The duty of the state to eradicate the legacy by a62nh

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									Jan. 2009, Volume 6, No.1 (Serial No.50)                                          US-China Law Review, ISSN1548-6605,USA




     The duty of the state to eradicate the legacy of apartheid in South Africa
                          versus resistance to change: Critical analysis of
                                    the Chairperson’s Association Case

                                                        Maredi Mphahlele
                                (School of Law, University of Venda, Thohoyandou 0950, South Africa)


     Abstract: South Africa was colonized by European powers from as early as the seventeenth century and all
aspects of the indigenous population were transformed, alternatively, subjected to the norms of life of the colonial
powers. This led to the erosion of African names and the replacement therefore by colonial names. The South
African Geographical Names Council Act is intended to address this legacy.
     Key words: geographical names changes; standardization; transformation; adequate consultation; critical
analysis

        1. Introduction

     When the Dutch ship, Harlem, broke down in the Cape of Good Hope1, the African people did not realize
that what were to follow would cause immeasurable hardship on their lives. The Dutch people were on their way
to India and the then Ceylon2 in search of commodities which were not available in Europe, more specifically in
the Netherlands, at the time.
     As they were to dock in the area for a few months when the repairs were effected on their ship, they had to
pitch up some tents and initiated a small scale farming and cultivated some vegetables, and realized that the soil
was fertile, and when they interacted with the local population, mainly African people, they came to the
conclusion that they could easily be divested of their land.
     They obviously had no mandate to colonize at that time and they proceeded with their journey to the far East.
Upon their arrival back in the Netherlands, they reported their observation of the Cape to their Governor who in
turn informed the King. A decision was then taken by the government to immediately dispatch a mission to the
Cape with a view to having same annexed, as the population would “offer” no resistance.
     What followed was the arrival of Jan van Riebeeck and his wife, and their countrymen, on board the ship
Dromedaris. This was the beginning of a large scale colonialism.
     It would be naive to think that Africans did not offer any resistance when the settlers3 started chasing them
away from their land. They offered fierce resistance but were overpowered in many arrears as they did not have
weapons of mass destruction, namely, firearms.
     The writer proposes to leave this historical background at this stage, saves to mention that the result of this



    Maredi Mphahlele, senior lecturer of School of Law, University of Venda; research fields: philosophy, human rights and law.
1
    The ship broke down around early 1652.
2
    Ceylon is now known as Sri Lanka.
3
    People of European descent came to be known as settlers in later days.


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            The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                    Critical analysis of the Chairperson’s Association Case

process led to the whites occupying almost eighty seven percent of the land4 and Blacks were left with thirteen
percent thereof.5 All the historical and geographical names of South Africa, more especially in areas occupied by
the colonialists, were changed and renamed after their heroes and forefathers, with the result that the African
legacy was eradicated and replaced by that of the apartheid rulers. This was resisted and opposed by the Africans
who then formed liberation armies and went into exile from where guerilla wars were waged. Pressure mounted
and whites were forced into negotiations which led to South Africa becoming a Constitutional democracy on the
27 April 1994, in terms of the interim Constitution6.

      2. The South African position post 1994

      The Constitution of the Republic of South Africa (hereinafter referred to as the Constitution)7, contained
certain provisions or values which underlie the democratic state8. They are equality, human dignity and freedom
and the national government is enjoined by the Constitution to pass legislation to realize these values.
      The state is constitutionally obliged to pass measures which will restore and uphold the dignity of its citizens,
more especially those who were subjected to the repressive laws of the apartheid regime. People were removed
from their land and the geographical names which existed prior to the colonial occupation were replaced by
settlers’ names. This was an obvious and wanton violation of the dignity of the African indigenous people of
South Africa. In order to achieve this goal9 the government had to enact laws in order to redress the imbalances of
the past. Parliamentary Acts which were passed and which are relevant to this discussion are:
      (1) The South African Geographical Names Council Act10; and
      (2) The Promotion of Administrative Justice Act11 (commonly known by its acronym as PAJA and also
thereinafter known as PAJA).
      The scope of this paper does not allow for a comprehensive discussion of the South African Geographical
Names Council Act as amended (to which writer shall subsequently refer as (“the Act”). The main objects of the
Act for the purposes of this paper may be summarized as follows:
      (1) To establish a permanent advisory body namely, the South African Geographical Names Council
(hereinafter referred to as the “Council”) whose function is to advise the Minister of Arts and Culture on the
transformation and standardization of geographical names;
      (2) For this purpose standardization is defined in section 1 as the determination of the name to be applied to
each geographical feature, and the written form of that name, and the regulation by an appropriate authority of a
geographical name, its written form and its application;
      (3) Amongst others, the council has the power to advise the minister on the changing, removing or replacing
of geographical names, and the standardization of the proposed new geographical names;12

