followed. I understood this submission

to suggest that inasmuch as the first respondent is not responsible for the process, but rather for approving or rejecting the name change, he cannot be blamed for the alleged flawed process

by the second and or third respondent

. To this, counsel fo

r the applicant submitted that it

was the improper and unfair exercise of a discretion of the first respondent in approving the

change,

when he did not have sufficient information to justify proper consultation and failure to apply his mind properly to the issue

which is being attacked

. Again

this submission clearly reverts to the issue

of whether or not the

second and third

respondents followed

proper process. The submission was that once the decision of the first respondent is reviewed and set aside everything done by the second or third respondent

will fall off. This might be so

however

I do not

think that this is practical. T

o set aside the decision of the firs

respondent

without setting aside the decisions

of second and third respondent

would be impractical

and problematic

he least one can do, would be to refer the matter back to the first respondent for reconsideration. However,

even if

on

was to

do that

the issue whether or not there was a consultation and whether the first respondent had properly applied his mind to it,

would first have to be determined

26.

The contention on behalf of the applicant was that the first respondentdid notsatisfyhimself that consultation was done.Counsel for the applicantplaced much emphasis on the words"properand sufficientconsultation". He argued that these words are derived from the policies and or guidelines established in terms oftheActand from the letter of the first respondent rejecting the complaints raised in terms of Section 10(3).The policiesand guidelines werewith reference to a document marked RB2 and annexed to the applicant’sinitial founding affidavit. This was said to be guidelines and policies as envisaged in Section 9 dealing with the powers and duties of the second respondent. Subsection (1)(a)thereofprovides that the Council must set guidelines for the operation of Provincial Geographical Names Committees. Subsection (1)(i) thereofprovides that the councilmust 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. This submission,raised afurther issue i.e. whether the said document could be given any legislative status to the extent that the respondents and in particular the second respondent andthe Provincial Geographical Names Committees established in terms of Section 2(2)(a) of the Act,were obliged to comply with the saidguidelines and polices,and thus obliging the first respondent in applying his mind to the recommendation to consider whether or not such guidelines and policies have been complied with. The second, third respondents and Provincial Geographical Names Committees are said to have floated their own guidelines and policies and in particular failedto ensure that local communities and other stakeholders areadequately consulted(my own emphasis). In terms of Section 9(1)(i),the second respondent is responsible for formulating policies, principles and procedures. The document marked RB2 is said to be formulated in terms of subsection (1)(i) referred to above and that therefore it must be given legislative status, so Counsel for the applicant submitted. On behalf of the respondents,it washowever,first submitted that this document has not been proved. Secondly, it was submitted that without it being gazetted in terms of Section 15 of the Interpretation Act 3of1957, the contents thereof can never assume legislative effect. I am convinced that the document is a document produced by the second respondent purportedly in terms of Section 9(1)(i)of the Act. However, as regardto its legislative effect, counsel for the applicant indicated that his endeavour to search or establish whether or not the document was gazetted produced no positive results. For this reason,Icannot find that the respondents or Provincial Geographical Names Committees floated its own or their own guidelines and policieswithlegislative effect. In any event,no relief has been sought against the second and third respondents. As regard the Provincial Geographical Names Committees, the position is that it has not been joined as a party to the proceedings. Inasmuch as the criticism is heavily levelled againstthe second respondent, third respondent and the Provincial Geographical Names Committee, the applicant effectively is asking for the review of their actions. In my view,this cannot be feasible without asking for a specific relief in this regard. However, this would not necessarily relieve the first respondent from applying his mind to whether or not there has been consultation.

The contention on behalf of the applicant was that the first respondent

did not

satis

fy

himself that consultation was done.

Counsel for the applicant

place

d much emphasis on the wo

rds

proper

and sufficient

consultation

". He argued that these wo

rds are derived from the policies and or guidelines established in terms of

Act

and from the letter of the first respondent rejecting the complaints raised in terms of Section 10(3).

Th

e policies

and guidelines were

with reference to a document marked RB2 and annexed to the applicant

’s

initial founding affidavit. This was said to be guidelines and policies as envisaged in Section 9 dealing with the powers and duties of the second respondent. Subsection (1)

(a)

thereof

provides that the Council must set guidelines for the operation of Provincial Geographical Names Committees. Subsection (1)(i) there

provides that the council

must 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. This submission

raised a

further issue i.e. whether the said document could be given any legislative status to the extent that the respondents and in particu

lar the second respondent and

the Provincial Geographical Names Committees established in terms of Section 2(2)(a) of the Act

were obliged to comply with the said

guidelines and polices

and th

s obliging the first respondent in applying his mind to the recommendation to consider whether or not such guidelines and policies have been complied with. The second, third respondents and Provincial Geographical Names Committees are said to have floated their own guidelines and policies and in particular fail

ed

to ensure that local communities and other stakeholders are

adequately consulted

(my own emphasis). In terms of Section 9(1)(i)

the second respondent is responsible for formulating policies, principles and procedures. The document marked RB2 is said to be formulated in terms of subsection (1)(i) referred to above and that therefore it must be given legislative status, so Counsel for the applicant submitted. On behalf of the respondents

it was

however,

first submitted that this document has not been proved. Secondly, it was submitted that without it being gazetted in terms of Section 15 of the Interpretation Act 3

