SUPPLIED
FILE PICTURE
Kamini Padayachee and Gugu Mbonambi
THE DA has won a hollow victory in its continuing street-renaming battle with the eThekwini municipality, with the Supreme Court of Appeal yesterday setting aside the renaming of nine Durban streets.
However, controversial names such as Andrew Zondo and Che Guevara will remain.
According to the judgment handed down yesterday by Judge Fritz Brand, with four judges concurring, the renaming of nine streets in the first phase of name changes had not been done procedurally.
However, the DA’s appeal against the renaming of 90 other streets in the second phase, including the controversial change of eManzimtoti’s Kingsway to Andrew Zondo and Moore Road to Che Guevara, was dismissed by the court. The renaming process caused an uproar, with many residents opposed to the changes, arguing that some names were insensitive and provocative.
In June last year, Durban High Court Judge David Ntshangase ruled against an application by the DA and IFP to overturn the council’s decision to rename 100 streets, roads and highways and two buildings in two phases. However, the DA was granted leave to appeal to the Supreme Court of Appeal.
The DA and IFP had argued that the process followed was not lawful or procedurally fair, and that the municipality had not complied with its own policies. But the city said Durban residents had been consulted over the changes and the process had been fair.
According to the judgment, the municipality must take down the new names of the nine streets within three months and put up the old names.
The municipality was also ordered to pay the costs of the appeal.
The judge said the municipality had failed to follow a proper public participation process in changing the nine names.
He found the municipality had already proposed new names when it published a notice about the change of the nine names.
“This notice identified the nine streets… and their proposed new names. It did not invite any suggestions for alternative names. More significantly, it afforded members of the public only seven days to submit written comment.”
This was an unreasonable amount of time, which was evidenced in the substantive consultation done in the second phase.
“In the second phase, once the proposed new names had been identified, the public was first given 21 days and then another month to comment. Ward committees were then consulted and they were also given a month to respond before it went before party caucuses. It follows that, in my view, council’s decision to change the names of the nine streets involved did not satisfy the legal obligation imposed on it to engage in a reasonable public participation process.”
Dismissing the appeal against the second phase of renaming, the judge said there had been proper consultation. However, which names were changed and what they were changed to were political decisions.
While the DA claimed that some new names were “provocative and insensitive”, this view was based on their political perspective.
“From a political point of view, the appellant may be right, but bad politics is something for the electorate to decide,” the judge said.
DA caucus leader Tex Collins said the party was vindicated by the ruling. While the party was not opposed to street renaming, it had always believed the process was flawed.
“The order is significant in that it entrenches the rule of law and indicates that the DA, as always, will hold the ruling party up for scrutiny and ensure that every action and decision taken by the council is in the best interests of the ratepayers,” he said.
Outgoing municipal manager Michael Sutcliffe acknowledged that the council had erred in the first phase.
“I accept that in the first phase we did not properly follow through the policy… The other 90 names are outside of the judgment and that process was completely legal,” he said. Sutcliffe said the council had three months to remedy the situation and he would submit a report to the executive committee.
Mayor James Nxumalo said the council would abide by the judgment. “We will do exactly as the judge said and will take off the names. After we have studied the judgment, we will restart the process, correct where we went wrong and resubmit a report to the council,” he said.
Nxumalo said the municipality would advertise the changes and embark on a consultation process with ward committees.
“There is no rush; we must comply with the judgment, take off the street names and a new process will start thereafter,” he said.