4
   Mostly fertile, agricultural and urban areas.
5
   All arid, rocky, mountainous and rural areas.
6
   Act 200 of 1993.
7
   Act 108 of 1996.
8
   Vide section 9, 10 and 12 of Act 108 of 1996.
9
   It should be noted that Republic of South Africa in changing names followed international trends, for instance, in most of the
commonwealth countries, British names were replaced after independence, for instance, Harare for Salisbury, Maputo for Leurenco
Marques, etc.
10
    118 of 1998.
11
    3 of 2000.
12
    Section 9(i)(e) of the Act.


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            The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                    Critical analysis of the Chairperson’s Association Case

      (4) The council should also facilitate the establishment of Provincial Geographical Names Committee;13
      (5) The Council should recommend geographical names falling within the national competence to the
minister for approval;14
      (6) The Minister may approve or reject a geographical name recommended by council;15
      (7) Any person or body dissatisfied with a geographical name approved by the minister may lodge a
complaint in writing to the Minister within a specified period;16
      (8) Provinces must establish Provincial Geographical Names Committee (PGNC’s), to work with the local
authorities in ensuring that they apply the principles of the Council to the names under their jurisdiction, to advise
the Council about the geographical features which fall within its boundaries, and is responsible for seeing that the
local communities and other stakeholders are adequately consulted17.
      As mentioned earlier on, the scope of this paper is narrow. In short the objects of the Act are that
geographical names may be changed by the relevant authorities at National, Provincial and Local levels of
government, provided that the stakeholders are adequately consulted. It should also be noted that consultation in
this regard is not synonymous with consent, and my submission is that in this context consultation simply means
that the views of the affected communities should be taken into account during the process of the name change.
      Since the advent of the Act, several geographical names have been changed and this led to an outcry on the
part of the section of the community that is opposed to these changes, citing several reasons for opposition, mainly
economical. The writer may also mention that this process also appease and is welcomed by the majority of the
people in South Africa and they are keen that the process should be accelerated. This is obviously the main source
of the conflict, which is seen in the recent days. This conflict is not restricted to colonists and indigenous
population, but extends to different political parties within the indigenous population.18 As the writer alludes to
elsewhere in this discussion19, this issue needs careful management in order to eliminate or as it were minimize
the conflict.

      3. The Chairperson’s Association Case

     The process to change the name Louis Trichardt to Makhado commenced on the 25 January 2002 when the
mayor of Louis Trichardt was summoned to the office of the Limpopo Provincial Member of Executive Council
(hereinafter referred to as the MEC) in charge of Local Government and Housing, when he was told that the name
Louis Trichardt had to change because, as he puts it reminded us of the history of oppressive practices20.
Subsequent to this meeting, the mayor informed the council of the Municipality that the name of the town had to
be changed before the end of February 2002 and he immediately appointed a subcommittee for this purpose.
     All the ward councillors were then instructed to convene people's forums in their wards and to submit written
proposals or submissions to the office of the mayor’s secretary before the 16th February 2002, and that they were
to invite all the stakeholders to attend a public hearing at the Louis Trichardt showground on the 7th February,

13
   Section 2(1)(a) of the Act.
14
   Section 9(1)(d).
15
   Section 10(1).
16
   Vide Section 10(3), which provides a period of one month.
17
   The Chairperson’s Association v Minister of Arts and Culture and others (2007) SCA 44 (RSA) at p.5.
18
   It is common knowledge that there is a serious dispute between the African National Congress and Inkatha Freedom Party
regarding the names changes in Kwa-zulu Natal.
19
   Vide p.14 infra, the last bullet.
20
   Vide p.7 of the judgment, para 12.


