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[2016] ZALMPPHC 1
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Masia Traditional Council and Others v Municipal Demarcation Board and Others (1256/2016) [2016] ZALMPPHC 1 (29 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 1256/2016
22/4/2016
Not reportable
Not of interest to
other judges
Revised.
In
the matter between:
MASIA
TRADITIONAL
COUNCIL
FIRST
APPLICANT
TSHIKONELO
TRADITIONAL COUNCIL
SECOND
APPLICANT
TSHIMBUPFE
TRADITIONAL COUNCIL
THIRD
APPLICANT
DAVHANA
TRADITIONAL
COUNCIL
FOURTH
APPLICANT
MULENZHE
TRADITIONAL
COUNCIL
FIFTH
APPLICANT
MASHAU
TRADITIONAL
COUNCIL
SIXTH
APPLICANT
MASAKONA
TRADITIONAL COUNCIL
SEVENTH
APPLICANT
VUWANI
SERVICE
DELIVERY EIGHTH
APPLICANT
AND
DEVELOPMENT FORUM
SINTHUMULE
TRADITIONAL COUNCIL
NINTH
APPLICANT
and
MUNICIPAL
DEMARCATION BOARD
FIRST
RESPONDENT
MINISTER
OF CO-OPERATIVE GOVERNANCE SECOND
RESPONDENT
AND
TRADITIONAL AFFAIRS
PREMIER
OF LIMPOPO
PROVINCE
THIRD
RESPONDENT
MEC
CO-OPERATIVE GOVERNANCE FOURTH
RESPONDENT
AND
TRADITIONAL AFFAIRS, LIMPOPO PROVINCE
INDEPENDENT
ELECTORAL COMMISSION
FIFTH
RESPONDENT
VHEMBE
DISTRICT
MUNICIPALITY
SIXTH
RESPONDENT
THULAMELA
LOCAL MUNICIPALITY
SEVENTH
ESPONDENT
MUTALE
LOCAL
MUNICIPALITY
EIGHTH
RESPONDENT
MAKHADO
LOCAL
MUNICIPALITY
NINTH
RESPONDENT
MUSINA
LOCAL
MUNICIPALITY TENTH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Applicants ask for an order reviewing, setting aside and
referring back to the First Respondent, the Municipal Dermacation
Board (“the MDB” or “the Board) for reconsideration
its demarcation decision published in the Limpopo Provincial
Gazette
No.2586 of 25 August 2015 with reference number DEM 4519 pertaining
to the demarcation of the local municipalities situated
in the Vhembe
District Municipality of the Limpopo Province.
[2]
The Applicants, with the exception of the Eighth Applicant, are all
traditional authorities, established in terms of the Limpopo
Traditional Leadership and Institution Act 6 of 2005, being
traditional communities recognized and institutionalised by the
enactment
of the
Traditional Leadership and Governance Framework Act
41 of 2003
, being legislation envisaged by section 212(1) of the
Constitution to provide a role for traditional leadership as an
institution
at a local level on matters affecting local communities.
[3] In the review
application the Applicants content that the demarcation decision
should be set aside on procedural and substantive
grounds. In
particular the Applicants content that the MDB’s decisions are
invalid because the MDB:
3.1.
followed an unfair procedure in that the map for the Makhado
Local Municipality, attached to the Board’s
decision dated 2
July 2015, demonstrates
that the Mashau and the Masakona
traditional
areas would remain within the municipal area of
Makhado.
These communities are represented by the sixth
and
seventh Applicants. The communities were
happy
to remain with the Makhado Local Municipality and for
that
reason they did not submit any objections to the Board’s
decision; on 25 August 2015 the Board gazetted its
final
decision in the Provincial Gazette
which varied the decisio
made on 2 July
2015, and amongst other things, the Mashau
and
Masakona traditional areas will be excised from the
Makhado
Local Municipality and will be incorporated into the
area
of the new Municipality. That the sixth and seventh
Applicants
were not given a hearing in respect of the
variation
in the Board’s decision.
3.2
separated traditional villages and traditional communities in that
(1) the village of Vhangani falls within the traditional
jurisdiction
of the ninth Applicant. The Board’s decision means that the
village of Vhangani will be removed from Makhado
Local Municipality
and included in the new municipality. The other villages falling
under the jurisdiction of the ninth Applicant
will remain in the
Makhado Local Municipality, (2) the village of Mpheni falls within
the traditional jurisdiction of the fourth
Applicant.
