Ndumo v Minister of Arts and Culture Nomine Officio and Others (3756/2018) [2019] ZAECGHC 125; [2020] 2 All SA 225 (ECG) (10 December 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

REPORTABLE

CASE NO: 3756/2018

Date heard: 28 November 2019

Date delivered: 10 December 2019

In the matter between:

SIGIDLA NDUMO

Applicant

and

THE MINISTER OF ARTS & CULTURE NOMINE

OFFICIO

First Respondent

THE SOUTH AFRICAN GEOGRAPHICAL NAMES

COUNCIL

Second Respondent

MAKANA MUNICIPALITY

Third Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1] This is a Review Application seeking that the decision of First Respondent (“the Minister”) made in terms of Section 10 of the South African Geographical Names Council Act 118 of 1998 (“the Names Act”), published in GN41738 of 29 June 2018, to approve the change of name of the town Grahamstown to Makhanda (“the town”), confirmed on 2 October 2018, be set aside with costs.

[2] Second Respondent is the South African Geographical Names Council (“the Names Council”) and Third Respondent is the Makana Municipality (“the Municipality”).

[3] I immediately make it clear that this judgment and the review does not concern the merits of the name change issue – but turns only on whether there was a procedural or reviewable irregularity, or in this matter particularly, whether irrelevant considerations were taken into account or relevant considerations not considered in the impugned decision, alternatively a rationality challenge. I am most certainly not required to comment upon or determine the issue as to whether the name change is appropriate or not – that being a matter entirely outside the review issue in this matter. Nevertheless the Application raises issues of great sensitivity and requires careful treatment and understanding.

[4] A review is not a rehearing as in an appeal[1]. Review is traditionally about illegality, procedural irregularity or irrationality which is such as to enable the Court to intervene [2]. If the Promotion of Administrative Justice Act 30 of 2000 (PAJA) is of application it is the foundation of such administrative review[3]. In MEC for Environmental Affairs and Development Planning v Clairison's CC [4] the following was said:

“[18] We think it apparent from the extracts from her judgment we have recited, and the judgment read as a whole, that the learned judge blurred the distinction between an appeal and a review. It bears repeating that a review is not concerned with the correctness of a decision made by a functionary, but with whether he performed the function with which he was entrusted. When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to

ensure that the decision-maker has performed the function with which he was entrusted. Clearly the court below, echoing what was said by Clairisons, was of the view that the factors we have referred to ought to have counted in favour of the application, whereas the MEC weighed them against it, but that is to question the correctness of the MEC's decision, and not whether he performed the function with which he was entrusted.”

[5] This is an attack upon the validity of an administrative decision

within the ambit of PAJA.

[6] The quintessence of this matter (although there are other grounds) is whether, in the required process stipulated for in the legislative

matrix, adequate consultation with communities and stakeholders took place. In this matter then the crucial enquiry at the start is whether the Names Council having informed the Minister that a proper consultation process has been followed was correct, or was incorrect, and (if so this being a material misstatement of fact) – such as to influence his decision and thus such as to fall within Section 6(2)(e)(iii) of PAJA[5].

THE FACTS IN OUTLINE

[7] I will deal in outline with the previous events as to the change of name through to 2013 as to the relevance of same to process and procedure in this new scenario. This facilitates an understanding of what follows.

[8] The application by Mr X Mali (17 November 2014) was submitted to the Provincial Geographical Naming Committees (“the PGNC”) for the renaming of Grahamstown to Makhanda. It seems clear to me that this application was permissible in terms of Section 9(1)(d) of the Names Act Applicant’s application to include “other bodies and individuals” [6].

[9] A long time later a so-called “consultative meeting was convened” ... “in line with the process outlined above” so alleges the Minister.

[10] This is said to begin with the PGNC by “inviting relevant stakeholders to a consultation process” endorsing, so it goes, proposed dates for public hearings “soliciting the cooperation of stakeholders in ensuring the consultation process becomes fully representative”.

[11] It is alleged by the Minister that thereafter each “stakeholder representative” (whoever that may be) was to facilitate meetings of its constituency soliciting the views of its member.

[12] This is without detail of who the stakeholders were.

[13] Reference is made to subsequent “consultative meetings” and that the PGNC published public invitations in “the local newspaper”.

[14] Then, so it goes, the PGNC responded to objections and made recommendations about the proposed name change to Second Respondent.

[15] In fact following the so-called “stakeholder consultative meeting” it is said that the only stakeholder not to attend was Keep Grahamstown, Grahamstown (“KGG”).

[16] The meeting was convened, invitation initially by email invitation to many stakeholders including KGG.

[17] It is alleged that the said consultative meeting (held on 16 September 2015) “decided on 19 November 2015” as the date of public hearings for the town name change. This meeting was however delayed due to xenophobic attacks.

[18] It is then alleged that public hearings were reconvened on 11 February 2016 and “stakeholders in the Makana Local Municipality were duly notified”.

[19] What is said is that this was adequately publicised through “stakeholder invitation posters at public places in Makhanda and through newspapers” (absent being publication in the local newspaper, Grocott’s Mail, the only truly local town paper relevant, a small publication once per week) and three radio talk shows on Radio Grahamstown. Publication was in the Daily Dispatch and Herald papers circulating widely in the Eastern Cape Province.

[20] How many posters were utilized is not stipulated.

[21] The same may be said of the PGNC newspaper notices published in four provincial newspapers – (not Grocott’s Mail).

[22] Why there was no direct local municipality involvement is not explained.

[23] Cleary the local community and all relevant organisations are stakeholders amongst others.

[24] As per the Names Act, the “public” are part of those to be drawn into a consultative process.

[25] Respondents’ papers set out that on 11 February 2017, 165 people attended the meeting.

[26] Following this meeting the only further public meeting alleged (and some months later) is that referred to on 17 May 2016, when the PGNC published a notice in the Daily Dispatch (an Eastern Cape newspaper from East London) notifying and inviting members of the public to comment on geographical names recommended by the Names Council “based on the public hearings” (in fact one hearing).

[27] In May and June 2016 the PGNC received objections “from organisations and individuals”.

[28] On 21 June 2016 it is alleged that the PGNC sub-committee considered the objections and made recommendation that the town name be changed to Makhanda, which was forwarded to the Names Council for consideration.

[29] On 20 November 2017 a new PGNC was appointed and objections responded to (ex post facto).

[30] On 29 January 2018 the chair of the Names Council invited the “objectors” to a meeting scheduled for 15 February 2018 at Grahamstown.

[31] The objection meeting envisaged was held on 16 February 2018.

[32] The Names Council was then directed to reconsider the objections.

[33] On 20 April 2018 the Names Council held a special meeting in Pretoria to discuss the name change and recommended same (NM8).

[34] On 22 May 2018 the Names Council drafted a submission to the Minister in respect of the said recommendation.

[35] On 5 June 2018 the Minister approved the name change with Gazetted change on 29 June 2018 (NM10).

THE CONTENTIONS IN SUMMARY

[36]

[36.1] Applicant contends inter alia, in essence, that the Minister’s decision was reviewably flawed for the following reasons:

[36.1.1] That the Minister erred in failing to consider the earlier processes relevant to previous name change consideration running from 2007 to 2013 – and he did so misunderstanding that this was not about the Municipal name change (as he stated) but about the town name. (A critical error so it contested.)

[36.1.2] That the 2015 process was woefully inadequate as to consultative process (almost non-existent).

[36.1.3] That no explanation has been given as to why the name “iRhini” was rejected.

[36.1.4] That insufficient reasons were given in the application by Mr Mali, for the proposed name change.

[36.1.5] That the change was based on “offensiveness” not the historical reasons mentioned in the application which it is said was a “sham”.

[36.1.6] A rationality challenge as per Applicant’s heads[7]:

“83. The result is that the reasons given by the PGNC and the SAGNC, and then relied on, and repeated by the Minister, are not rationally connected to the information before them, and certainly, the information before the Minister in arriving at his decision. The decision is therefore reviewable in terms of section 6(2)(f)(ii) of PAJA.

84. They also, in our view, demonstrate a reasonable suspicion of bias on the part of the PGNC and the SAGNC. That bias has tainted the Minister’s own decision and thus renders it reviewable in terms of section 6(2)(a)(iii) of PAJA.”

[36.1.7] Lack of “standardisation” [8]:

“92. The PGNC and the SAGNC have thus failed to comply with the mandatory conditions prescribed in the relevant empowering provisions. That the Minister has relied on their recommendations without applying his mind to the contradictory spelling of the name Makana and Makhanda, renders his decision flawed and subject to review in terms of section 62(2)(b) of PAJA.”

[36.1.8] That the Minister misstated the historical context.

[36.1.9] The “failure” to consider the KGG and attached 10 000 objections to the Minister’s Section 10 decision in the “objection” process and failure to state the accessibility of an appeal objection process in the decision as gazetted.

