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[2006] ZACC 2
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Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC) (27 February 2006)

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NGCOBO J
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 73/05
MATATIELE MUNICIPALITY First
Applicant
POVERTY ALLEVIATION
NETWORK Second Applicant
CEDARVILLE AND DISTRICT FARMERS
ASSOCIATION Third Applicant
MATATIELE DRAKENSBERG TAXI
ASSOCIATION Fourth Applicant
MATATIELE CHAMBER OF
COMMERCE Fifth Applicant
GOVERNING BODY OF THE KING
EDWARD
HIGH SCHOOL Sixth Applicant
GEORGE MOSHESH TRIBAL
AUTHORITY Seventh Applicant
MALUTI CHAMBER OF
BUSINESS Eighth Applicant
MATATIELE AND MALUTI COUNCIL OF
CHURCHES Ninth Applicant
MPHARANE COMMUNITY BASED
ORGANISATION Tenth Applicant
ZIZAMELE PRESCHOOL TRAINING
PROJECT Eleventh Applicant
versus
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA First Respondent
MINISTER OF PROVINCIAL AND LOCAL
GOVERNMENT Second Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Third Respondent
THE PREMIER OF THE EASTERN
CAPE Fourth Respondent
THE MEMBER OF THE EXECUTIVE
COUNCIL OF THE
PROVINCE OF THE EASTERN CAPE FOR
LOCAL
GOVERNMENT Fifth Respondent
THE PREMIER OF
KWAZULU-NATAL Sixth Respondent
THE MEMBER OF THE EXECUTIVE
COUNCIL OF
THE PROVINCE OF KWAZULU-NATAL
FOR LOCAL
GOVERNMENT Seventh Respondent
MUNICIPAL DEMARCATION
BOARD Eighth Respondent
SISONKE DISTRICT
MUNICIPALITY Ninth Respondent
ALFRED NZO DISTRICT
MUNICIPALITY Tenth Respondent
O.R. TAMBO DISTRICT
MUNICIPALITY Eleventh Respondent
UMZIMKULU MUNICIPALITY Twelfth
Respondent
UMZIMVUBU
MUNICIPALITY Thirteenth Respondent
together with
THE SPEAKER OF THE NATIONAL
ASSEMBLY Fourteenth Respondent
THE CHAIRPERSON OF THE NATIONAL
COUNCIL OF
PROVINCES Fifteenth Respondent
Heard on : 14 February 2006
Decided on : 27 February 2006
JUDGMENT
NGCOBO J:
Introduction
This case concerns the
constitutional validity of the Constitution Twelfth Amendment Act
2005 (“the Twelfth Amendment”) and
the Cross-Boundary
Municipalities Laws Repeal and Related Matters Act 23 of 2005 (“the
Repeal Act”). In terms of these legislative
enactments, the
boundary between the province of KwaZulu-Natal and the province of
the Eastern Cape was altered so that the area
which was Matatiele
Local Municipality (“Matatiele Municipality”) was transferred
from KwaZulu-Natal to the Eastern Cape;
new municipal boundaries
were created as a consequence. In view of the importance of the
constitutional issues involved in this
case, we would have
preferred to have had more time to consider these issues and
formulate our view. Time does not permit this.
The local
government elections will be held on 1 March 2006. And our
decision will have an impact on those elections. In view
of the
urgency of the matter there is a pressing need to announce our
conclusions and basic reasoning within the shortest possible
time.
Although on the papers there
is a substantial issue as to whether the Twelfth Amendment was
passed in accordance with the procedure
set out in the
Constitution, this point was not taken in arguable. For reasons
that appear later on in this judgment, we have
decided to call for
further submissions on this issue. In this judgment we consider
the main contention that was advanced in
support of the
constitutional challenge to the Twelfth Amendment, namely, that in
passing the Twelfth Amendment, Parliament unconstitutionally
usurped the powers of the Municipal Demarcation Board to
re-determine municipal boundaries. This judgment does not decide

the question whether the Twelfth Amendment was enacted in
accordance with the procedure set out in the Constitution. This
issue
will be considered when this Court finally decides the
application.
The applicants also challenged
provisions of the Repeal Act. It is not appropriate to determine
that challenge till the constitutionality
of the Amendment Act has
been finally determined. In the circumstances, we do not consider
that challenge now. If the applicants
succeed on that challenge in
due course, just and equitable relief will have to be formulated at
that stage. It is accordingly
not necessary at this stage to
decide whether the applicants are entitled to direct access in
relation to the Repeal Act. We
also do not decide the question of
costs. This will be decided when the remaining issues in this case
are finally determined.
The applicants, who include
the Matatiele Municipality and a diverse group of business people,
educators, associations and non-governmental
entities residing in
Matatiele, are challenging the constitutional validity of the
Twelfth Amendment and the Repeal Act. The
substantial relief
sought by the applicants is an order that:
“
2. that the Constitution
Twelfth Amendment Act is unconstitutional alternatively, ultra vires
in that it in effect:
re-demarcates the Matatiele
Municipality;
changes the boundary and
composition of the Matatiele Municipality;
moved the provincial boundary
with the effect that the Matatiele Municipality is moved from its
present District Municipality
and Province to another District
Municipality and Province;
without complying with the
process set down therefor in the Constitution.
that Applicants be granted
leave to bring the application for the relief in this paragraph by
direct access.
that the
Cross-Boundary
Municipalities Laws Repeal and Related Matters Act is
unconstitutional alternatively, ultra vires in that it
re-demarcates the Matatiele Municipality in a manner which is
inconsistent
with the Constitution and ultra vires the
Constitution or other national legislation.
that it is declared that in
passing and signing the said Acts Parliament and the President
respectively have failed to fulfill
a constitutional obligation to
Matatiele Municipality in that the constitutional process for
re-demarcation thereof has been
unconstitutionally circumvented,
and that First, Second and Third Respondents have not complied with
the principles of co-operative
government in the management of this
dispute over the re-demarcation of Matatiele Municipality.
that First, Second and Third
Respondents be ordered to pay the costs of this application.
that Applicants be granted
such further and/or alternative relief as to this Court seems
meet.”
The President of the Republic
of South Africa, the Minister of Provincial and Local Government
(“the Minister”) and the Minister
of Justice and Constitutional
Development who are first, second and third respondents
respectively, are resisting this challenge.
The remaining
respondents have decided to abide the decision of the Court. They
are the Premier of the Eastern Cape; the Member
of the Executive
Council of the Province of the Eastern Cape for Local Government;
the Premier of KwaZulu-Natal; the Member of
the Executive Council
of the Province of KwaZulu-Natal for Local Government; the
Municipal Demarcation Board; Sisonke District
Municipality; Alfred
Nzo District Municipality; O.R. Tambo District Municipality;
Umzimkulu Municipality; Umzimvubu Municipality
;
the fourth
to thirteenth respondents respectively. The Speaker of the
National Assembly and the Chairperson of the National Council
of
Provinces (“NCOP”) subsequently sought, and were granted, leave
to intervene on the side of the respondents.
The constitutional challenge
was lodged two days before Christmas, with a request that it be
dealt with as a matter of urgency.
It was said that the matter was
one of extreme urgency and national interest which called for an
expedited hearing. It was
also said that the Executive had moved
with great haste to complete the objects of the impugned
legislation before the municipal
elections, which the Matatiele
Municipality had been advised were due to be held on 1 March 2006.
This date had not
yet been formally proclaimed at the time.
It has since been proclaimed.
1
In order to set the scene for
this legal drama, it will be convenient to set out first, how
Matatiele Municipality came to be
established as a local
municipality; second, to say a word on the cross-boundary
municipalities which triggered the legislation
now under challenge;
and finally, to sketch the history of the re-determination of the
boundaries of Matatiele Municipality which
eventually led to the
present constitutional challenge. This background provides the
context in which the constitutional challenge
must be considered.
Background
A. The establishment of
Matatiele Municipality
The boundary between
KwaZulu-Natal and the Eastern Cape had been an issue of some
concern to the government for many years. The
present-day
Matatiele Municipality and the Maluti area originally constituted a
single area. Matatiele was an urban development
while Maluti was a
rural area. In 1978, the Steyn Commission recommended that
Matatiele and Maluti be separated, and that Maluti
become part of
the Transkei while Matatiele remain in KwaZulu-Natal. This was in
line with the apartheid policy of separate
development and
relocating Africans into rural areas which formed homelands such as
the Transkei while ensuring that whites remained
in the urban
areas.
When the interim Constitution
commenced on 27 April 1994, it established the nine provinces in
the Republic and determined their
provincial boundaries by
reference to magisterial districts established in terms of the
Magistrates’ Courts Act 32 of 1944
, as amended.
2
The present-day local municipality of Matatiele was designated the
magisterial district of Mount Currie, in KwaZulu-Natal.
The
present-day area of Maluti was included as part of the magisterial
district of Matatiele, in the Eastern Cape. These provincial
boundaries were adopted by the Constitution.
3
Thus the magisterial district of Matatiele as described in the
Interim Constitution represents the area currently referred to
as
“Maluti”, while the magisterial district of Mount Currie as
described in the Interim Constitution represents the area
currently
referred to as Matatiele Municipality.
4
During 1995, the government
appointed the Trengove Commission to inquire into and make
recommendations concerning, in part, the
feasibility of: first,
excluding portions of the magisterial district of Matatiele
(present-day Maluti) and surrounding areas
from the Eastern Cape
and including them in KwaZulu-Natal; and second, excluding the
magisterial district of Mount Currie from
KwaZulu-Natal and
including it in the Eastern Cape. A majority of the Trengove
Commission recommended that the District of Mount
Currie be excised
from the province of KwaZulu-Natal and incorporated into the
province of the Eastern Cape. A minority recommended
that Mount
Currie remain in KwaZulu-Natal. Neither option was adopted.
During 2000, the Board
established the Matatiele Municipality in the area that was
described as Mount Currie in the interim Constitution.
This
municipality was incorporated into Sisonke District Municipality in
KwaZulu-Natal.
5
A small portion of Sisonke District Municipality was surrounded by
Umzimvubu Local Municipality which formed part of Alfred
Nzo
District Municipality in the Eastern Cape.
6
In this manner, the present day Matatiele Municipality came to be
established in KwaZulu-Natal. The magisterial district of
Matatiele (the Maluti area) was demarcated by the Board to form
part of a local municipality known as Umzimvubu and placed within
Alfred Nzo District Municipality, which fell within the Eastern
Cape.
B. Cross-boundary
municipalities
The determination of
provincial boundaries by reference to magisterial districts
resulted in some municipal boundaries straddling
provincial
boundaries. To manage this situation, the Constitution was amended
in order to introduce the concept of cross-boundary
municipalities.
Section 155(6A) of the Constitution authorised the establishment
of cross-boundary municipalities.
7
This provision permitted a municipal boundary to be established
across a provincial boundary where this could not be avoided.

However, the establishment of cross-boundary municipalities was
subject to the consent of the provinces affected and national
legislation authorising the establishment of a cross-boundary
municipality. To give effect to section 155(6A), the Local
Government:
Cross-Boundary Municipalities Act 29 of 2000
(“Cross-Boundary Municipalities Act”) was enacted. This
statute authorised
the Executive Councils responsible for local
government in the provinces which share municipalities to establish
cross-boundary
municipalities. The provinces concerned were listed
in the schedule to the statute. A total of sixteen cross-boundary
municipalities
were established under the scheme.
Although this list did not
include any municipalities in KwaZulu-Natal, the government appears
to have considered the question
of the boundary between
KwaZulu-Natal and the Eastern Cape as an issue that was related to
cross-boundary municipalities. This
was largely because certain
farms, which by proclamation formed part of KwaZulu-Natal, fell
within the Eastern Cape while Umzimkulu,
which according to a
proclamation forms part of the Eastern Cape, fell wholly within
KwaZulu-Natal. The government describes
Matatiele as a
“cross-boundary jurisdictional enclave similar to cross-boundary
municipalities.”