The
Board’s decision means that the village of Mpheni will remain
in the Makhado Local Municipality while the other villages
falling
under the traditional jurisdiction of the fourth Applicant will be
included in the new municipality.
3.3. ignored relevant
considerations in coming to its decision, and
3.4.
made a decision that was not rationally connected to the factors that
it had to consider in terms of the Demarcation Act 28
of 1998.
[4]
The First Respondent, the Municipal Demarcation Board (“the MDB
or “the Board”) opposes the application for
various
reasons including the following:
4.1. The Board is a
special body set up by the Constitution to perform a specific
administrative function. It undertook extensive
public consultation
and considered the request received from the Minister against the
criteria set out in section 25 of the Demarcation
Act before making
both its initial and final decisions.
4.2.
The Board is entitled in terms of Section 21(5)(b) of the Demarcation
Act to confirm, vary or withdraw its initial decision.
After
considering all of the objections received, the Board decided to vary
its initial decision, and the reasons for this variation
are fully
articulated in the first respondent’s answering affidavit.
4.3.
The Board’s mandate is limited by the Demarcation Act and the
relevant factors to be considered are clearly listed in
the Act. The
Board took the areas of traditional rural communities into account as
provided for in section 25(f) of the Demarcation
Act. It is not,
however, entitled to take into account the requirements, convenience
or other needs of traditional rural communities
when exercising its
functions in terms of the Demarcation Act. The Board’s specific
function is to demarcate outer municipal
boundaries which may or may
not include areas of traditional rural communities.
4.4.
The final decision slightly altered the municipal boundaries within
the existing Vhembe District, a decision that is ultimately
left to
the Board to make in terms of the Demarcation Act.
4.5.
The Applicants have not substantiated how their functions as the
leadership of traditional communities would be affected where
some of
their subjects fall under one municipality and others fall under
another municipality. That this assertion is not explained
and it is
unclear how the change in municipal boundaries affects their ability
to perform their leadership functions.
[5]
The Applicants do not seek any relief, against the Second Respondent,
the Minister of Cooperative Governance and Traditional
Affairs (“the
Minister”) as well as the fourth Respondent, the MEC for
Cooperative Governance and Traditional Affairs,
Limpopo (“the
MEC”) The Minister, however, opposes the application purely in
relation to the remedy in the event that
the application succeeds. To
this effect the Minister has filed an answering affidavit. The MEC
opposes the application on limited
grounds only, namely:
5.1.
Lack of authority to act in respect of the Applicants and
5.2.
No proper basis for urgency in the application.
All
the above two grounds of opposition were abandoned by the MEC at the
hearing of this matter. Therefore I need not persue these
issues
further in this judgment.
Factual
Background
[6]
The Limpopo Province presently comprises of the five District
Municipalities, namely Mopani, Capricorn, Waterberg, Vhembe and
Greater Sekhukhune. Each of these five District Municipalities
comprises between 4 and 6 local municipalities. The Vhembe District
Municipality is of concern to this application. It currently
comprises of 4 local municipalities, namely Musina, Mutale, Thulamela
and Makhado.
[7]
The Board’s demarcation decision sought to be reviewed and set
aside in this application seeks to disestablish the Mutale
Local
Muncipality and establish a new municipality comprising of portions
of the Thulamela Local Municipality and Makhado Local
Municipality.
If implemented, the demarcation decision will result in the
disestablishment of the Mutale Local Municipality whilst
retaining
the four local municipality model for the Vhembe District
Municipality.
[8]
During 2014 the Minister and his department embarked on a review of
the country’s 278 municipalities. Their findings were
set out
in a document titled “Back to Basics Approach” which was
subsequently presented at the Presidential Local Government
Summit in
September 2014. The 2014 review of municipalities revealed that
certain municipalities were dysfunctional and needed
urgent
intervention to get them to function properly. They faced challenges
of endemic corruption, dysfunctional councils and poor
financial
management among others. The Back to Basics approach considered a
number of strategies to address the dysfuntionality
of these
municipalities, including whether some should be redemarcated in
order to improve their functionality and economic viability.
This was
outlined in a “Memorandum Framework for Municipal Demarcation
Based on the Functionality, Viability and Sustainability
of
Municipalities” dated 7 January 2015 (“the Framework”).