1957, the contents thereof can never assume legislative effect. I am convinced that the document is a document produced by the second respondent purportedly in terms of Section 9(1)(i)

of the Act. However, as regard

to its legislative effect, counsel for the applicant indicated that his endeavour to search or establish whether or not the document was gazetted produced no positive results. For this reason,

cannot find that the respondents or Provincial Geographical Names Committees floated its own or their own guidelines and policies

with

legislative effect

. In any event

no relief has been sought against the second and third respondents. As regard the Provincial Geographical Names Committees, the position is that it has not been joined as a party to the proceedings. Inasmuch as the criticism is heavily levelled against

the second respondent, third respondent and the Provincial Geographical Names Committee, the applicant effectively is asking for the review of their actions. In my view

this cannot be feasible without asking for a specific relief in this regard. However, this would not necessarily relieve the first respondent from applying his mind to whether or not there has been consultation.

27.

Regarding consultation,it is important to have regard totheentity ortheperson said nottohave been consulted. In his submission,counselfor the applicantindicated that ward 1 of the third respondent was never given time or sufficient time to be heard. Secondly, he submitted that the Hlanganani Concerned Group and theSoutpansberg Chamber of Commerce were not consulted. All these three entities,are not parties to the present proceedings nor did the applicant suggest to beacting on their behalf, save forsupporting affidavitsthathave been obtained from these structures and or organisations. The deponent to the founding affidavit of the applicant is also a chairperson of Hlanganani Concerned Group.

Regarding consultation

it is important to have regard to

entity or

person said not

have been consulted. In his submission

indicated that ward 1 of the third respondent was never given time or sufficient time to be heard. Secondly, he submitted that the Hlangan

ani Concerned Group and the

S

outpansberg Chamber of Commerce were not consulted. All these three entities

are not parties to the present proceedings nor did the applicant suggest to be

acting on their behalf, save for

supporting affidavits

have been obtained from these structures and or organisations. The deponent to the founding affidavit of the applicant is also a chairperson of Hlanganani Concerned Group.

28.

The applicant in its replying affidavit stated as follows:

"What the first respondent should have considered was whether the decision of the Municipal Council complied with the policies,principles, and procedures established by the South African Geographical Names Council in consultation with the first respondent and the Provincial Geographical Names Committee. The fact that the decision was taken by a duly elected Municipal Council is of no moment if the Municipal Council did not comply with the policies, principles and procedures".29.

What the first respondent should have considered was whether the decision of the Municipal Council complied with the policies,

principles, and procedures established by the South African Geographical Names Council in consultation with the first respondent and the Provincial Geographical Names Committee. The fact that the decision was taken by a duly elected Municipal Council is of no moment if the Municipal Council did not comply with the policies, principles and procedures".

29.

In my view,the first respondent did not have to consider whether or not the decision of the third respondent complied with the policies, principles and procedures,as the document containingsuch policies, principles and procedures,was not provedto be of legislative effect. All what the first respondent had to do was to satisfy himself that there has been consultation. He could not question the decision to apply for a changeof town name. Secondly, such a decision has in any event not been challenged by the applicant. In his letter responding to the objections, the then Minister Ngubane indicated that aftercareful consideration and all other information brought to his attentionhe decided to reject the objections (my own emphasis). He further stressed that a process of and sufficientconsultation was followed before the matter was finalised. This was in responseto an earlier letter ofthe 1stJune 2003which was addressed to the first respondent by the applicant's attorneys.

In my view

the first respondent did not have to consider whether or not the decision of the third respondent complied with the policies, principles and proc

edures

as the document containing

such policies, principles and procedures

was not prove

to be of legislative effect. All what the first respondent had to do was to satisfy himself that there has been consultation. He could not question the decision to apply for a change

of town name. Secondly, such a decision has in any event not been challenged by the applicant. In his letter responding to the objections, the then Minister Ngubane indicated that after

careful consideration and all other information brought to his attention

he decided to reject the objections (my own emphasis). He further stressed that a process of and sufficient

consultation was followed before the matter was finalised. This was in response

to an earlier letter of

the 1

June 2003

which was addressed to the first respondent by the applicant's attorneys.

30.