[37] First and Second Respondents contend for sufficient consultation in the 2015 process, that the 2007 – 2013 process was irrelevant to the new process and that there is no merit in the remaining submissions and further that Applicant effectively ignores the context in which the Names Act and Guidelines were promulgated, in the interpretation thereof.

THE ACTUAL COMPLAINTS AND ALLEGATIONS IN THE FOUNDING PAPERS BY APPLICANT

[38] It must be remembered that despite the specifics named in argument, Applicant limited himself to the following allegations in setting up his case.

[39] The main complaint by Applicant being the allegation of inadequate consultations. Linked to this is the complaint that the name change process of 2007 – 2013 was ignored, and not taken into account, especially the KGG submissions with 4331 signatories, emails and SMS’s.

[40] That the chair at the meeting of 15 February 2018 made “disparaging remarks about the objectors and ridiculed those who opposed the name change”.

[41] The KGG objection incorporating 10000 objections, submitted by registered post to the Minister’s decision in the Section 10 objection process, were returned as unclaimed.

[42] That the Names Council was “required to give effect to the wishes of the local population, the historical use of the town name and any other redress, which was necessary”.

[43] That “transformation” could “only appropriately have related to the rejection of the name “Grahamstown” by the community who live there....” (whatever this may mean). (Clearly, in my view as shall appear hereafter, this was a far too narrow view of the process and requirements of the legislature and guidelines.)

[44] The Minister’s failure to advise in the Gazette of the Section 10 “objection” process, as also the so-called inadequate reasons and factual inaccuracies relied upon in refusing such objection.

[45] That the historical motivation by the Mali Application differs “entirely” from the motivation during the three previous consultation processes 2007 – 2013. (This of course impacts on the submission that these should have been considered, the previous process being different from the start.)

[46] That the Minister’s reasons for the name change, that the town name was “offensive” having regard to “brutal colonial subjugation”, and that the change recognised the need for redress and restoration of human dignity, was not the basis of the Mali application. (This again as will be seen hereafter, clearly immediately can be seen to be an inadequate ground for challenge in the scheme of the Legislation and Guidelines.) This was not persisted in with any vigour.

[47] That the KGG’s failure to participate (in fact a deliberate refusal) in the meeting of 11 February 2016 as it had “already fully participated in the previous full public consultation processes between 2007 and 2013” is somehow supportive of Applicant’s case.

THE RELEVANT PROVISION OF THE NAMES ACT

[48] The relevant provisions of the Names Act are set out below:

“ACT

To establish a permanent advisory body known as the South African Geographical Names Council to advise the Minister responsible for arts and culture on the transformation and standardisation of geographical names in South Africa for official purposes; to

determine its objects, functions and methods of work; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

...

1 Definitions

In this Act, unless the context indicates otherwise-

'Council' means the South African Geographical Names Council, established by section 2 (1);

'regulations' means regulations made under section 12;

'standardisation' means-

(a) determination of-

(i) the name to be applied to each geographical feature; and

(ii) the written form of that name; and

(b) the regulation by an appropriate authority of a geographical name, its written form and its application;

'this Act' includes the regulations.

2 Establishment and objects of Council

(1) There is hereby established a body to be known as the South African Geographical Names Council.

(2) The objects of the Council are-

(a) to facilitate the establishment of Provincial Geographical Names Committees;

(b) to ensure the standardisation of geographical names;

(c) to facilitate the transformation process for geographical names;

(d) to promote the use of standardised South African geographical names at international level;

(e) to ensure the implementation of standardised geographical names in South Africa; and

(f) to promote awareness of the economic and social benefits of the standardisation of geographical names.

9 Powers and duties of Council

(1) The Council must-

(a) set guidelines for the operation of Provincial Geographical Names Committees;

(b) set standards and guidelines for local and provincial authorities in their respective areas of jurisdiction;

(c) receive proposed geographical names submitted by State departments, statutory bodies, provincial governments, municipalities and other bodies or individuals;

(d) recommend geographical names falling within the national competence to the Minister for approval;

(e) advise the Minister on-

(i) the standardisation of proposed new geographical names;

(ii) existing geographical names not yet standardised;

(iii) the changing, removing or replacing of geographical names; and

(iv) geographical names and their orthography;

(f) in consultation with provincial governments, identify existing geographical names in need of revision, and co-ordinate requests for advice on geographical names and standardisation;

(g) communicate decisions and relevant information on geographical names approved in terms of section 10 (1) effectively to the various State departments, the public, and all other users of geographical names at national and international level by means of gazetteers, lists, maps and other published and electronic media;

(h) liaise with-

(i) national and international organisations concerned with geographical names; and

(ii) cultural, historical and linguistic organisations;

(i) in consultation with the Minister and the Provincial Geographical Names Committees, formulate policies, principles and procedures, taking cognisance of the United Nations resolutions and international practice with reference to the standardisation of geographical names;

(j) perform any other duty imposed on it by this Act or any other law; and

(k) not later than one month before the commencement of each financial year, submit a business plan containing such information as may be prescribed to the Minister for his or her approval.

[Para. (k) added by s. 34 of Act 36 of 2001 (wef 18 February 2002).]

(2) The Council may-

(a) exercise any power conferred on it by this Act or any other law; and

(b) generally, do everything which is necessary to perform its duties referred to in subsection (1).

10 Approval and revision of geographical names

(1) The Minister may approve or reject a geographical name recommended by the Council in terms of section 9 (1) (d).

(2) A geographical name approved or rejected by the Minister in terms of subsection (1) must be published in the Gazette.

(3) Any person or body dissatisfied with a geographical name approved by the Minister may, within one month from the date of publication of the geographical name in the Gazette, lodge a complaint in writing to the Minister.

(4) The Minister may refer the complaint to the Council for advice whether or not to reject or amend a geographical name so approved.

(5) The Minister must inform the complainant of the decision on the complaint and the reasons for the decision.

12 Regulations

(1) The Minister must make regulations as to the criteria to be followed when deciding whether or not a geographical name should be regarded as a national, provincial or local competence.

(2) The Minister must make regulations regarding any matter referred to in section 3.

(3) The Minister may, after consultation with the Council, make regulations regarding-

(a) any other matter which is required or permitted to be prescribed under this Act; and

(b) generally, any matter which is necessary or expedient to be prescribed in order to achieve the objects of this Act.

(4) The regulations may provide that any person contravening any regulation or failing to comply therewith is guilty of an offence and liable on conviction to a penalty not exceeding that prescribed in the regulations.”

(Bold and italics my emphasis)

THE REGULATIONS

[49] The Regulations[9], insofar as are relevant, provide:

“3 Criteria for determining whether a geographical name is a national or local competence

(1) The criteria for deciding whether or not a geographical name is to be regarded as a local competence are as follows:

(a) The area must be situated within the jurisdiction of the local authority; and

(b) geographical names of local concern include streets, municipal buildings and squares, local parks and cemeteries, and privately owned buildings.

(2) The following criteria must be followed when deciding whether or not a geographical name should be regarded as a national competence:

(a) Geographical names of national concern include: towns, suburbs, any form of human settlement, post offices, stations, airports, harbours, highways, mountains, streams, rivers, bays, points, islands, wetlands and national parks; and

(b) any other geographical name other than those referred to in subregulation (1)(b).”

[50] The change of Geographical names of Towns are thus geographical names of “National Concern” (National competence) and not of local authority “Local Concern”.

GUIDELINES AND PROCEDURE

[51] It cannot be gainsaid that the guidelines referred to in Section 9(1) of the Names Act as to “policies, principles and procedures” are contained in the so-called “Handbook on Geographical Names”[10] (“the Guidelines”).

[52] This document sets out inter alia:

“What does the SAGNC do?

● It establishes the policies and principles for the naming of geographical features in South Africa.

● It standardises the geographical names under its jurisdiction. To do this it determines the name to be applied to each geographical feature, and

the written form of the name.

● It recommends standardised names to the Minister for approval. It receives and records approved geographical names and makes them known through publications and on the Internet. It liaises with the United Nations (UN), the UN Economic Commission for Africa, geographical names authorities of member nations of the UN, and other international agencies concerned with the standardisation of geographical names.

What geographical names are covered by the SAGNC?

● Geographical names of national concern including, but not limited to, towns, suburbs and any form of human settlement, post offices, railway stations, highways and government dams.

● Natural landforms, e.g. mountains, hills, rivers, streams, bays, headlands and points, islands, passes, ‘poorts’ and ‘neks’.

....

Provincial Geographical Names Committees (PGNCs)

Provincial Geographical Names Committees are established in terms of section 2(2)(a) of the South African Geographical Names Council Act, 1998. They are established by the provincial department responsible for arts and culture after consultation with the SAGNC.

Functions of a Provincial Geographical Names Committee

● A PGNC is responsible for advising local authorities and working with them in ensuring that they apply the principles of the SAGNC to the names under their jurisdiction.