[9]
The Framework suggested that municipalities that are weak on
sustainability and functionality are likely candidates for
redemarcation.
This could take the form amalgamation with other
municipalities or being designated as District Management Areas.
[10]
The Minister held a Minister and Members of Executive Council
(MINMEC) meeting on 4 December 2014 where it was resolved that
the
provinces should provide a list of municipalities to be considered
for determination or redetermination in order to make them
more
functional and viable. Responses were received from seven provinces,
including Limpopo. The Minister took these responses
into
consideration when he submitted a request to the Demarcation Board on
13 January 2015 to consider the redetermination of the
boundaries of
a number of municipalities. The Minister’s request to the
Demarcation Board was made in terms of section 22
of the Local
Government: Municipal Demarcation Act 28 of 1998 (“the
Demarcation Act”).
[11]
Section 22 of the Demarcation Act states that when the Demarcation
Board determines a municipal boundry, it does so:
11.1.
On its own initiative,
11.2.
On request by the Minister or a MEC for local government,
or
11.3. On request by a
municipality with the concurrence of any other municipality affected
by the proposed determination or redetermination.
Section
22(2) provides that the Minister may, after consultation with the
MECs for local government and the Board, determine priorities
and
reasonable time-frames for determination and redetermination. On the
28 January 2015 the Minister sent a request in terms of
section 22
for redetermination in relation to municipalities in Limpopo.
[12]
On 4 February 2015 the Minister addressed a further letter (Annexure
“MJM3” to Founding Affidavit) to the Demarcation
Board
and submitted a list of municipalities in terms of section 22(2) of
the Demarcation Act “to determine or redetermine
their
boundaries before the 2016 local government elections with the view
to optimising their financial viability.” The Minister’s
request under “DEM4519” asked for the disestablishment of
Mutale Local Municipality with a view to optimising the financial
viability of all the municipalities in the Vhembe District
Municipality.
[13]
The Minister’s request did not specify a particular outcome
from the Demarcation Board other than asking it to consider
the
disestablishment of the Mutale Municipality in order to optimise the
financial viability of the Vhembe District Municipality.
The dispute
before this Court relates to this request of 4 February 2015.
[14] It needs to be
stated at this stage that the Demarcation Board is an independent
body that must perform its function without
fear, favour, or
prejudice in terms of section 3 of the Demarcation Act. The Minister
has no influence over the Board’s decision
and can merely
initiate a request in terms of section 22 of the Demarcation Act.
Issues
for determination
[15]
The following issues are for determination in this application:
15.1.
Whether the alleged failure by the Demarcation Board to consult the
applicants in respect of the delimitation of a new municipality
and
the failure to consult the applicants properly in respect of the
decision to delimit the communities of Mashau and Masakona
into a new
municipality and out of Makhado Local Municipality constitutes a
procedural unfairness which can result in the review
and setting
aside of the Board’s demarcation decision.
15.2. Whether the Board
made a decision that was not rationally connected to the factors that
it had to consider in terms of the
Demarcation Act.
The
Process of Demarcation in general
[16]
The work of the Demarcation Board in performing demarcations is
prescribed by the Demarcation Act. The Board is empowered to
determine municipal boundries in the Republic and is also empowered
to redetermine any municipal boundry previously determined
by it. In
terms of section 22(1) of the Demarcation Act the Board determines or
redetermines municipal boundries either (1) On
its own initiative,
(2) On request by the Minister of Local Government, (3) On request by
an MEC for Local Government or (4) On
request by a Municipality with
the agreement of any other Municipality affected by the proposed
determination or redetermination.
[17]
Once the Board has made its determination or redetermination of a
municipal boundry, which must be published in the relevant
Provincial
Gazette, it must, without delay, send the particulars to the
Independent Electoral Commission (IEC). The IEC is obliged
to make
its views on the effect of the demarcation on representation of
voters in the Council of any affected Municipality within
60 days of
the particulars being referred to it.
[18]
The procedure which the Board must observe is set out in sections 26
to 30 of the Demarcation Act. It entails the following
requirements:
18.1.
Before considering any determination of municipal boundry, the Board
must publish a notice in a newspaper circulating in the
area
concerned stating the Board’s intention to consider the matter
and inviting written representations and views from the
public within
a specified period, not shorter than 21 days - section 26(1).
18.2.
At the same time as publishing the newspaper notice the Board must
convey by radio or other appropriate means of communication
the
contents of the notice in the area concerned – section 26(2).