It was submitted on behalf of the applicant that it was not clear what information the first respondent had,before he took a decision on the15 May 2003or after the objections,particularly that the record of the proceedings furnished in terms of Rule 53 appears to be incomplete. This might be so, but I do not think that this would be sufficient to suggest that the first respondent had no information on the issue of consultation. The followings appear to have been common cause as having come to the attention of the first respondentwhen he so took the decisions:

It was submitted on behalf of the applicant that it was not clear what information the first respondent had

before he took a decision on the

or after the objections

particularly that the record of the proceedings furnished in terms of Rule 53 appears to be incomplete. This might be so, but I do not think that this would be sufficient to suggest that the first respondent had no information on the issue of consultation. The followings appear to have been common cause as having come to the attention of the first respondent

when he so took the decisions

:

that the National Minister of Local Government wrote to the first respondent on the18 March 2002after the Chamber of Commercehad raised objections to the change of the town name with Minister Mufamadi,

hat the National Minister of Local Government wrote to the first respondent on the

18 March 2002

after the Chamber of Commerce

had raised objection

s to the change of the t

own name with Minister Mufamadi,

that the first respondent replied to this letter on the21 May2002and this was after the meeting of the27 March 2002between the Chamber of Commerce during which the change of name was heatedly debated,

hat the first respondent replie

d to this letter on the

21 May

2002

and this was after the meeting of the

between the Chamber of Commerce during which the chan

ge of name was heatedly debated,

that in the letter of the 21 May 2002 the first respondent indicated to Minister Mufamadi that with regard to the name change of Louis Trichardt to Makhado, his department has been interacting with Makhado Municipality and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. The first respondent further indicated thatthe applications to the name change of name of Louis Trichardtto Makhado was referred to Makhado Municipality after the second respondent had discovered that there was another Makhado Village in the area. He further indicated that the members of the public are encouraged to participate and cooperate with relevant, legitimate and democratically elected structures during consultation at local and provincial levels before seeking any intervention. It therefore appears from this letter that as during May 2002, the first respondent was firstly appraisedwiththe application for the change of name, secondly that his department was already interacting with the third respondent and the Soutpansberg Chamber of Commerce on matters of procedure, thirdly, he was mindful of the participation by the Communities in the process and lastly to cooperate with elected or representative members of the Communities, and,

hat in the letter of the 21 May 2002 the first respondent indicated to Minister Mufamadi that with regard to the name change of Louis Trichardt to Makhado, his department has been interacti

ng with Makhado Municipality and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. The first respondent further indicated that

the applications to the name change of name of Louis Trichardt

to Makhado was referred to Makhado Municipality after the second respondent had discovered that there was another Makhado Village in the area. He further indicated that the members of the public are encouraged to participate and cooperate with relevant, legitimate and democratically elected structures during consultation at local and provincial levels before seeking any intervention. It therefore appears from this letter that as during May 2002, the first respondent was firstly appraised

the application for the change of name, secondly that his department was already interacting with the third respondent and the Soutpansberg Chamber of Commerce on matters of procedure, thirdly, he was mindful of the participation by the Communities in the process and lastly to cooperate with elected or representa

tive members of the Communities, and,

that on the9 May 2003few days before the decision was taken by the first respondent the attorneysfor the applicantaddressed a letterto the first respondent. In this letter,the attorney attached a copy of a letter dated the24 February 2003sent to the Chairperson of Provincial Geographical Names Committee. Thisletter,consistsof fourteen pagescontaining representations and submissions. The letter is said to have been written on behalf of Hlanganani Concerned Group as well as Soutpansbergh Chamber of Commerce. Reference is made in the letter to the letter dated the18 February 2003from the third respondent. In the letter of18 February 2003from the third respondent its resolutions of21 February 2002,7 May 2002and29 October 2002were enclosed. The resolution of21 February 2002relates to the change name as indicated earlier in this judgment. Further information was furnished in the letter of the 18 February 2003 and this related to notice of change of name posted at the Civic Centre, and other Municipal/State buildings in the municipal area since 1 February 2003, leaflet requiring comments and proposals that was distributed on the 31 January 2002,1, 4 and 8 February 2002 respectively to various interestedgroups and the media, minutes of the public hearing on the renaming of Louis Trichardt held at the showground, summary of submissions from municipal wards and other structures, minutes, letter or members present at meetings that were held on municipal ward level within the Makhado Municipality's area, that the area consists of thirty five wards, that documents of all wards, save wards 1, 3, 6, 7, 20, 24, 32 and 35 were attached,submissions by Waterval Region residents, Dzanani Region residents (X2), Vavani Region residents, a number of individual submissions, eight in number respectively and minutes of a meeting held on 27 March 2002 between members of the third respondent and Chamber of Commerce.

few days before the decision was taken by the first respondent the attorneys

addressed a letter

to the first respondent. In th

is letter

the attorney attached a copy of a letter dated the

24 February 2003

sent to the Chairperson of Provincial Geographical Names Committee. This

letter

consist

of fourteen pages

containing representations and submissions. The letter is said to have been written on behalf of Hlanganani Concerned Group as well as Soutpansbergh Chamber of Commerce. Reference is made in the letter to the letter dated the

18 February 2003

from the third respondent. In the letter of

from the third respondent its resolutions of

7 May 2002

29 October 2002

were enclosed. The resolution of

relates to the change name as indicated earlier in this judgment. Further information was furnished in the letter of the 18 February 2003 and this related to notice of change of name posted at the Civic Centre, and other Municipal/State buildings in the municipal area since 1 February 2003, leaflet requiring comments and proposals that was distributed on the 31 January 2002,

