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

IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) HELD AT PRETORIA                                                                         Case no. 6063/2004                                                                Judgement reserved: 19/08/05                                                                Judgment delivered: 08/09/05 In the matter between: CHAIRPERSON ASSOCIATION                                      Applicant and MINISTER OF ART & CULTURE                                            1st Respondent CHAIRMAN OF THE SOUTH AFRICAN GEOGRAPHIC NAMES COUNCIL                                             2nd Respondent MUNICIPALITY OF MAKHADO                                      3rd Respondent                                                                                                             JUDGMENT                                                                                                             LEGODI J, INTRODUCTION 1.       This is an application in terms whereof the applicant is seeking for     reliefs in the following terms: 1.1      Reviewing and setting aside the decision of the National Minister of Arts and Culture (hereinafter referred to as the first respondent), in terms of which the first respondent approved in terms of Section 10 (1) of the South African Geographical Council Act 118 of 1998, (hereinafter referred to as the Act), the name change of Louis Trichardt town to MAKHADO town on the recommendation of THE SOUTH AFRICAN GEOGRAPHICAL NAMES COUNCIL, (hereinafter referred to as the second respondent. 1.2      Reviewing and setting aside the decision of the first respondent taken in terms of Section 10 (3) and (4) of the Act, rejecting the applicant's complaint lodged in terms of the provisions of the Act, against the name change of the town Louis Trichardt to Makhado town. 1.3      Declaring the provisions of Section 10 (3) and (4) of the Act unconstitutional. 2        The applicant is said to be an organisation set up to promote good corporate governance, in a transparent manner and to promote good relationships amongst all cultural, racial, religious and business groups in the greater Makhado municipality area. The deponent to its founding affidavit is one Mr Robert Khoza said to be authorised to depose to the affidavit in terms of a resolution passed by the applicant. The resolution is signed by its chairperson, Mr Andre Naude, who is also the attorney for the applicant and Ms Inga Gulfillen as the secretary. The resolution was taken during a telephone conference on the 17 February 2005 by the following members of the applicant: Ms Smith, Mr Smail, Mr Gohell, Mr Veldhuysen, Mr Patel, Mr Ahrens, Mr Menne and Ms Gilfellan. 3        The first respondent is sued in his capacity as the authority which took a decision to approve the change of name in terms of Section 10 (1) of the Act, which section provides that the Minister may approve or reject a geographical name recommended by the Council in terms of Section 9(1)(d) of the Act. The first respondent is also sued in his capacity as the authority which took a decision in terms of Section 10(4) of the Act to reject or accept a complaint lodged in terms of Section 10(3) against a decision taken in terms of Section 10(1). Subsection (3) entitles any person or body dissatisfied with a geographical name approved by the Minister to lodge a complaint in writing to the first respondent within thirty days from the date of publication of the geographical name in the gazette. In terms of subsection (4) the Minister may reject or amend a geographical name so approved by him in terms of subsection (1). 4        The second respondent is a council established in terms of Section 2 of the Act and it is sued in its capacity as an authority which recommended or should have recommended geographical name Makhado to the first respondent in terms of Section 9 (1)(d) of the Act. Section 9(1)(d) provides that the council must recommend geographical names falling within the national competence to the Minister for approval. However, no relief has been sought against the second respondent as it would appear from the reliefs sought by the applicant. 5        The third respondent is sued in its capacity as an authority which had submitted to the second respondent an application for the change name Louis Trichardt town to Makhado town. No relief is been sought against the third respondent and the third respondent was joined as a party after the institution of these review proceedings in terms of Rule 53. BACKGROUND 6        On the 25 January 2002 the Mayor of Makhado Municipality was summoned by the Provincial Member of the Executive Committee for Local Government and Housing Department, Limpompo Province. It was during this meeting that the Mayor was told that the name of the town Louis Trichardt like other names in other towns must be changed. On the 30 January 2002, the Mayor at a Council meeting of the Town Council announced that the name of the town must change before the end of February 2002. On the same day, a committee was established by the Mayor to investigate the renaming of the town. 7        On the 31 January 2002 the secretary to the Mayor issued an instruction to all ward councillors to convene people's forums in their wards during the period 2 and 3 February 2002. In the instruction, the ward councillors were to make sure that SANCO branches, ward committee members, church leaders, business people, development forums, communities, political parties etc, were invited without fail. The wards councillors were to report to the mayor before the 16 February 2002 about this process. Ward councillors were also to invite stake holders to attend a public hearing scheduled for 7 February 2002 at the town's showground. 8        This instruction or notice of the 31 January 2002 was accompanied by information leaflet which read as follows: RENAMING OF THE TOWN, WRITTEN SUBMISSIONS A.       "BACKGROUND The first democratic elections of the 27th April 1994 has ushered in a new political dispensation which necessitates the rewriting and correction of the history of South Africa. Amongst other things, provinces, municipalities, towns, streets, bridges, dams, tunnels and everything which bears colonial names, has to be renamed. Towns like Loius Trichardt, Pietersburg, Potgietersrus etcetera were named after these Voortrekkers defeated (sic) the indigenous people who settled there before the arrival of the former. For instance the indigenous people under the late King Mphephu were defeated in 1898 by the commando under General Piet Joubert. The town was then named after the Voortrekker leader, Louis Trichardt. Therefore the process to rename the town is intended to break with the past history of domination by one racial groups (sic) over other groups. The new name is also intended to identify itself with the political changes which are sweeping throughout the country. B        In identifying the name, you are advised to look at the historical       background of the town, the natural features within the          municipality, the activities which are taking place around this town,    political leaders who fought against domination etcetera. C        Hoping this little information will be of some assistance to you" 9.       