18.3.
The Board must also send a copy of the notice to the MEC for Local
Government in that province, each municipality which will
be affected
by the consideration of the matter, the Magistrate concerned (if any
Magisterial district is affected) and the provincial
House of
Traditional Leaders if the boundry of a traditional authority is
affected. They are also invited to submit written representations
of
their views within a period not shorter than 21 days – Section
26(3).
18.4. After the period
for written representations and views has expired the Board must
consider the representations and views,
and may-
18.4.1.
hold a public hearing or
18.4.2.
conduct a formal investigation or
18.4.3.
hold a public meeting and conduct an
investigation,
or
18.4.4.
make a decision without holding a public meeting
or
conducting an investigation.
[19]
In terms of section 28(1) if the Board decides to hold a public
meeting, it must publish a notice in the newspaper circulating
in the
area concerned stating the time, date and place of the meeting and
inviting the public to attend the meeting. At the same
time as
publishing the notice in the newspaper, the Board must convey by
radio or other means of communication, the contents of
the notice in
the area concerned. At the public meeting a representative of the
Board must explain the issues that the Board has
to consider,
including any options open to the Board, allow members of the public
attending the meeting to air their views on these
issues, and answer
relevant questions.
[20] If the Board decides
to conduct an investigation, it may conduct the investigation itself
or designate Board members, or other
persons, as investigating
committee to conduct the investigations on its behalf. The
investigation committee must then report and
make recommendations to
the Board - Section 29.
Procedure
followed in this case
[21]
On 4 February 2015, the Second Respondent (“the Minister”)
invoked the provisions of Section 22 of the Demarcation
Act by having
directed a request to the chairperson of the Board to investigate the
possibility of disestablishing the Mutale Local
Municipality in the
Vhembe district in order to optimize the financial viability of the
three remaining local municipalities, being
Thulamela, Musina and
Makhado. The Minister’s request reads:
“
Disestablish
Mutale LM with a view to optimising the financial viability of all
the municipalities in the Vhembe District Municipality”
[22]
On 5 February 2015 a day after receiving the Minister’s letter
dated 4 February 2015, the Board distributed Circular
No 2/2015 to
the Minister, MEC, SALGA, Speakers and Municipal Managers of
Municipalities, Magistrates, Provincial House of Traditional
Leaders,
Government departments and statutory bodies with an interest in
the demarcation. The contents of the circular announced
that the
Minister had made a request to the Board and that the Board intended
to publish a Notice as requested by section 26 of
the Demarcation
Act.
[23]
The circular contained the factors which the Board intended to take
into account in making the determinations. These include
the
independence of people, communities and economies; the need for
cohesive, integrated and unfragmented areas including metropolitan
areas, the financial viability and administrative capacity of the
municipality to perform municipal services efficiently and
effectively;
the need to share and distribute financial and
administrative resources. These factors are as set out in section 25
of the Demarcation
Act.
[24]
The Board requested municipal managers to bring the notices to the
attention of Councillors, Ward Committees, traditional leaders,
community development workers, business and community organisations.
[25]
The Section 26 Notice was published on 9 February 2015 in the Beeld
and 10 February 2015 in the Sowetan. The Notice called
on interested
parties to submit representations within 21 days. Radio adverts ran
between 23 February 2015 and 1 March 2015 on
Phalaphala, Thobela,
Munghana Lonene and SAFM.
[26]
On 30 March 2015 the Board considered the submissions received and
decided to consult members of society by holding meetings.
It further
decided to conduct an investigation by commissioning a study into the
proposed redetermination.
[27]
On 24 March 2015 the Board published circular 5/2015 indicating that
a public meeting was to be held on 13 April 2015 at the
Vhembe
District Municipality. The meeting actually took place on 21 April
2015 at Thohoyandou Sports Centre. The venue, time and
place for such
meeting was published on 10 April 2015 in the Daily Sun, 10 April
2015 in the Star and 13 April 2015 in Sowetan.
The public meeting was
also announced on radio between 6 April 2015 and 10 April 2015.