1, 4 and 8 February 2002 respectively to various interest

groups and the media, minutes of the public hearing on the renaming of Louis Trichardt held at the showground, summary of submissions from municipal wards and other structures, minutes, letter or members present at meetings that were held on municipal ward level within the Makhado Municipality's area, that the area consists of thirty five wards, that documents of all war

s, save wards 1, 3, 6, 7, 20, 24, 32 and 35 were attached

submissions by Waterval Region residents, Dzanani Region residents (X2), Vavani Region residents, a number of individual submissions, eight in number respectively and minutes of a meeting held on 27 March 2002 between members of the third respondent and Chamber of Commerce.

30.1

Allofthis,was analysed and criticized in the fourteen page letter of the24 February 2003. I do not intend dealing with the criticism as setout in the letter. Itappears fromthis information that the first respondent as he took the decision on the15 May 2003hadall these information and documentations as per letter of the9 May 2003from the applicant'sattorneys. This information,in my view,comprises the process that was followed. I therefore cannot find that the first respondent had no sufficient informationto apply his mind properly on the matter. It is also important to note that when the first respondent received the letter of the9 March 2003, he responded on the13 May 2003that he had taken the liberty of referring the concerns raised to his Department.

All

was analysed and criticized in the fourteen page letter of the

. I do not intend dealing with the criticism as set

out in the letter. It

appears from

this information that the first respondent as he took the decision on the

all these information and documentations as per letter of the

from the applicant

attorneys. This information

in my view

comprises the process that was followed. I therefore cannot find that the first respondent had no sufficient information

to apply his mind properly on the matter. It is also important to note that when the first respondent received the letter of the

9 March 2003

, he responded on the

13 May 2003

that he had taken the liberty of referring the concerns raised to his Department.

30.2

Although it is not clear what other information was furnished after his letter of the13 May 2003, the information as supplied bythe attorneys for the applicantreferredtoabove,would have been sufficient to make a decision. After the objections were lodged the first respondent gave his reasons for the rejection of the objection as set out in his letter referred to earlier in this judgment. In thisletter,the first respondent alluded to the fact that he rejected the objection aftercareful consideration of the objection and all other information brought to his attention. In his answering affidavit he stated that he considered the objectionsvery carefully, but that he was unpersuaded. He further indicated that after publication,he again considered the complaints or objections and that they were very much of the same mould as he had considered before. According to the first respondent,no new relevant facts or circumstances were introduced under Section 10(3) and that he therefore rejected the complaints. He also did not deem it necessary to refer the matter back to the second respondent.From this, in my view, itis quite clear that the first respondent considered the objections before his decision on the6 June 2003. The additional information furnished to the first respondent during objection appears in a document titled "INDEX OF DOCUMENTATION ATTACHED TO THE OBJECTION TO THE NAME CHANGE OF LOUIS TRICHARDT TO MAKHADO".Indeed,having regard to this additional information I do notthink anything material cameto the fore which the firstrespondent did not have before,save what was said to be signatories of objection to the name change in the total of 4662. This,of course should be seen in the light of the totality of the information.

Although it is not clear what other information was furnished after his letter of the

, the information as supplied by

the attorneys for the applicant

referred

above

would have been sufficient to make a decision. After the objections were lodged the first respondent gave his reasons for the rejection of the objection as set out in his letter referred to earlier in this judgment. In this

letter,

the first respondent alluded to the fact that he rejected the objection after

careful consideration of the objection and all other information brought to his attention

. In his answering affidavit he stated that he considered the objections

very carefully

, but that he was unpersuaded. He further indicated that after publication

he again considered the complaints or objections and that they were very much of the same mould as he had considered before. According to the first respondent

no new relevant facts or circumstances were introduced under Section 10(3) and that he therefore rejected the complaints. He also did not deem it necessary to refer the matter back to the second respondent.

From this, in my view

, it

is quite clear that the first respondent considered the objections before his decision on the

. The additional information furnished to the first respondent during objection appears in a document titled "INDEX OF DOCUMENTATION ATTAC

HED TO THE OBJECTION TO THE NAM

E CHANGE OF LOUIS TRICHARDT TO MAKHADO"

Indeed

having regard to this additional information I do not

think anything material came

to the fore which the first

respondent did not have before,

ave what was said to be signatories of objection to the name change in the total of 4662. This

of course should be seen in the light of the totality of the information.

31.

The main objectors appear to have been Chamber of Commerce and Hlanganani Concerned Group. Their objections were brought to the attention of the first respondent before the decision was taken on the15 May 2003and before rejecting the objections. Submission was also made that Ward 1 complainedofinsufficient time given to consider the change of town name. In my view,the first respondent had applied his mind to the application when it was laid before him.