On 1 February 2002 the secretary to the Mayor also issued further instructions or notice as follows:          "CHANGING OF THE NAME OF THE TOWN"          This serves to inform you that the name of the town is about to be       changed before the end of February. You are therefore requested          to submit written representations to the Office of the Mayor, Civic      Centre in the Reception Hall, Ground Floor on or before the 6th          February 2002. You may either fax your proposal to 015 516       4392. The said proposed list of the name(s) must be signed by the        writer(s). 10.      On the 6 February 2002 a public meeting took place at the show ground instead of the 7 February 2002 as it was initially published or scheduled. About 110 people are said to have attended. During this meeting 55 names were suggested for the town. The traditional leadership were requested by the mayor to direct the process of consultation. Three names at this meeting emerged as dominant i.e. Makhado, Swongoswi and Hlayanani and eventually the three names were suggested as the names to be debated upon and canvassed to the community. Further public meetings were then announced and scheduled to take place as follows:                   12 February 2002         - Vuwani          13 February 2002 – Hlanganani          14 February 2002         - Dzhelele          17 February 2002 – Zoutpansburg 11.      On the 13 February 2002 Mr De Vaal, a resident of the town wrote a       letter to the third respondent objecting to the proposed name change. On the 21 February 2002 a meeting of executive committee of the third respondent was held. This is the committee which was instituted by the Mayor on the 30 January 2002. This committee recommended that the town name Louis Trichardt be changed to Makhado. On the same day, the 21 February 2002, a special meeting of the third respondent was held. The third respondent at this meeting adopted the committee's recommendation and resolved to apply for the change town name from Louis Trichardt to Makhado. 12.      On the 26 February 2002 the executive committee of the Chamber of Commerce approached the executive committee of the third respondent to raise objections relating to the change of the town name. On the 27, 28 February 2002 the secretary of the third respondent wrote a letter to the editors of the Soutpansberger and The Mirror and in the letter the following was stated:          "NEW NAME OF THE EDITOR. (sic) The Town Council has taken a decision on 21 February 2002 that the new name of the town is Makhado. In addition Trichardt Street has been changed to Swongozi; Piet Moller Street to be Tshirululuni Street, Joao Albasini Street to be Hlanganani Street. These changes came after a number of consultative meetings were held throughout the boundaries of the Municipality. It must be known that the town belongs to all residents of the Municipality and not to only one section of the community. (That is to say, the white community, the Indian Community, the coloured community, the Shangaans, Vhavenda and all ethnic groups within this municipality). The Executive Committee of the Sakekamer in Louis Trichardt has approached the Executive Committee of the Municipality on Tuesday 26 February 2002 whereby it raised its concern in relation to the change of the name of the town. The Executive Committee of Sakekamer has been requested to bring in their concerns in writing after which a meeting will follow. It is the policy of the Municipality to listen to the concerns of all its citizens or structures within the Municipality. The Municipality has already sent a report to the MEC for Local Government and Housing Mr M J Maswanganyi who will then ensure the necessary procedures are implemented to have the new name gazetted. In conclusion I must indicate that the new name of the town is Makhado. I hope that the above will clarify all the misunderstandings concerning this matter". 13.      On the 27 March 2002 and after parties have exchanged letters including a letter by Minister Mufamadi who was approached by Chamber of Commerce and after the first respondent was also contacted by Minister Mufamadi, the third respondent and Chamber of Commerce held a meeting on the name change. 14.      On the 2 April 2002 Chamber of Commerce reported to Minister Mufamadi on the meeting of the 27 March 2002 and requested him to intervene. On the 21 May 2002 the first respondent, apparently in response to earlier letter by Minister Mufamadi, wrote to Minister Mufamadi, as follows: "With regard to the name change of Louis Trichardt to Makhado my department has been interacting with Makhado Municipality and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. We will be making an announcement in the near future with regard to applications of name changes in the Northern Province. For your information the application for the change of name of Louis Trichardt to Makhado was referred back to Makhado Municipality after the SAGNC discovered that there is another Makhado Village in the area. To avoid duplication, the applicant should submit a second choice or rename the present Makhado and then allocate the name to the present Louis Trichardt." 15.      On the 25 June 2002 the third respondent resolved to change the name "Makhado Township" to Dzanani township and that the third respondent should adhere to the decision of 21 February 2002 and to apply for the change of the name of the town again. 16.      On the 26 June 2002 the third respondent resubmitted to the second respondent application for the name change of the town. On the second record i.e. a record after the objections were lodged and rejected, there was another application form for the name change of the town and is dated the 28 February 2003 with additional motivation for the name change. 17.      On the 9 May 2003 the Director General of the first respondent wrote a memorandum to the first respondent in which the application via the second respondent was submitted to the first respondent. On the 15 May 2003 the first respondent approved the application for the change of town name, Louis Trichardt to Makhado town. 18.      On the 6 June 2003 the decision of the 15 May 2003 was gazetted as required by the Act. On the 30 June 2003 the applicant lodged a complaint to the first respondent in terms of Section 10(3) of the Act. The first respondent rejected the complaint as it would appear from a letter received by the applicant or its attorneys on the 13 November 2003. Reason for the rejection of the complaint was stated as required by the Act. On the 5 March 2004 the applicant launched the present application. ISSUES RAISED 19.      