[28]
Over 1000 people attended the meeting. Most of them supported the
Minister’s request. One of the people present at the
meeting
was Chief Masia, the deponent to the founding affidavit in this
application. It is appropriate and significant to refer
to Chief
Masia’s contribution at the meeting. He said the following:
“
Thank
you Chair, I would like to thank the Chairperson. I will be short and
say a few paragraphs. I am paramount Chief Masia and
I speak on
behalf of Masia Traditional Council. I had been sent here by
Tshimpbufe Traditional Council, Nesengani, Davhana Traditional
Council, Tshikonelo as well sent me and the Mulenzhe too sent me.
There is no one who is supposed to speak on our behalf. The
abovementioned communities, we want to remain in Makhado.
The
two referred communities who are under the area of Thulamela will
always remain under Thulamela. We wrote a submission that
we
submitted in line with said criteria for demarcation. I will end
there. There is no one in the Vuwani area who should represent
us. We
have not sent any person to speak on our behalf”.
[29]
One can deduce from the above quoted words of Chief Masia that almost
all the applicants in this case took part in the consultations
and
deliberations leading to the final demarcation decision. The Chief
talks also of the “submission that we submitted”.
It
cannot be correct where the applicants allege in their papers that
there was never any consultation when it was decided by the
Demarcation Board that their areas be excised from Makhado Local
Municipality to be included in the new municipality.
[30]
The Board also commissioned a study from consultants, City Insight
(Pty) Ltd (“City Insight”) City Insight presented
a
comprehensive report on 15 June 2015 wherein they considered two
possible options in relation to the disestablishment of Mutale
Local
Municipality, and these are:
1. A
reallocation of the wards from Mutale to both Musina and Thulamela
Local Municipalities, leaving only three Municipalities
in the
Vhember District, or
2. Disestablishing Mutale
and creating a new municipality including wards from Thulamela, the
old Mutale and Makhado (a four municipality
option)
The
final report of City Insight proposed the four municipality option.
Evaluation
by the Board and Decision of the Board
[31]
The Board considered all the written and oral representations that it
had received together with the City Insight report and
decided to
adopt the four municipality option.
On
2 July 2015 the Board published Circular 8/2015 which reflected its
decision relating to the determination and called for objections
to
the initial decision within 30 days of the publication of the Notice
in the Provincial Gazette. In this sense the Board was
complying with
the provisions of Section 21(3) and (4) of the Demarcation Act. The
Provincial Gazette was published on 7 July 2015
and reflected the
determination.
[32]
In the 30 day period the Board received numerous objections to the
decision. In the midst of such objections the Board was
obliged to
act in terms of Section 21(5) of the Demarcation Act which section
enjoins the Board to:
(a)
consider any objections,
(b)
either confirm, vary or withdraw its determination,
(c)
publish its decision in paragraph (b) in the relevant Provincial
Gazette.
[33]
In Board meetings held on 17 and 18 August 2015 a decision was made
to vary the determination referred to in Circular 8/2015.
The
decision had the effect of including two traditional communities,
Mashau and Masakona in the Municipal area of the new municipality
although this had not been indicated in Circular 8/2015.
[34]
On 25 August 2015 the Board published its demarcation in the
Provincial Gazette, which for the first time, revealed that the
Mashau and Masakona traditional areas are to be excised from the
Makhado Local Municipality and to be incorporated into the area
of a
newly established municipality.
[35]
The First Respondent contends that the Board had the power to vary
its published determination in terms of Section 21(5)(b)
of the
Demarcation Act. The First Respondent (the Board) submits that it is
entitled to vary its initial decision in terms of Section
21(5)(b)
and for the following reasons:
35.1.
The new configuration of municipalities takes into account social
cohesion,
35.2.
Forced removals also took place between homelands and this divided
people along ethnic lines. The new municipality brings
the majority
of these people back together, precisely because their linguistic and
ethnic diversity had survived the apartheid
legacy.
35.3.
The Board found that there were strong ties between most communities
in the Vuwani part of the new Municipality and decided
that this rich
history was worth preserving.
35.4.
The Board attempted as far as it was possible, to consolidate
traditional authorities in one municipality.
[36]
I agree with the First Respondent’s submission that Section
21(5)(b) of the Demarcation Act gives the Board the power
to vary its
initial decision after it has extended an opportunity for objections
to be made. This is so because the Board is a
specialist body armed
with a legislative mandate to carry out a specific administrative
function. It is in line with the principle
of deference.
The
Applicants grounds for Review
[37]
It is apparent from the founding affidavit that the Applicants rely
upon the following grounds of review:
37.1.
an absence of procedural fairness,
37.2.
a failure to take into account relevant considerations and
37.3.
an absence of rationality.