The main objectors appear to have been Chamber of Commerce and Hlanganani Concerned Group. Their objections were brought to the attention of the first respondent before the decision was taken on the

and before rejecting the objections. Submission was also made that Ward 1 complained

insufficient time given to consider the c

hange of town name. In my view,

the first respondent had applied his mind to the applic

ation when it was laid before him

32.

I was urged to find that the first respondent should have found that there was no sufficient or proper consultation. Again this is an attack on the decisions of the third or second respondent. Thisshort coming,was the main objection to the present proceedings. I have already dealt with this objection.

I was urged to find that the first respondent should have found that there was no sufficient or proper consultation. Again this is an attack on the decisions of the third or second respondent. This

short comi

n

g

was the main objection to the present proceedings. I have already dealt with this objection.

33.

Coming back to the issue whether or not the first respondent erred in finding the consultation to be proper or sufficient, the following factors are in myviewimportant:

Coming back to the issue whether or not the first respondent erred in f

nding the consultation to be proper or sufficient, the following factors are in my

view

important:

- that the third respondent's decision was not challengedor soughtto be reviewed for lack of proper or sufficientconsultation in thepresent proceedings,- that after the third respondent was instructed by the MEC for LocalGovernment to look into the name change,consultative processwas initiated by the third respondent as set out earlier in thisjudgment.It is important to mention that the deponent to thefounding affidavit of the applicant, who is also said to be achairperson of the Hlanganani Concerned Group attended some ofthe public meetings and proposed a name as well, which name wasnot for retention of Louis Trichardt. A heavily heated debate tookplace during the meeting of the Chamber of Commerce and thethird respondent on the27 March 2002. The issueis obviouslysensitive and it would not have been unexpected to find suchdebates. However, to find disagreements on the issue would not initself amount to improper and or insufficient consultation, and-Ms Helmofthe Democratic Alliance,for example,complainedaboutthe insufficient time given to the councillors to takeinstructions from the political parties' structures. Althoughpeople's forum wasto be held on the 2ndor3rdFebruary 2002,parties were to make written submissions by the16 February 2002.However, as on the16 February 2002Ward 1 made nosubmissions. This should also be seen in the light of the fact thatthe decision was only taken by the first respondent on the15 May2003. In my view,therefore the short time period from the 30 or31 January 2002 to 3rdFebruary 2002 would not have had anyeffect considering the lapse of timefrom February 2002 tillwhenthe decision was taken on the 15 May 2003and lastly, one must have regard to what was said earlier in this judgment under paragraph 30..

- t

hat the third respondent's decision was not challenged

or sought

to be revi

ewed for lack of proper or sufficient

consultation in the

present proceedings,

hat after the third respondent was instructed by the MEC for Local

Government to look into the name change

consultative process

was initiated by the third respondent as set out earlier in this

judgment.

It is important to mention that the deponent to the

founding affidavit of the applicant, who is also said to be a

chairperson of the Hlanganani Concerned Group attended some of

the public meetings and proposed a name as well, which name was

not for retention of Louis Trichardt. A heavily heated debate took

place during the meeting of the Chamber of Commerce and the

third respondent on the

. The issue

is obviously

sensitive and it would not have been unexpected to find such

debates. However, to find disagreements on the issue would not in

itself amount to improper a

nd or insufficient consultation, and

Ms He

lm

the Democratic Alliance

for example

complained

about

the insufficient time given to the councillors to take

instructions from the political parties' structures. Alth

ough

people's forum was

to be held on the 2

or

parties were to make written submissions by the

However, as on the

Ward 1 made no

submissions. This should also be seen in the light of the fact that

the decision was only taken by the first respondent on the

15 May

2003

. In my view

therefore the short time period from the 30 or

31 January 2002 to 3

February 2002 would not have had any

effect considering the lapse of time

from February 2002 till

when

the decision was taken on the 15 May 2003

and lastly, one must have regard to what was said earlier in this judgment under paragraph 30.

34.

I am therefore satisfied that the first respondentdid not errin finding sufficient consultation to have existed.The process of consultation was of course attacked on another leg,i.e. people werenot asked if they wanted to change the town name, but that instead people were told to come up with alternative name to Louis Trichardt. This appears to be technical. Askingpeople to come up with alternative names to Louis Trichardt would not in itself suggest to people not to insist on the retention of the name Louis Trichardt. Indeed,Soutpansberg Chamber ofCommerce,for example,argued on the retention of the name Louis Trichardt.

I am therefore satisfied that the first respondent

did not err

in finding sufficient consultation to have existed.

The process of c

onsultation was of course attack

ed on another leg

i.e. people w

re

not asked if they wanted to change the town name, but that instead people were told to come up with alternative name to Louis Trichardt. This appears to be technical. Ask

people to come up with alternative names to Louis Trichardt would not in itself suggest to people not to insist on the retention of the name Louis Trichardt. Indeed,

outpansberg Chamber of

ommerce

argued on the retention of the name Louis Trichardt.

35.