C. Abolition of
cross-boundary municipalities
Since their inception,
cross-boundary municipalities have proved to be difficult to
administer. The model that was adopted to
administer them was
called a joint administration model, which was sanctioned by
section 155(6A) of the Constitution and the
provisions of the
Cross-Boundary Municipalities Act. In terms of this model, the
MECs for Local Government of the provinces
in which the
cross-boundary municipalities were established exercised joint
executive authority in these municipalities. The
exercise of joint
executive authority in cross-boundary municipalities presented a
number of political, economic and other practical
problems.
These administration problems
were captured as follows in a 2002 government report on
cross-boundary municipalities:
“
It should be stressed that
the joint exercise of executive authority only applies to the MECs
for local government and not to other
provincial MECs and
functionaries. If provinces affected by a cross-boundary
municipality opt for this system, the other functionaries
of these
provinces would have to continue exercising their statutory powers
in the areas under their jurisdiction. The result
would be that
legislation that is the responsibility of the local government MECs,
would be jointly administered in the cross-border
area whilst other
provincial legislation will have to be administered in the area by
the two provinces separately. The legislation
of the different
provinces would still apply to the separate provincial segments of
the cross-boundary area. The joint administration
model therefore
requires consensus and uniformity between the MECs, as far as local
government matters are concerned. But as far
as other matters are
concerned e.g. health; housing; traffic control and vehicle
licensing; ambulance services; auditing etc.,
each province
exercises its executive authority in respect of such matters
independently and without consulting the other affected
province.”
8
The problems associated with
the administration of the cross-boundary municipalities led to huge
financial burdens and costs and
often undermined service delivery.
According to the government, eight of the sixteen cross-boundary
municipalities “experience
service delivery challenges
necessitating national support intervention.” Various reports
that were commissioned on the cross-boundary
municipalities
recommended that the concept of cross-boundary municipalities
should be abolished. As a consequence of these
recommendations,
the government took a decision as early as November 2002 to do away
with cross-boundary municipalities and to
review provincial
boundaries so as to ensure that all municipalities fall in one
province or the other. It was this political
decision that led to
the enactment of the Twelfth Amendment and the Repeal Act.
There is no explanation on the
papers why the government left the implementation of this decision
until about eight months before
the elections were due to be held.
This delay has regrettably put undue pressure on everyone who has
had to deal with the Twelfth
Amendment and the Repeal Act,
including this Court which now has to consider important
constitutional issues raised by them within
a short period of time.
D. Re-determination of the
boundaries of Matatiele Municipality
The convenient starting point
in setting out the immediate events that led to the
re-determination of Matatiele Municipality,
is the August 2005
request for the re-determination of Matatiele by the Minister of
Provincial and Local Government. The Minister
requested the
re-determination of boundaries of Matatiele Municipality in terms
of section 22(1)(b) of the Local Government Municipal
Demarcation
Act.
9
In that request, the Minister requested the Board to redetermine
the boundaries of Matatiele Municipality by: first, excluding
Matatiele Municipality from Sisonke District Municipality in
KwaZulu-Natal and incorporating it into Alfred Nzo District
Municipality
in the Eastern Cape; second, excluding from Matatiele
the small area surrounded by Umzimvubu Local Municipality and
incorporating
it into Umzimvubu Local Municipality; third,
excluding Maluti area from Umzimvubu Local Municipality and
incorporating it into
Matatiele Municipality; and finally,
excluding Umzimkulu Local Municipality from Alfred Nzo District
Municipality and incorporating
it into Sisonke District
Municipality in KwaZulu-Natal.
On 1 September 2005, the Board
invited comments on the Minister’s proposal. The Board received
some 3248 individual petitions
and a petition of 10 000 signatures
from the Matatiele/Maluti Mass Action Committee, a coalition of
organisations in the Matatiele/Maluti
area, in response to the
proposed demarcation. After it had considered the comments, the
Board, on 18 October 2005, issued its
provisional re-determination
of the boundaries of Sisonke District Municipality, Matatiele
Municipality, Alfred Nzo District
Municipality, O.R. Tambo District
Municipality and Umzimvubu Local Municipality.
10
The provisional
re-determination of the Board differed in a material respect from
that which had been requested by the Minister.
While the Minister
had requested that Matatiele Municipality be included in Alfred Nzo
District Municipality in the Eastern
Cape, the Board proposed that
the municipality remain in Sisonke District Municipality in
KwaZulu-Natal. In addition, the Board
proposed that Maluti be
excluded from the municipal area of Umzimvubu Local Municipality
and be incorporated into Matatiele Municipality
in Sisonke District
Municipality; that Umzimkulu Local Municipality be excluded from
Alfred Nzo District Municipality and be
included into the municipal
area of Sisonke District Municipality; and that Umzimvubu Local
Municipality be excluded from the
municipal area of Alfred Nzo and
incorporated into the O.R. Tambo District Municipality.
Subsequently the Minister
submitted an alternative re-determination proposal to the Board.
At the same time the Parliamentary
Portfolio Committee on Justice
and Constitutional Development requested that the Board re-publish
certain municipal maps reflecting
municipal areas. On 31 October
2005, the Board published a notice reflecting the Minister’s
alternative proposal and the municipal
maps as requested by the
Portfolio Committee. This was done in General Notice 1998 of 2005
which was contained in Government
Gazette No. 28189 of 31 October
2005. The Minister’s alternative proposal is set out in Schedule
1 of the Notice.
The Minister now proposed
that: first, the Maluti area together with a certain district
management area described as ECDMA44 and
the small Matatiele area
within Umzimvubu municipal area be excluded from Umzimvubu Local
Municipality and incorporated into
Matatiele Municipality; and
second, the remainder of Umzimvubu municipal area and the new
enlarged Matatiele Municipality be
incorporated into Alfred Nzo
District Municipality. The material difference between the
proposed re-determinations of the Board
and the proposal of the
Minister, for present purposes, related to the location of the new
enlarged Matatiele Municipality.
While the Board proposed that it
should be incorporated into Sisonke District Municipality in
KwaZulu-Natal, the Minister proposed
that it should be incorporated
into Alfred Nzo District Municipality in the Eastern Cape.
It will be convenient here to
interpose the legislative process that was underway in the
meantime. During August 2005, the Minister
of Justice and
Constitutional Development gave notice of her intention to
introduce the Twelfth Amendment in Parliament. The
speakers of the
various provincial legislatures were requested to comment on the
proposed amendment. The Twelfth Amendment in
its bill form was
subsequently introduced in Parliament with comments from interested
parties. Matatiele Municipality and the
Cedarville and District
Farmers Association, which are among the applicants, submitted
written comments on the proposed Twelfth
Amendment.
On 30 September 2005, the
Twelfth Amendment Bill was introduced in the National Assembly. On
15 November 2005, the National Assembly
voted in favour of the Bill
with a narrow two-thirds majority, the Deputy Speaker casting the
deciding vote in support of the
Twelfth Amendment. On 14 December
2005, the NCOP considered the Bill in the light of the provincial
mandates and passed the
Bill. On 23 December 2005, the Bill was
signed into law.
The Twelfth Amendment Bill
re-determined the geographical areas of the provinces, primarily by
reference to municipal areas as
reflected in municipal demarcation
maps. It incorporated the Minister’s proposal by reference to
Schedule 1 and 2 of General
Notice 1998 of 2005. It will be
recalled that Schedule 1 of this Notice contained the Minister’s
alternative proposed re-determination
of Matatiele Municipality.
The effect of this was that the enlarged new Matatiele Municipality
would be incorporated into Alfred
Nzo District Municipality in the
Eastern Cape. Thus what the Minister could not achieve through the
Board was to be achieved
through a constitutional amendment.
In the meantime, on 26 August
2005, the Minister published the Cross-Boundary Municipalities Laws
Repeal and Related Matters Bill
for comments. Once again Matatiele
Municipality submitted written comments on this Bill. This Bill
was introduced in the National
Assembly on 20 October 2005. On 13
December 2005 the National Assembly adopted the Bill. The NCOP
voted to adopt the Bill on
14 December 2005, and it was signed into
law on 23 December 2005.
And now to return to the
re-demarcation process.
Faced with what was in effect
a re-determination of the boundaries of Matatiele Municipality
through a constitutional amendment,
on 21 November 2005 the Board
proposed a new provisional re-determination of the boundary of
Matatiele Municipality. As the
notice of this proposal candidly
admits, it was “[b]ased on the re-alignment of provincial
boundaries as reflected in the Constitution
Twelfth Amendment Bill
of 2005, and the imminent repeal of legislative provisions related
to cross-boundary municipalities”.
11
The Chairperson of the Board frankly admits that the proposed
re-determination of the boundaries by the Board was “in line
with
the maps referred to in the two Bills.” The Board therefore
proposed that the enlarged Matatiele Municipality be incorporated
into Alfred Nzo District Municipality in the Eastern Cape. This
notice was subsequently corrected in order to replace previous
maps.
12
On 27 December 2005 the Board
purported to publish its decision on the boundaries of certain
municipalities which included Matatiele
Municipality in terms of
section 21(5)(c) of the Demarcation Act. In terms of this
decision: first, the enlarged Matatiele Municipality
was
incorporated into Alfred Nzo District Municipality in the Eastern
Cape; second, Umzimvubu Local Municipality formed part
of Alfred
Nzo District Municipality; and (c) Umzimkulu Local Municipality was
incorporated into Sisonke District Municipality
in KwaZulu-Natal.
The fate of Matatiele Municipality was now sealed. It was
effectively removed from KwaZulu-Natal and relocated
into the
Eastern Cape. In the same way, the people who lived in Matatiele
were removed to the Eastern Cape by a constitutional
amendment. It
is this relocation of Matatiele Municipality from KwaZulu-Natal
into the Eastern Cape which is at the heart of
this litigation.
Having regard to this history
of the demarcation of Matatiele Municipality, in particular, the
fact that it was initiated by the
Minister whose proposal was
rejected by the Board but only to be given effect through a
constitutional amendment, it is understandable
why the applicants
take the view that the Twelfth Amendment and the Repeal Act took
over the function of the Board by redetermining
the boundaries of
Matatiele. It is also understandable why they are emotionally
unable to identify themselves with the consequences
of the exercise
by Parliament of its authority to redefine provincial boundaries.
However, the question is whether the law is
on their side.
Contentions of the parties
and issues presented
The constitutional challenge
is directed at the Twelfth Amendment and the Repeal Act. The
applicants contend that the Twelfth
Amendment is unconstitutional
in that it effectively re-demarcates Matatiele Municipality and
removes it from KwaZulu-Natal into
the Eastern Cape without
compliance with the Constitution and contrary to its provisions.
They contend further that the Repeal
Act is unconstitutional in
that it re-demarcates Matatiele Municipality in a manner that is
inconsistent with the Constitution
or other applicable legislation.
In resisting this challenge,
the respondents contend that once the applicants concede that the
Twelfth Amendment was passed in
accordance with the requirements
set out in section 74 of the Constitution, they cannot be heard to
complain. They submit that
the Twelfth Amendment has become part
of the Constitution and cannot therefore be challenged on the
ground that it is inconsistent
with the other parts of the
Constitution. In relation to the Repeal Act, they contend that
neither its terms nor its effect
demarcate the boundaries of
Matatiele Municipality.
The applicants contend that
this Court has exclusive jurisdiction to consider the
constitutional challenge to the Twelfth Amendment
under section
167(4)(d).
13
In relation to the Repeal Act, they contend that because it is
inextricably interlinked with the Twelfth Amendment, they are
entitled to come to this Court directly under section 167(6)(a).