● A PGNC makes recommendations to the SAGNC on the names of geographical features that fall within its provincial boundaries. It should do preparatory work for the submission of names to the SAGNC, and is responsible for seeing to it that local communities and other stakeholders are adequately consulted.

● A PGNC liaises with the SAGNC on promoting research and ensuring that unrecorded names are collected.

Why geographical names should be standardised

● People tend to give the same name to different places.

● Names may sound the same or the spelling of one place name may be very close to that of another.

● Names can be spelled in different ways.

● In a multilingual country such as South Africa, places often have more than one name.

These situations lead to misunderstandings and confusion. In order to avoid this, geographical names are standardised by authorities throughout the world.

It is important to standardise names for the purpose of affirming a country’s history and national identity, and for purposes such as trade and commerce, transportation, communications, regional and environmental planning, social services, science and technology, elections and censuses, tourism, disaster management and search-and-rescue operations, etc.

Those who prepare maps and gazetteers of geographical names, both nationally and internationally, depend on the geographical names

authorities of countries to provide them with standardised names.

Policies for standardisation

Standardisation is based on:

● The current orthographic (spelling) rules of the languages from which the names are derived.

● The wishes of the local population provided they are not in conflict with the principles of the SAGNC.

● The historical use of the name.

● Redress, where a name is changed on the basis of historical considerations.

● United Nations resolutions on the standardisation of geographical names.

● Any other relevant factors which the SAGNC may identify.

Can existing names be changed?

Geographical names are part of the historical, cultural and linguistic heritage of the nation, which it is more desirable to preserve than destroy.

One of the objects of the SAGNC is to facilitate the transformation process for geographical names.

Application may be made for an existing geographical name to be changed if the applicant believes that it does not meet the policies and principles of the SAGNC. The application must be made on the same form that is used for new names, and should be accompanied by a detailed motivation and, where possible, supporting documents. Evidence must be provided that stakeholders have been consulted.

Considerations to be taken into account when reviewing names

● Archives, oral tradition and other resources should be consulted.

● When consideration is given to whether an original name should be restored, one factor to be taken into account may be that the

original language in which the name was given may have disappeared, in which case the needs and convenience of present day society may be more important.

● It may be impossible to ascertain the correct form of the original name because its form in the language of origin (e.g. San and Khoi languages) is unknown.

● Certain legislation other than the SAGNC Act governs certain kinds of geographical names (i.e. the name of the country, names of provinces and local authorities, and cadastral names).

Who may apply for approval of a name?

All government departments, provincial governments, local authorities, the SA Post Office, property developers and any other body or person may apply.

How standardising is done

The SAGNC receives all applications for the approval of geographical names under its jurisdiction and ensures that proper consultation has taken place and that the name meets the Council’s requirements in all respects.

The SAGNC takes the final decision on the form or forms of names and recommends them to the Minister.

Once a name has been approved by the Minister, that name has been standardised. It is then published in the Government Gazette.”

[53] In the Chairpersons’ Association matter supra[11] the following appears relevant to the status of the Guidelines:

“[45] In my opinion the statement in the guidelines that the Names Council 'ensures that proper consultation has taken place' is akin to a promise made by a public authority to follow a certain procedure, about which the Privy Council said the following

in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 622 (PC) ([1983] 2 All ER 346) at 638E - F (351h (All ER)):

'(W)hen a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.'

[46] The guideline is that before a proposal for a name change, even one of a transformatory nature, is considered, adequate

consultation with local communities and other stakeholders must take place. In all the circumstances I think it clear that this guideline should have been implemented in the case of the Louis Trichardt name change. It is clear from the summary of the facts set out above that such consultation did not take place. Apart from the short notice given of meetings to be held by ward councillors, the holding of the meeting advertised for 7 February 2002 on 6 February 2002, the refusal to hold back the process during the discussions with the chamber of commerce and the statement by the

mayor that 'we consult politicians, not Chambers', there was the assertion by the mayor that the councillor for ward one had not done her job: which amounted to an admission that her ward (which it will be recalled comprises about 50% of the total

jurisdictional area of the municipality, including the town of Louis Trichardt west of the national road, all the businesses in that part of the town, the Buys Community and a number of rural communities) was not consulted. Whether it was the councillor's fault or not is neither here nor there; the failure to consult is not disputed.”

(My emphasis)

INTERPRETATION OF STATUTES

[54] The approach to statutory interpretation is formulated in Cool Ideas 1186 CC v Hubbard [12] where the following is stated:

“[28] A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general principle, namely:

(a) that statutory provisions should always be interpreted purposively;

(b) the relevant statutory provision must be properly contextualised; and

(c) all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso to the general principle is closely related to the purposive approach referred to in (a).”[13]

[55] “Purposive” interpretation means promoting the spirit, purport and objects of the Bill of Rights when interpreting legislation. That is whether particular legislation is capable of an interpretation which conforms to the fundamental values and principles of the Constitution[14]. It is aimed at testing the core values which underlie the fundamental rights in a democratic society based on human dignity, equality and freedom and supports an interpretation best supporting and protecting those values.

[56] Context is essential, it requires attention to political history[15] and a ringing and decisive break from the past[16]. Textual context is also required. This makes it all the more important to take into account the issue of the transformation

of geographical names, and the transformation process therefore and redress as referred to in the Names Act in the context of the

inequities of the past bearing in mind human dignity, equality and freedom, concepts looming large in this matter and by no means

limited to only and simply the wishes of the local population. It is set out in the Guidelines importantly that “redress” must be considered having regard to name change on the basis of historical considerations and the historical use of a name.

This it seems to me is markedly understated in the submissions for Applicant who tends to emphasise the 2007 – 2013 alleged

disinterest of the local population, at that time in that process in a name change. There is little attention, in the submissions,

to the issue of redress in the face of violent and colonial intervention (referred to in the Constitutional Court as “... shameful colonial past” in the history of the town and at the time of its original naming. Whilst there is some disagreement on the exact timing and detail of that history it is clearly generally and inevitably of substantial importance and historical relevance to “redress”. This in context is equally important to the wishes of the local population and of importance to contextual interpretation.

[57] Constitutional validity must be achieved.

THE NAMES ACT

[58] Context in respect of the Act implicates “transformation” and “standardisation” in the Preamble. This underpins the context in which the Names Act was promulgated in 1998. The very purpose of the Names Act is to enable the process of transformation and standardisation. This background and context was specifically referred to in City of Tshwane Metropolitan Municipality v Afriforum & Another [17] by Mogoeng CJ in a somewhat different context but most applicable, as follows:

“[4] That said, colonialism or apartheid is a system so stubborn that its divisive and harmful effects continue to plague us and retard our progress as a nation more than two decades into our hard-earned constitutional democracy. Almost all cities, towns and street names continue to reverberate with great sounds of veneration for the architects of apartheid, heroes and heroines of our oppressive and shameful colonial past. Virtually no progressive or potentially conciliatory change to city, town or street names goes unchallenged. There are fairly regular challenges to the equitable distribution of honour to heroes of all cultural or racial groups and a concomitant determination to preserve exclusivity to privilege and meaningful control. This highlights the crucial role of the preamble to our Constitution, relied on by Afriforum.”

[59] This more than clearly forms part of the background context in which the Act (and its Guidelines) falls to be interpreted purposively. It is in this context that it must be considered that the Names Act does not itself require more than to “liaise” as pointed out, and that it is the Guidelines that refer to “adequate” and “proper” consultation with “local communities” and “other stakeholders”. No more than this is referred to nor is it stipulated what such adequacy entails.

[60] It is not disputed in reality that a change of name for the town is a Section 9(1)(d) and (e) Names Act matter within National Competence.

[61] From the Names Act read with its Guidelines, policies, principles and procedures referred to above, the following is clear:

[61.1] The Names Council is inter alia to ensure standardisation, facilitate the transformative process for geographical names and advise the Minister on the transformation process and standardisation of Geographical names (inasmuch as this is part of “changing, removing or replacing geographical names”).

[61.2] “Standardisation” relates to the determination of Geographical names which include a town name and incorporates inter alia the wishes of the local population and redress.

[61.3] The Names Council establishes Provincial Geographical Names Committees and must ensure the standardisation of Geographical names, amongst other things.

[61.4] Town names are of National competence (National concern) not local concern, for example street names.

[61.5] The Names Committee, the Provincial Geographical Naming Committees (PGNC) and processes are subject to guidelines (the Guidelines).

[62] The Names Council “must”:

[62.1] Receive proposed geographical names submitted by a range of entities (Section 9(1)(c));

[62.2] Recommend geographical names of National competence to the Minister for “approval” (Section 9(1)(d)) and advise the Minister on the standardisation of proposed new geographical names not yet standardised, as also the changing or replacing of geographical names (Section 9(1(e)), this part of the transformation process.

[62.3] In consultation with Provincial Government identify provincial names in need of “revision”.

[62.4] Communicate decisions approved in Section 10(1).

[62.5] Liaise with “national and international” organisations concerned with geographical names and “cultural, historical and linguistic organisations” (Section 9(1)(h)) and formulate policies, principles and procedures (Section 9(1)(i)).

