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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU – NATAL, DURBAN

CASE:6608/07

10787/08

In the matter between:

The Democratic Alliance ….................................................FIRST APPLICANT

Inkatha Freedom Party …..............................................SECOND APPLICANT

And

eThekwini Municipality …...........................................................RESPONDENT

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JUDGMENT

Delivered: 03 June 2010

NTSHANGASE, J:

[1] In this matter leave was granted to the second applicant to intervene in case 6608/07, in an application for an order to set aside the ‘administrative decision’ of the respondent in Phase 1 of the streets and places renaming process. In the second application, case 10787/08, both applicants seek an order to set aside Phase 2. Leave was also granted for the two matters to be heard together. The applicants attack the validity of the decision of the respondent to rename the streets and places concerned.

[2] This matter has developed some history. The first application, in which the first applicant sought interim relief on an urgent basis to interdict the Phase 2 process, was dismissed; the application for relief in Phase 1 was adjourned sine die.

Contentions advanced on behalf of the applicants

[3] The applicants attack the validity of the respondent’s renaming decisions and process as unlawful and fatally flawed on the basis that the respondent had acted in violation of their constitutional right to administrative action that is lawful, reasonable and procedurally fair¹ in that –

(a) There was no proper or full consultation process with the general public and affected persons. The applicants claim that they were entitled to make representations on the basis that the decision to rename the streets and places constituted administrative action as defined in s 1 of PAJA, and that such action attracted the guaranteed right to procedural fairness entitling them to be consulted, and a reasonable opportunity to make representations prior to the making of the decisions. This is in apparent reliance on s 6 (2) ( c ) of PAJA which requires administrative action to be procedurally fair;

(b) that the respondent failed to comply with the guidelines of the South African Geographical Names Council² the Local Government Municipal Structures Act³, the Local Municipal Systems Act⁴ the Promotion of Administrative Justice Act⁵, other Constitutional prescripts and also failed to consider or apply the street naming policy of 29 October 2001⁶ in so far as the foregoing are relevant to the decisions and process to rename streets and places.

Contentions advanced on behalf of the respondent

[4] The contentions on behalf of the respondent include that –

1. the decisions to rename the streets and places constitute the exercise of original and deliberative policy and / or law making powers which constitutes legislative or quasi-legislative decisions and not ‘administrative action’;

2. the definition of administrative action in PAJA excludes the executive powers or functions of a municipal council and consequently PAJA does not apply to the impugned decisions; and

3. the applicants have, in any event, failed to make out a case in reliance on any identifiable ground of review in s 6 (2) of PAJA, for the relief sought.

Discussion

[5] I propose to deal first with the determination of the species of action the respondent was engaged with in the decision to rename the streets and places in question; that is, whether the respondent’s decision to rename streets and places pursuant to Phases 1 and 2 of the street renaming process constituted administrative action either under PAJA or s 33 of the Constitution or the exercise of original and deliberative policy and / or law making powers. Indeed the major contest in the argument before me centred on such question. There is, as stated in South African Roads Board v Johannesburg City Council⁷, a recognized difficulty in drawing satisfactorily, in every instance, the distinction between legislative and non-legislative administrative acts.

[6] Section 1 of PAJA, the national legislation passed to give effect to the rights contained in s 33 of the Constitution, defines administrative action, insofar as it is relevant in this matter, as meaning –

‘any decision taken, or any failure to take a decision, by –

1. an organ of state when

   1. exercising a power in terms of the constitution; or a provincial constitution; or

   2. exercising a public power or performing a public function in terms of any legislation; or

2. …

which adversely affects the rights of any person and which has a direct, external legal effect, but does not include

27. . . .

28. . . .

29. the executive powers or functions of a municipal council;

30. the legislative functions of Parliament, a provincial legislature or a municipal council;’

[7] As stated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others [“SARFU”]⁸, the principal function of s 33 of the Constitution is to regulate conduct of the public administration and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. A court or tribunal has the power to judicially review administrative action if the administrator who took it was biased or reasonably suspected of bias or the action was procedurally unfair⁹.