14
While they accept that this Court has exclusive jurisdiction under
the Constitution in relation to the Twelfth Amendment, the
respondents nevertheless contend that the applicants have not made
out a case for direct access under section 167(6)(a) in relation
to
the Repeal Act.
Jurisdiction
In terms of section 167(4)(d)
of the Constitution, only this Court may “decide on the
constitutionality of any amendment to
the Constitution”. This
Court therefore has exclusive jurisdiction over the applicants’
constitutional challenge to the
Twelfth Amendment. The respondents
did not contend otherwise.
The application for direct
access relates to the constitutional challenge to the Repeal Act.
And the question is whether it is
in the interests of justice to
allow the applicants to bring their Repeal Act challenge directly
to this Court.
As pointed out earlier, this will be decided
when we consider the validity of the Repeal Act.
Constitutionality of the
Twelfth Amendment
This case raises two issues in
relation to the constitutionality of the Twelfth Amendment. The
first relates to the applicants’
argument that the Twelfth
Amendment unconstitutionally limits the authority of the Board
under section 155(3)(b) of the Constitution.
The second issue
relates to the concession that was made in the written argument
that the Twelfth Amendment was passed in accordance
with the
relevant constitutional procedures.
The applicants contend that
the Twelfth Amendment effectively re-demarcates Matatiele and
removes it from Sisonke District Municipality
in KwaZulu-Natal into
Alfred Nzo District Municipality in the Eastern Cape contrary to
the Constitution and its provisions.
This broad constitutional
attack is foreshadowed in prayer 2 of the applicants’ notice of
motion, which seeks an order to the
effect that in enacting the
Twelfth Amendment Parliament did not comply with the procedural
requirements set out in section 74
of the Constitution. However,
in written and oral argument, it was accepted on behalf of the
applicants that the procedures
required for the enactment of a
constitutional amendment were complied with. Yet the papers
suggest otherwise. And this calls
into question the concession
made. The concession in turn raises the question whether the
procedures set out in section 74(8)
were complied with. But first,
does the Twelfth Amendment unconstitutionally usurp the powers of
the Board?
A. Does the Twelfth
Amendment unconstitutionally usurp the powers reserved for the
Board?
The main thrust of the
applicants’ argument concerning the Twelfth Amendment is that the
Amendment re-determined municipal boundaries
in a manner that
usurped the authority reserved for the Board under section
155(3)(b) of the Constitution.
Section 155(3)(b) provides:
“
155(3) National legislation
must—
. . . .
(b) establish criteria and
procedures for the determination of municipal boundaries by an
independent authority”.
It is by now established that
the independent authority referred to in section 155(3)(b) is the
Board established under the Demarcation
Act. In
Executive
Council, Western Cape v Minister of Provincial Affairs and
Constitutional Development and Another; Executive Council,
KwaZulu-Natal v President of the Republic of South Africa and
Others
,
15
this Court held that the constitutional “authority to
determine municipal boundaries vests solely in the Demarcation
Board.”
16
That authority extends to all categories of municipality.
17
The independence of the Board
is crucial to our constitutional democracy. One of the founding
values of our constitutional democracy
is “a multi-party system
of democratic government, to ensure accountability, responsiveness
and openness.”
18
This founding value must be given expression at the level of
national, provincial and local government. Thus one of the objects
of local government is “to provide democratic and accountable
government for local communities”.
19
The purpose of section 155(3)(b) is “to guard against political
interference in the process of creating new municipalities.”
20
For, if municipalities were to be established along party lines or
if there was to be political interference in their establishment,
this would undermine our multi-party system of democratic
government. A deliberate decision was therefore made to confer the
power to establish municipal areas upon an independent authority.
Thus in
Executive Council,
Western Cape Legislature
, we emphasised that in the performance
of its constitutional duty to determine municipal boundaries, the
Board “should be able
to do so without being constrained in any
way by the national or provincial governments.”
21
For precisely this reason, we struck down a provision in the
Local
Government: Municipal Structures Act 117 of 1998
, which purported
to give the Minister the discretion to reject a municipal boundary
determined by the Board. On that occasion
we said:
“
Upon
a proper construction, [section 6(2)] gives the Minister a
discretion to decide whether to accept the recommendation of the
Demarcation Board in relation to where the boundaries should be. In
the exercise of this discretion the Minister may, therefore,
reject
a boundary determined by the Demarcation Board. Yet the scheme for
the allocation of powers relating to the structure, functioning
and
establishment of municipalities contemplates that the Demarcation
Board should determine boundaries in accordance with the
criteria
and procedures prescribed by the legislation contemplated in
ss
155(2)
and (3), and that it should be able to do this without being
constrained in any way by the national or provincial governments. If
s 6(2)
is to have any meaning, it subjects the decision of the
Demarcation Board in relation to the municipal boundaries to the
discretion
of the Minister. This, in my view, is impermissible. To
the extent that s 6(2) of the Structures Act gives the Minister a
discretion
whether to accept the boundaries determined by the
Demarcation Board in respect of categories of municipality, it is
inconsistent
with ss 155(2) and (3) of the Constitution.”
22
In the performance of its
constitutional duty, the Board is bound to apply the criteria
determined by the Demarcation Act. Those
criteria are set out in
section 25, which sets out factors that the Board must take into
account in determining municipal boundaries.
And these are:
“
(a) the interdependence of
people, communities and economics as indicated by─
(i) existing and expected
patterns of human settlement and migration;
(ii) employment;
(iii) commuting and dominant
transport movements;
(iv) spending;
(v) the use of amenities,
recreational facilities and infrastructure; and
(vi) commercial and individual
linkages;
(b) the need for cohesive,
integrated and unfragmented areas, including metropolitan areas;
(c) the financial viability and
administrative capacity of the municipality to perform municipal
functions efficiently and effectively;
(d) the need to share and
redistribute financial and administrative resources;
(e) provincial and municipal
boundaries;
(f) areas of traditional rural
communities;
(g) existing and proposed
functional boundaries, including magisterial districts, voting
districts, health, transport, police and
census enumerator
boundaries;
(h) existing and expected land
use, social, economic and transport planning;
(i) the need for co-ordinated
municipal, provincial and national programmes and services,
including the needs for the administration
of justice and health
care;
(j) topographical,
environmental and physical characteristics of the area;
(k) the administrative
consequences of its boundary determination on─
(i) municipal creditworthiness;
(ii) existing municipalities,
their council members and staff; and
(iii) any other relevant
matter;
(l) the need to rationalise the
total number of municipalities within different categories and of
different types to achieve the
objectives of effective and
sustainable service delivery, financial viability and macro-economic
stability.”
Members of the Board have
particular skills and expertise that are appropriate to the factors
that the Board has to take into
account in determining municipal
boundaries. This is apparent from the qualifications, expertise
and knowledge that members
of the Board must have. They are
required to have qualifications or experience or knowledge in:
“
(a) local government
generally; or
(b) any of the following:
(i) development economics;
(ii) integrated development
planning;
(iii) community development;
(iv) traditional leadership and
traditional communities;
(v) local government and
municipal administration;
(vi) municipal finance;
(vii) municipal services;
(viii) social or economic
geography;
(ix) town and regional
planning;
(x) legal and constitutional
matters affecting local government;
(xi) land survey, cartography
and geographical formation systems;
(xii) public health care; or
(xiii) transport planning.
(2) The following persons are
disqualified from becoming or remaining a member of the Board:
(a) an unrehabilitated
insolvent;
(b) a person who is placed
under curatorship;
(c) a person who is declared to
be of unsound mind by a court of the Republic; or
(d) a person who after 4
February 1997 has been convicted of an offence and
sentenced to imprisonment
without the option of a fine for a period of not less than 12
months.
(3) A disqualification in terms
of subsection (2)(d) ends five years after the imprisonment has been
completed.”
23
The expertise, knowledge and
experience required of its members ensure that the Board is
eminently qualified to perform the function
of determining
municipal boundaries. The question is whether the Twelfth
Amendment unconstitutionally usurps this function.
The answer to
this question depends in the first place upon the purpose and
effect of the Twelfth Amendment and, in the second
place, on the
nature and the scope of the powers of Parliament to alter
provincial boundaries.
There can be no question that
the purpose of the Twelfth Amendment is “to re-determine the
geographical areas of the nine provinces
of the Republic of South
Africa”. The Preamble to the Twelfth Amendment makes this
abundantly clear. There also can be no
question that in terms of
section 44(1)(a)(i),
24
read with section 74(3)(b)(ii),
25
Parliament has the constitutional authority to alter provincial
boundaries. Nor can there be any question that the effect of
the
Twelfth Amendment is to re-determine the boundaries of Sisonke and
Alfred Nzo District Municipalities.
Section 1 of the Twelfth
Amendment redefines the geographical areas of the nine provinces by
reference to municipal areas, a departure
from the previous scheme
which defined provincial boundaries by reference to magisterial
districts. These geographical areas
are reflected in Schedule 1A
and are described as “compris[ing] the sum of the indicated
geographical areas reflected in the
various maps referred to in the
Notice listed in Schedule 1A.” The effect of this
re-determination of provincial boundaries
is that the area
previously known as Matatiele Municipality is relocated from
Sisonke District Municipality in KwaZulu-Natal
and incorporated
into the Eastern Cape while Umzimkulu Local Municipality is
relocated from Alfred Nzo District Municipality
in the Eastern Cape
to KwaZulu-Natal.
The Twelfth Amendment
therefore has the effect of re-determining the boundaries of
Sisonke and Alfred Nzo District Municipalities.
The crux of the
applicants’ complaint is that Parliament cannot do this because
it amounts to performing the functions that
vest in the Board under
section 155(3)(b). The issue that arises from the applicants’
contention is the following: Does Parliament,
in the exercise of
its constitutional authority to redefine provincial boundaries,
have the authority to alter municipal boundaries?
The Board’s authority to
determine municipal boundaries is not unlimited. It is
limited, for example, by
Parliament’s authority to establish provincial boundaries. This
is implicit in section 155(6A) of the
Constitution and explicit in
section 25(e) of the Demarcation Act. In terms of section 155(6A),
when the Board in exercising its
powers considers it necessary to
establish a municipal area across a provincial boundary, it requires
both national and provincial
legislations to do so.
26
In terms of section 25(e) of the Demarcation Act, the Board is
required to have regard to provincial and municipal boundaries
when
it determines municipal boundaries.
27
It is plain from these two provisions that the authority of the
Board to determine municipal boundaries is limited by the authority
to redefine provincial boundaries. And the authority to redefine
provincial boundaries vests in Parliament.
Once a decision was taken to
redefine provincial boundaries by reference to municipal areas and
to abolish the concept of cross-boundary
municipalities, the
provincial boundaries had to be redefined in such a manner that no
municipality would fall into two provinces.
This process
necessarily involved a decision as to the province in which the
municipalities should be located. It was therefore
inevitable that
the alteration of provincial boundaries would impact on municipal
boundaries. This is implicit in the power
to alter provincial
boundaries. It is trite that the power to do that which is
expressly authorised includes the power to do
that which is
necessary to give effect to the power expressly given.
28
The power of Parliament to redraw provincial boundaries therefore
includes the power that is reasonably necessary for the exercise
of
its power to alter provincial boundaries.
By contrast, the power of the
Board to determine municipal boundaries does not include the power
to determine provincial boundaries.
This is so because the power
to alter provincial boundaries is expressly reserved for
Parliament, which is required to comply
with stringent procedures
in order to effect an alteration of boundaries. In addition,
section 25(e) of the Demarcation Act
expressly makes the power of
the Board subject to provincial boundaries. It is quite clear that
if the demarcation powers of
the Board are unlimited, as contended
by the applicants, they are inconsistent with those conferred on
Parliament to alter provincial
boundaries. The proper approach in
such a case is to place a construction on the Board’s authority
that would remove the inconsistency.