In my view the following are important issues raised during these proceedings: -        Whether or not the second respondent recommended to the first respondent for the change of the town name Louis Trichardt to Makhado? And if so, -        Whether or not the first respondent was under obligation to consider consultation as a requirement for the purpose of deciding whether or not to approve the proposed town name? And if so, -        Whether or not the first respondent applied his mind properly to a requirement for consultation or to put it differently whether or not there was consultation? And if so, whether consultation was proper and sufficient? And lastly, -        Whether or not the applicant can attack the first respondent's decision on consultation without asking for the review of the decisions of the second and the third respondents? DISCUSSIONS, SUBMISSIONS AND FINDINGS 20.      Counsel for the respondents conceded that recommendation to the first respondent by the second respondent is a jurisdictional factor derived from the provisions of Section 9(1)(d) read with Section 10(1) of the Act. I have already under introduction referred to the provisions of these sections. In other words, for the first respondent to make a decision under Section 10(1) there must have been a recommendation by the second respondent under Section 9(1)(d). Counsel on behalf of the applicant urged me to find that the second respondent made no recommendation to the first respondent. The effect of this submission, is that the first respondent should be found to have acted unltra vires his powers and that this issue alone should dispose of the present application. 21.      For this submission, counsel for the applicant relied heavily on what was said by Squires J in the matter of Ex Parte Porrit 1991(3) SA 866 (NPD) dealing with the word "recommendation" in terms of Section 124(2) of the Insolvency Act 24 of 1936 which requires recommendation by the Master of the Supreme Court before an application for rehabilitation could be granted. Squires J acknowledged the fact that because the word has no special meaning given to it by the legislation, the word would have to bear its normal ordinary interpretation being to name or speak of a person as worthy of a particular attention or consequence i.e. recommendation is the action of commending someone or something as worthy or desirable for such result. (My own emphasis). Implicit, in this as also pointed out by Squires J will be to consider and weigh the merits and demerits of the subject of recommendation in relation to what is recommended. On behalf of the applicant it was suggested that I should find that no way on the papers is there anything to suggest that the second respondent made a recommendation. It was argued that a recommendation by the Director General did not substitute a recommendation by the second respondent. It is so, that on papers there is nothing specific by the second respondent saying, "we or I recommend". This, of course must be seen in the light of the totality of the information surrounding the whole application for a change of the name and the ultimate information presented to the first and second respondents. The following factors in my view are of importance: -        that on the 21 February 2002 the name town, Makhado was adopted by the third respondent. -        that two application forms for the change of name town were submitted to the second respondent by the third respondent. -        that in the first application form dated 26 June 2002 and under column 1 of the form is written "Proposed name" and underneath it, Makhado Town is inserted as the proposed name. Column 2(i) is written "What is the meaning and language from which the name is derived?" The answer thereto is "the name relates to the late king of the Venda people, king Makhado". Under column 3 of the form a question is asked "For which feature is the proposed name? And the answer inserted is "Louis Trichardt Township and all its extensions as well as Louis Trichardt". It is also important to mention that under column 1 of the form there is a column "First Choice" and another column "Second choice". Under first choice Makhado is inserted and under second choice N/A is inserted and I understood this to mean not applicable, -        that the second form submitted to the second respondent and dated the 28 February 2003 is in the same format as the one dated the 26 June 2002. The name Makhado is proposed and Makhado is also inserted as the first choice. The other column for the second choice is left unfilled. Under column 2 and in response to the question "What is the meaning and language from which the name is derived?" it is inserted "Makhado was the king who fought colonialism during the 19th Century. He has set the people in the far North free, from subjugatism and oppression". Under column 3 of this form and in response to a question "For which feature is the proposed name intended?" and the answer inserted is "Town", -        that in the minuted discussion of meeting of the second respondent dated the 14 March 2003 which meeting was attended by 19 of its councillors with five apologies "applications for the approval of geographical names" was part of the items on the agenda. Paragraph 8 of the minutes starts by reading as follows: "The chairperson presented the applications submitted by Limpompo for and against the names Makhado Township to Dzanani Township , Louis Trichardt to Makhado Town and Dzanani Township to Mphephu" The discussion as recorded, further proceeded as follows: "Prof Jenkins raised his concern about the media statement released in December 2002 announcing that the Chairperson of the Limpompo PGNC had approved the change of the above three names. He said that this was done without the Minister having received recommendations on the change of names, and that only the Minister had the right, after receiving recommendations and after a name had been published in the Government Gazette, to publicise that a name had been changed. Advocate Ntsewa, the Chairperson of the Limpompo PGNC, responded that the media had reported his statement incorrectly if they had said that, because in December 2002 the name changes had not been approved. He said that what he had told the media was that the names were to be forwarded to the SAGNC for its recommendation. Prof. LF Mathenjwa presented the applications for and against the change of names from Mpumalanga. He asked for Council's resolution on this issue. Dr Beukes said that a geographical name should be approved by the Minster after receiving recommendations from the SAGNC, and whoever had an objection had an opportunity to forward it to the Minister after the approved name had been published electronically and in the Government Gazette. The Council agreed with Dr Beukes and decided that the Unit should bring to the Minister's attention that there were objections to the name changes from Limpompo and Mpumalanga. For example, the application for the change of name Jeppe's Reef to Embhojeni should be recommended but sent to the Minister with a note saying that there was an objection to it", and -        lastly, the Director General of the first respondent in his memorandum when he submitted the applications received from the second respondent recommended that the first respondent should approve the names as recommended by the second respondent. 