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            The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                    Critical analysis of the Chairperson’s Association Case

2002. The secretary also issued a public notice to the effect that the name of the town is about to be changed and
that written representations concerning a list of names should be submitted to his office on or before the 6th
February 2002.
     A meeting was held at the Louis Trichardt showground on the 6th February, 2002 and only one hundred and
ten people attended, where fifty-five new names were proposed. Traditional leaders were requested to direct the
process and to call regional meetings at Vuwani, Hlanganani, Nzhelele and Zoutpansberg. There were no
explanations to why this meeting was held a day before the scheduled date.
     At Vuwani only ninety-one people attended. In Makhado the meetings were poorly attended and in Ward 1
which comprised fifty percent of the jurisdictional area of the municipality no meetings were held due to the short
notice given.
     A report prepared by the sub-committee on the name change was submitted to the executive committee of the
municipality with the recommendation that the name Louis Trichardt had to be changed and substituted for
Makhado, and this was submitted to the municipality council which resolved to change the name accordingly.
     The chamber of commerce was not satisfied with this process and a meeting was held between it and the
executive committee, wherein the latter requested the chamber to submit written objections, assuring that the
matter will be suspended until the views of the chamber shall have been heard and the matter would then be
reviewed.
     The secretary then issued a notice in the local newspaper, the Zoutpansberger, highlighting this development,
but also saying that the MEC for local government had been requested to have the name gazetted, and this notice
concluded by saying that the new name of the town is Makhado. The chamber of commerce objected to this notice
and informed the secretary and asked for a meeting with the mayor to discuss the question of the name change.
The chamber at this stage also wrote to the secretary of the Names Council formally objecting to the name change.
     The chamber also secured a meeting with the minister of provincial and local government where this matter
was discussed, and the Minister wrote a letter to the mayor urging the resolution of the matter by dialogue so as to
promote unity amongst all the stakeholders.
     On the 27 March 2002 the meeting was held between the chamber and the executive committee and the
mayor stated categorically herein that they consult politicians and not chambers and that the minister would be
informed that the council of the municipality shall not revoke its decision on the name change as ward one
councilor had not done his job.
     It is clear from the foregoing that the battle lines were drawn between the municipality and the chamber of
commerce. The municipality then applied to the names council for the name of Louis Trichardt to be changed to
Makhado21, and a communication was sent by this council to the director—General of the Department of Arts and
Culture, who then recommended to the minister to approve the name change saying that the “South African
Geographical Names Council (the council)” would like to give him assurance that despite all objections and
concerns regarding the name change, a proper consultation process was followed. The minister then approved the
name change.
     This led to the institution of an action by the chamber against the minister of Arts and Culture and the South
African Geographical Names Council with Makhado Municipality being joined as a nominal respondent.


21
  For reasons not explained, the municipality bypassed the Provincial Geographical Names Council, and approached the National
Council, a step which appeared to be anomalous as the matter would seem to fall within the provincial competence.


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             The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                     Critical analysis of the Chairperson’s Association Case

     This action arrived in the Pretoria High Court22, where Legodi J. dismissed the application by the chamber
with costs. The chamber appealed to the Supreme Court of Appeal23.
     On appeal the appellant attacked the validity of the name change on three grounds namely24:
     (1) The Names Council had not made a recommendation to the first respondent in terms of s 9(1) (d) of the
(South Africa Geographical Name Council Act 118 of 1998) for the change of the name of Louis Trichardt to
Makhado;
     (2) That the application for the name change had not been preceded, as it should have been, by proper
consultation with all interested parties; and
     (3) That the first respondent in considering the objection under section 10 (3) did not properly apply his mind
to the objections and if he had done so, he would have realized that a proper consultation process had not been
followed. The appellant also sought an order declaring section 10 (3) and (4) of the Act to be unconstitutional.
     In support of this approach, the appellant contented that the guidelines set out by the Provincial Geographical
Names Committee were not followed, and on the constitutionality issue, that it is not proper that the same
administrator reviews his own decision.25
     On the other hand, the respondent contended that the case was not a standardization but transformative one
and that the name Louis Trichardt was not acceptable to the community with reference to its history and cultural
values. Further that section 9(1) (c) of the Act empowers the municipality to submit a proposal for a name change
to achieve transformation and that the scheme of the Act does not provide for consultation in this regard. The
respondent further argued that consultation is necessary only when names were being standardized26.
     Counsel for the first and second respondents further contended that there was overwhelming evidence the
Names Council duly and properly considered the proposal and recommended the name change to the Minister.
Lastly respondents argued that the attack by the appellant of the decision of Council to approve the name change
was materially defective as the appellant did not seek to review that decision, the decision therefore remains valid.
     The Supreme Court of Appeal upheld the appeal and rejected the contentions of the respondents.
     Whilst acknowledging the power of the municipality to recommend a name change in terms of section 9(1)(c)
of the Act27 and to submit same to the Names Council to consider, it could not have been the intention of the
legislature that the municipality, could do so without adequate consultation with the community. This section not
only proposes the name change by the municipalities but also by, amongst others, “other bodies and individuals”.
This is a clear indication that these other bodies and individuals should be consulted and their views considered,