[63]

[63.1] The Minister may approve or reject names recommended by the Names Council in terms of Section 9(1)(d) of the Names Act as read with Section 9(1)(e).

[63.2] The decision must be published in the Gazette.

[63.3] Any person dissatisfied with an approved name may, within 1 month of publication, object in writing to the Minister. The Minister may refer the complaint to the Names Council for advice and must inform the complainant of his decision with reasons.

[63.4] Whilst the Names Act provides that the Names Council must liaise with various organisations (Section 9(h)(i) and (ii)) there is nothing said of “consultation”. The policies and procedures (The Names Act and Guidelines) most importantly provide that the Names Council must ensure that proper consultation has taken place (“local communities and other stakeholders are adequately consulted” and “evidence must be provided that stakeholders have been consulted”). This is a procedural issue essential to the process. That is then “adequate” or “proper” consultation with local communities and other stakeholders.

[63.5] The Names Act, includes the duty to liaise with National and International organisations concerned with Geographical policies and with cultural, historical and linguistic organisations (Section 10(h)).

[63.6] This widens and reinforces the importance of an adequate consultative process, and this for good reason, without suggesting that the Names Act itself refers to adequate consultation.

[63.7] The terms “adequate” and “proper” are both used in the Guidelines relevant to consultations.

[64] The specific issue then is in the context set out above and purposively interpreted what is required by “adequate/proper” consultation with local communities and other stakeholders lacking any further guidance or stipulation in either the Names Act or its Guidelines. Standardisation requires consideration of the “wishes of the local population” and “redress when the name is changed on the basis of historical consideration” (Guidelines under Standardisation) and clearly applies also where a change of name is of a transformatory nature.

[65] It cannot be gainsaid that this is a name change of both a standardisation and transformatory nature.

[66] This enquiry is clearly “fact specific” [18]. Respondents contend that the consultation process was indeed “adequate” or “proper” while Applicant contends the contrary.

THE INTERPRETATION

[67] Against the above background and in context the interpretation of the Names Act and Guidelines establishes the following as its crux relevant to this matter:

[67.1] The Names Act requires attention to the transformation and standardisation of town names.

[67.2] The Names Council is to ensure not only standardisation of town names but must also facilitate the names transformation process.

[67.3] Standardisation itself of town names includes the concept of “affirming a country’s history” and is based inter alia on the wishes of the local population provided these are not in conflict with the principles of the Names Council and have regard to the historical use of the name and redress for historical considerations as also orthography.

[67.4] When changing existing town names, and clearly relevant to the wishes of the local population, redress for historical considerations and transformation, “stakeholders” must be consulted.

[67.5] In respect of standardisation “proper consultation” must take place and in respect of name change there must be proof of stakeholder consultations, and there must be “adequate consultations”.

[67.6] Proper and adequate consultation clearly applies to the local population of the town concerned, as also stakeholders relevant to that name change and standardisation.

[67.7] In a matter such as this the proposed name change implicates standardisation as well as transformation as to name change.

[67.8] In both adequate proper consultation is required. The definitions of adequate, proper and redress are as follows:

“adequate . . . satisfactory or acceptable.

“proper . . . 1 truly what something is said or regarded to be; genuine... 2 suitable or appropriate; correct. ... respectable. 3 (proper to) belonging or relating exclusively to. ... thoroughly...” [19]

“redress . . . 1 Reparation of or compensation for a wrong or consequent loss. ... 2 Remedy for or relief from some trouble; assistance, aid, help. ... b Correction or reformation of something wrong. ... 3 a A means of redress; an amendment, an improvement. ... b A person who or thing which affords redress. .... 4 The act of redressing; correction or amendment of a thing, state, etc.” [20]

[67.9] In considering such an application, transformation and redress are fundamentally important in the context of human dignity, equality and freedom.

[67.10] The inequities of the past, the country’s oppressive and shameful colonial history and redress for past wrongs are weighty considerations, and is context to interpretation.

[67.11] In that context adequate/proper consultation as referred to above requires notification to relevant organisations and the local population of the application and issues relevant, and suffices to garner their views in public meetings (if possible).

[67.12] Such views are however not by any means the last word but only part of the puzzle and to be taken into account by the Names Council, in the recommendation to the Minister and by the Minister in his decision.

67.13] Adequate/proper consultation incorporated in the Guidelines only and not the Names Act directly, is not subject to statutory guidance as to quantity or quality and must, in my view, be only that which is reasonably necessary to give those referred to a reasonable chance of being heard – the bar is not high, the principle being reasonable notification and reasonable opportunity.

[67.14] A helpful parallel (though in a different context) is Doctors for Life International v Speaker of the National Assembly and Others[21]. The crux of this, relating to public participation, is that this gives the entities involved, in inviting and facilitation

consultation (public involvement), a significant measure of discretion. This applies to means and modalities. This emphasises a “reasonable” opportunity afforded the public to participate effectively, with the ability to take advantage of the opportunity provided. This requires a case by case factual analysis.

[67.15] Each case must be determined on its own facts – this certainly would include advertisements in well recognised and published newspapers circulating and read in the relevant town, and such other means as are useful and available, such as but not necessarily limited to, radio announcement by a station relevant to the town and such means as posters.

[67.16] This gives the opportunity of making oral submissions (and also written if appropriate) in public meetings, again if appropriate. I do not say however that the consultations necessarily envisage public meetings in all circumstances.

[67.17] The invitation of relevant and well known stakeholders, if appropriate and relevant, by written, verbal or electronic form is certainly desirable but must be seen in the entire factual matrix of what occurred.

THE PROPER APPROACH TO APPLICATIONS

[68] Generally applications are not designed to resolve factual disputes between the parties and are decided on common cause facts. Probabilities and onus issues are not amenable to being determined in motion proceedings[22].

[69] As is set out in Civil Procedure in the Supreme Court[23]:

“It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.” [24]

[70] The Court has to accept those facts averred by Applicant that were not disputed by Respondent, and Respondents’ version insofar as it was plausible, tenable and credible[25].

[71] This however is not the end of the matter as is pointed out in Harms Civil Procedure in the Supreme Court [26] as follows:

“It is accordingly generally undesirable to endeavour to decide an application upon affidavit where the material facts are in dispute. In such a case it is preferable that oral evidence be led to enable the court to see and hear the witnesses before coming to a conclusion.[27] On the other hand, it is equally undesirable for a court to take all disputes of fact at their face value. If this were done a respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.[28] In every case the court should examine the alleged disputes of fact and determine whether in truth there is a real[29] issue of fact that cannot be satisfactorily resolved without the aid of oral evidence.[30] Whether a factual dispute exists is not a discretionary decision; it is a question of fact and a jurisdictional pre-requisite for the exercise of the discretion given by the rule.[31] It is not a question of any difference of character between the various kinds of claims being enforced, but a question of the proper method of determining in each case the facts upon which any claim depends.[32]”

[72] In this matter there are no relevant irresoluble factual disputes which are real and genuine.

THE SPECIFIC DETAILED FACTS IN RESPECT OF CONSULTATION

[73] In this matter what is before me on the papers as to consultation with stakeholders is limited to the following:

[73.1] Allegations that the PGNC “had called all stakeholders to attend meetings...” without there being any suggestion or list of who these were in the answering papers.

[73.2] That subsequent to the Application for name change, a stakeholder consultation meeting was convened (with no list or disclosure as to who these were, who was invited and their role and as to who stakeholders were, or were thought, to be relevant).

[73.3] That “stakeholders in the Makana Local Municipality” were duly notified of the meeting for 11 February 2016.

[73.4] There were posters posted at “Public Places” in the town.

[73.5] That public hearings were advertised in Newspapers but not in the only truly “Local” Newspaper relevant – the Daily Dispatch being an East London newspaper and the Herald being a Port Elizabeth newspaper, but both circulating widely in the Eastern Cape Province and in the town.

[73.6] That there was further publication on 17 May 2018 by the PGNC in the Daily Dispatch seeking public comment.

[73.7] That objectors attending a meeting to which they were invited on 29 January 2018, the meeting held on 15 February 2018 in the town.

[73.8] After Second Respondent’s meeting on “16 February 2018 some stakeholders” raised issues and First Respondent required Second Respondent to reconsider in the light thereof.

[73.9] First Respondent received a “submission” drafted on 22 May 2018 from Second Respondent before approving the name change.