22.      Recommendation being an action of commending something or someone as worthy or desirable for such a result and in the instant case the result being whether or not the name Makhado town should substitute Louis Trichardt, one should have regard to what was laid before the second respondent. The applications referred to in the meeting of the second respondent are those applications described earlier in this judgment under paragraph 21. Only one name was proposed in the application forms and that is Makhado Township substituting Louis Trichardt. The first paragraph of minuted record of the second respondent referred to these applications. In these applications the basis for proposing Makhado is clearly stated as reflected in columns 2 of both the application forms dated 26 June 2002 and 28 February 2002 respectively. Counsel for the applicant suggested that the merits and demerits of the application were not considered by the second respondent. Although the applicant did not challenge the decision of the second respondent to recommend, it is clear from the minuted record of the second respondent that objections for example, were considered and it was agreed to bring such objections to the attention of the first respondent. I was urged by counsel on behalf of the respondents to find that the Director General's office is a secretarial office of the second respondent established in terms of Section 6 of the Act. Subsection 1 thereof provides that the executive functions of the council i.e. the second respondent must be performed by a section established by the Director General in terms of the Public Service Act. Subsection (2)(a) provides that the functions of the section are to perform the administrative and secretarial services. In my view therefore, the Director General would have carried out the mandate of the second respondent in submitting the applications and expressing the mandate as he did. I am satisfied that the second respondent did make a recommendation to the first respondent in regard to the only name which was proposed in the application forms by the third respondent. 23.      This should then bring me to consider the next issue being whether or not the first respondent was under obligation to consider consultation as a requirement in deciding whether or not to approve the name Makhado Township as a replacement for Louis Trichardt town. Counsel for the first respondent contended that the first respondent was entitled to act within the convine of the operation of the enabling Act. In the Act there is nothing suggesting consultation as a requirement, so he argued. Secondly, he argued that the applicant could not attack the first respondent's decision on consultation without having attacked or asked for a relief against the second and or third respondent's decision. Thirdly, he argued that the third respondent as the applicant for the change of the town name and being constituted by councillors who are elected into office by the people, were entitled to take a decision on the name change without any consultation with or participation by the people. I was particularly not impressed with this submission. Whilst the Act may not specifically be stating consultation as a requirement, the subject matter being the change of a town name, is a national and sensitive matter. Because of the nature of the subject matter, I do not think, firstly that the first respondent could or would have been expected to take such a decision without considering the issue of consultation. Secondly, in my view the same should be applicable when the application is laid before the second respondent for recommendation. Lastly, one would expect, at least that the first respondent to be satisfied that consultation was conducted. Whilst the councillors of the third respondent might have been elected into office by the people, on a national issue like the change of name of a town, one would expect them to consider the sensitive of the matter and to revert to those who had elected them into office for a proper mandate. It is however, important to mention that whilst this issue was taken up by counsel for the first respondent, in his response to the complaints raised in terms of section 10(3), the first respondent wrote as follows: "After careful consideration of your objection and all other information brought to my attention in this matter I hereby inform your objection was rejected. My rejection of your objection which was launched in terms of Section 10 of the South African Geographical Names Act 1998 is based on the following reasons. -        A proper and sufficient consultation was followed before this matter was finalised, -        Publication in the Government Gazette was done in accordance with the Act, and -        The approved name is not in conflict with the principles and policies of the South African Geographical Names Council." 24.      Clearly, this points to the fact that Minister Ngubane accepted consultation as a requirement. He considered this in his decision to approve the name change. In his answering affidavit after the institution of the proceedings herein, of relevance, he stated as follows: "As appears from the record of proceedings filed on behalf of the Respondent, the proposal to change the name Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed to exert their influence during the democratic process. To some extent the objections are also based on financial considerations, such as the costs involved in bringing about the change. I considered these objections very carefully, but I was unpersuaded that the will of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003". I am therefore satisfied that consultation is a requirement and the first respondent was obliged to consider it in making the decision to approve the change of town name in the instant case, despite the fact that there was no specific provision under Section 10 of the Act to consider consultation as a requirement. I may well add that in terms of Section 4(1) of the Promotion of Administrative Justice Act 3 of 2000 where an administrative action adversely affects the rights of the public, an administrator, being the first respondent in the instant case, in order to give effect to the right to procedurally fair administrative action, must decide amongst others whether to hold a public inquiry in terms of subsection 2 or to follow a notice and comment procedure in terms of subsection 3 or where the administrator is empowered by any enabling provision to follow a procedure which is fair but different, to follow that procedure. However, because of the nature of the matter, in my view, the first respondent and correctly so, considered consultation. In a way, subsections 3 and 4 of Section 10 envisage some sort of participation by interested or aggrieved parties. 