22
   Chairpersons’ Association v Minister of Arts and Culture and others, 2006 (2) SA 32 (T).
23
   The Chairpersons’ Association v Minister of Arts and Culture.(2007). SCA 44(RSA). This is a neutral citation as the case has not
yet been reported in the Law Reports by the time of writing this paper.
24
   Vide p.13, para 36 of the SCA judgement for these grounds of appeal.
25
   Section 10(3) and (4) provides as follows: S 10(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 name in writing to the
Minister; S 10(4): The Minister may refer the complaint to the council for advice whether or not to reject or amend a geographical
name so approved. The essence of the complaint was therefore based n the fact that the Minister may ultimately review his own
decision in terms of these provisions. Unfortunately the Supreme Court of Appeal was not in a position to decide this issue as it was
unnecessary to do so because the appeal succeeded on other grounds preceeding this one. See also p.11 for a similar expression.
26
   Standardisation is defined in the Act as “the determination of the name to be applied to each geographical feature, the written form
of that name, and the regulation by an appropriate authority of a geographical name, its written form and its application.”
27
   Counsel for respondents argued 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 the provision indicated that a municipal council being as it were, a representative of the municipal
community could propose a name change of 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 consultations with the community.


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              The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                      Critical analysis of the Chairperson’s Association Case

the court said.
      The writer is in agreement with the court, because the process was flawed from the onset. When the MEC for
local government and housing called the mayor of Louis Trichardt to inform him that the name had to change, this
was not a proposal but an instruction to have the name changed, and when the mayor went back to his forum, he
had no other option but to see to it that the name had to change. The process was rushed and time frames were set
up as the end of February 2002. It was obvious that no sufficient time was at hand to allow the process of
consultation to unfold, a decision had already been taken to have the name changed as these “names reminded us
of the history of oppressive colonial practices”28, said the MEC.
      During the “consultation” process, in one of the meetings, the mayor expressly informed the chamber that
“we consult politicians, not chambers”29, and this was a final straw so far as the chamber was concerned, because
it became clear that its views were not going up to be considered, and were indeed not considered.
      The court also rejected the argument that the appellant’s application was defective for want of seeking to
review the council’s decision to propose the name change. The proposal changed nothing and did not adversely
affect the rights of anyone and had no direct external legal effect and was accordingly not covered by the
definition of “administrative action” in section 1 of the Promotion of Administrative Action Act30, the court
argued.
      There are guidelines set in terms of section 9(1) (a) as well as the policies, principles and procedures
formulated in terms of section 9(1) (i)31 and these guidelines, amongst others, provide that the Provincial
Geographical Names Council (PGNC) should make recommendations to the SAGNC on the names of
Geographical features that fall within its geographical boundaries and that in doing so, must ensure that adequate
and proper consultation with local communities had taken place. They further require that the name change should
balance the historical and linguistic considerations, communicative convenience, the spirit of a community and the
spirit of a nation, and further that geographical names are part of the historical, cultural and linguistic heritage of
the nation, which it is more desirable to preserve than to destroy.
      In interpreting the statement in the guidelines that the Names Council must ensure that proper consultation
has taken place, the court equated that with a promise made by a public authority to follow a certain procedure
and quoted the following paragraph from the judgment of the Privy Council:
      “When a public authority has promised to follow 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”32.
      From the facts of the case the court had no difficulties in concluding that no adequate consultation with the
local communities and other stakeholders took place before the name of Louis Trichardt was changed to Makhado.
Amongst others, the authorities failed to consult ward one33 which comprises fifty percent of the residents of this
town in terms of jurisdictional area. Farlam J. A. said in this regard that whether it was the councillor’s fault or not

28
     Vide p.5, footnote 20 ultime.
29
     Vide p 6 ultime and para 25 on pp. 9-10 of the SCA judgement.
30
     3 of 2000, also known by its acronym as “PAJA”.
31
     South African Geographical Names Council Act 118 of 1998.
32
     See Attorney-General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 622 (PC) at 638E-F.
33
     The mayor alleging that the councilor in this ward had not done her job.