In my view section 103(3) of
the Constitution as introduced by the Twelfth Amendment and section
155(3)(b) of the Constitution
can be harmonised by understanding
that once provincial boundaries have been redefined, it is the task
of the Board to demarcate
municipal boundaries in terms of the
Demarcation Act.
There is some suggestion in
the applicants’ founding affidavit and written argument that the
Twelfth Amendment and the Repeal
Act apply only to cross-boundary
municipalities. As Matatiele was never declared a cross-boundary
municipality under section
155(6A) of the Constitution and other
relevant legislation, the suggestion goes, the impugned legislation
does not apply to it.
This point was pursued somewhat faintly in
argument, it being accepted that the laws under attack do not deal
“solely” with
cross-boundary municipalities.
Once it is accepted that the
Twelfth Amendment and the Repeal Act do not deal solely with
cross-boundary municipalities that is
the end of the point. The
Twelfth Amendment declares that its purpose is “to re-determine
the geographical areas of the nine
provinces of the Republic of
South Africa; and to provide for matters connected therewith”,
while the Repeal Act declares its
purpose as, amongst other things,
to “provide for consequential matters as a result of the
re-alignment of former cross-boundary
municipalities and the
re-determination of the geographical areas of provinces; and
provide for matters connected therewith.”
The purpose of the
Twelfth Amendment and the Repeal Act was to develop a new criterion
for determining provincial boundaries,
namely, municipal areas as
opposed to magisterial districts. This new criterion applies not
only to provinces that had cross-boundary
municipalities but to all
provinces, including those that did not have such municipalities.
It follows therefore that the argument that the impugned laws
apply only to cross-boundary municipalities falls to be rejected.
Section 41
The applicants also challenged
the Twelfth Amendment on grounds that in enacting it, Parliament
and the President failed to fulfil
their constitutional obligation.
This obligation was said to be comprehended by the provisions of
section 41 of the Constitution,
which deal with co-operative
government. No submissions were addressed to us in this regard
during the hearing. When counsel
for the applicants was pressed to
make submissions, he indicated that he did not have any submissions
on the point but was not
abandoning it.
It is difficult to make out
what the precise complaint is in this regard. What is clear,
however, is that section 41(2) contemplates
that an Act of
Parliament will be enacted that will establish structures and
institutions to promote and facilitate intergovernmental
relations.
In addition, this statute will provide appropriate mechanisms and
procedures to facilitate settlement of intergovernmental
disputes.
The respondents submitted that this legislation is the
Intergovernmental Relations Framework Act 13 of 2005 (“the
Framework Act”).
29
The applicants did not contend otherwise. Nor could they.
In its long title and
preamble, the Framework Act provides:
“
To establish a framework for
the national government, provincial governments and local
governments to promote and facilitate intergovernmental
relations;
to provide for mechanisms and procedures to facilitate the
settlement of intergovernmental disputes; and to provide
for matters
connected therewith.
. . . .
And whereas section 41(2) of
the Constitution requires an Act of Parliament—
to establish or provide
for structures and institutions to promote and facilitate
intergovernmental relations; and
to provide for appropriate
mechanisms and procedures to facilitate the settlement of
intergovernmental disputes”.
Section 2(2) provides that the
Framework Act does not apply to Parliament and the provincial
legislatures. On its face, therefore,
this statute excludes
Parliament and provincial legislatures from its ambit. It follows
that the submission relating to co-operative
government must fail.
We are not called upon, and we express no view on whether the
Framework Act can constitutionally exclude
from its ambit,
Parliament and provincial legislatures. That is not the question
before us.
To sum up, therefore, the
powers of the Board under section 155(3)(b) are subject to the
power of Parliament to redefine provincial
boundaries. Thus
construed, there is no conflict between section 103(3) of the
Twelfth Amendment and section 155(3)(b) of the
Constitution.
However, that is not the end of the matter. There is a substantial
question as to whether the correct procedure
was followed in the
enactment of the Twelfth Amendment.
B. Procedural requirements
Sections 73 to 82 of the
Constitution set out the constitutional framework for the “national
legislative process”. Section
74 deals with bills that amend the
Constitution. Subsections (3) and (8) deal with a constitutional
amendment that alters provincial
boundaries, powers, functions or
institutions. And these subsections provide:
Subsection 74(3)─
“
Any other provision of the
Constitution may be amended by a Bill passed—
(a) by the National Assembly,
with a supporting vote of at least two thirds of its members; and
(b) also by the National
Council of Provinces, with a supporting vote of at least six
provinces, if the amendment—
(i) relates to a matter that
affects the Council;
(ii) alters provincial
boundaries, powers, functions or institutions; or
(iii) amends a provision that
deals specifically with a provincial matter.”
Subsection 74(8) ─
“
If a Bill referred to in
subsection (3)(b), or any part of the Bill, concerns only a specific
province or provinces, the National
Council of Provinces may not
pass the Bill or the relevant part unless it has been approved by
the legislature or legislatures
of the province or provinces
concerned.”
A bill that alters provincial
boundaries must therefore be passed: first, by the National
Assembly by a two-thirds majority; and
second, by the NCOP with a
supporting vote of at least six provinces. But the NCOP may not
pass the bill or the relevant part
“unless it has been approved
by the legislature or the legislatures of the province or provinces
concerned.” It appears
from the provisions of subsection 74(8)
that provinces have a veto power in relation to a bill that alters
their boundaries.
It is not difficult to imagine the purpose of
this provision. Its purpose is to ensure that the boundaries of a
province are
not reduced without its consent. This protects the
territorial integrity of a province.
In addition, the alteration of
a provincial boundary may have the effect of relocating an entire
community from one province to
another province. And this may
implicate the fundamental rights of the individual men and women
who reside in the province.
In terms of section 21(3) of the
Constitution “[e]very citizen has the right to enter, remain in
and reside anywhere in, the
Republic.” This provision protects
the rights of people of Matatiele to remain in the province of
KwaZulu-Natal if they should
choose to do so. But, like any of the
fundamental rights guaranteed in the Bill of Rights, this right is
subject to limitation
under section 36(1). Once an individual has
chosen to reside in KwaZulu-Natal, that individual is entitled to
remain in that
province subject to the provisions of the
Constitution. Such an individual may not be legislated out of that
province into another
province contrary to the provisions of the
Constitution. It is this right that is at the heart of the
protection offered by
section 74(8). The provincial legislature is
given the power to protect the right of its residents under section
21(3) to remain
in their province by exercising its right to veto a
constitutional amendment that seeks to alter its provincial
boundaries, if
it considers it to be in the interests of the
province to do so.
Compliance with section 74(8)
in turn raises the question whether the provisions of section
118(1)(a) of the Constitution must
be complied with in the process
of considering and approving a constitutional amendment under
section 74(8). Section 118(1)
of the Constitution provides:
“
(1) A provincial legislature
must—
facilitate public
involvement in the legislative and other processes of the
legislature and its committees; and
conduct its business in an
open manner, and hold its sittings, and those of its
committees, in public, but reasonable
measures may be taken—
to regulate public
access, including access of the media, to the legislature and
its committees; and
to provide for the
searching of any person and, where appropriate, the refusal of
entry to, or the removal of, any person.”
This Court has not yet
construed section 118(1)(a) or the scope of its application. This
provision raises, in particular, the
question whether the process
of considering and approving a proposed constitutional amendment
under section 74(8) amounts to
a “legislative process” or
“other process” of a provincial legislature within the meaning
of section 118(1)(a). In addition,
it is not entirely clear what
the phrase to “facilitate public involvement” means in the
context of section 118(1)(a).
Recently, in the case of
Mary
Patricia King and Others v Attorneys Fidelity Fund Board of Control
and Another
,
30
the SCA commented on the phrase to “facilitate public
involvement” in the context of Section 59 of the Constitution.
31
It said:
“‘
Public
involvement’ is necessarily an inexact concept, with many possible
facets, and the duty to ‘facilitate’ it can be fulfilled
not in
one, but in many different ways. Public involvement might include
public participation through the submission of commentary
and
representations: but that is neither definitive nor exhaustive of
its content. The public may become ‘involved’ in the
business
of the National Assembly as much by understanding and being informed
of what it is doing as by participating directly
in those processes.
It is plain that by imposing on Parliament the obligation to
facilitate public involvement in its processes
the Constitution sets
a base standard, but then leaves Parliament significant leeway in
fulfilling it. Whether or not the National
Assembly has fulfilled
its obligation cannot be assessed by examining only one aspect of
‘public involvement’ in isolation
of others, as the appellants
have sought to do here. Nor are the various obligations s 59(1)
imposes to be viewed as if they are
independent of one another, with
the result that the failure of one necessarily divests the National
Assembly of its legislative
authority.”
32
The correctness of this case
was not argued in this Court. It is therefore not desirable to
comment on the correctness of the
passage cited above, in
particular, the SCA’s statement that “[t]he public may become
‘involved’ in the business of the
National Assembly as much by
understanding and being informed of what it is doing as by
participating directly in those processes.”
It seems to me that
it is arguable that in the process of considering and approving a
proposed constitutional amendment under
section 74(8), a provincial
legislature must at a bare minimum provide the people who might be
affected by the alteration of
its boundary an opportunity to submit
oral or written commentary and representations on the proposed
amendment.
But it was conceded on behalf
of the applicants that the procedures set out for the enactment of
a constitutional amendment were
complied with. The question is
whether it is appropriate for this Court to investigate whether the
provisions of the Constitution
were complied with in the light of
this concession. As a general matter, a court should decide issues
raised by the parties
in their pleadings and in argument. They
should not embark upon a judicial frolic and decide matters that
are not before them.
The adjudication of disputes between the
parties is not an occasion to engage in an academic exercise of
deciding a whole range
of issues that are not before a court. But,
like all general rules, this too is subject to exceptions. It must
yield to the
interests of justice.
Here, we are concerned with a
legal concession. It is trite that this Court is not bound by a
legal concession if it considers
the concession to be wrong in law.
Indeed, in
Azanian Peoples Organisation (AZAPO) and Others v
President of the Republic of South Africa and Others
,
33
this Court firmly rejected the proposition that it is bound by an
incorrect legal concession, holding that “if that concession
was
wrong in law [it] would have no hesitation whatsoever in rejecting
it.”
34
Were it to be otherwise, this could lead to an intolerable
situation where this Court would be bound by a mistake of law on
the
part of a litigant. The result would be the certification of
law or conduct as consistent with the Constitution when the law or
conduct in fact is inconsistent with the Constitution. This would
be contrary to the provisions of section 2 of the Constitution
which provides that the “Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid”.
Thus where on the papers
before it, there is doubt as to whether a particular law or conduct
is consistent with the Constitution,
this Court may be obliged to
investigate the matter. This would be particularly so where, as
here, an important constitutional
issue is involved. In the
Executive Council, Western Cape Legislature v President of
Republic of South Africa
35
this Court, subsequent to the hearing, realised that there were
questions regarding section 235(8) of the interim Constitution
that
had not been addressed by counsel in their written or oral
argument. Because of the importance of these questions, the
Court
considered it necessary to afford the parties an opportunity to
make submissions on those questions and the Court the benefit
of
debating them. The parties’ legal representatives were therefore
invited urgently to canvass the particular issues at a
further
hearing which was set down at fairly short notice. This is the
course that must be followed in this case. It is in
the interests
of justice that these important issues, which may well have a
bearing on the validity of the Twelfth Amendment,
be investigated.
On the papers, there are
doubts as to whether the Twelfth Amendment was passed in accordance
with the appropriate constitutional
procedures. In their notice of
motion, the applicants sought an order declaring, amongst other
things, that the Twelfth Amendment
was unconstitutional because it
altered provincial boundaries without complying with the process
set forth in the Constitution.
