The recent name changes of 25 street names in Pretoria have attracted widespread interest and debate. While the criticism of the City of Tshwane Metropolitan Municipality’s decision has revolved predominantly around the apparent lack of proper consultation with the community prior to the decision to change the street names being taken, it would appear that there are additional causes for concern.
“In particular,” says Andrew Molver, a senior associate – specialising in Administrative Law (i.e. the law regulating the activities of bodies that exercise public powers or perform public functions ) at law firm Adams & Adams, “the South African Geographical Names Council (“SAGNC”), whose standards and guidelines also apply to Municipalities, indicated in its handbook on geographical names (which the Supreme Court of Appeal (“SCA”) has acknowledged as constituting proper policy in this regard) that “geographical names are part of the historical, cultural and linguistic heritage of the nation, which it is more desirable to preserve than destroy.
“The handbook also states that applications for changing existing names can only be made where it is believed that the current name does not adhere to the policies and principles of the SAGNC.”
Molver adds – “the only policy or principle which could possibly be of relevance here is that which aims to avoid names that are “discriminatory or derogatory as regards race, colour, creed, gender, political affiliation or other social factors.”
While a handful of the street names that have been changed, specifically those of certain prominent individuals of the previous dispensation, might arguably be regarded by some as “discriminatory or derogatory”, Molver says it hard to imagine how the same can be said in respect of streets with seemingly neutral and descriptive names, such as what was formerly Church Street.
“Interestingly,” says Molver, “the SAGNC’s imperative to preserve names rather than destroy them was mirrored in the Municipality’s 2007 policy guidelines for the naming of public places and streets, in terms of which a street could only be renamed in exceptional circumstances.”
The Municipality’s policy was, however, revised in November 2010 to merely require that the existing name is considered offensive, that the name change is desirable to promote the goodwill of South Africans, that the change will enhance reconciliation of the community, assist in building the community and redefining society, and that the community strongly participates in actions to change the name.
Notwithstanding this lowering of the threshold, the November 2010 policy guidelines still required at least 51% of the registered voters resident in a street to consent in writing to the change of the street name. Although the new 2012 policy guidelines are still not publicly available from the Municipality’s office or website, it has been well publicised that this requirement is not included in the new policy, which merely requires “city-wide participation”.
The SCA has previously considered precisely the same situation in respect of the Ethekwini Municipality, which effected remarkably similar changes to its policies before renaming multiple streets. “In this case,” says Molver, “it was found that determining whether the notion of due consultation through city wide participation had been satisfied involved assessing “whether the council acted reasonably in facilitating public involvement”. What this actually requires of the Municipality remains unsatisfactorily vague.”
Molver elucidates – “although the Municipality has seemingly endeavoured to find its way around requiring the participation of the residents of any particular street on the back of the SCA’s decision in respect of Ethekwini, it cannot avoid its obligation to abide by the policy guidelines of the SAGNC.
“Therefore, even without clarity as to what would constitute due consultation, the clear absence, at least insofar as streets with neutral names are concerned, of any apparent grounds for offence, or anything discriminatory or derogatory, would render the decision to change the street names susceptible to judicial review on substantive grounds, including arbitrariness and a departure from the purpose of the empowering provision in terms of which the decision to change the street names was taken.”
According to Molver, whether the anticipated review will succeed remains to be seen. In the interim one is left with the ironical disquiet that the ideals sought to be served through name changes, namely promoting the goodwill of South Africans and enhancing reconciliation, community building and the redefinition of society, have unfortunately all been grossly undermined by the manner in which the process has unfolded.
Issued on behalf of Adams & Adams by:
Megan Larter – Crayon Public Relations – 083 605 8859
Andrew Molver – senior associate – Adams & Adams 012 542 6000