School’s decision to change name from ‘disgraced’ DF Malan to DF Akademie ‘undeniably rational’ – SCA

A Full Bench of the Supreme Court of Appeal (SCA) has dismissed a review application by four parents and found the school governing body (SGB) of DF Malan High School in Bellville, Western Cape, acted within its powers to rename the school in line with its values of inclusivity and academic excellence.

This means the Afrikaans-medium school’s name can be changed to DF Akademie, as suggested in May 2021. The voting for a new name took place in October 2021. Of the 3,466 votes received, the overwhelming majority, namely 85%, proposed DF Akademie.

The litigation stems from Barend Rautenbach, Johan Smit, Francois Malan and Barend de Klerk taking umbrage against the SGB’s decision after a consultative process in May 2021, to change the name of the school.

In essence, they requested that the SCA review and set aside the decision of Western Cape Division of the High Court Judge Robert Henney, who dismissed the appellants’ application to maintain the name DF Malan, the prime minister from 1948 to 1954, who is considered to be one of the architects of apartheid.

In his ruling, Henney said, “The glorification of his name by an insistence that a school be named after him in post-apartheid South Africa where young people have to embrace a culture based on the values of our Constitution is an insult not only to them, but to the millions of South Africans who suffered at the hands of the apartheid regime.”

The SCA judgment, penned by acting Judge John Smith, found the SGB’s consultation process was comprehensive, fair and rational.

“The name of Dr Malan harks back to the apartheid era, an association that is fundamentally at odds with the school’s ethos of inclusivity and transformation. The governing body’s decision to purge the school of this unfortunate association with a disgraced legacy is thus undeniably rational and in the best interest of the school and all its stakeholders,” he stated.

The ruling further stated that, while the school took pride in its academic success culture and inclusive policies, its controversial name had been an albatross around its neck.

Stigma of name and call for change

The school was established in 1954. Shortly after its establishment, the school obtained the permission of the then prime minister to name the school after him. 

In 2018, an alumnus wrote to the governing body, describing the name as “insensitive and inappropriate” and demanded that the school begin a process to change its name. 

In September 2019, the school received similar letters from a parent of two learners. The pressure on the SGB to reconsider the school’s name intensified during June 2020 when a group of alumni calling themselves “DF Malan Must Fall” joined the fray. 

Their stated objective was to agitate for a name change and to address the “institutional racism” at the school.

In June 2020, the SGB began a process that would allow it to determine if the school’s symbols, including its anthem and name, should be changed, as well as the cost implications thereof. 

Since the Schools Act does not prescribe a procedure for the changing of a school’s name, the governing body was at sea concerning the issue and had to do its best to devise a fair process to enable consultation with stakeholders.

All it had to rely on were circulars from the Department of Education and the Federation of Governing Bodies for South African Schools (Fedsas). Significantly, both circulars presumed that the governing body had the authority to change the school’s name. 

A departmental circular, while instructing governing bodies to submit names to the provincial education department to enable it to check whether other schools bore the same name, expressly stated that a governing body’s authority to change a school’s name was beyond question. 

The Fedsas circular reminded governing bodies that changing a school’s name was a sensitive matter and cautioned that wide consultation with all stakeholders, including parents, teachers, learners and the broader community, had to inform any decisions regarding a school’s symbols, including its name, motto or emblem.

Varied responses

It was then suggested that the governing body create an ad hoc steering committee to oversee the consultation process and advise on potential new names or symbols. On 22 June 2020, the governing body wrote to all parents, students, alumni, and school staff on its database, informing them of its decision to begin a process to reconsider the school’s name and symbols.

The letter elicited a variety of responses, with some expressing misgivings about a name change, others supporting it and some making suggestions about the process that should be followed. 

The SGB then appointed an independent facilitator, Dr Jan Frederick Marais, a theologian of the Ecumenical Board of Stellenbosch University’s Theology Faculty, and a renowned mediation expert, and thereafter a steering committee.

Chairperson of the governing body Andre Roux asserted that although the steering committee members were advised to focus discussions on the school’s symbols and identity, they were not instructed to prohibit discussions on the school’s name.

A draft report was eventually compiled and while everybody agreed with the school’s core values as formulated by Dr Marais, three steering committee members disagreed with the decision to change the school’s name. They were Veronica van Zyl, Mette Warnich – who also filed affidavits in support of the appeal application – and Gert Visser. 

On Marais’s advice, a new task team was thereafter formed to advise the governing body on the formulation of a consultative process with stakeholders; criteria against which proposed new names could be evaluated; and the financial implications of a name change. 

The task team decided that invitations should be sent to all persons on the school’s database to propose new names. After the invitations to comment were sent in April 2021, 626 of the recipients responded – 301 proposing that the name DF Malan be retained and 325 suggesting new names.

However, the SGB decided that only two of the four names submitted by the task team were acceptable, namely Protea Akademie and DF Akademie. In a vote, DF Akademie won 85%.

The appellants in the case took issue with several points. They claimed SGBs did not have the authority to change a school’s name, that the SGB departed from the procedure it originally shared with the school community, stifled debate and failed to properly consult on the name change. 

The SCA judgment dismissed the complaints. 

“I find that in changing the school’s name, the governing body was acting within the ambit of its implied powers in terms of the Schools Act; that the procedure it adopted to consult interested parties was comprehensive, fair and rational; and that the decision to change the school’s name was taken with due regard to, and rationally connected to the information before it. The appeal must therefore fail,” it read. DM