It appears from the affidavit
deposed to by the Speaker of the KwaZulu-Natal Provincial
Legislature filed in an attempt to establish
compliance with the
procedures set out in the Constitution that the KwaZulu-Natal
Legislature did not invite written or oral
submissions from the
people of Matatiele, nor did it hold any public hearings on the
proposed amendment. In their replying affidavit,
the applicants
confirm that public hearings were not held by the KwaZulu-Natal
Legislature for the people of Matatiele. In the
context of public
participation, the applicants allege that:
“
14.10 As far as the public
participation of the people of the Matatiele Municipality is
concerned it is to be noted that according
to Noxolo Kiviet public
hearings were held at various places in the Eastern Cape Province. .
. . However, no meetings called by
any government were held in any
place in the Matatiele Municipality.
14.11 The Speaker of the
KwaZulu-Natal Legislature does not dispute [the] allegations
relating to public meetings.”
The procedure followed by the
KwaZulu-Natal Legislature must be contrasted with the steps taken
by the majority of the provincial
legislatures in the process of
considering and approving the Twelfth Amendment Bill. According to
the record before this Court,
the legislative committees of the
Eastern Cape, Gauteng, Limpopo, Mpumalanga, Northern Cape and North
West Provinces all held
public hearings in the affected
communities. It is somewhat difficult to compare the nature of
these hearings because the affidavits
vary in their level of detail
and in their inclusion of relevant annexures. However, we know
that Eastern Cape, Gauteng, Northern
Cape and North West considered
both written and oral submissions. North West and Gauteng held at
least one joint public hearing
in a cross-boundary area.
Mpumalanga’s Portfolio Committee on Local Government and Housing
used local radio stations to invite
people to the hearings as well
as to committee meetings. The committees of the North West,
Mpumalanga and Eastern Cape Legislatures
drafted detailed reports
of the public hearings.
36
Based on the record before
this Court, it appears that Matatiele Municipality and the people
of Matatiele were not afforded an
opportunity to be heard by the
provincial legislature of KwaZulu-Natal on the impending
constitutional amendment to alter its
boundary. The KwaZulu-Natal
Legislature, alone amongst those required to approve or reject the
Twelfth Amendment in terms of
section 74(8)
37
did not hold public hearings, publicise committee meetings in
newspapers or radio, or invite written submissions from the public
and relevant stakeholders. The KwaZulu-Natal Speaker’s affidavit
does not refer to the public at all, except to note that
the
relevant Standing or Portfolio Committee has the discretion to call
for a public hearing on matters referred to it by the
NCOP
Committee.
Now if the provisions of
section 74(8) require compliance with section 118(1)(a) and if the
provisions of section 118(1)(a) require
the provinces to afford the
communities affected by the alteration of the provincial boundaries
a fair opportunity to make representations
as to why their province
should not consent to the alteration of its boundary, the record
before us establishes that the KwaZulu-Natal
Legislature did not
hold any hearings or afford the applicants any opportunity to
submit written representations on the question
of whether it should
consent to the alteration of the boundaries. And if this amounts
to a failure to comply with the provisions
of section 118(1)(a) and
thus section 74(8), the question which arises is whether this
renders the approval by the KwaZulu-Natal
Legislature invalid and
thus the Twelfth Amendment invalid insofar as it relates to
KwaZulu-Natal. Now these are issues of grave
importance. They lie
at the very heartland of our participatory democracy and the power
of the provinces to protect their territorial
integrity.
In my view, the provisions of
sections 74(8) and 118(1)(a) are crucial to the determination of
the question whether the Twelfth
Amendment was enacted in
accordance with the procedure set out in the Constitution. In
terms of section 44(4) of the Constitution,
“[w]hen exercising
its legislative authority, Parliament . . . must act in accordance
with, and within the limits of, the Constitution.”
And in terms
of section 2, “the Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid”.
However, these issues cannot
be decided without the benefit of argument and debate on them. The
present application cannot be
finally decided without hearing the
provincial legislature of KwaZulu-Natal and the parties on the
meaning and the scope of the
provisions of sections 74(8) and
118(1)(a) and their implications for the validity of the Twelfth
Amendment.
Ordinarily, these issues
should be heard before we deliver judgment on the other issues
involved in the case. But we are faced
with the reality that the
local government elections are to be held in less than two days.
And the decision of this Court on
the validity of the Twelfth
Amendment may have an impact on those elections. The question of
the validity of the Twelfth Amendment,
however, depends ultimately
on the scope and effect of the provisions of sections 74(8) and
118(1)(a) of the Constitution. Yet
we cannot decide these issues
without the benefit of argument and debate on them. It is
impractical to do so before the elections.
But the elections are in the
minds of the people of Matatiele. They must be anxious to know
whether when they go to the polls
they will do so in KwaZulu-Natal
or the Eastern Cape. We are also mindful of the fact, and the
record indicates, that a majority
of the people of Matatiele do not
want to relocate to the Eastern Cape. But answers to these
questions depend on the validity
of the Twelfth Amendment, and in
particular, whether the Twelfth Amendment was enacted in accordance
with the procedures set
out in the Constitution. This point was
conceded on their behalf. Because we doubt the correctness of this
concession we have
decided to call for written submissions on
whether the constitutional procedures set out for the enactment of
the Twelfth Amendment
were complied with.
The question is whether we
should postpone the elections in the affected areas pending our
decision on the validity of the Twelfth
Amendment. This raises
very complex practical problems. We do not know whether the areas
of Matatiele Municipality and Maluti
still exist in their old form.
Under the Twelfth Amendment read with the Repeal Act and the
determination of 27 December 2005
by the Municipal Demarcation
Board, both of these areas now fall under the Eastern Cape and in
the Alfred Nzo District Municipality.
If no elections are held in
these areas, it is not clear which province will be responsible for
their administration. Nor do
we know what will be the effect of
restoring old Matatiele to Sisonke District Municipality in
KwaZulu-Natal and leaving Maluti
to the Eastern Cape. We have not
had the benefit of any argument on these issues. And we cannot
resolve them without the benefit
of submissions by the parties and
the Electoral Commission.
It may be that we will need to
determine the electoral consequences if the Twelfth Amendment or
the Repeal Act is declared invalid.
The advice of the Electoral
Commission will be helpful in determining the appropriate course in
that event. The Electoral Commission
must therefore be joined.
There is another matter. It
is not desirable to disrupt elections. As a general matter, this
must be resorted to only when it
is in the interests of justice to
do so. It will generally be the case where the postponement of
elections is unavoidable.
This will be the case, for example,
where the adverse consequences of holding elections far exceed
those that will ensue if the
elections are not held. This
determination can only be made after hearing submissions on such
consequences. There is nothing
on the record to indicate that the
adverse consequences of holding elections far exceed those that
would ensue from postponing
them.
In the context of this case,
if it had been apparent on the papers that there may have been a
violation of the Constitution, we
would have had no hesitation in
stopping the elections in their tracks. For there would be no
point in holding elections that
will be set aside in due course.
But in this case, it is not that apparent as we have yet to decide
the scope and effect of
sections 74(8) and 118(1)(a) of the
Constitution. And more importantly, we need to hear the
Legislature of KwaZulu-Natal on
these issues.
We are not unmindful of the
concerns of the people of Matatiele. These concerns are
legitimate. If the Twelfth Amendment is
not valid in relation to
KwaZulu-Natal, then the people of Matatiele are entitled to remain
in Sisonke District Municipality
in KwaZulu-Natal and cast their
vote in that province until a properly enacted constitutional
amendment is in place. In this
judgment we do not decide the
validity of the Twelfth Amendment. Nor do we decide whether the
people of Matatiele should relocate
into the Eastern Cape.
Therefore the present position is no more than a holding position
until a final decision is made on the
constitutional validity of
the Twelfth Amendment. It is only then that the fate of the people
of Matatiele will finally be decided.
In all the circumstances, the
elections must go ahead as planned. If the question of whether
fresh elections have to be held
arises, it will have to be
determined in the light of the final decision on the constitutional
validity of the Twelfth Amendment.
But in the meantime, the
people of Matatiele are entitled to know the answer to the primary
contention that they advanced in support
of their constitutional
challenge to the Twelfth Amendment. They contended that the
Twelfth Amendment re-determined municipal
boundaries in a manner
that usurped the authority reserved for the Municipal Demarcation
Board under section 155(3)(b) of the
Constitution. The answer to
this question is that Parliament has the constitutional authority
to redraw the provincial boundaries
and to affect municipal
boundaries insofar as this is necessary for the purpose of altering
the provincial boundaries.
The Court is unanimous in
holding that its work has not been facilitated by the lack of
candour on the part of government as to
why it was regarded as
appropriate to place Matatiele Municipality in the Eastern Cape.
In keeping with the constitutional values
of accountability,
responsiveness and openness, the Directions will give the second
and third respondents the opportunity to
provide further
information concerning the objectives sought to be pursued by the
relocation of Matatiele to the Eastern Cape.
Such information
could be of considerable assistance to the Court in finalising this
matter.
In the event, we hold that in
altering provincial boundaries, the Twelfth Amendment did not usurp
the powers conferred upon the
Municipal Demarcation Board by
section 155(3)(b) of the Constitution and is therefore not
inconsistent with the Constitution
on that ground.
In all the circumstances, the
following further directions are made:
The application is set down
for further hearing on 30
th
March 2006 to consider the
following issues:
Do the provisions of section
74(8) of the Constitution require a provincial legislature whose
boundary is being redrawn by
a proposed constitutional amendment
to comply with the provisions of section 118(1)(a) of the
Constitution.
If the answer to paragraph
(a)(1) above is in the affirmative, what does section 118(1)(a)
require and did the provincial
legislatures of KwaZulu-Natal and
the Eastern Cape comply with the provisions of section 118(1)(a)
of the Constitution.
If the answer to paragraph
(a)(2) is in the negative, does non-compliance with the
provisions of section 74(8) and section
118(1)(a) render the
approval contemplated in section 74(8) invalid.
If the answer to paragraph
(a)(3) above is in the affirmative, what is the effect, if any,
on the Twelfth Amendment.
If non-compliance with the
provisions of sections 74(8) and 118(1)(a) render the Twelfth
Amendment invalid, either wholly
or in part, what is the effect
of this on the municipal areas affected and the elections held in
the affected areas.
Must a constitutional
amendment comply with the constitutional principle of
rationality; and if so, did the Twelfth Amendment
comply with
that principle.
The Speakers of the
Provincial Legislatures of KwaZulu-Natal and the Eastern Cape and
the Electoral Commission are joined as
parties to these
proceedings.
The Speakers of the
Provincial Legislatures of KwaZulu-Natal and the Eastern Cape and
the Electoral Commission are to lodge
their affidavits, if any, by
9 March 2006, dealing with the issues set out in paragraph
(a)(1)-(6) above.
A copy of this order must be
served on the Speakers of the remaining provincial legislatures.
Any provincial legislature that
wishes to intervene in these
proceedings must lodge its notice of its intention to do so
together with an affidavit, if any,
by 9 March 2006.
The Second and Third
Respondents are given an opportunity to lodge further affidavits
until 9 March 2006 in the light of paragraph
84 of the judgment
and paragraph (a)(6) above.
The applicants must lodge
their replying affidavits, if any, by 15 March 2006.
Written submissions must be
lodged by all parties by 23 March 2006.
Moseneke DCJ, Madala J, Mokgoro
J, Nkabinde J and Sachs J concur in the judgment of Ngcobo J.
O’REGAN J:
I have had the opportunity of
reading the judgments prepared in this matter by my colleagues,
Ngcobo J, Sachs J and Yacoob and
Skweyiya JJ jointly. I support
the order made by Ngcobo J and wish briefly to indicate why.