25.      I now turn to consider the issue whether or not there was a consultation and whether or not the first respondent properly applied his mind to the requirement for consultation and to the application as a whole. Counsel for the respondents strongly argued that the applicant cannot challenge the decision of the first respondent on the lack of consultation or proper consultation without attacking and asking for relief against the second and or third respondent in regard to the process that was followed. I understood this submission, to suggest that inasmuch as the first respondent is not responsible for the process, but rather for approving or rejecting the name change, he cannot be blamed for the alleged flawed process by the second and or third respondent. To this, counsel for the applicant submitted that it was the improper and unfair exercise of a discretion of the first respondent in approving the name change, when he did not have sufficient information to justify proper consultation and failure to apply his mind properly to the issue which is being attacked. Again, this submission clearly reverts to the issue, of whether or not the second and third respondents followed the proper process. The submission was that once the decision of the first respondent is reviewed and set aside everything done by the second or third respondents will fall off. This might be so, however, I do not think that this is practical. To set aside the decision of the first respondents without setting aside the decisions of second and third respondents would be impractical and problematic. The least one can do, would be to refer the matter back to the first respondent for reconsideration. However, even if one was to do that, the issue whether or not there was a consultation and whether the first respondent had properly applied his mind to it, would first have to be determined. 26.      The contention on behalf of the applicant was that the first respondent did not satisfy himself that consultation was done. Counsel for the applicant placed much emphasis on the words "proper and sufficient consultation". He argued that these words are derived from the policies and or guidelines established in terms of the Act and from the letter of the first respondent rejecting the complaints raised in terms of Section 10(3). The policies and guidelines were with reference to a document marked RB2 and annexed to the applicant’s initial founding affidavit. This was said to be guidelines and policies as envisaged in Section 9 dealing with the powers and duties of the second respondent. Subsection (1) (a) thereof provides that the Council must set guidelines for the operation of Provincial Geographical Names Committees. Subsection (1)(i) thereof provides that the council must in consultation with the Minister, and the Provincial Geographical Names Committees, formulate policies, principles and procedures, taking cognisance of the United Nations resolutions and international practice with reference to the standardisation of geographical names. This submission, raised a further issue i.e. whether the said document could be given any legislative status to the extent that the respondents and in particular the second respondent and the Provincial Geographical Names Committees established in terms of Section 2(2)(a) of the Act, were obliged to comply with the said guidelines and polices, and thus obliging the first respondent in applying his mind to the recommendation to consider whether or not such guidelines and policies have been complied with. The second, third respondents and Provincial Geographical Names Committees are said to have floated their own guidelines and policies and in particular failed to ensure that local communities and other stakeholders are adequately consulted (my own emphasis). In terms of Section 9(1)(i), the second respondent is responsible for formulating policies, principles and procedures. The document marked RB2 is said to be formulated in terms of subsection (1)(i) referred to above and that therefore it must be given legislative status, so Counsel for the applicant submitted. On behalf of the respondents, it was however, first submitted that this document has not been proved. Secondly, it was submitted that without it being gazetted in terms of Section 15 of the Interpretation Act 3 of 1957, the contents thereof can never assume legislative effect. I am convinced that the document is a document produced by the second respondent purportedly in terms of Section 9(1)(i) of the Act. However, as regard to its legislative effect, counsel for the applicant indicated that his endeavour to search or establish whether or not the document was gazetted produced no positive results. For this reason, I cannot find that the respondents or Provincial Geographical Names Committees floated its own or their own guidelines and policies with legislative effect. In any event, no relief has been sought against the second and third respondents. As regard the Provincial Geographical Names Committees, the position is that it has not been joined as a party to the proceedings. Inasmuch as the criticism is heavily levelled against the second respondent, third respondent and the Provincial Geographical Names Committee, the applicant effectively is asking for the review of their actions. In my view, this cannot be feasible without asking for a specific relief in this regard. However, this would not necessarily relieve the first respondent from applying his mind to whether or not there has been consultation. 27.      Regarding consultation, it is important to have regard to the entity or the person said not to have been consulted. In his submission, counsel for the applicant indicated that ward 1 of the third respondent was never given time or sufficient time to be heard. Secondly, he submitted that the Hlanganani Concerned Group and the Soutpansberg Chamber of Commerce were not consulted. All these three entities, are not parties to the present proceedings nor did the applicant suggest to be acting on their behalf, save for supporting affidavits that have been obtained from these structures and or organisations. The deponent to the founding affidavit of the applicant is also a chairperson of Hlanganani Concerned Group. 28.      The applicant in its replying affidavit stated as follows: "What the first respondent should have considered was whether the decision of the Municipal Council complied with the policies, principles, and procedures established by the South African Geographical Names Council in consultation with the first respondent and the Provincial Geographical Names Committee. The fact that the decision was taken by a duly elected Municipal Council is of no moment if the Municipal Council did not comply with the policies, principles and procedures". 29.      