[8] Counsel developed argument with reference to various cases in endeavour to demonstrate analogy with the present matter or to distinguish them from it, to show the character of the respondent’s conduct. With reference to Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council¹⁰, [“Fedsure”], it was submitted on behalf of the respondent that in the present matter, the council is a deliberative legislative body whose members are elected; that the legislative decisions taken by them were influenced by political considerations for which they were politically accountable to the electorate and that ‘administrative action’ as contemplated in s 33 of the Constitution does not include, within its ambit, legislative decisions taken by a deliberative and elected legislative body established by the Constitution. Similar reliance was placed in Steele and Others v South Peninsula Municipal Council and Another¹¹ in which it was held that the decision taken by a politically elected deliberative assembly whose individual members could not be asked to give reasons for the manner in which they had voted, did not fall within the ambit of ‘administrative action’ as contemplated in s 33 of the Constitution.

[9] Attention was directed to various other cases cited in Mbuyiselwa Patrick Sokhela and Others v The MEC of Agriculture and Environmental Affairs (KwaZulu – Natal) and Others¹² all of which have decisions which do not constitute administrative action. A number of other cases, including South African Roads Board v Johannesburg City Council¹³, which pertains to a declaration of a national road as a toll road for levy of fees for payment by users of such road, Van Zyl v New National Party and Others¹⁴ which pertains to a vote of no confidence by the provincial parliament in a delegate to the National Council of Provinces, are in dissimilar contextual genus to the present matter.

[10] In support of the proposition that the respondent’s conduct constituted ‘administrative action’ the applicants refer to the judgment of Chaskalson CJ in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici curiae)¹⁵ (“New Clicks”). In that case the court was seized with the question whether the impugned regulations made by the Minister on the Pricing Committee’s recommendation constituted ‘administrative action’ or not. In counterargument on behalf of the respondent it is submitted with reference to Fedsure¹⁶ that

‘(u)nder the interim Constitution (and the 1996 Constitution) a local government is no longer a public body exercising delegated powers’,

whereas the decision in New Clicks was made under delegated powers. In a further reference to Fedsure¹⁷

‘In addressing this question it is important to distinguish between the different processes by which laws are made. Laws are frequently made by functionaries in whom the power to do so has been vested by a competent legislature. Although the result of the action taken in such circumstances may be legislation’, the process by which legislation is made is in substance ‘administrative’. The process by which such legislation is made is different in character to the process by which laws are made by deliberative bodies such as elected municipal councils. Laws made by functionaries may well be classified as administrative; laws made by deliberative legislative bodies can seldom be so described’.

[11] I note, in the foregoing regard, the following passage in the judgment of Chaskalson CJ who, in New Clicks¹⁸, stated:

‘It would no doubt be possible to give a narrow construction to administrative action in s 33 and to have two systems of review, one under the common law for delegated legislation, and the other under the Constitution for administrative action construed narrowly. But that would not be consistent with the purpose of s 33, which is to establish a coherent and overarching system for the review of all administrative action; nor would it be consistent with the values of the constitution itself. Properly construed therefore administrative action in s 33 of the Constitution, includes legislative administrative action’.

He then proceeded to say –

‘If then, administrative action in s 33 of the Constitution must be construed as including legislative administrative action, how should PAJA be construed?’

[12] According to the foregoing in the judgment of Chaskalson CJ, the effect of the Constitution is that PAJA would govern all reviews. The judgment refers to ‘administrative action’ in s 33 (1) of the Constitution specifically as what includes legislative administrative action, which would, in effect be consistent with the values of the Constitution and the purpose of s 33 which is to establish a coherent and overarching system for the review of all administrative action.

[13] I note as being in consistent context to this, the following in the judgment of Milne JA in SARFU:

‘Secondly, this court has now moved away from the classification of powers as, for example, judicial, quasi-judicial or purely administrative in order to determine whether the audi principle applies. The classifications and their application in administrative law to questions such as the justiciability of acts or decisions on the ground of a failure to observe the dictates of natural justice were originally derived from English Law, which itself has now discarded them.’