[74] It is necessary to set out what was said in this regard in the annexures to the Answering Affidavit and examine what was placed before First Respondent as follows:

[74.1] The attendance register of the first consultation meeting (1 February 2016) is predominately opaque in this regard and is not analysed in the affidavit (NM1);

[74.2] the “Public Notice” (NM2) has one line relevant to the issue and lacked further detail;

[74.3] The invitation to “objectors” (29 June 2018) (NM3) does not set out who these were save for the KGG;

[74.4] The Minutes of the Meeting of 15 February 2018 (NM4) sets out inter alia the following:

“B DISCUSSION The Council also noted the consultation process is outlined by the ECPGNC at the meeting as follows: 6.1. The ECPGNC had called all stakeholders to attend meetings and called on them to express their views regarding the name change from December 2014-to January 2017, the period when Mr Kenneth Msengana (former PGNC Secretariat member) and Mr Samkelo Janda (former PGNC Chairperson) was still in office, but not all of them attended. They had expressed their objective/views in letters they had written to the PGNC and also that they would not attend the meetings.”

[74.5] The minutes of the Meeting of 16 February 2018 disclose that:

“B DISCUSSION C DECISION/ACTION The meeting acknowledged and agreed that there was sufficient evidence to prove that consultation was done at local and provincial levels regarding the renaming of Grahamstown to Makhanda. The Council agreed to recommend the application as Makhanda change of name from Grahamstown to the Minister for approval as it was of the view that there was enough consultation. This is strengthened by the fact that the SAGNC also took it upon itself to also consult objectors and stakeholders. The Council agreed to recommend the renaming of Grahamstown to Makhanda for the Minister’s approval as it was of the view that there was enough consultation.”

[74.6] The Minutes of the Special Meeting in Pretoria of the Names Council disclose NM8 that:

“B DISCUSSION It noted that before and after the Fact-Finding Session of 15 February 2018 and the SAGNC meeting of 16 February 2018, the Minister and the Department of Arts and Culture had received correspondence from some stakeholders who were raising a number of issues on the process of the proposed application to rename Grahamstown to Makhanda. Although most of the correspondence was from the same individuals and organisations on the same issues already addressed at provincial and national level of the SAGNC, the Minister felt that it would be proper to listen to them and he subsequently directed that there correspondence be further engaged and a new recommendation be made, informed by all the documents submitted by stakeholders before and after the (SAGNC) meeting of 16 February 2018. It also noted that it was against this background that the Minister urged the Council to review the name change and all the objections/concerns again for conclusion before he endorsed the name change. If the name of a person was to be used, the applicant needed to consult with the relevant family and the family needed to give consent. It noted that the Council should at that meeting satisfy itself that it had looked at all the necessary documents at its disposal regarding the proposed name change before recommending it to the Minister.

B DISCUSSION It noted that in 2012 the Makana Local Municipality had had public engagements on the possible name change of Grahamstown to Makhanda when they were dealing with street name changes of the town. In 2015 the matter was escalated to the Eastern Cape Provincial

Geographical Names Committee (ECPGNC) which, together with the Makana Local Municipality then conducted public participation

meetings in order to take an informed decision on the matter

B DISCUSSION The Council noted the meaning of the phrase “proper/sufficient” consultation as explained by the Chairperson. It further noted that the name was first submitted to the ECPGNC in 2015 and subsequently the PGNC submitted it to the Council in December 2017. It also noted that it (the Council) should look at whether there was sufficient consultation from that period to date. The Chairperson then read the main document (with the application form attached) that was circulated and the Council noted that the document gave a history of when and how the process started. It also noted from the Chairperson that it should reflect on whether the documents/portfolio of evidence submitted by the PGNC was sufficient evidence proving consultation. If not, the Council should reflect whether other documents/information were needed at the meeting to prove that proper consultation was done. It further noted that sufficient consultation did not mean full attendance of the meetings called or agreement of all who attended the meetings. Whatever decision the Council would take at that meeting would be a recommendation to the Minister. Only the Minister could effect/not effect a name change.

B DISCUSSION After going through the application form and all documents submitted, the SAGNC came to the conclusion that: 9.4 The intention to change the name was advertised in local newspapers and on local radio stations.”

[74.7] Finally NM9, which it seems is a Memorandum from the Names Council to the Minister (apparently the last word), sets out inter alia:

“8. ... In 2015 the matter was then escalated to the Eastern Cape Provincial Geographical Names Committee who then together with Makana Local Municipality conducted public participation in order to take an informed decision on the matter.

16. After going through the application form and all documents submitted the SAGNC came to the conclusion that:

16.1 The intention to change the name was advertised on local newspapers and local radio station.

16.6 The public participation process was open to be influenced by any of the stakeholder hence all four names (Rhini, Makana, Makhanda and Nxele) came as a result of a public participation process.

20. After deliberations, the SAGNC took a decision to recommend the proposed renaming of Grahamstown to Makhanda for the Minister’s approval because the application fulfils all the requirements of the SAGNC Act.”

[75] The basis of the submission as to consultation is that there were public posters and two series of notifications in several newspapers circulating in the Eastern Cape (and in the town), together with subsequent meetings with objectors including the KGG, as also attention to objections at several stages of the process.

THE KGG REFUSAL TO PARTICIPATE IN 2016 – THE MALI APPLICATION

[76] It goes almost without saying that the KGG has been fully involved with name change issues in the town since 2007. Applicant although bringing the Application personally is also the “co-ordinator of the KGG campaign”.

[77] Having been deeply involved in three previous consultative processes between 2007 – 2013, and clearly co-ordinating and then representing those of the view that the town name should not be changed (notably the name Makhanda not being put up as a proposal in those campaigns), the KGG certainly represented many of the no change participants.

[78] Applicant alleges that at the time some 80% of people “polled” were not in favour of a name change and that the existing town name was not “offensive”. It is not explained what the details and demographics of such poll were and why such poll remains relevant to what was clearly entirely new application and process with at least one entirely new name put up, being Makhanda (second choice Nxele) in the Mali application, the second by Mr Nondzuba proposing iRhini with Makhanda / Nxele as second choice.

[79] In the face of this, and clearly representative of a considerable number of role players and relevant public participants previously, the KGG response to the proposed meeting in respect of the new Mali Application on 16 September 2015 was to firmly decline to attend on the stated basis that the process had happened previously and that it would thus not involve itself in the repetition of the same process “.... and we advised the organisers that those promoting a name change could not continue to organise repetitive processes until they manipulated the result they desired.”. That this stance was unfortunate, unwise and intransigent is plain to see but the fact remains that its inclusion, right at the start of the Mali process, was well advised having regard to its previous deep involvement and substantial representative nature. The Minister can hardly be blamed that it declined to participate and then only entered the fray at a later stage submitting a “comment/objection” in response to the Daily Dispatch and Herald newspapers notices calling for comments and objections to the proposed name change in

newspapers on 17 May 2016.

[80] In short the KGG seems at a late stage to have realised that the process proceeded and they then sought to and in fact participated as is set out in founding and supplementary affidavits.

[81] The fact remains that it was invited to be part of the consultation process at the outset and declined to participate in that process – thus willingly and deliberately depriving the Minister, Names

Committee and participants, at the commencement of the process, of the benefit of its views and standpoints. It appears now

however to complain thereof from the shadows.

[82] The KGG is not an Applicant, although its joint co-ordinator is the Applicant in his “Personal Capacity”.

THE RESULT : CONSULTATION

[83] It is clear from the above that the statement in the guidelines that the Names Committee ensure that proper consultation takes place is a procedural promise by a public authority and requires it to do so, and to act fairly in implementing same – this accords with it statutory duty in any event having regard to the scheme of the Names

Act as set out above.

[84] It is perfectly clear from the report NM9 referred to above, and the meetings minutes underlying same, that First Respondent’s mind was put to rest, when considering his decision, as to the fact that a proper consultation process had in fact been followed and that there had moreover been a careful study of supporting documentation to substantiate this. If this was a material misstatement of fact (an issue strongly denied by First and Second Respondents), and if this influenced First Respondent (as it clearly did in reaching his decision) then that is supportive of a case to review that decision.

[85] As set out in Chairpersons’ Association supra[33]:

[48] Under the law as it was before PAJA it was held by this Court in Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) ([2003] 3 All SA 21) in paras [47] and [48] (at 58H - 59H (SA)) that a material mistake of fact was a ground for judicial review, provided the fundamental distinction between appeal and review was not blurred or eliminated. Cloete JA said (in para [47]) that the doctrine of legality requires that the power conferred on a functionary to make decisions in the public interest should be exercised properly, ie on the basis of the true facts. In the Pepcor case it was held that the distinction referred to was not blurred or eliminated because the Registrar of Pension Funds, whose decision was being reviewed and to whom material misstatements of fact had been made, was entitled to act on the assumption that the correct facts had been placed before him. In this case the first respondent was entitled to assume that the fact conveyed to him by the Director-General, viz that there had been proper consultation, was correct. In my opinion the legal position as set out in the Pepcor case based as it is on the principle of legality still applies under PAJA, s 6(2)(e)(iii) of which provides that administrative action taken because 'irrelevant considerations were taken into account or relevant considerations were not considered' can be set aside on review. Where a decision is based on a material misstatement of fact it is clear that that subparagraph applies.