In my view, the first respondent did not have to consider whether or not the decision of the third respondent complied with the policies, principles and procedures, as the document containing such policies, principles and procedures, was not proved to be of legislative effect. All what the first respondent had to do was to satisfy himself that there has been consultation. He could not question the decision to apply for a change of town name. Secondly, such a decision has in any event not been challenged by the applicant. In his letter responding to the objections, the then Minister Ngubane indicated that after careful consideration and all other information brought to his attention he decided to reject the objections (my own emphasis). He further stressed that a process of and sufficient consultation was followed before the matter was finalised. This was in response to an earlier letter of the 1st June 2003 which was addressed to the first respondent by the applicant's attorneys. 30.      It was submitted on behalf of the applicant that it was not clear what information the first respondent had, before he took a decision on the 15 May 2003 or after the objections, particularly that the record of the proceedings furnished in terms of Rule 53 appears to be incomplete. This might be so, but I do not think that this would be sufficient to suggest that the first respondent had no information on the issue of consultation. The followings appear to have been common cause as having come to the attention of the first respondent when he so took the decisions: -        that the National Minister of Local Government wrote to the first respondent on the 18 March 2002 after the Chamber of Commerce had raised objections to the change of the town name with Minister Mufamadi, -        that the first respondent replied to this letter on the 21 May 2002 and this was after the meeting of the 27 March 2002 between the Chamber of Commerce during which the change of name was heatedly debated, -        that in the letter of the 21 May 2002 the first respondent indicated to Minister Mufamadi that with regard to the name change of Louis Trichardt to Makhado, his department has been interacting with Makhado Municipality and Soutpansberg Chamber of Commerce on matters of procedure that need to be followed. The first respondent further indicated that the applications to the name change of name of Louis Trichardt to Makhado was referred to Makhado Municipality after the second respondent had discovered that there was another Makhado Village in the area. He further indicated that the members of the public are encouraged to participate and cooperate with relevant, legitimate and democratically elected structures during consultation at local and provincial levels before seeking any intervention. It therefore appears from this letter that as during May 2002, the first respondent was firstly appraised with the application for the change of name, secondly that his department was already interacting with the third respondent and the Soutpansberg Chamber of Commerce on matters of procedure, thirdly, he was mindful of the participation by the Communities in the process and lastly to cooperate with elected or representative members of the Communities, and, -        that on the 9 May 2003 few days before the decision was taken by the first respondent the attorneys for the applicant addressed a letter to the first respondent. In this letter, the attorney attached a copy of a letter dated the 24 February 2003 sent to the Chairperson of Provincial Geographical Names Committee. This letter, consists of fourteen pages containing representations and submissions. The letter is said to have been written on behalf of Hlanganani Concerned Group as well as Soutpansbergh Chamber of Commerce. Reference is made in the letter to the letter dated the 18 February 2003 from the third respondent. In the letter of 18 February 2003 from the third respondent its resolutions of 21 February 2002, 7 May 2002 and 29 October 2002 were enclosed. The resolution of 21 February 2002 relates to the change name as indicated earlier in this judgment. Further information was furnished in the letter of the 18 February 2003 and this related to notice of change of name posted at the Civic Centre, and other Municipal/State buildings in the municipal area since 1 February 2003, leaflet requiring comments and proposals that was distributed on the 31 January 2002, 1, 4 and 8 February 2002 respectively to various interested groups and the media, minutes of the public hearing on the renaming of Louis Trichardt held at the showground, summary of submissions from municipal wards and other structures, minutes, letter or members present at meetings that were held on municipal ward level within the Makhado Municipality's area, that the area consists of thirty five wards, that documents of all wards, save wards 1, 3, 6, 7, 20, 24, 32 and 35 were attached, submissions by Waterval Region residents, Dzanani Region residents (X2), Vavani Region residents, a number of individual submissions, eight in number respectively and minutes of a meeting held on 27 March 2002 between members of the third respondent and Chamber of Commerce. 30.1     All of this, was analysed and criticized in the fourteen page letter of the 24 February 2003. I do not intend dealing with the criticism as set out in the letter. It appears from this information that the first respondent as he took the decision on the 15 May 2003 had all these information and documentations as per letter of the 9 May 2003 from the applicant's attorneys. This information, in my view, comprises the process that was followed. I therefore cannot find that the first respondent had no sufficient information to apply his mind properly on the matter. It is also important to note that when the first respondent received the letter of the 9 March 2003, he responded on the 13 May 2003 that he had taken the liberty of referring the concerns raised to his Department. 30.2     Although it is not clear what other information was furnished after his letter of the 13 May 2003, the information as supplied by the attorneys for the applicant referred to above, would have been sufficient to make a decision. After the objections were lodged the first respondent gave his reasons for the rejection of the objection as set out in his letter referred to earlier in this judgment. In this letter, the first respondent alluded to the fact that he rejected the objection after careful consideration of the objection and all other information brought to his attention. In his answering affidavit he stated that he considered the objections very carefully, but that he was unpersuaded. He further indicated that after publication, he again considered the complaints or objections and that they were very much of the same mould as he had considered before. According to the first respondent, no new relevant facts or circumstances were introduced under Section 10(3) and that he therefore rejected the complaints. He also did not deem it necessary to refer the matter back to the second respondent. From this, in my view, it is quite clear that the first respondent considered the objections before his decision on the 6 June 2003. The additional information furnished to the first respondent during objection appears in a document titled "INDEX OF DOCUMENTATION ATTACHED TO THE OBJECTION TO THE NAME CHANGE OF LOUIS TRICHARDT TO MAKHADO". Indeed, having regard to this additional information I do not think anything material came to the fore which the first respondent did not have before, save what was said to be signatories of objection to the name change in the total of 4662. This, of course should be seen in the light of the totality of the information. 