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             The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                     Critical analysis of the Chairperson’s Association Case

is neither here nor there; the failure to consult is not disputed.34
      The court further observed that the Director-General of Arts and Culture misled the minister by informing
him that proper consultation had been followed as this was incorrect and materially constituted a misstatement of
the fact, and the minister was influenced by this in coming to the decision to approve the name change. In this
regard the court referred to the judgment of the Supreme Court of appeal35 which was decided before PAJA came
into being and said 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; the doctrine of legality requires that the power conferred on a
functionary to make decisions in the public interest should be exercised properly, that is, on the basis of the facts”.
      Material misstatements of fact had been made in the Pepscor case and the registrar of pensions assumed that
the correct facts had been placed before him and acted incorrectly and his decision was reviewed and set aside.
      In case, the first respondent was entitled to assume that the facts conveyed to him by his Director-General,
viz. that there had been proper consultation, were correct, the court concluded that the legal position set out in
Pepscor based on the principle of legality still applies under PAJA which provides under section 6(2)(e)(iii) 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, so said Farlam J. A.
      Finally the court found it was unnecessary to deal with the other grounds of appeal as it concluded that the
first respondent's decision to approve the name change clearly could not stand. The appeal was allowed and the
judgment of Legodi J. in the court a quo was reviewed and set aside.

      4. Concluding remarks and analytical observations

     This judgment raises several crucial issues which, if not seriously and meticulously considered, may plunge
South Africa into chaos. It is a clear indication that in addressing the injustices of the past, the authorities must not
be driven by the mere desire to change, but by the mechanisms put in place to drive this process.
     (1) It is without doubt clear that the Member of the Executive Council of Limpopo’s Department of Local
Government instructed the mayor to have the name Louis Trichardt changed and he may have indicated time
frames as the mayor reported to his council that this name had to change before the end of February 2002.36
     (2) The politicians in this case acted in wanton disregard of the law, and more in particular, the South African
Geographical Names Council Act37., and the guidelines formulated thereunder. The attitude of the mayor in the
last meeting he held with the chamber leaves much to be desired. With respect, it showed how arrogant and
insensitive the people in authority can be towards the feelings of the communities under their authority. The writer
may also hasten to say that this attitude lacks qualities of good governance, which inter alia, requires the
governors to take into account the views of the governed when making decisions affecting them38.;
     (3) The judicial arm of the government must also be careful in interpreting and applying laws which are

34
   Vide paragraph 46 p.16 of the SCA judgement.
35
   Pepscor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) paragraphs 47 and 48.
36
   Vide p.7, para 12 of the SCA judgement. This type of approach leaves little or no room for consultation and clearly violates the
spirit of the Act, and inimical to the nascent South African Consultation democracy.
37
   118 of 1998.
38
   The spirit of the Constitution, 1996, requires consultive, participative and transparency in governance, and the mayor attitude fell
short of these requirements.


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            The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                    Critical analysis of the Chairperson’s Association Case

enacted to effect change. These laws must be applied with the necessary caution, taking into account the conflicts
of the past and the need for reconciliation going forward. The judgment of Legodi J in the court a quo is, with
respect, subject to criticism in this regard, as he erred in not finding that no adequate consultation took place
before the name change could be recommended, despite overwhelming evidence pointing in this direction which
was not disputed39.;
     (4) Where a clear case of misrepresentation of fact has taken place, as in this case, the government should not
hesitate to act against the culprits. In case, the Director-General clearly misled the Minister and the latter should
have demoted him or at least issued a public reprimand as a warning to others in the same position40;
     (5) The question of names changes remains a sensitive one when one considers the fact that the whites are in
dined to preserve the legacy of the past whilst the Africans are eager to see change and in this respect to restore
their lost dignity, but in this respect adequate and proper consultation should be maintained so as to avoid the
successful challenges in the courts of the land.41. Whereas the authorities apply political considerations in arriving
at decisions the courts on the other hand balance these considerations against the law and where it is found that the
law has not been applied or followed, the decisions of the authorities will be judicially reviewed and set aside42.
     (1) This case should serve as an important guideline of the procedure to be followed when a name change
process is initiated as the Supreme Court of Appeal laid down clear and precise guidelines which if followed, will
assist the process rather than destroy same.
     (2) Contrary to the opinion expressed above, a disturbing feature is again taking place within the Louis
Trichardt Municipality. It has been reported in the local newspaper, the Vhembe Herald43, that the municipality is
proceeding with the “process-yet again - without following the correct procedures”.
     (3) According to the reporter, Dorothy Knight, already two meetings have been held where the votings were
ninety to fifty-five and fifty-eight to thirty-six in favour of Makhado for Louis Trichardt and both these meetings
were poorly attended as no sufficient notice has been given in both instances.
     (4) Quoting from the interview with the Democratic Alliance Councillor, Mr Jacques Smalle, Dorothy Knight
writes:
     “When the court handed down Judgment44, the reason was that the consultation process had not proceeded
according to prescription. The court then gave the council three options: Firstly, the council could appeal the
judgment; secondly, the council could start the process of name change from the scratch and thirdly, the council
could accept the court's ruling and abide by it.” Smalle said. Dorothy Knight is of the opinion that the African
National Congress councilors did not inform the wider community that the name may remain Louis Trichardt, and
the impression is that the community was told that the name has to be changed, and if this is the case, the wider
community comprising of all religious, ethnic and cultural groups must be contacted, the community must then be
informed of the process of the name change how it works and what it involves.
     Furthermore, Dorothy Knight points out that names change committee comprises only of ANC Venda