Then follows a reference to Administrator, Transvaal and Others v Traub and Others¹⁹ and Craig Administrative Law 2nd Ed at 204 – 5.

[14] All of this tends to throw some weight against the imperative to categorise conduct for the purpose of exerting administrative control over the exercise of power by public authority. I am not unmindful of the following dictum in Fedsure²⁰:

‘Whilst it might not have served any useful purpose under the previous legal order to ask whether or not the action of a public authority was ‘administrative’, it is a question which must be asked in order to give effect to s 24 of the interim Constitution and s 33 of the 1996 Constitution.’

This represents the present state of the law. It is recognized in a recent decision in Lindiwe Mazibuko and Others v City of Johannesburg and Others²¹

[15] Now, the power of engagement of judicial review under PAJA in this matter is dependent on the impugned conduct of the respondent being of the character of administrative action, the relevant part in the definition whereof, in this matter, is as contained in para (a)(ii) of s 1 of PAJA. In terms thereof, in order to constitute administrative action, the renaming of the streets and places must meet the requirement of being (i) a decision, (ii) by an organ of state, (iii) exercising a public power or performing a public function, (iv) in terms of any legislation, (v) that adversely affects someone’s rights, (vi) which has a direct, external legal effect, and (vii) that does not fall under any of the exclusions listed in s 1 of PAJA.

[16] In determining whether or not conduct constitutes administrative action, the focus of enquiry is not on the arm of government to which the relevant decision-maker belongs, but on the nature of the power exercised. It follows that some acts of members of the executive in both the national and provincial sphere of government will constitute ‘administrative action’ as contemplated in s 33 of the Constitution, but not all acts by such members will do so²². Accordingly, the fact that the decision was taken by a politically elected deliberative assembly whose members could not be asked to give reasons for the manner in which they had voted, is not decisive. The question is whether the task itself is administrative or not, a fact determined by an analysis of the action, best done on a case by case basis.

[17] I have endeavoured to understand the real basis of the applicants’ attack of the respondent’s conduct in this matter. I accept it on the basis of the applicants’ heads of argument to be that

‘(t)he applicants’ complaint is not that they are opposed to the street names being changed but that they are of the view that the manner adopted by the respondent in the name changing process was fatally flawed’.

In this regard reference is made to s 74 of the Municipal Structures Act. The ‘applicants’ summation of argument’ also deals with the matter on the basis that

‘the application concerns not an executive decision, but the procedure adopted by the respondent in implementing the decision to change the street names.’

It further states the basis of attack as being that

‘(t)he decision to rename the streets was an executive decision. That decision is not reviewable but the procedure adopted by the respondent in implementing the decision to change the street names is reviewable as an administrative decision and as such the action in carrying out the decision has to be lawful, reasonable and procedurally fair as contemplated by section 33 (1) of the Constitution.’

[18] I understand the argument on behalf of the applicants as being that decisions were taken; that such decisions were followed by implementation and that, as an exercise of executive powers or functions of a municipal council, such decisions as were followed by implementation were not reviewable under PAJA.

[19] What does pose a puzzle to me is the applicants’ proposition to the effect that ‘implementing the decision to change the street names is reviewable as an administrative decision’. No clarity was provided as to the form of implementation which, as contended for on behalf of the applicants, should have followed subsequent to the taking of decisions on 27 February 2007 and 28 May 2008.

[20] I had understood the applicants’ target of attack in the present proceedings, in case 6608/07, as being –

‘the decision of the respondent made by its Executive Committee on the 27 February 2007 to rename the following streets: …’

(my underlining).

Such streets and places are named in paragraph 1(a) of the notice of motion. In case 10787/08 I had understood the target of attack as being

‘the administrative decision by the respondent to effect the renaming of certain streets under phase 2 of its renaming process. ’

(my underlining).