This should immediately bring me to consider the other issue which was stronglyargued on behalf ofthe first respondent.Counselforthe respondents in a somewhat emotionally charged submission argued that the first respondent acted squarely within the framework of the legislation, i.e. he exercisedhis discretion in terms of Section 10 of the Act in deciding whether or not to approve or reject a geographicalnamechange. It was submittedthatthe first respondent'sdiscretion has been exercisedfairly and properly taking into account the following factors:

This should immediately bring me to consider the other issue which was s

trongl

y

argued on behalf of

the first respondent

Counsel

for

the respondents in a somewhat emotionally cha

r

ged submission argued that the first respondent acted squarely within the framework of the legislation, i.e. he exercise

his discretion in terms of Section 10 of the Act in deciding whether or not to approve or re

ject a geographical

. It was submitted

the first respondent's

discretion has been exercised

fairly and properly taking into account the following factors:

- that Louis Trichardt is the name given to a location inaterritorywhich had been occupied by theVavhenda for hundreds of years,

hat Louis Trichardt is the name given to a location in

territory

which had been occupied by the

Vavhenda for hundreds of years,

- that the name was perpetuated bythe intrusive regime of the ZAR,

hat the name was perpetuated by

the intrusive regime of the ZAR,

- that thereafter it was perpetuated by unlawful white governmentwhich excluded all black people and that it goes beyond saying thatthe name Louis Trichardtis associatedwith white imperialismandexclusively white regimes under which black people sufferedgrievously,

hat thereafter it was perpetuated by unlawful white government

which excluded all black people and that it goes beyond saying that

the name Louis Trichardt

is associated

with white imperialism

exclusively white regimes under which black people suffered

grievously,

- that when the self government territory of Venda was established,the Nationalist Government established an administrative seat andcalled it Thohoyandou, because it is a name held in a high esteemby themajority of thelocal population,

hat when the self government territory of Venda was established,

the Nationalist Government established an administrative seat and

called it Thohoyandou, because it is a name held in a high esteem

by the

majority of the

local population,

- that there can be no doubt that Chief Makhado is held in equal highesteem by the local population. He resisted and fought the ZAR tohis death. To name the most important town in the regionMakhado,fits in with the history, traditions and values of themajority of people in the region.

hat there can be no doubt that Chief Makhado is held in equal high

esteem by the local population. He resisted and fought the ZAR to

his death. To name the most important town in the region

fits in with the history, traditions and values of the

majority of people in the region

- that when a proper democraticmunicipality was brought about,which encompassed Louis Trichardt, the majority of the people asrepresented in the Municipality accepted the name Makhado anditmakes no sense to allow the third respondent to be called MakhadoMunicipality and not the town Makhadoas well, and

hat when a proper democratic

municipality was brought about,

which encompassed Louis Trichardt, the majority of the people as

represented in the Municipality a

cc

pte

d the name Makhado and

it

makes no sense to allow the third respondent to be called Makhado

Municipality and not the town Makhado

as well

, and

- that there is nothing to commend the name Louis Trichardt to themajorityof the people.

hat there is nothing to commend the name Louis Trichardt to the

majority

of the people

36.

The reaction by counsel on behalf of the respondents appeared to have been prompted by anearlier suggestion that the name Makhado,was a name ofnosignificance and a name which did not exist before Louis Trichardt. To this, I was reminded by counsel on behalf of the respondents that according to history and in particular according to Professor Changuion who had supplied a supporting affidavit to the applicant's application, Louis Trichardt arrived in the area ofSoutbansbergin 1836 and left the area 1837, hardly a year. The history of Makhado as set outin paragraph 35above was also given by Professor Changuion,a retired professor of history who had taught at theUniversityofLimpompofrom 1972 until he retired now recentlyandthat it was thereforeinconceivableand incomprehensible to make a suggestion oftheinsignificant of the name MAKHADO.I find merits to this submission. The history of Makhadoas outlined by Professor Changuion,andthe importance of the name MAKHADO amongst the majority of the people in the area and afar, in my view,surpasses the name of a person LOUIS TRICHARDT, who had stayed in the area for a year only. The first respondent correctly in his answering affidavitas also empowered by Enabling Actindicated that:

The reaction by counsel on behalf of the respondents appea

red to have been prompted by an

earlier suggestion that the name Makhado

was a name of

no

significance and a name which did not exist before Louis Trichardt. To this, I was reminded by counsel on behalf of the respondents that according to history and in particular according to Professor Chang

uio

n who had supplied a supporting affidavit to the applicant's application, Louis Trichardt arr

ived in the area of

outbansberg

in 1836 and left the area 1837, hardly a year. The history of Makhado as set out

in paragraph 35

above wa

s also given by Professor Changuio

a retired professor of history who had taught at the

University

from 1972 until he retired now recently

that it was therefore

nconceivable

and incomprehensible to make a suggestion of

in

significant of the name MAKHADO.