31.      The main objectors appear to have been Chamber of Commerce and Hlanganani Concerned Group. Their objections were brought to the attention of the first respondent before the decision was taken on the 15 May 2003 and before rejecting the objections. Submission was also made that Ward 1 complained of insufficient time given to consider the change of town name. In my view, the first respondent had applied his mind to the application when it was laid before him. 32.      I was urged to find that the first respondent should have found that there was no sufficient or proper consultation. Again this is an attack on the decisions of the third or second respondent. This short coming, was the main objection to the present proceedings. I have already dealt with this objection. 33.      Coming back to the issue whether or not the first respondent erred in finding the consultation to be proper or sufficient, the following factors are in my view important: -        that the third respondent's decision was not challenged or sought        to be reviewed for lack of proper or sufficient consultation in the      present proceedings, -        that after the third respondent was instructed by the MEC for Local      Government to look into the name change, consultative process    was initiated by the third respondent as set out earlier in this         judgment.        It is important to mention that the deponent to the      founding affidavit of the applicant, who is also said to be a    chairperson of the Hlanganani Concerned Group attended some of   the public meetings and proposed a name as well, which name was          not for retention of Louis Trichardt. A heavily heated debate took       place during the meeting of the Chamber of Commerce and the      third respondent on the 27 March 2002. The issue is obviously    sensitive and it would not have been unexpected to find such     debates. However, to find disagreements on the issue would not in        itself amount to improper and or insufficient consultation, and -        Ms Helm of the Democratic Alliance, for example, complained      about    the insufficient time given to the councillors to take   instructions from the political parties' structures. Although    people's forum was to be held on the 2nd or 3rd February 2002,   parties were to make written submissions by the 16 February 2002.        However, as on the 16 February 2002 Ward 1 made no       submissions. This should also be seen in the light of the fact that      the decision was only taken by the first respondent on the 15 May        2003. In my view, therefore the short time period from the 30 or         31 January 2002 to 3rd February 2002 would not have had any      effect considering the lapse of time from February 2002 till when        the decision was taken on the 15 May 2003 and lastly, one must   have regard to what was said earlier in this judgment under      paragraph 30.. 34.      I am therefore satisfied that the first respondent did not err in finding sufficient consultation to have existed. The process of consultation was of course attacked on another leg, i.e. people were not asked if they wanted to change the town name, but that instead people were told to come up with alternative name to Louis Trichardt. This appears to be technical. Asking people to come up with alternative names to Louis Trichardt would not in itself suggest to people not to insist on the retention of the name Louis Trichardt. Indeed, Soutpansberg Chamber of Commerce, for example, argued on the retention of the name Louis Trichardt. 35.      This should immediately bring me to consider the other issue which was strongly argued on behalf of the first respondent. Counsel for the respondents in a somewhat emotionally charged submission argued that the first respondent acted squarely within the framework of the legislation, i.e. he exercised his discretion in terms of Section 10 of the Act in deciding whether or not to approve or reject a geographical name change. It was submitted that the first respondent's discretion has been exercised fairly and properly taking into account the following factors: -        that Louis Trichardt is the name given to a location in a territory      which had been occupied by the Vavhenda for hundreds of years, -        that the name was perpetuated by the intrusive regime of the ZAR, -        that thereafter it was perpetuated by unlawful white government          which excluded all black people and that it goes beyond saying that      the name Louis Trichardt is associated with white imperialism and        exclusively white regimes under which black people suffered      grievously, -        that when the self government territory of Venda was established,        the Nationalist Government established an administrative seat and        called it Thohoyandou, because it is a name held in a high esteem        by the majority of the local population, -        that there can be no doubt that Chief Makhado is held in equal high      esteem by the local population. He resisted and fought the ZAR to        his death. To name the most important town in the region         Makhado, fits in with the history, traditions and values of the          majority of people in the region. -        that when a proper democratic municipality was brought about,    which encompassed Louis Trichardt, the majority of the people as         represented in the Municipality accepted the name Makhado and it         makes no sense to allow the third respondent to be called Makhado        Municipality and not the town Makhado as well, and -        that there is nothing to commend the name Louis Trichardt to the         majority of the people. 36.      