To obviate misunderstanding of the meaning of ‘to effect the renaming’ in case 10787/2008, it is necessary to refer to the following clarifying deposition of Mr John Henry Steenhuisen in paragraph 6 of the founding affidavit:

‘This application concerns the respondent’s renaming of certain geographical names, more particularly the names of certain streets, freeways and buildings located within the municipal boundaries of the eThekwini Municipality’.

(my underlining).

[21] It now appears, according to the foregoing as presented in closing argument on behalf of the applicants, that the target of attack has mutated to be one on the decision of the respondent to implement its decisions to rename the streets and places and that it is accordingly such decision which in fact constitutes ‘administrative action’.

The earlier decisions, as the argument goes, constitute the exercise of executive powers or functions of a municipal council not susceptible to review under PAJA.

[22] Implementation of decisions in the present matter would, in my view, not constitute ‘administrative action’. The relevant part of the definition of ‘decision’ as a constituent requirement in the definition of ‘administrative action’ is, in s 1 of PAJA, insofar as it is relevant in this matter, as follows:

‘decision means any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be under an empowering provision …’

(my underlining).

The foregoing line of attack now substitutes implementation as being of administrative nature. It is implementation of legislation which would, in fact, ordinarily constitute ‘administrative action’ within the meaning of s 33 of the Constitution. As was held in SARFU²³,

‘..one of the responsibilities of the President and Cabinet Members in the national sphere (and premiers and members of executive councils in the provincial sphere) is to ensure the implementation of legislation. This responsibility is an administrative one, which is justiciable, and will ordinarily constitute ‘administrative action’ within the meaning of s 33.’

[23] The impugned decision in regard to Phase 1 of the renaming process reflects in the Minutes of eThekwini Council of 27 February 2007²⁴. The minutes reflect such decision in a resolution ‘adopted by majority’ vote ‘in favour of the substantive recommendation’ of the Executive Committee

‘that the proposed and reviewed new names for the named streets and buildings within the eThekwini Municipal area as indicated on the following schedule be approved’: -

EXISTING NAME	NEW NAME
New Stadium	Moses Mabida Stadium
International Convention Centre	Inkosi Albert Luthuli International Convention Centre and Arena
Victoria Embankment	Margaret Mncadi Avenue
Stanger Street	Stalwart Simelane Street
NMR Avenue	Masabalala Yengwa Avenue
Point Road	Mahatma Gandhi Road
Alice Street	Johannes Nkosi Street
Broad Street & Grey Street	Dr Yusuf Dadoo Street
Commercial Street	Dr AB Xuma Street
Northern Freeway M4	Ruth First Freeway

[24] The impugned decision in regard to Phase 2 of the renaming process reflects in the Minutes of eThekwini Council of 28 May 2008²⁵. The minutes reflect such decision in a resolution whose relevant part to this discussion reads:

‘With 161 Councillors present, 126 Counsillors (ANC – 109, MF – 13, TA -2, ID -1 and NADECO – 1) voted in favour and 35 Councillors (DA – 32 and ACDP – 3) voted against.

Thereafter it was

RESOLVED

1.1 That the 99 proposed street name changes as reflected on the list attached hereto, as Annexure “A” be approved.

2. …’

[25] It is not now in contention that the respondent does have the power to assign names to streets and places which fall within its municipal jurisdiction and that such includes the right to rename streets and places²⁶ .

[25] The South African Roads Board case, though not contextually similar to the present case, does bear a number of features similar to the present matter. The appellant in that case declared a national road N13, a toll road. The respondent, the City Council in whose area the N13 fell, would suffer an unplanned for congestion on its roads to which road users would divert from the national road to escape payment of the toll fees. In that regard the council had an interest. The decision would also affect the road users. They would have to pay toll fees. The court decided that the decision challenged by the City Council was not of an administrative nature and, accordingly, that such decision did not attract the application of the audi alteram principle. The present matter presents to me a close relationship to matters which are not administrative.