I find merits to this submission. The history of Makhado

as outlined by Professor Changuio

n,

the importance of the name MAKHADO amongst the majority of the people in the area and afar, in my view

surpasses the name of a person LOUIS TRICHARDT, who had stayed in the area for a year only. The first respondent correctly in his answering affidavit

as also empowered by Enabling Act

indicated that:

"The naming of geographicalfeatures is a world phenomenon that is as old as mankind. People have always attached a label or name to their immediate environment in order to assign meaning and give recognition. The significance of geographical names lies not only to mere name changing but also to knowledge systems that go with a geographical features or landscape. A large majority of pre-colonial names carried with them particular meanings: the kind of meanings the indigenous communities attached to their own identities, their relations to immediate environment, both built and natural environments, their relationships with their neighbours".Also paragraph 5 of his founding affidavit Minister Ngubane statedas follows:"There is every reason to restore the dignity and actual freedom of the majority inSouth Africa. Part of the restoration processis torename towns, the names of which serve as a reminder of the oppressive past, and to restore the traditions and cultural and historical values of the black peoples of theRepublicofSouth Africa. In this regard there is no valid reason why the people of the area should remain saddled with name such as Louis Trichardt, which is of no value to them at all and which is foreign to them, merely to be continuously reminded of the acute suffering endured by them for over a hundred years".Lastly,in paragraphs7 and 8 of the founding affidavit the Ministercontinued asfollows:

"The naming of geographical

features is a world phenomenon that is as old as mankind. People have always attached a label or name to their immediate environment in order to assign meaning and give recognition. The significance of geographical names lies not only to mere name changing but also to knowledge systems that go with a geographical features or landscape. A large majority of pre-colonial names carried with them particular mean

s: the kind of meanings the indigenous communities attached to their own identities, their relations to immediate environment, both built and natural environments, their relationships with their neighbours".

Also paragraph 5 of his founding affidavit Minister Ngubane state

"There is every reason to restore the dignity and actual freedom of the majority in

. Part of the restoration process

is to

rename towns, the names of which serve as a reminder of the oppressive past, and to restore the traditions and cultural and historical values of the black peoples of the

Republic

. In this regard there is no valid reason why the people of the area should remain saddled with name such as Louis Trichardt, which is of no value to them at all and which is foreign to them, merely to be continuously reminded of the acute suffering endured by them for over a hundred years".

Lastly

in paragraph

7 and 8 of the founding affidavit the Minister

continued as

follows:

7.

"The decision to propose the name Makhado for Louis Trichardt was taken by the duly elected Municipal Council of Makhado. The decision is in line with the declared policy of the National Government to promote constructive change to bring about the true freedom of the peoples of theRepublicofSouth Africa. The proposedname Makhado also has the blessing of the Limpompo Government.

"The decision to propose the name Makhado for Louis Trichardt was taken by the duly elected Municipal Council of Makhado. The decision is in line with the declared policy of the National Government to promote constructive change to bring about the true freedom of the peoples of the

. The propose

name Makhado also has the blessing of the Limpompo Government.

8.

As appears from the record of the proceedings filed on behalf of the Respondents, the proposal to change the name of Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failedto exert their influence during the democratic process. To some extent the objections are also based on financial considerations, such asthe cost involved bringingabout the change. I considered these objections very carefully, but I was unpersuaded that the will of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".37.

As appears from the record of the proceedings filed on behalf of the Respondents, the proposal to change the name of Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed

to exert their influence during the democratic process. To some extent the ob

jections are also based o

n financial considerations, such as

the cost involved bringing

about the change. I considered these objections very carefully, but I was unpersuaded that the will of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003".

37.

The court will always be reluctant to invalidate administrative action on procedural grounds and has in this context frequently indicated the importance of not impeding the efficacy of government. Where conflictinginterests have to be reconciled and choices made, proportionality, which is inherent in the Bill of rights, is relevant to determining what fairness requires. Ultimately, procedural fairness depends in each case upon a balancing of various relevant factors, including the nature of the decision, the rights affected by it, thecircumstances in which it is made, and the consequences resulting from it. (See Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools, Eastern Transvaal1999 (2)SA91(CC) paragraph 41, President of the Republic of South African Rugby FootballUnion and Others 2000(1) SA 1 (CC) atparagraph 220 and Minister of Public Works and others V Kyalami Ridge Environmental Association and others2001 (3) SA 1151(CC)paragraphs 102 & 109).In the Minister of Public Works and otherssupra,the department concerned had not informed or consulted with the residents of an area which was to be used for resettlement purposes. The department had however,undertaken to consult with the residents regarding implementation of its decision. Determining what procedural fairness requires in a specific case, Chaskalson J held, requires a proportionality analysis, i.e. a balancingof various relevant factors. One of these,is the circumstances in which the decision is made. Chaskalson J held that although it may have been better and more consistent with the salutary principles of good government, had government informed and consulted with residents before the decision was taken, the decision was not invalid for failure to comply with the requirements of procedural fairness. In the present case however, the first respondent did not only consider the suitability of the name Makhado town, but also considered the concerns raised by other parties. His decision in this regard was not only based on the objections lodged with him, but with the knowledge of the process which was followed bythe third respondent as conveyedto him through submissions ordocuments. I am therefore not satisfied that the applicant is entitled to the relief sought.