The reaction by counsel on behalf of the respondents appeared to have been prompted by an earlier suggestion that the name Makhado, was a name of no significance and a name which did not exist before Louis Trichardt. To this, I was reminded by counsel on behalf of the respondents that according to history and in particular according to Professor Changuion who had supplied a supporting affidavit to the applicant's application, Louis Trichardt arrived in the area of Soutbansberg in 1836 and left the area 1837, hardly a year. The history of Makhado as set out in paragraph 35 above was also given by Professor Changuion, a retired professor of history who had taught at the University of Limpompo from 1972 until he retired now recently and that it was therefore inconceivable and incomprehensible to make a suggestion of the insignificant of the name MAKHADO. I find merits to this submission. The history of Makhado as outlined by Professor Changuion, and the importance of the name MAKHADO amongst the majority of the people in the area and afar, in my view, surpasses the name of a person LOUIS TRICHARDT, who had stayed in the area for a year only. The first respondent correctly in his answering affidavit as also empowered by Enabling Act indicated that: "The naming of geographical features is a world phenomenon that is as old as mankind. People have always attached a label or name to their immediate environment in order to assign meaning and give recognition. The significance of geographical names lies not only to mere name changing but also to knowledge systems that go with a geographical features or landscape. A large majority of pre-colonial names carried with them particular meanings: the kind of meanings the indigenous communities attached to their own identities, their relations to immediate environment, both built and natural environments, their relationships with their neighbours". Also paragraph 5 of his founding affidavit Minister Ngubane stated as follows: "There is every reason to restore the dignity and actual freedom of the majority in South Africa. Part of the restoration process is to rename towns, the names of which serve as a reminder of the oppressive past, and to restore the traditions and cultural and historical values of the black peoples of the Republic of South Africa. In this regard there is no valid reason why the people of the area should remain saddled with name such as Louis Trichardt, which is of no value to them at all and which is foreign to them, merely to be continuously reminded of the acute suffering endured by them for over a hundred years". Lastly, in paragraphs 7 and 8 of the founding affidavit the Minister continued as follows: 7. "The decision to propose the name Makhado for Louis Trichardt was taken by the duly elected Municipal Council of Makhado. The decision is in line with the declared policy of the National Government to promote constructive change to bring about the true freedom of the peoples of the Republic of South Africa. The proposed name Makhado also has the blessing of the Limpompo Government. 8. As appears from the record of the proceedings filed on behalf of the Respondents, the proposal to change the name of Louis Trichardt to Makhado was accepted and recommended by the South African Geographic Names Council. At the same time I was briefed with objections to the proposed name. Such objections emanated from a minority group that had failed to exert their influence during the democratic process. To some extent the objections are also based on financial considerations, such as the cost involved bringing about the change. I considered these objections very carefully, but I was unpersuaded that the will of the vast majority should be denied. I therefore approved the proposed name of Makhado for Louis Trichardt on 15 May 2003, and the decision was published in the Gazette of 6 June 2003". 37.      The court will always be reluctant to invalidate administrative action on procedural grounds and has in this context frequently indicated the importance of not impeding the efficacy of government. Where conflicting interests have to be reconciled and choices made, proportionality, which is inherent in the Bill of rights, is relevant to determining what fairness requires. Ultimately, procedural fairness depends in each case upon a balancing of various relevant factors, including the nature of the decision, the rights affected by it, the circumstances in which it is made, and the consequences resulting from it. (See Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) paragraph 41, President of the Republic of South African Rugby Football Union and Others 2000(1) SA 1 (CC) at paragraph 220 and Minister of Public Works and others V Kyalami Ridge Environmental Association and others 2001 (3) SA 1151 (CC) paragraphs 102 & 109). In the Minister of Public Works and others supra, the department concerned had not informed or consulted with the residents of an area which was to be used for resettlement purposes. The department had however, undertaken to consult with the residents regarding implementation of its decision. Determining what procedural fairness requires in a specific case, Chaskalson J held, requires a proportionality analysis, i.e. a balancing of various relevant factors. One of these, is the circumstances in which the decision is made. Chaskalson J held that although it may have been better and more consistent with the salutary principles of good government, had government informed and consulted with residents before the decision was taken, the decision was not invalid for failure to comply with the requirements of procedural fairness. In the present case however, the first respondent did not only consider the suitability of the name Makhado town, but also considered the concerns raised by other parties. His decision in this regard was not only based on the objections lodged with him, but with the knowledge of the process which was followed by the third respondent as conveyed to him through submissions or documents. I am therefore not satisfied that the applicant is entitled to the relief sought. 38.      Lastly, I was urged to find that the provisions of Section 10 (3) and (4) were unconstitutional. I was not particularly impressed with this submission by counsel for the applicant. These two subsections are meant to create internal remedy to an aggrieved party. This is a remedy without incurring unnecessary legal costs. What is more, subsection 4 obliges the Minister to furnish reasons for his or her decision. This is to facilitate a better chance for aggrieved parties to know or decide whether or not to challenge the decision in a court of law. Of importance however, is the fact that the provisions do not impede a party's right to access to court. On the contrary, it paves a way to better accessibility to the court in the sense that a party is equipped with better information regarding the reasons for the decision. These provisions in my view are in line with the provisions of the Constitution and PAJA. The suggestion that the process in terms of the subsections is not credible, cannot be the basis to find unconstitutionality. I cannot find the provisions to be unconstitutional. CONCLUSION I therefore conclude by dismissing the applicant's application with costs, costs to include costs of two counsels for the respondents.                                                                                                                                                          M F LEGODI                                                       JUDGE OF THE HIGH COURT COXWELL STEY VISE & NAUDE ATTORNEYS APPLICANT'S ATTORNEYS PRETORIA COUNSEL: M D DU PREEZ TEL NO. (012) 303 7484 THE STATE ATTORNEY FIRST RESPONDENT'S ATTORNEYS PRETORIA COUNSEL FOR FIRST & SECOND RESPONDENTS: J MARITZ SC TEL NO. (012) 303 7747 K K KEKANA TEL NO. (012) 303 7624