In principle, I agree with
Yacoob and Skweyiya JJ that it is undesirable for a court in an
urgent matter to raise a fresh legal
issue not relied upon by the
applicants, and upon which the applicants do not wish to rely. The
role of a court is essentially
to be responsive to litigation
brought before it. It should be noted that the applicants did in
their founding affidavits raise
some complaint of the absence of
consultation in the process leading up to the redrawing of the
provincial boundaries, although
in written and oral argument they
conceded that the Constitution Twelfth Amendment Act, 2005, had
been properly enacted. As
Ngcobo J states, a court is not bound by
a legal concession of that sort. Nevertheless, I might for the
reasons given by Yacoob
and Skweyiya JJ have taken the view that
because the matter is urgent, and because it would be impossible to
determine the legal
issue raised by Ngcobo J before the elections
are to be held, this would not be a matter in which it would be
appropriate to
pursue such an issue.
However, there is another
concern which suggests to me that the route proposed by Ngcobo J
should be followed. It is quite plain
that the redrawing of
provincial boundaries is an intensely controversial matter upon
which communities feel strongly and which
has the potential to
undermine the stability of our democracy and the legitimacy of
local and provincial government in the areas
where boundaries have
been moved. Moreover, the redrawing of a boundary has a long-term
effect that cannot easily be undone.
A community whose town or
neighbourhood is shifted from one province to another must live
with that change for many years if
not forever. The social,
economic and political sensitivity of boundary changes coupled with
their essentially long-term character
underlines the need for the
process by which a boundary change is effected to be legitimate and
constitutionally proper.
Were we to leave undetermined
the legal issues raised by Ngcobo J (and indeed also by Sachs J)
which raise the question of whether,
in the case of Matatiele, the
KwaZulu-Natal/Eastern Cape boundary may not have been rationally or
procedurally effected, it would
create uncertainty and doubt which
might continue to be a source of disquiet and anger for decades to
come. It is this Court’s
constitutional task to ensure that the
Constitution is upheld. Leaving undecided an issue of great public
interest and controversy
that only this Court may determine
1
because the proceedings are urgent, and because counsel for the
applicant made what may prove to be an incorrect legal concession,
would in my view not further the interests of justice in this case.
In that respect, it may well be an exceptional case.
I conclude therefore that it
would not be in the interests of justice for this Court to leave
the legal issues raised by Ngcobo
J undetermined. It would of
course have been ideal for the matter to have been determined
before the local government elections
were held. That has not been
possible for many reasons. The Amendment Act was only passed just
over two months before the local
government elections had to be
held in terms of the Constitution.
2
The applicants launched urgent proceedings in this Court which
were enrolled for 14 February 2006. At that hearing, the issues
raised in the judgments of Ngcobo J were aired.
It is quite clear that it
would be inappropriate to determine the issues raised in their
judgments without affording the affected
provincial governments and
national government a proper opportunity to respond. Doing that
will inevitably take us past the
date planned for local government
elections. I agree with Ngcobo J for the reasons he gives that it
would be inappropriate to
suspend those elections at this stage.
The question of what relief would be just and equitable, should
there prove to be merit
in the constitutional issues raised, will
have to be determined at the next hearing.
I wish to add that I agree
with Ngcobo J that the argument raised by the applicant that the
Twelfth Amendment Act is inconsistent
with section 155(3)(b) of the
Constitution is ill-founded. I would however prefer to express no
view whatsoever on the powers
of the national legislature in
relation to the re-demarcation of municipal boundaries as a result
of their redrawing provincial
boundaries. I would also prefer not
to agree at this stage with the statement (at para 25) that “what
the Minister could not
achieve through the Board was to be achieved
through a constitutional amendment”. This is a matter which will
require further
consideration. I am not necessarily in agreement
with Yacoob and Skweyiya JJ’s analysis of the possibilities
(at para 27 of their judgment)
that arise for resolving the demarcation of municipalities after a
provincial boundary has been changed,
but consider that this is a
matter which can be determined after the next hearing. They are
logically related to the question
whether the provisions of the
Cross-Boundary Municipalities Laws Repeal and Related Matters Act,
23 of 2005
, as challenged by the applicants, are constitutional or
not, and I would prefer to leave that matter entirely alone for the
purposes
of the present judgment.
For these reasons, I concur in
the judgment of Ngcobo J and in the order proposed by Ngcobo J.
Langa CJ and Van der Westhuizen
J concur in the judgment of O’Regan J.
SACHS J:
I concur with the judgment of
Ngcobo J. However, I wish to make observations about an aspect of
this case which has caused me
considerable concern. It relates to
the paucity of information from the government as to the objectives
intended to be served
by the relocation of Matatiele from
KwaZulu–Natal to the Eastern Cape.
Our country has moved a long
way since Stratford CJ said that “Parliament may make any
encroachment it chooses upon the life,
liberty or property of any
individual subject to its sway, and that it is the function of
courts of law to enforce its will.’’
1
For a decade we have now lived
in a constitutional democracy in which all power, whether
legislative, executive or judicial, has
had to be exercised in
keeping with the Constitution. In the eloquent words of Mahomed
AJ:
“
The constitution of a nation
is not simply a statute which mechanically defines the structures of
government and the relations between
the government and the
governed. It is a ‘mirror reflecting the national soul’, the
identification of the ideals and aspirations
of a nation; the
articulation of the values bonding its people and disciplining its
government. The spirit and the tenor of the
constitution must
therefore preside and permeate the processes of judicial
interpretation and judicial discretion.”
2
The spirit of the Constitution
to which he referred is not a ghostly presence that attaches itself
to the text. Rather, it is
immanent in the text itself,
3
which clearly establishes the structures, overall design, above all
the fundamental values of the Constitution. These founding
values
are set out in section 1 which provides:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and
non-sexism.
(c) Supremacy of the
constitution and the rule of law.
(d) Universal adult suffrage, a
national common voters roll, regular elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness.”
As this Court emphasized in
UDM
,
4
these founding values have an important place in our
Constitution, informing the interpretation of the Constitution and
the law,
and setting positive standards with which all law must
comply in order to be valid.
A founding value of particular
relevance in the present matter is that of a multi-party system of
democratic government to ensure
accountability, responsiveness and
openness. In
President of the Republic of South Africa v UDM
5
this Court pointed out that
a legislature has a very
special role to play in such a democracy. It is the law-maker
consisting of the duly elected representatives
of all the people.
With due regard to that role and mandate, it is drastic and
far-reaching for any court, directly or indirectly,
to suspend the
commencement or operation of an Act of Parliament and especially
one amending the Constitution, which is the supreme
law. The Court
continued:
“
On the other hand, the
Constitution as the supreme law is binding on all branches of
government and no less on the Legislature and
the Executive. The
Constitution requires the courts to ensure that all branches of
government act within the law. The three branches
of government are
indeed partners in upholding the supremacy of the Constitution and
the rule of law.”
6
One of the key ingredients of
partnership is candour, and it is the absence of openness on the
part of government as required by
section 1 of the Constitution,
that lies at the centre of my concern.
There is an information
deficit that impedes resolution of an important issue in the
present case. It relates to another area
where a foundational
value is directly engaged, namely, the rule of law. Fundamental to
the rule of law is the notion that government
acts in a rational
rather than an arbitrary manner. As this Court said in
Prinsloo
:
“
[T]he constitutional State
is expected to act in a rational manner. It should not regulate in
an arbitrary manner or manifest ‘naked
preferences’ that serve
no legitimate governmental purpose, for that would be inconsistent
with the rule of law and the fundamental
premises of the
constitutional State. . . . This has been said to promote the need
for governmental action to relate to a defensible
vision of the
public good, as well as to enhance the coherence and integrity of
legislation. In Mureinik’s celebrated formulation,
the new
constitutional order constitutes ‘a bridge away from a culture of
authority . . . to a culture of justification’.”
7
(footnotes omitted)
Our Constitution accordingly
requires that all legislation be rationally related to a legitimate
government purpose. If not, it
is inconsistent with the rule of law
and invalid.
8
The threshold for
demonstrating rationality is low. All that it requires is a
showing that some legitimate governmental purpose
be served by the
measure. The problem with the record in the present matter is that
whereas there is an abundance of material
dealing with
re-configuring provincial boundaries so as to eliminate
cross-boundary municipalities, there is very little indeed
from
which to discern the governmental objective behind transferring
Matatiele to the Eastern Cape. Nor are there clear pointers
in the
statute itself.
Despite receiving repeated
requests during argument for information on the purpose of
relocating Matatiele to the Eastern Cape,
counsel for the
government refrained from casting additional light on the topic.
The stance counsel adopted boiled down to asserting
that the
legislature itself thought that the relocation was necessary, and
involved a legislative choice, the wisdom of which
is not now open
to question by the Court.
Before dealing with whether
this posture adopted by counsel was constitutionally correct, an
observation needs to be made about
the manner in which Matatiele
was fitted into the scheme of the Twelfth Amendment. It would seem
from the record that Matatiele
was dealt with as a legislative
add-on to the Amendment, which was intended essentially to grasp
another nettle, namely, the
problems created by divided provincial
government responsibility for service delivery to cross-boundary
municipalities. Yet
the particular governmental purpose that could
legitimately underlie re-making borders so as to eliminate cross
boundary municipalities,
would on the face of it appear to bear no
immediately apparent relationship to a measure which relocates a
municipality whose
services have in fact been administered solely
by the KZN provincial government.
Counsel for the government
acknowledged that Matatiele was not established formally as a
cross-boundary municipality. He contended,
however, that it was “a
cross-boundary jurisdictional enclave similar to a cross-boundary
municipality.” He claimed that
the undisputed evidence showed
that it was common cause that the Maluti area and the municipality
of Matatiele constituted a
cohesive and integrated community,
adding that this was motivated by the Trengove Commission report
which in 1996 had recommended
(by 3 votes to 2) that Matatiele be
joined with Maluti in the Eastern Cape. The relevant sections of
the Trengove Commission’s
report recommendation of nearly ten
years ago were not placed before us. Nor was I able to find out
why it had not been acted
upon.
Of greater significance,
however, was the fact that as recently as October 2005 an
independent statutory body, namely the Municipal
Demarcation Board,
had considered and rejected the proposal that was later
incorporated into the Twelfth Amendment. It is important
to bear in
mind that it was Parliament itself which in fulfilment of its
responsibility under section 155 (3) (b) of the Constitution
established the Demarcation Board as an independent body. It was
Parliament which carefully set out the qualifications of Board’s
members so as to ensure expertise and independence. Moreover,
Parliament meticulously laid down the criteria to be followed by
the Board in making its determinations. The twelve statutory
criteria are listed in Ngcobo J’s judgment and need not be
repeated.
What has to be underlined is that Parliament deliberately
chose, in keeping with the Constitution, to establish an
independent
authority to prevent municipalities from being
demarcated along party political lines or in response to
constraints imposed by
national or provincial governments. One
would expect, then, that government would give an explanation why,
on the very specific
facts of this case, it was adopting
legislation which in respect of Matatiele Municipality ran counter
to the express determination
of the Board.
This legislative contradiction
of a determination made by a body tasked by the Constitution to
establish coherent municipalities
according to objective criteria,
may not in itself be sufficient to establish that the measure lacks
rationality. Yet it leaves
an information void that only
government can fill. Although the objective of linking Matatiele
with Maluti is placed before
us, virtually nothing is said about
why the conjoined areas should be located in the Eastern Cape
rather than in KZN. The Court
is thus left in darkness as to the
very issue that lies at the heart of the dispute it is called upon
to resolve.