[38]
Although it is not clear from the application whether the applicants
rely upon the provisions of the Promotions of Administrative
Justice
Act 3 of 2000 (“the PAJA”) or the principle of legality
to set aside the Board’s decision, a Court considering
the
review of a decision of a public official is enjoined to consider
whether the proceedings are governed by the PAJA or not.
See
Minister of Health and Another v. New Clicks South Africa (Pty)
Ltd and Others 2006(6) SA 311 (CC) at paras 436 to 438
National
Director of Public Prosecutions and Others v. Freedom Under Law
2014(4) SA 298 (SCA) at para 29.
I
shall therefore deal with this review application on the basis that
the review is competent under either the PAJA or on the principle
of
legality.
[39]
In the present case the Demarcation Act provides for certain
procedures to be followed prior to a determination of a municipal
boundry. The procedure is similar to that required in terms of
Section 4 of the PAJA.
It
is trite that in each case where administrative action occurs in
terms of a statute, it is a question of construction whether
the
statute requires special procedures to be followed before the action
is taken or not. If they do, the statute must be followed.
Where the
statute does not make such provisions, the administrative action must
ordinarily be carried out consistently with the
PAJA –
Minister
of Home Affairs v. Eisenberg and Associates
[2003] ZACC 10
;
2003 (5) SA 281
(CC) at
para 59.
[40]
Section 4(3) of the PAJA provides for a notice and comment procedure.
In this regard the subsection reads:
“
If
an administrator decides to follow a notice and comment procedure,
the administrator must-
(a)
Take appropriate steps to
communicate the administrative action to those likely to be
materially and adversely affected by it and
call for comments from
them,
(b)
Consider any comments received,
(c)
Decide whether or not to take
administrative action, with or without changes , and
(d)
Comply with the procedures to be
followed in connection with notice and comment procedures as
prescribed.
The
notice and comment procedure set up by the Demarcation Act requires
that the information in the notice should be sufficient
that members
of the public may make meaningful comments.
(Doctors for Life
International v. Speaker of the National Assembly 2006(6) SA 416
(CC); Minister of Education , Western Cape and
Another v. Beauvallon
Secondary School 2015(2)SA L54 (SCA).
[41]
The process which is to be engaged upon by the Demarcation Board is
not an adversarial process, but a process of gathering
information.
The obligations of the Demarcation Board as far as the public’s
commentary is concerned was set out as follows
in a Court decision in
Hartebeespoort Plaaslike Raad v. Munisipale Afbakeningsraad en
Andere
[2002] 2 All SA 391
(T) at 396:
“
Die
raad se plig is om inligting in te win en te oorweeg voor dit
besluit. Die oorweging en besluitproses is nie ‘n adversiewe
proses nie. Die “luister na die ander party” reȅl is
nie in sy volle omvang van toepassing nie. Die wet plaas
die plig op
die raad om insette en later besware aan te hoor en om dit te oorweeg
maar behoudens die prosedere voorgeskryf met
betrekking tot ‘n
vergadering wat die raad ten keuse mag hou, daar is geen plig
ingevolge die Wet om die inhoud van ‘n
inset of beswaar aan
ander belanghebbendes voor te lȇ en die geleentheid tot verdere
insette daarop te verleen nie”
[42]
It is clear from the abovementioned court decision that the procedure
to be followed by the Board is not adversarial and that
the
audi
alteram partem
rule does not apply to the fullest extent. In
other words, in performing its functions the Board is subject to the
requirements,
criteria and reasons set out in the Demarcation Act and
the reasons and motivations by the Minister in his request dated 4
February
2015 are technically irrelevant. Accordingly, the applicants
had no right to be heard again when the Board was to vary its
decision.
The applicants are mistaken in believing that the
procedural rights afforded them under the Demarcation Act and the
PAJA go further
than the notice and comment procedure.
[43]
In the present case there was an initial notification in terms of
Section 26 of the Demarcation Act, and a public meeting –
Section 28 .The Board met each of these requirements. In my view the
complaint by the applicants that there was non-compliance
with
Section 26(2) and (3) and Section 28 has no basis and is thus
rejected.