The court will always be reluctant to invalidate administrative action on procedural grounds and has in this context frequently indicated the importance of not impeding the efficac

y of government

. W

here conflicting

interests have to be reconciled and choices made, proportionality, which is inherent in the Bill of rights, is relevant to determining what fairness requires. Ultimately, procedural fairness depends in each case upon a balancing of various relevant factors, including the nature of the decision, the rights affected by it, the

circumstances in which it is made, and the consequences resulting from it. (

See Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools, Eastern Transvaal1999 (2)

1999 (2)

SA

91

CC

) paragraph 41, President of the Republic of South African Rugby Football

Union and Others 2000(1) SA 1 (CC) at

paragraph 220 and Minister of Public Works and others V Kyalami Ridge Environmental Association and others2001 (3) SA 1151

2001 (3) SA 1151

(CC)

paragraphs 102 & 109

)

In the Minister of Public Works and others

supra

the department concerned had not informed or consulted with the residents of an area which was to be used for resettlement purposes. The department had however

undertaken to consult with the residents regarding implementation of its decision. Determining what procedural fairness requires in a specific case, Chaskalson J held, requires a proportionality analysis, i.e. a balancing

of various relevant factors. One of these

is the circumstances in which the decision is made. Chaskalson J held that although it may have been better and more consistent with the salutary principles of good government, had government informed and consulted with residents before the decision was taken, the decision was not invalid for failure to comply with the requirements of procedural fairness. In the present case however, the first respondent did not only consider the suitability of the name Makhado town, but also considered the concerns raised by other parties

. H

is decision in this regard was not only based on the objecti

s lodged with him, but with the knowledge of the process which was followed by

the third respondent as conveyed

to him through submissions o

documents. I am therefore not satisfied that the applicant is entitled to the relief sought.

38.

Lastly,I was urged to find that the provisions of Section 10 (3) and (4) were unconstitutional. I was not particularly impressed with this submission by counsel for the applicant. These twosubsectionsare meant to create internal remedy to an aggrieved party. This is a remedy without incurring unnecessary legal costs. What is more,subsection 4 obliges the Minister to furnish reasons for his or her decision. This is to facilitate a better chance for aggrieved partiesto know or decidewhether or not to challenge the decision in a court of law. Of importancehowever, is the fact that the provisions do not impede a party'sright to access to court. Onthe contrary,it paves a way to better accessibility to the court in the sense that a party is equipped with better information regarding the reasons for the decision. These provisions in my view are in line with theprovisions of the Constitution and PAJA. The suggestion that the process in terms of the subsections is not credible,cannotbe the basis to find unconstitutionality. Icannot find the provisions to be unconstitutional.

I was urged to find that the provisions of Section 10 (3) and (4) were unconstitutional. I was not particularly impressed with this submission by counsel for the applicant. These two

subsections

are meant to create internal remedy to an aggrieved part

. This is a remedy without incurring unnecessary legal costs. What is more

subsection 4 obliges the Minister to furnish reasons for his or her decision. This is to facilitate a better chance for aggrieved part

ies

to know or decide

whether or not to challenge the decision in a court of law. Of importance

however, is the fact that the provisions do not impede a party

right to access to court. On

the contrary

it paves a way to better accessibility to the court in the sense that a party is equipped with better information regarding the reasons for the decision. These provisions in my view are in line with the

provisions of the C

o

nstitution and PAJA

. The suggestion that the process in terms of the subsections is not credible

cannot

be the basis to find unconstitutionality

. I

cannot find the provisions to be unconstitutional.

CONCLUSIONI therefore conclude by dismissing the applicant's application with costs, costs to include costs of two counsels for the respondents.

CONCLUSIONI therefore conclude by dismissing the app

licant's application with costs, costs to include costs of two counsels for the respondents.

M F LEGODIJUDGE OF THE HIGH COURTCOXWELL STEY VISE & NAUDE ATTORNEYSAPPLICANT'S ATTORNEYSPRETORIACOUNSEL:M D DU PREEZTEL NO. (012) 303 7484THE STATE ATTORNEYFIRSTRESPONDENT'S ATTORNEYSPRETORIACOUNSEL FOR FIRST & SECOND RESPONDENTS:J MARITZ SCTEL NO. (012) 303 7747K K KEKANATEL NO. (012) 303 7624

M F LEGODIJUDGE OF THE HIGH COURT

COXWELL STEY VISE & NAUDE ATTORNEYS

APPLICANT

'S ATTORNEYS

COUNSEL:

M D DU PREEZTEL NO. (012) 303 7484

THE STATE ATTORNEYFIRST

RESPONDENT

COUNSEL FOR FIRST & SECOND RESPONDENTS:

J MARITZ SCTEL NO. (012) 303 7747K K KEKANATEL NO. (012) 303 7624