[49] It follows from what I have said that even if one accepts that the Names Council did recommend the name change to the first

respondent (which I am prepared to assume for the purposes of this judgment) the first respondent's decision to approve the name change clearly cannot stand. This conclusion renders it unnecessary to decide whether the appellant's contention that the first respondent lacked the power to approve the name change because the Names Council had failed to make a recommendation in this regard is correct.

[86] The result on “consultation” then hinges on whether there was an adequate/proper consultation/consultative process as envisaged in the Names Act and Guidelines (failing this, a material misstatement of fact in the recommendation to First Respondent). Again this is strongly contested.

[87] In summary the Names Act clearly envisages and provides for a consultative process as to name changes. This is no surprise. The very purpose of the structures set up and process envisaged is to enable the Minister to reach a reasoned guided decision on all material relevant facts. Consultation is an important (but by no reason the only) element of this, the Names Council to consult Provincial Governments (Section 9(1)(f)) on inter alia geographical names in need of revision. It must also “liaise” with National and International organisations in respect of Geographical Names (Section 9(h)(i)) and “cultural, historical and linguistic organisations” (Section 9(2)(ii)). Within this structure the Guidelines takes it further and refers to “standardisation” as being based on amongst other things “The wishes of the Local Population”. In respect of name change the Guidelines specifically require the provision of evidence that “Stakeholders have been consulted”. The Names Council has the duty in the guidelines on standardisation to “ensure that proper consultation has taken place” and takes the “final decision” on the form of names and “recommends these to the Minister”.

[88] But importantly (and this is glossed over by Applicant) in respect of “standardisation” this is also based on the historical use of the name, orthography and redress where a name is changed on the basis of historical consideration. It cannot be denied that in this matter the name change is most certainly based inter alia upon “redress” and again most certainly in context there are indeed weighty historical considerations – whether or not that is on the somewhat

differing factual contention of Applicant and Respondents – but importantly predominantly arising from the painful history of colonialism relevant at least to the historical context of the town being called “Grahamstown” it being, in my view, largely irrelevant that Colonel Graham had left the town before the Makhanda tragedy, but highly relevant to “redress”.

[89] In this matter, on what is before me on a proper approach to the papers, it is contended that there was clearly a failure to consult the relevant organisations referred to as also the local population (or the failure to set out that this had in fact been attended to).

[90] It is contended that there is very limited evidence of involvement of the local populace of the town other than a few radio talks, advertising in out of town newspapers and none in the single local paper and an unnamed number of, and place for, posters.

[91] It is contended that there is no list of so-called stakeholders and nothing about precisely who and what these are, were or should have been.

[92] The guidelines clearly apply to standardisation (in the narrow sense) and transformatory name changes (both in my view relating also to “redress”). Historical and linguistic consideration require to be balanced as set out in Chairpersons’ Association supra:

“[43] I do not think there is any merit in the submission that it was 'no accident' that s 9(1)(c) of the Act empowers a municipality to submit a proposal for a name change and that that provision indicated that a municipal council being, as it were, a representative of the municipal community could propose a name change of a transformatory nature which the Names Council had to consider on its merits, without paying any regard to the question as to whether there had been an adequate process of consultation within the community. The first point to notice in this regard is that s 9(1)(d) not only provides for name changes to be proposed by municipalities but also by, amongst others, 'other bodies and individuals'. Secondly the guidelines clearly apply both to standardising (in the narrow sense) and transformatory name changes. That this is so appears clearly from the reference in the paragraph headed 'Policies for Standardisation' to 'redress', where a name is changed on the basis of historical consideration. It also appears from the statement in the paragraph headed 'Human Rights and the South African Constitution' that determining the name for a place requires 'balancing historical and linguistic considerations, . . ., the spirit of a community and the spirit of the nation' and the inclusion of a reference to the 'transformation process' in the paragraph headed 'Can existing names be changed?'. Thirdly, it is difficult to understand why the council would have required consultation, for example, on a question such as whether the correct spelling of 'Messina' should be 'Musina', but not have required consultation with those affected by the change of name of a place such as Louis Trichardt, the chief town in an area inhabited by persons belonging to various ethnic and linguistic groups.

[46] The guideline is that before a proposal for a name change, even one of a transformatory nature, is considered, adequate

consultation with local communities and other stakeholders must take place. In all the circumstances I think it clear that this guideline should have been implemented in the case of the Louis Trichardt name change. It is clear from the summary of the facts set out above that such consultation did not take place. Apart from the short notice given of meetings to be held by ward councillors, the holding of the meeting advertised for 7 February 2002 on 6 February 2002, the refusal to hold back the process during the discussions with the chamber of commerce and the statement by the mayor that 'we consult politicians, not Chambers', there was the assertion by the mayor that the councillor for ward one had not done her job: which amounted to an admission that her ward (which it will be recalled comprises about 50% of the total jurisdictional area of the municipality, including the town of Louis Trichardt west of the national road, all the businesses in that part of the town, the Buys Community and a number of rural communities) was not consulted. Whether it was the councillor's fault or not is neither here nor there; the failure to consult is not disputed.”

[93] In this matter in summary and considering the above in context, the advertisement of the Name Change Application commenced by way of emails from the Eastern Cape Department of Sports Recreation Arts and Culture under the hand of the chair of the Names Council on 9 September 2015 addressed to a considerable number of role players (including the KGG) whose invitation and inclusion was highly significant having regard to its previous involvement in 2007 – 2013 name change proposals as it was clear that it was representative of a considerable number of the local population and stakeholders, and certainly likely that it would present a view against name change.

[94] The first substantial public hearing convened for this 11 February 2016 was notified to the Makana Municipality, the KGG (who still declined to participate) and publicised through direct invitation, posters in the town at public places and in no fewer than four major provincial newspapers in English, Afrikaans and IsiXhosa, in radio

talk shows on Radio Grahamstown on three occasions, albeit in November 2015 some time before the meeting date. The PGNC thereafter published a public notice relevant in four Provincial papers inviting comments/objections on the outcome of the public

hearing. Whilst the hearing on 11 February 2016 was attended by no more than 165 people, 33 of who were officials, this cannot impact on the wide notification of same.

[95] On 17 May 2014 the Names Council published notices in the Daily Dispatch Newspaper to invite comment by the public on the application and recommendation of the Names Council. The objectors was invited to a meeting on 15 February 2018 by the chair of the Names Council by Notice, this to be held one day prior to the Names Council Meeting on 16 February 2018.

[96] Thereafter the Minister instructed further ­­­­­­­­­­­­­­­­­­­considerations

of objections.

[97] Following the public meeting and when it became clear that the process proceeded, the KGG became involved at a meeting and by way of correspondence most certainly having the opportunity of putting its objection to the name change before the Names Council and Minister. As it represented a large number of objectors, this is significant as to adequate consultation.

[98] It is clear that, in my view, from the above facts and analysis, that there was no material misstatement of fact in the recommendation to the Minister as to a proper consultative process having taken place, which clearly influenced First Respondent’s decision. As set out above the submission that this resulted in “irrelevant consideration [being] taken into account or relevant considerations ... not considered” and that this can be set aside on review [34] cannot succeed.

[99] In my view against the interpretation of the Act and Guidelines and their requirements as set out above, there was clearly adequate/proper consultation as envisaged and required. This ground of review thus fails and is dismissed.

THE 2007 – 2013 NAME CHANGE PROCEEDINGS : WAS THE NAMES COUNCIL AND/OR MINISTER OBLIGED TO HAVE REGARD TO SAME?

[100] This is simply dealt with.

[101] These earlier proceedings (three full public participation processes) had nothing to do with the renaming of the Town Municipality and the Minister’s view that this was so is incorrect.

[102] The Makana Municipality was named accordingly in 2000 by the then MEC having been part of a Transitional Local Council between 1994 and 2000.

[103] These earlier processes came to an end says Applicant due to insufficient interest or support for a name change of the town[35] .

[104] The crucial issue thus is whether or not the 2007 – 2013 process had any relevance to the 2015 New Application by Mali in this instance.

[105] I have serious difficulty in seeing such relevance, as already prefaced above.

[106] The earlier processes were processes conducted by the Makana Local Authority in conjunction with the PGNC.

[107] The processes, like this one, were published in the local press and on radio. (So-called widespread public consultation.)

[108] These came to a dead end.

[109] Applicant argues that the so-called evidence from the earlier process was of critical importance and was relevant information for the new process. The earlier processes included meetings for each Makana Ward said to be an essential part of consulting. As set out above I do not agree.

[110] The opposition to the 2007 – 2013 change process was primarily, but not exclusively, by the KGG.

[111] It seems that the name proposed was iRhini.

[112] It is immediately clear that the first choice of the New Application was Makhanda and the second choice in the Mali Application (which in fact proceeded) was Nxele. (The Nondzube Application has as first choice iRhini and Makhanda/Nxele second choice.)

[113] This is in my view a crucial difference from the previous processes as both Makhanda and Nxele were new proposals. Name change must be predicated not only on valid reasons, in the sense set out above, for this change, in the context of the Names Act and Guidelines, but also the appropriateness of any alternative names – this all to be considered cumulatively.