In this respect the
Constitution requires candour on the part of government. What is
involved is not simply a matter of showing
courtesy to the public
and to the courts, desirable though that always is. It is a
question of maintaining respect for the constitutional
injunction
that our democratic government be accountable, responsive and open.
Furthermore, it is consistent with ensuring that
the courts can
function effectively, as section 165(4) of the Constitution
requires. In the present matter the courts should
not find
themselves disempowered by lack of information from making a
determination, if needs be, as to whether the provincial
relocation
of Matatiele Municipality is rationally sustainable.
It might well be that
government could without strain pass the test of showing that the
relocation of Matatiele to the Eastern
Cape is in fact rationally
connected to a legitimate government purpose. On the papers as
they stand, however, and bearing in
mind the strong
contra-indications from the Demarcation Board, the paucity of
information makes it difficult to decide whether
or not a
legitimate public purpose is being served by this particular
boundary change. It is difficult to hold that the purpose
is
legitimate if one does not know what the purpose is.
The notion that ‘government
knows best, end of enquiry’, might have satisfied Justice
Stratford CJ in the pre-democratic era.
It is no longer compatible
with democratic government based on the rule of law as envisaged by
our Constitution. This Court
has frequently acknowledged the wide
legislative mandate given by the Constitution to Parliament.
Democratically elected by
the nation, Parliament is the
engine-house of our democracy. One cannot but be mindful of the
intense time-tabling pressures
to which it is subjected in a period
of institution-building and transformation. Yet the more
significant the work that Parliament
undertakes and the greater the
pressures under which it operates, the stronger the need for
government to provide an explanation
for the introduction of
legislation; robustness need not be equated with opaqueness.
As this case demonstrates, far
from the foundational values of the rule of law and of accountable
government existing in discreet
categories, they overlap and
reinforce each other. Openness of government promotes both the
rationality that the rule of law
requires, and the accountability
that multi-party democracy demands. In our constitutional order,
the legitimacy of laws made
by Parliament comes not from awe, but
from openness.
SKWEYIYA AND YACOOB JJ:
Introduction
We have had the privilege of
reading the meticulous, detailed and carefully reasoned judgment of
Ngcobo J (the main judgment).
We agree that both the applicants’
attacks on the constitutionality of the Amendment Act
1
to the effect that the Act
unconstitutionally usurps the authority of the Demarcation Board
2
and that it offends section 41 of the Constitution must be
rejected.
Although the applicants
limited their challenge of the Amendment Act to those bases rightly
rejected in the main judgment, the
judgment goes further. It
considers that it is arguable whether the amendment was passed
consistently with the procedure mandated
by section 74(8) of the
Constitution and postponed the case, on certain conditions, until
the end of March this year for that
argument to be presented and
considered. We disagree with this approach, however, and conclude
that it is inappropriate, in
the circumstances of this case, for
this Court to delay judgment of the application and postpone it to
consider whether there
has been compliance with section 74(8) of
the Constitution.
We accordingly hold that the
Amendment Act is not invalid on the grounds relied upon by the
applicants and that their application
for an order declaring the
Amendment Act to be inconsistent with the Constitution must be
dismissed. This judgment deals predominantly
with this issue and
touches on other aspects in the main judgment in relation to which
there is either lack of clarity or potential
disagreement.
Must this Court consider
compliance with section 74(8) of the Constitution?
(a) The relevant facts
The factual matrix relevant to
a determination of whether we should consider the section 74(8)
issue is summarised briefly. This
application was launched as a
matter of urgency on 23 December 2005. This Court agreed that the
application should be considered
as a matter of urgency because its
outcome would have implications for the local government municipal
elections which are scheduled
to take place on 1 March 2006. The
main judgment encapsulates the issue of urgency as follows:
“
In view of the importance of
the constitutional issues involved in this case, we would have
preferred to have had more time to consider
these issues and
formulate our view. Time does not permit this. The local
government elections will be held on 1 March 2006.
And our decision
will have an impact on those elections. In view of the urgency of
the matter there is a pressing need to announce
our conclusions and
basic reasoning within the shortest possible time.”
3
The only material object of
the Amendment Act is to amend certain provincial boundaries
including the boundary between the provinces
of KwaZulu-Natal and
the Eastern Cape. To do this effectively, section 74(8) of the
Constitution had to be complied with. The
main judgment
essentially holds that it is arguable that the Amendment Act is
invalid in relation to the alteration of the boundary
between the
provinces of KwaZulu-Natal and the Eastern Cape on the following
basis: the public involvement mandated by section
118(1) of the
Constitution is embraced by the section 74(8) procedure and that
the public involvement by section 118(1) of the
Constitution has
not occurred. In other words, the main judgment is concerned with
the possibility that the Amendment Act is
fatally defective for
want of compliance with a single procedural requirement.
It is now convenient to repeat
section 74(8) and section 118(1) of the Constitution.
Section 74(8) is in chapter 4
of the Constitution which is concerned with Parliament, and in
that section of the chapter on
Parliament regarding the way in
which the Constitution may be amended. It reads as follows:
“
If a Bill referred to in
subsection (3)(b), or any part of the Bill, concerns only a specific
province or provinces, the National
Council of Provinces may not
pass the Bill or the relevant part unless it has been approved by
the legislature or legislatures
of the province or provinces
concerned.”
Section 118(1) is to be found
in chapter 6 of the Constitution which is about the provincial
legislature
4
and reads:
“
A provincial legislature
must—
(a) facilitate public
involvement in the legislative and other processes of the
legislature and its committees; and
(b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken —
(i) to regulate public access,
including access of the media, to the legislature and its
committees; and
(ii) to provide for the
searching of any person and, where appropriate, the refusal of entry
to, or the removal of, any person.”
The applicants did not raise
any issue concerning compliance with section 74(8) of our
Constitution. Indeed, immediately before
the hearing of the case,
it was common cause between the parties that the procedure in
section 74(8) had been complied with.
However, the affidavit
filed by the Speaker of the KwaZulu-Natal provincial legislature is
silent on whether there had been
any “public involvement” in
the process of the decision by the KwaZulu-Natal provincial
legislature to approve of the amendment
in so far as it related to
the provincial boundary between KwaZulu-Natal and the Eastern Cape.
It was in this context that
some members of this Court questioned counsel during argument.
This questioning pointed pertinently
to certain issues namely
whether:
proper compliance with
section 74(8) required the provincial legislatures to comply with
section 118(1) in the process leading
to the decision by the
KwaZulu-Natal provincial legislature in a plenary session to
mandate its representatives on the National
Council of Provinces
to approve the proposed constitutional amendments;
the affidavit of the Speaker
of the KwaZulu-Natal legislature demonstrated that there had been
no public involvement and that
section 118(1) had not been
complied with;
the Amendment Act was
unconstitutional on this basis;
this Court is bound by
concessions in argument that section 74(8) has been complied with;
this Court could raise the
issue; and
the Speaker of the
KwaZulu-Natal provincial legislature should have an opportunity to
address the issue.
The response of counsel for
the applicants was unambiguous. They frankly confessed that the
applicants had not raised this basis
of non-compliance with section
74(8) on the papers and disavowed any intention to pursue the
point. Counsel conceded, however,
that this Court did have the
power to consider the issue if it chose to do so even though the
matter had not been raised by the
applicants. Counsel made no
submission about whether we should do so in this case. Finally it
must be emphasised that counsel
for the applicants left us in no
doubt as to the applicants’ object in bringing this application:
they wanted to have the area
of Matatiele located in the province
of KwaZulu-Natal. We consider this to be an important factor in
determining whether the
case should be postponed to determine the
section 74(8) issue. We revert to this later.
(b) The evaluation
The main judgment appears to
accept that the case should be postponed for argument on the
section 74(8) issue only if it is in
the interests of justice to do
so. This is indeed the appropriate test. The issues that must be
considered in determining whether
it is in the interests of justice
to postpone the case include the importance and complexity of the
matter and issue; whether
the applicants wish the issue to be
argued; and whether it is in the interests of the applicants, who
after all, have brought
the application to have this issue
adjudicated. The last two factors referred to in the previous
sentence are not considered
in the main judgment.
It is our respectful view that
the issues raised in the course of the questioning described in the
preceding paragraph are by
no means capable of a ready answer.
They are as important as they are complex and involve an
investigation of, amongst other
things, the inter-play of sections
74(8), 72(1) and 118(1) of the Constitution; the implications of
section 65(2) of the Constitution;
5
the procedure described in the legislation contemplated by, and
passed pursuant to section 65(2) of the Constitution; the correct
interpretation of section 118(1) as a whole in its context; and the
meaning to be attributed to the words “facilitate” and
“public
involvement” in particular; whether the conduct of the
KwaZulu-Natal provincial legislature met the relevant standard;
and
whether, if it did not, the appropriate remedy consequent upon
non-compliance was a declaration of invalidity of the Amendment
Act
to the extent that it was concerned with the province of
KwaZulu-Natal
6
despite the approval of the legislation by the elected
representatives of the people of that province.
The issues are so complex that
it is impossible to say that the argument for constitutional
invalidity is compelling. However,
the problem does not end here.
Even if the Court were to hold that compliance with section 118(1)
of the Constitution was necessary
and that there was no compliance,
we have doubt about whether we will set aside the Amendment Act in
so far as it concerns the
border between the provinces of the
Eastern Cape and KwaZulu-Natal. We do not intend to suggest that
the section 118(1) public
involvement is unimportant: it is an
important building block in the process of forging a participatory
democracy, a process
which is both long and arduous. Our reason
for doubting whether this Court will set aside that part of the
Amendment Act is
that we will need to balance against it the
following factors:
the provincial legislature is
not bound by what the people who are consulted want to do;
the process has been approved
by two-thirds of the members of the National Assembly who are the
elected representatives of the
South African people, by all of the
provinces and by a majority of the members of the KwaZulu-Natal
legislature who are the
democratically elected representatives of
the people of KwaZulu-Natal.
there has been consultation
at the national level and the people of Matatiele have made
strenuous representations there already;
it is unlikely that the
provincial representatives were not aware of the content and
nature of these representations; and
the people of Matatiele have
made their views known to a Member of the Executive Council in
KwaZulu-Natal and have aired their
views at public hearings held
by the Demarcation Board.
7
We would suggest that there is
a compelling argument that it is to put form above substance to set
aside part of the Amendment Act,
in all the circumstances of this
case, because consultation by the provincial legislature is absent.
Even if the relevant part of
the Amendment Act were to be set aside, there would be a compelling
argument that it is in the interests
of justice for the declaration
of invalidity to be suspended for a reasonable period in order to
enable the provincial legislature
to cure the defect. It is
important to point out here that the main judgment proposes that
elections be held in the newly established
Matatiele Local
Municipality, in the Sisonke District Municipality, and in the
Alfred Nzo District Municipality. By the time
we come to consider
whether to suspend the declaration of invalidity of part of the
Amendment Act (if that declaration is in
fact made), these
elections would have been held and the argument would be that
setting aside part of the Amendment Act without
more would give
rise to considerable and perhaps unnecessary disruption. How
everything is to be undone if the declaration of
invalidity of
parts of the Amendment Act is not suspended boggles the mind.
If the order for suspension is
granted, the possibility that the consultation will result in the
KwaZulu-Natal legislature changing
its position on the Amendment
Act is remote. It is unlikely that the consultation will produce a
new factor not previously considered
and so potent as to justify a
change in what must be seen as the previously considered view of
the KwaZulu-Natal legislature.
It is perhaps so that the
applicants did not embrace the point when it was suggested to them
because it was realised that the
new road did not necessarily lead
to the desired destination. It is in our view not in the interests
of justice to postpone
this case to hear an argument on an issue
and subject the applicants to extra effort and expenditure of
taking the argument forward
because the Court regards the issue as
important and arguable in circumstances where there cannot be said
to be any compelling
reason to suggest that the applicants (and it
is the applicants who have launched this application) will benefit
in the sense
of achieving their only objective: the transfer of
Matatiele from the province of the Eastern Cape to KwaZulu-Natal.