[26] In the present matter it is a fact that a person who lives in the affected streets may be more affected than persons who live elsewhere within or outside of the municipal jurisdiction of the respondent who use the affected streets from time to time. I have perused the minutes which contain the substance of the decisions. I have noted the objections but also that finally when the council took the decisions it did so in a manner peculiar to elected bodies, after deliberation. The effect of the decisions persuades me to the conclusion that the renaming of the streets and places does, as was contended on behalf of the respondent, constitute the exercise of power which affects equally members of the community at large. Such a decision is not closely related to matters which are administrative in nature.

[27] In the light of the applicants’ apparent abandonment of their original line of attack it appears that the validity of the decisions to rename streets and places as having been born of a deficient action which was procedurally unfair, cannot constitute an issue. The applicants themselves concede the respondent’s decisions as having been pursuant to the exercise of executive powers, and, as was held in Mazibuko²⁷

‘where a decision is taken by a municipal council in pursuance of its legislative and executive functions, therefore, that decision will not ordinarily be administrative in nature. This principle is recognized in paragraphs (cc) and (dd) of the definition of administrative action contained in PAJA which expressly excludes executive or legislative powers or functions of a municipal council’.

[28] In order for the power of judicial review under PAJA to be engaged in this matter, the conduct of the respondent would need to be found to constitute ‘administrative action’. It does not, in my view, constitute ‘administrative action’ within the meaning of s 33 of the Constitution.

The applicants’ complaints

[29] A major part of the applicants’ submissions was devoted to showing the respondent’s failure to engage in proper and full consultation with members of the public including the ‘addressees’ as people affected by the renaming of the streets and places. In regard to the audi alteram partem principle Milne JA, in South African Roads Board²⁸, stated

‘I would have thought that good administration would demand some measure of consultation with the local authority before taking such a decision; all the more so where the local authority is one which controls a vast network of roads serving the main industrial and commercial centre of the Republic. Be that as it may, the question is whether the commission was obliged in law to give the City Council an opportunity to be heard before arriving at this decision’

(my underlining).

[30] In Fedsure²⁹, the last question posed by Milne JA in South African Roads Board finds the following answer from O’Regan J:

‘The Council is a deliberative body whose members are elected.’

She further stated

‘The deliberation ordinarily takes place in the assembly in public where the members articulate their own views on the subject of the proposed resolutions. Each member is entitled to his or her own reasons for voting for or against resolution and is entitled to do so on political grounds. It is for the members and not the courts to judge what is relevant in such circumstances. Paragraphs 24 (c) and (d) cannot be sensibly applied to such decisions³⁰ ’

[31] In Steele and Others³¹ where the position is similar to the present matter in regard to the taking of the decision, the following was stated in regard to the resolution of the council:

‘The council resolution was carried by a majority. It was not a decision taken by a functionary who could be expected to furnish reasons. It was a decision taken by a politically elected deliberative assembly whose individual members could not be asked to give reasons for the manner in which they had voted’

Public participation occurs through political structures.

[32] In regard to the alleged violation and applicability of the guidelines set by the SAGNC, counsel for the applicants conceded that the local authorities were removed from the jurisdiction of the SAGNC Act and that “they are not bound by it”.

[33] There is also a complaint that the advertisement in respect of Phase 1 of the renaming process³² merely presented the public with a fait accompli after names had been chosen. I pause here to state that I have earlier, in this judgment, dealt with the aspect of consultation. In regard to the complaint, it is important to recognize that the power to assign names to streets and places in fact reposes in the council, as constituted by representatives of various parties. The disclosure of the names, in my view, provided the public with an opportunity to interrogate their suitability and to make representations or provide advice for consideration by council. It must also be borne in mind that

‘(c)onsultation does not guarantee that the participants will be able to affect the final decision: a public authority which is bound to consult is not bound to follow the views of those it consults nor does consultation require eventual agreement between the consultor and the consulted.³³’

I note also the complaint that ‘section 28’ instead of ‘section 208’ was quoted. While the failure to quote the section correctly is to be decried, the error would cause no detraction from the intended purpose of the advertisement. I perceive no illegality in presenting names, as were contained in the advertisement, to members of the public as names intended to be assigned to the streets and places.