[114] It seems to me also that a considerable number of years had passed since the commencement of the 2007 process – people, views, attitudes and considerations change over time.

[115] It seems to me that the crucial issue was proper compliance with the Names Act and Guidelines being required in respect of the New Application with new suggested names and new motivations and considerations.

[116] I see no statutory or Guideline basis or need for the PGNC and the Minister to troll through three previous processes to assess the then attitude and views to a change with regard to consideration of a different name at a different time (save for iRhini which was not even suggested in the Mali Application).

[117] In the result the point on review in this regard fails.

THE ISSUE SURROUNDING THE MINISTER’S FAILURE TO REFER TO SECTION 10(3) OF THE NAMES ACT

[118] Applicant argues that the Minister’s failure to refer to the entitlement to lodge complaints, in his decision to change the Town’s name to Makhanda on 5 June 2018 in terms of Section 10(1) (lodge a complaint in writing to the Minister within 1 month of the gazetting of the name change (Section 10(3))[36], is fatal.

[119] This decision was published in the Government Gazette 41738 on 29 June 2018. If it is so that neither the decision nor the Gazette thereof referred to the Section 10(3) right to “Complain”, the question is whether this is a fundamental irregularity impacting on the proper decision making process.

[120] PAJA visits non-compliance with the rules of fairness with invalidity as per Section 6(2)(c) invalidity being the default remedy of administrative law[37]. In this matter I cannot see that such failure had any real impact on the substance of the decision having no influence on the outcome.

[121] The Minister’s gazetted decision was clearly a final decision and subject only to a form of internal appeal albeit to the same official. His decision thereafter is a decision on the complaint with or without guidance from the Names Council.

[122] Further in this matter these were complaints to the Minister which were referred to the Names Council and rejected by the Minister thereafter.

[123] This ground must therefore fail.

THE 10 000 COMPLAINTS LODGED BY THE KGG AND CERTAIN OTHER ISSUES

[124] In the founding papers the following is set out:

“73. The original submissions by KGG comprise a total of 4331 signatories, e-mails, and sms’s. These were resubmitted on several subsequent occasions with additional signatures, e-mails and sms’s and were finally re-submitted on the 11th of February 2013 for the purposes of the last of the former processes, as conducted by Makana Local Municipality, in conjunction with the Eastern Cape Provincial Geographic Names Committee.

74. The present objections are currently estimated a approximately 10000 and these are available for inspection by the Honourable Court and the respondents, as they are too numerous to attach to this affidavit. Insofar as may be necessary, they are incorporated herein, by reference. The KGG’s comprehensive final objection in response to the publication of the notice on the 29th of June 2018 was submitted to the Minister electronically on the 19th of July 2018 and sent by post on the 23rd of July, 2018.

75. Copies of the covering letters from Netteltons Attorneys and of the KGG Campaign, which covered the objection to the notice, and which include an index of all the relevant Annexures referred to in the objection, are appended hereto as annexure “SN 19”.

76. The KGG’s final objection incorporated individual objections that had been submitted directly to the office of the Minister, but had also been copied to the KGG, and which were appended to the KGG’s submission as annexures “Y1”, “Y2” and “Y3”, but also are too numerous to attach to this affidavit. Copies thereof will be made available to the respondents on request (although the Minister is of course in possession thereof), and will be available for scrutiny by this Honourable Court, or on request, before such hearing.

77. Many of the objections contain independent personal submissions requiring a separate response in terms of the provisions of Section 10(5) of the Act from the Minister, apart from any response he chose to provide to the KGG’s objections.

[125] A box containing the said 10 000 objections was posted by registered mail to the Minister and later returned by the post office unclaimed. The Minister says this was not received and was sent to the wrong address.

[126] SN19 is a letter (by Attorneys Netteltons) to the Minister being the KGG’s complaint and this was indeed submitted to and received by the Minister. This was a comprehensive complaint and included the “email submissions of individuals” as Y1, Y2 and Y3 – it being said that these annexures were voluminous and would be “delivered to the offices of the Department ...”. This incorporated the comprehensive original submission to the Makana Municipality Naming Task Team as Annexure A. The KGG complaint is annexed to SN19 and is some fourteen closely typed pages dated 16 July 2018 and is comprehensive to say the least. This also referred to the KGG’s previous submissions on 27 November 2007 comprising of 4331 signatures and emails and SMS’s. It was said that the KGG’s submission now comprised the original content and the additional email objections aligning themselves with the KGG submission (the complaint procedings relevant to this matter).

[127] It was said in the Attorney’s covering letter to this complaint submission (by the KGG) that:

“The total number of objections who have aligned themselves with the KGG’s submissions is currently estimated at about 8000 with more emails being received daily as at the date of preparation of this submission. It is estimated that by the closing date for the receipt of comments/objections that number will have reached 10 000.

As regards the email submissions of those who have aligned themselves to the KGG’s submissions, many contain independent personal submissions from the many of the objectors themselves in addition to the KGG’s submissions, which submissions require distinct and pertinent

consideration of the Minister quite apart from the KGG’s submissions. Ultimately, therefore, the Minister’s reasons for accepting to rejecting the comments/objections as submitted in response to the Notice of 29 June 2018 must identify and deal with the individual submissions of those concerned and cannot be dealt with in a globular manner together with the Minister’s

response to the KGG’s submissions.

The emails incorporated in the KGG’s submissions to the Makana Municipality’s NTT as well as the further emails as submitted to the ECPGNC in May-June 2016 are too voluminous to be incorporated in this submission and will be delivered separately as ANNEXURES “Y1” and “Y2”.”

[128] The KGG complaint is very comprehensive. In answer the Minister says[38]:

“54. On or about 19 July 2018, KGG’s attorneys addressed a letter to my office advising of its clients and its supporters’ comments/objections.

55. On 21 September 2018, I considered the objections and rejected them. My decision was then communicated to the objectors.

72.2 Furthermore, I want to state that all objections lodged by the KGG between 2007 and 2012 were solely to do with the renaming of the municipality and that process is irrelevant to the issues at hand. This process of the geographical Name change of Makhanda was triggered by the application submitted by Mr Mali as set out above. All the objections received following the public hearings of 11 February 2016 were responded to, some objections were returned as unclaimed because they were sent to the wrong address.”

[129] In his supplementary affidavit Applicant says:

“34.

The record also omits any acknowledgement of receipt or any other reference to the voluminous objection submitted by KGG on behalf of the largest number of objectors individually and collectively.”

[130] This is set against the background that the KGG’s box of objections was returned by South African Post Office “unclaimed”. Further it is alleged by Applicant:

“35.

KGG only received a purported response to its submissions after repeated requests from a Mr Phakamani Mthembu of the Department of Arts and Culture on 23 October 2010, which response was in the standard form as received by some objectors. Such response was clearly not genuine as receipt of KGG’s submission were never formally acknowledged and it was returned by the SA Post Office as “unclaimed”. It is obvious, therefore, that the First Respondent had no regard to KGG’s extensive submission and only acknowledged receipt of some of the objections as submitted to his office after publication of the notice of 29 June 2018. Accordingly, the First Respondent failed to have regard to relevant considerations before making the final decision.”

[131] In answer the Minister alleges as follows:

“96. AD PARAGRAPHS 31 TO 34 THEREOF:

The objections that I received had already been dealt with at Provincial and National level and there were no additional basis for such objection. In any event, I was not persuaded that those objections differ with the earlier responses given to the objectors. Most importantly, the number of objections in inconsequential.

97. AD PARAGRAPH 35 THEREOF:

I have indicated already above that those objections which were returned by the SA Post Office as unclaimed were sent to the wrong address.”

[132] In summary the Minister alleges that the had received and had regard to the complaint of the KGG dated 19 July 2018 – considered same (which was comprehensive) and rejected same.

[133] The crux then seems to me to be whether the further supporting objections referred to, which it is common cause did not reach the Minister, constitutes the basis for reviewing the impugned decision.

[134] The obligation in the Names Act (Section 10) is for complainants to “lodge a complaint in writing with the Minister”.

[135] This was done by the KGG by electronic means (on 19 July 2018) in an extensive submission. It cannot be gainsaid that on the papers this was before the Minister and was considered.

[136] The supporting emails were referred to in the covering letter by Attorney Nettletons as being received by the KGG in the earlier process (2007 – 2013) and email submissions of individuals to the “ECPGNC” during May and June 2016.

[137] All these are clearly not directed to the Minister at all and there can be none arising from the Minister’s decision of 29 June 2018 – for obvious reasons, these all pre-dating his decision.

[138] The remainder are a unspecified number of “email submissions of individuals to the Minister of Arts and Culture since publication of the above notice”.

[139] If these were emailed to the Minister by each complainant, as appears from the letter, then these were before the Minister in any event.

[140] Further the obligation falls upon each complainant to lodge a complaint in writing with the Minister – there must be written complaints “to the minister”.