39
   Vide p.16, para 46 of the SCA judgement.
40
   The Director-General of the Department of Arts and Culture lied to the Minister when he said that the name change has been
approved by the SAGNC on the basis that proper consultation took place. This was clearly a political rather than a legal decision.
41
   This situation is untenable when one takes into account the fact that taxpayers’ money is wanted. The writer’s view is that the
officials who ignore due process should be need personally liable for wanted costs, this will make them act ex abundandi cautela
when taking decisions.
42
   The judgement clearly shows that there was no proper consultation, and this is contrary to section 9(1)(c) of the Act.
43
   Vhembe Herald, 15 August 2007, p.1.
44
   In the Chairpersons’ Association v Minister of Arts and Culture and others (2007) SCA 44 RSA.


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              The duty of the state to eradicate the legacy of apartheid in South Africa versus resistance to change:
                                      Critical analysis of the Chairperson’s Association Case

speaking people and a few chiefs from the surrounding villages.
     (1) She has not elicited the views of ANC members of the council and therefore this statement may have
been written in violation of the rule of natural justice, to wit, alteram partern. Be that as it may, the ruling party is
known about its arrogance and if this opinion of the writer in Vhembe Herald is true, then another court battle is
looming and the taxpayers are at a receiving end as they foot the enormous legal costs.
     (2) The battle surrounding the names changes if far from over. The Sowetan45 reports that the Freedom Front
Plus and Afriforum filed a joint notice of motion in the Pretoria High Court indicating their intention to interdict
the Tshwane Metropolitan Council from changing the name of Pretoria to Tshwane on the road signs. This report
also appears in the Daily Sun Newspaper of the same date46.
     Finally, it must be emphasized that the process of names changes is a sensitive one and as already alluded to
elsewhere in this discussion, must be approached with extreme caution and within the spirit of the enabling
legislation47.

                                                                                                        (Edited by Grace P.)




(continued from Page 13)

registration, no registration or legal proceeding is necessary for either the establishment or the dissolution of the
de facto partner relationship. Therefore, the de facto partner relationship may be terminated due to both parties’
mutual agreement, one party’s request, or both parties’ virtual ceasing to live together. According to the
cohabitation system with registration, the procedure of registration is necessary for either the establishment or the
dissolution of the registered partner relationship. If both parties have reached an agreement on the termination of
the registered partner relationship, they should go to the registration authority together to go through the
registration formalities for the dissolution of the registered partner relationship. If one party unilaterally requests
to dissolve the registered partner relationship, he or she may register with the registration authority. Such
relationship is dissolved after the registration authority delivers a notice to the other party. In addition, one or both
parties’ death is the natural cause for the termination of the registered partner relationship. If parties to the
cohabitation get married, such relationship is converted into marriage, and the non-marital cohabitation
relationship is terminated.
      In the event the concerned party to the cohabitation relationship petitions with the court for dissolution of the
non-marital cohabitation relationship, if it is the registered partner relationship, the People’s Court should inform
them to go to the registration authority to complete the registration formalities for dissolution of cohabitation
relationship. Regardless of the registered partner relationship or the de facto partner relationship, the People’s
Court should hear and handle the disputes on the partition of property, child support and so on arising out of the
non-marital cohabitation relationship in accordance with the relevant provisions of China’s non-marital
cohabitation law.
                                                                                              (Edited by Swallow M.)

45
     The Sowetan, 16 August 2007 p.2.
46
     Daily Sun, 16 August 2007 p.14.
47
     Vide p.4, the last para.


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