[34] Much of what comprises the complaint in regard to Phase 2 has been dealt with in the treatment of the complaints in respect of Phase 1. I may here deal with the complaint with reference to s 74 of the Municipal Structures Act that ward committees, who replaced ‘addressees’, were required to make recommendations also on matters outside their respective wards when s 74 (a) provides that a ward committee ‘may make recommendations on any matter affecting its ward’. I do not understand this to mean that in making recommendations outside the confines of its ward the ward committee would necessarily relinquish its responsibility to make recommendations on the matter affecting its ward. In fact it broadened the extent of consultations.

[35] There is also a complaint of lack of consultation by ANC members of the council with the applicants’ members of council. A reading of some minutes of meetings does reveal consultations, but also lack of consensus at such consultations³⁴. By way of example, the following appears in the Second Report of Executive Committee dated 27 May 2008 where, under the heading ‘Recommendations for Phase 2 of the Renaming of Streets and Buildings (11/2/1),

‘At that stage the DA requested to caucus and on returning expressed their distress that three bilateral meetings that had been convened with the ANC and no consensus was reached. Suggestions had been submitted to the ANC but to no avail and therefore it was pointless to consider each name on the list. It was also contended, by the DA, that the process was flawed.’

[36] The following appears from the ‘Second Report of Executive Committee (special meeting held 23 May 2008)’, also under the heading ‘Recommendations for Phase 2 of the Renaming of Streets and Buildings (11/2/1)³⁵:’

‘In response the following points were highlighted by Executive Committee Member of ANC:

Three bilateral engagements had been convened and the willingness to engage in a fourth was expressed, taking cognizance of the fact that such bilateral would encompass views of all parties’.

The following is also contained in the minutes of the day:

‘At this, after the mayor having re-iterated the need for each name on the list to be considered on its merit, Executive Committee Members Steenhuisen, Gaillard and Ndlela walked out and abandoned the meeting’.

From the same minutes also appears the concerns of Executive Committee Member Ndlela who

‘pointed out that suggestions from IFP had not been considered …’

[37] From the foregoing it is clear that consultations occurred but that no consensus was achieved at such consultations. The remedy lies ultimately at the stage of the decision-making of the council where the various parties are represented and exercise their vote.

[38] In regard to the unsuitability of some names, the remedy again lies at the stage of the decision-making of the council. I do not consider the task of the court in this matter as being to decide whether any of the streets and places should have been assigned different names. In a passage which enjoins the courts to recognize what falls within the province of their function, Schutz JA, in Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Fishing (Pty) Ltd³⁶ stated:

‘During the course of the argument for Phambili we were frequently told that something that the Chief Director had done was “wrong”… That is not our job. I agree with what is said by Hoexter (op cit at 185):’

“The important thing is that Judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal”.

[39] There is another complaint that the council resolution of 29 October 2001 was replaced with one which substituted ‘consultation with addressees’ with ‘consultation with ward committees’. This, which also occurred by resolution of the council, was not, in my view, unlawful.

Conclusion

[40] In all the circumstances both applications must, in my view, fail.

Costs

[41] I consider this matter as one which was, in the interests of justice, to be heard. While the successful party should, as a general principle, have his or her costs, I do not think that in this matter, which raises constitutional issues, the applicants ought to be denied the benevolence of the general approach in regard to the issue of costs in such matters. (See Biowatch Trust v Registrar Genetic Resources and Others, 2009 (10) BCLR 1014 (CC)).

The order

[41] In the result I make the following order:

(a) Both applications are dismissed.

(b) There shall be no order as to costs.

APPEARANCES:

FIRST AND SECOND APPLICANTS: Mr HP Jeffereys SC (with him Mr F Abraham)

Instructed by Goodrickes, Durban; and

Lourens de Klerk Attorneys, Durban.

RESPONDENT: Mr AM Stewart SC (with him Mr V Naidu)

Instructed by Linda Mazibuko And Associates, Durban.

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