[141] The earlier objections were all irrelevant to the new application whilst those in May – June 2016 were not complaints in respect of the decision which was yet to be made and are also thus irrelevant.

[142] It would seem the remainder were emails already sent directly to the Minister by each complainant – or if they were not, they ought to have been addressed and sent to the Minister by each complainant.

[143] Thus the non-receipt of the box of “objections” posted and returned seems to me to be irrelevant.

[144] I fail to see why this then engenders any reviewable irregularity in the complaints process at all.

[145] It is common cause that the box did not get to the Minister. That seems to me to be an end to the ground on the above analysis. He could not consider what he did not have. He did have the KGG extensive objection and such relevant emails as were sent to him by individuals.

[146] The complaint that no consideration was given to the name iRhini is a matter far outside the purview of review in this matter and the complaint that that offensiveness and not historical reasons (mentioned in the Application) was the basis for the change in name, is to be similarly treated and dismissed as no proper ground for review.

[147] So-called lack of standardisation and the Minister’s so-called misstatement of historical context is in this matter no proper ground for review. This is so in the context of the painful colonial military background to the naming of the town originally, however viewed on the common cause facts, on review.

[148] I do not see that the fact that the Minister’s recommendation of the name change justification was that this “replaced a name which epitomises brutal colonial subjugation with one that epitomises redress and restoration of human dignity”, is in any way a reviewable irregularity based on offensiveness and not historical reasons as is contended. This is far too narrow a view of what the Minister was obliged to consider.

[149] The bright line Applicant seeks to draw between the two bases for change is unsustainable, the reasoning going to both. Similarly the alleged misstatement of historical context.

COSTS

[150] Both Applicant and Respondents sought costs order.

[151] In Biowatch Trust v Registrar, Genetic Resources and Others [39] it was pointed out that generally in Constitutional litigation against the State the successful litigant should not be ordered to pay the costs. This is a judicial discretion having regard to all relevant considerations, and only if not frivolous, vexatious or manifestly inappropriate.

[152] In matters raising Constitutional issues against Universities[40] the Constitutional Court found the Biowatch principle applicable.

[153] In this matter a genuine Constitutional issue arose for consideration in my view relevant to the Names Act and its Bill of Rights basis as set out above.

[154] The usual Rule that a successful party should be awarded costs in any event is always subject to judicial exercise of the Court’s discretion. Where Constitutional issues are raised bona fide this must necessarily be taken into account in respect of an appropriate just and equitable costs order. The judicial discretion has been described as “very wide” or “overriding” [41]. Judicially in this context means “not arbitrarily” one must consider the circumstances, weigh the various issues that have a bearing on costs and make an order that is fair and just between the parties[42].

[155] In my view, the principles relating to costs impact upon access to justice – this includes the chilling effect adverse costs orders have on Constitutional litigation[43]. It is also important to consider the position of the litigants. Applicant in this matter is an adult male pensioner aged 70.

[156] It seems to me that in all th circumstances and having regard to the above considerations, and Biowatch and in my general costs discretion, and further on the basis of justice and equity justify my ordering each party to pay his and their own costs.

ORDER

[157] In the result, the following order issues:

[1] The Review Application is dismissed.

[2] Each party is to pay their own costs.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances:

Obo Applicant:

Adv I J Smuts SC and Adv G Brown

Instructed by:

Wheeldon Rushmere & Cole Inc., Grahamstown

Obo First and Second Respondents:

Adv N Gqamana SC and Adv X Nogantshi

Whitesides Attorneys, Grahamstown

[1] Samancor Group Pension Fund v Samancor Chrome and Others 2010 (4) SA 540 (SCA)

[2] Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA).

[3] Grey's Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) [21].

[4] 2013 (6) SA 235 (SCA) [18]

[5] Chairpersons' Association v Minister of Arts and Culture and Others 2007 (5) SA 236 (SCA) [47] – [50]

[6] Chairpersons’ Association supra [43]

[7] Applicant’s Heads, paragraphs 83 and 84

[8] Applicant’s Heads, paragraph 92

[9] GN R339 in GG 24999 of 7 March 2003

[10] Chairpersons' Association v Minister of Arts and Culture and Others 2007 (5) SA 236 (SCA) [10] & [45]

[11] Paragraph [45] and [46]

[12] 2014 (4) SA 474 (CC) at para 28.

[13] Footnotes omitted. See also Kwa-Zulu Natal Bookmakers’ Society v Phumelela Gaming and Leisure Ltd (889/2018) [2019] ZASCA 116 (19 September 2019); Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) [18].

[14] Section 39 of the Constitution.

[15] Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another; Executive Council,

Kwazulu-Natal v President of The Republic of South Africa and Others [1999] ZACC 13; 2000 (1) SA 661 (CC) [44]

[16] S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC) [8]

[17] 2016 (6) SA 279 CC [4] and see paras [1] – [10]. See also Recognition of the Wounds of Colonialism, Racisms and Apartheid as running deep in the dissenting judgment [79].

[18] Matatiele Municipality & Others v President of RSA & Others (No 2) [2006] ZACC 12; 2007 (6) SA 477 (CC) at paragraphs [50] – [56]; Doctors of Life International v Speaker of the National Assembly & Others [2006] ZACC 11; 2006 (6) SA 416 (CC) paragraphs [145] and [146]; King & Others v Attorneys Fidelity Fund Board of Control and Another 2006 (1) SA 474 SCA and Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA).

[19] Concise Oxford English Dictionary

[20] The New Shorter Oxford English Dictionary (Volume 2 N-Z)

[21] [2006] ZACC 11; 2006 (6) SA 416 [120] – [146]

[22] Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 A 634 – 635; National Director of Public Prosecutions v Zuma 2009 (2) SA 279 SCA [26]

[23] Harmse (Butterworths) B6.45

[24] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA)

[25] Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 All SA 665 (SCA).

[26] Butterworths B6.45

[27] Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 294; Plascon-Evans 634-635

[28] Petersen v Cuthbert & Co Ltd 1945 AD 420 428. A hollow denial or a detailed but fanciful and untenable version does not create a dispute of fact: Truth Verification Testing Centre CC v PSE Truth Detection Centre CC 1998 (2) SA 689 (W) 698; Rosen v Ekon [2000] 3 All SA 23 (W) 39; Ripoll-Dausa v Middleton NO [2005] 2 All SA 83 (C), 2005 (3) SA 141 (C).

[29] Rothman v Curr Vivier Inc 1997 (4) SA 540 (C) 551; Peterson v Cuthbert & Co Ltd supra 429; President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) pars 234-239. It has variously been called a “genuine” or “bona fide” dispute (“’n werklike of direkte feitegeskil”: Van der Merwe v Meyer 1971 (3) SA 22 (A) 26G) but the meanings are the same. Whether the converse of a “real” dispute is a “mala fide” dispute of fact as suggested in Von Steen v Von Steen 1984 (2) SA 203 (T) is open to doubt. Speculation does not create a real dispute of fact: Standard Credit Corporation Ltd v Smyth 1991 (3) SA 179 (W); Governing Body of Hoërskool Fochville and Another v Centre for Child Law; In re: Governing Body of Hoërskool Fochville and Others (Greenside High School Governing Body as amicus curiae) [2014] 4 All SA 204 (GJ).

[30] Petersen v Cuthbert & Co Ltd supra 428; Administrator, Transvaal v Theletsane [1990] ZASCA 156; 1991 (2) SA 192 (A) 197; G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C).

[31] Ismail v Durban City Council 1973 (2) SA 362 (N) 374A-B; Du Preez v NWK Ltd [2005] 3 All SA 551 (B)

[32] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) 1162; Ter Beek v United Resources CC 1997 (3) SA 315 (C) 329D-E.

[33] Paragraphs [48] – [49].

[34] Chairpersons’ Association supra [48]

[35] Founding Affidavit paragraph 32

[36] See NM9

[37] Administrative Law in South Africa (2nd Edition) C Hoexter - Juta – 386.

[38] First and Second Respondents’ Answering Affidavit – page 19

[39] 2009 (6) SA 232

[40] Harrielall v University of KwaZulu-Natal (CCT100/17) [2017] ZACC 38; 2018 (1) BCLR (CC) (31 October 2017); Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141; [2017] 1 All SA 617 (ECG) (1 December 2016). In the Constitutional Court Ferguson v Rhodes University 2017 JDR 1768 (CC) [23]-[28].

[41] K & S Dry Cleaning Equipment (Pty) Ltd and Another v South African Eagle Insurance Co Ltd and Another 2001 (3) SA 652 (W) at 668; Griffiths v Mutual & Federal Insurance Co Ltd [1993] ZASCA 121; 1994 (1) SA 535 (A); Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1996] ZACC 27; 1996 (2) SA 621 (CC) para [3].

[42] Cilliers on Costs 2.01 to 2.04

[43] Minority Judgment of Poswa J in Biowatch [45] – [46].