[44]
The crux of the applicants’ main complaints are the alleged
failure to consult them in respect of the delimitation of
a new
municipality and the failure to consult them properly in respect of
the decision to delimit the communities of Mashau and
Masakona into
the new municipality and out of the Makhado Local Municipality. This
cannot be correct because at the public meeting
the following issues
were explained and discussed:
44.1.
Whether to disestablished the Mutale Municipality, or not,
44.2.
If so, what should be done with the former Municipality.
Two
options were discussed:
44.2.1.
Option one: subsuming Mutale into the other three
municipalities,
44.2.2.
Option two: Creating a fourth municipality from Mutale and the other
municipalities.
The
participants expressed views on all of the issues referred to above.
After the Board considered the objections it varied the
decision in
the light of the objections. The Board is entitled and empowered to
do so by section 21 of the Demarcation Act.
[45] The procedural
rights of members of the public, including the applicants to notice
and to comment were properly respected by
the Board. Accordingly,
there was no procedural irregularity or unfairness.
It
is clear from the contribution of Chief Masia at the public meeting
on 21 April 2015 that the applicants wanted to remain where
they
were. That view was considered by the Board. The complaint of unfair
procedure and not being heard is therefore without merit.
[46] The 4
th
and 9
th
Applicants advance as a ground of review the fact
that a number of their villages forming part of their traditional
communities
will be severed from the remainder of its communities
should the demarcation decision be allowed to stand.
That
the 7
th
Applicant’s Masakona traditional communities will also be
severed from other traditional communities in Makhado from which
they
share their common culture and heritage.
[47]
It is a fact that the new municipality would take part of Makhado and
part of Thulamela. The Board did take note that not less
than twenty
one traditional communities would be affected. In this regard the
Board tested the establishment of the new municipality
against four
categories of the demarcation criteria, which are the following:
47.1. Interdependence of
people, communities and economies,
47.2.
Special development and planning,
47.3.
Governance and functionality and
47.4.
Financial and administrative factors.
[48] In cases where the
decision –maker is confronted with a number of complex policy
decisions (such as the Board was in
the present case) the court
should adopt a large measure of deference to the decision –maker.
In
Logbro Properties CC v. Bedderson N O and Others 2003(2) SA 460
(SCA) at para 51 Cameron JA
said:
“…
.
the
sort of deference we should be aspiring to consists of a judicial
willingness to appreciate the legitimate and constitutionally
ordained province of administrative agencies, to admit the expertise
of these agencies in policy laden or polycentric issues, to
accord
the interpretation of fact and law due respect, to be sensitive in
general to the interests legitimately persued by administrative
bodies and the practical and financial constraints under which they
operate. This type of deference is perfectly consistent with
a
concern for individual rights and a refusal to tolerate
maladministration”.
See
also:
Trencon Construction (Pty) Limited v. Industrial
Development Corporation of SA
Limited 2015(5) SA 245 (CC) at para 44
[49]
In my view the applicants have not been able to show that the
decision of the Board is arbitrary or in any other way lacking
in
rationality. Furthermore, the applicants have also failed to show
that there was some important legitimate consideration which
ought to
have been taken into account, but was ignored.
[50] In the result the
applicants have failed to make out a proper case for relief and their
application for review cannot succeed.
Costs
[51] Counsel for the
Applicants argued that in the event of the application being
unsuccessful the Applicants should not be ordered
to pay the legal
costs in view of the fact that this matter involves an issue of
constitutional litigation. This was conceded by
Counsel for the First
Respondent.
The
general principle in constitutional litigation was laid down in
Biowatch Trust v. Registrar Genetic
Resources and Others 2009(6) SA 232 (CC)
.
In that case the Constitutional Court found that the general rule in
constitutional litigation between a private party and the
State is
that if the private party is successful, it should have its costs
paid by the State, while, if unsuccessful, each party
should pay its
own costs.
Order
[52] The application is
dismissed and each party shall pay own legal costs.
_________________________
E
M MAKGOBA JP
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 21 &
22 April 2016
Judgment
delivered on :
29
April 2016
For
Applicants
: A
Liversage
M
Moleya
Instructed
by
: P N Ace
Ndou Attorneys
For
First Respondent
:
A
Redding SC
PM
Mtshaulana SC
Instructed
by
: Cheadle
Thompson & Haysom
For
Second Respondent :
M Sello
U
Jugroop
Instructed
by
: State
Attorney
For
Fourth Respondent
: L.
Nkosi-Thomas SC
N.
Manaka
Instructed
by
: State
Attorney