It will be remembered that the
applicants approached this Court urgently, precisely because they
required a decision of the case
before 1 March. We must also not
forget that this Court heard the case urgently for that reason and
that reason alone. In addition,
the issue as to whether final
judgment on the application should be given after 1 March and after
consideration of the section
74(8) issue has not been canvassed
with the parties. Indeed, the applicants disavowed any reliance on
the section 74(8) compliance
issue and did not urge the Court to
consider it even after the matter had been pertinently drawn to
their attention.
We conclude that it is not in
the interests of justice to determine an important and complex
constitutional issue if the appropriate
determination of the issue
requires us to postpone full argument and the delivery of judgment
to a date beyond that of the municipal
elections to be held on 1
March, in circumstances where the applicant does not require this
Court to determine the issue and
wishes to have judgment before the
date of the elections.
We would therefore simply hold
that the Amendment Act is not invalid on the grounds urged by the
applicant. We would not postpone
the case to consider the section
74(8) issue at this stage because it is not in the interests of
justice to do so. We would
therefore dismiss the applicants’
claim that the Amendment Act is inconsistent with the Constitution.
The reasons for the
amendment?
One more matter concerning the
Amendment Act must be mentioned. When it was pointed out to
counsel for the respondents that the
papers filed on their behalf
did not set out the motivation for the decision taken to alter the
provincial boundary between the
province of KwaZulu-Natal and the
province of the Eastern Cape, counsel took the view that this
information was irrelevant to
a determination of the matters at
hand. He added that the respondents could not be faulted for not
furnishing the reasons.
This response represents an unfortunate
over-simplification.
It is impossible for a court
to determine whether or not the motivation for a particular
legislative choice is relevant until
and unless the reason is made
known. Our Constitution requires transparency and accountability
and it is ordinarily incumbent
upon government to make public the
basis on which a particular choice was made. It is quite possible
that in this case, the
motivation was not fully canvassed because
papers had to be prepared as a matter of urgency. It is also
apparent that the provincial
boundary re-determination effected by
the Amendment Act is consistent with the majority recommendation of
a commission appointed
by the government to make recommendations
concerning this provincial boundary. In the circumstances, there
may be sufficient
to detract from any contention that the amendment
might be irrational. It is not necessary to decide the issue at
this stage
but irrationality may in a particular case constitute a
sufficient basis for a declaration of constitutional invalidity.
It
is essential, in all future cases, for government to provide
courts with the reasons which motivated particular legislation in
order to promote transparency and accountability and to ensure that
courts decide cases on a holistic consideration of all the
circumstances.
Although we are of the view
that this case should not be postponed so that the section 74(8)
issue can be investigated, there
will be a postponement because the
majority supports this course. Since the case is to be postponed,
in any event, we agree
entirely with the main judgment and
associate ourselves with that part of the Order that requires the
Minister to furnish particulars
of the motivation.
Repeal Act
The invalidity of the
Amendment Act will result in the Repeal Act
8
becoming redundant. Accordingly, the constitutionality of the
Repeal Act falls to be considered only if the Amendment Act is
valid. In the circumstances, and because the main judgment
supported by the majority does not pronounce on the validity of the
Amendment Act, any consideration of the Repeal Act would be
pointless. We accordingly refrain from going there.
The interaction between the
Executive and the Demarcation Board in the process of boundary
re-determination
We have considerable
difficulty with the way in which the main judgment depicts the
interaction between the Executive and the
Demarcation Board in the
process of the preparation and adoption of the Amendment Act and
the Repeal Act. Indeed, the main judgment
expressly says of the
Minister in relation to the Amendment Act:
“
Thus what the Minister could
not achieve through the Board was to be achieved through a
constitutional amendment.”
9
We cannot agree with this
statement, nor the way in which this process is described.
10
Before setting out the process
in detail, we think it will be helpful to set out my views broadly.
The interrelationship between
the amendment of provincial
boundaries and the amendment of municipal boundaries must have been
obvious to all, including the
Minister and the Board. So must the
constitutional provision that requires municipal boundaries to be
determined by an independent
authority.
11
Under the circumstances, once the decision had been made to amend
provincial boundaries, and to eliminate cross-boundary
municipalities
with the passage of the Amendment Act and the Repeal
Act imminent, it would have been evident that some co-operation
between
the Executive and the Demarcation Board would have to occur
for there to be a smooth process. Otherwise, the consequences of

changing provincial boundaries without addressing the consequences
of that change would be unthinkable. The consequences will
be
investigated briefly with particular reference to Matatiele Local
Municipality.
It is necessary to traverse
the process for the establishment of municipalities in order to
understand the consequences of the
provincial boundary change. The
Constitution demands that “each provincial government must
establish municipalities” consistently
with certain national
legislation.
12
A provincial government cannot therefore establish a municipality
in another province. The national legislation concerned with
the
establishment of municipalities is the Structures Act
13
and the Demarcation Act.
14
Consistent
with the constitutional requirement that only
provincial governments may establish municipalities and only in
their provinces,
section 12 of the Structures Act provides:
“
12
MECs to establish
municipalities
(1) The MEC for local
government in a province, by notice in the
Provincial Gazette
,
must establish a municipality in each municipal area which the
Demarcation Board demarcates in the province in terms of the
Demarcation
Act.
(2) The establishment of a
municipality—
(a) must be consistent with
the provisions of this Act; and
(b) takes effect at the
commencement of the first election of the council of that
municipality.
(3) The notice establishing
the municipality must set out—
(a) the category of
municipality that is established;
(b) the type of municipality
that is established;
(c) the boundaries of the
municipal area;
(d) the name of the
municipality;
(dA) in the case of a
metropolitan or local municipality, the number of wards in the
municipality;
[Para. (dA) inserted by s. 1
(b) of Act 33 of 2000.]
(e) the number of councillors
as determined in terms of section 20;
(eA) in the case of a district
municipality, the number of councillors, determined in terms of
section 23, to—
(i) proportionally represent
parties;
(ii) be appointed by each of
the local councils within the district municipality to directly
represent each local municipality;
and
(iii) proportionally represent
parties from each district management area within that district
municipality;
[Para. (eA) inserted by s. 93
of Act 27 of 2000.]
(f) which councillors of the
municipality (if any) may be designated as full-time in terms of
section 18 (4);
(g) ......
[Para. (g) deleted by s. 1 (c)
of Act 33 of 2000.]
(h) any provisions of this Act
from which the municipality has been exempted in terms of section
91; and
(i) any other relevant
detail.
[Sub-s. (3) amended by s. 1 (a)
of Act 33 of 2000.]
(4) The MEC for local
government must—
(a) at the commencement of the
process to establish a municipality, give written notice of the
proposed establishment to organised
local government in the province
and any existing municipalities that may be affected by the
establishment of the municipality;
(b) before publishing a
notice in terms of this section, consult—
(i) organised local
government in the province; and
(ii) the existing
municipalities affected by the proposed establishment; and
(c) after such consultation
publish particulars of the proposed notice for public comment.”
The old Matatiele was
undoubtedly established by the MEC of local government for the
province of KwaZulu-Natal in the province
of KwaZulu-Natal. The old
Matatiele was not established and could not be established for the
province of the Eastern Cape. The
re-determination of the
provincial boundary cannot therefore mean that the old Matatiele
Local Municipality established by the
relevant KwaZulu-Natal MEC
for that province became a municipality by the same name, covering
the same area within the province
of the Eastern Cape. The change
in provincial boundaries resulted in the fact that the old
Matatiele ceased to exist when the
Amendment Act came into
operation. In addition, the territory which previously formed the
old Matatiele was now in the province
of the Eastern Cape; an area
in respect of which no municipality had yet been established by the
Eastern Cape provincial government.
15
There would have been three
ways of managing this problem. The first, a way which in fact
would amount to mismanaging it would
be to pass the Amendment Act
and then ask the Demarcation Board to reconfigure municipalities in
the light of the change in provincial
boundaries. This approach
would be inconsistent with the Constitution because it would result
in the territory of the old Matatiele
Local Municipality to have no
governance. The second way would have been to temporarily tack the
territory of the old Matatiele
onto an existing municipality in the
Eastern Cape and thereafter to ask the Demarcation Board to
determine the municipal boundaries.
The third would be to engage
the Demarcation Board in the process, sharing with the Board the
intention to change provincial
boundaries and asking it to advise
on the municipal re-configuration in advance and to implement that
advice simultaneously with
the amendment of provincial boundaries.
This course would mean that the municipal boundaries would have
been determined by the
Demarcation Board and avoid a temporary
municipal re-configuration consequent upon the alteration of
provincial boundaries.
The evidence demonstrates that the
Executive followed this course.
As will be seen from what
follows, the pattern of the interaction demonstrates that there was
discussion with the Demarcation
Board, a request to the Demarcation
Board to publish a determination, the use of that publication in
the process of drafting
legislation which is subsequently
published, a determination by the Demarcation Board of municipal
boundaries and the subsequent
implementation of those boundaries in
the Repeal Act. The first letter in the process that we have been
able to find on the
record is dated 17 August 2005 and addressed by
a ministerial representative to the Chairperson of the Demarcation
Board requesting
that certain boundaries be published at the
request of the Minister. Pertinent for present purposes is the
first sentence of
this letter which reads:
“
My letter dated 17 August
2005 and our various discussions on the aforementioned matter has
reference.”
This demonstrates that there
had been discussions and even previous correspondence between the
Deparment of Provincial and Local
Government and the Demarcation
Board. And it would be naïve to suggest that the discussion
was anything but about the contemplated
provincial boundary change
upon municipal boundaries.
The Demarcation Board acceded
to the Minister’s request and on 19 August 2005, in Government
Notice No. 1594 of 2005,
16
the Demarcation Board published the Minister’s proposals. The
shape and size of the new Matatiele Local Municipality proposed
by
the Minister is contained in Map 3 to Notice No. 1594 of 2005. The
only significant aspect of the configuration of the new
Matatiele
municipality as proposed by the Minister is that the old Matatiele
and Maluti would be combined to form the new Matatiele.
It must be
noticed that the Minister’s proposal also indicated that the new
Matatiele Local Municipality is to form part of
the Eastern Cape
province.
The purpose of the request to
publish is also clear. What happened was that on 26 August 2005
the Minister published the Repeal
Bill. It will be noted that the
Repeal Bill refers to all the municipal boundaries concerned by
naming Notice 1594 of 2005,
published by the Demarcation Board at
the Minister’s request on 19 August 2005.
The Demarcation Board
published its proposal for Matatiele Local Municipality (and many
other municipalities) in a Provincial
Gazette on 18 October 2005.
17
Map 2 of this Notice deals with Matatiele Local Municipality. The
Demarcation Board did not accede to the Minister’s request
that
the newly configured Matatiele Local Municipality be placed in the
province of the Eastern Cape. It must be remembered
however, that
this was not the Demarcation Board’s decision to make. What is
of importance though is that there is very little
or no difference
between the shape and size of the new Matatiele as proposed by the
Minister and the re-determination proposed
by the Demarcation Board
after full and proper consultation.
18
The next development was that
the Minister requested the Board to publish certain boundary
determinations while the Parliamentary
Portfolio Committee for
Justice and Constitutional Development requested that the Board
re-publish certain municipal maps. This
was done by the
Demarcation Board on 31 October 2005 in Notice No. 1998 of 2005.
19
The purpose of this request was again clear. What the Minister
and the Portfolio Committee wanted was to be able to indicate
provincial boundaries in the Amendment Act by reference to a set of
maps covering the whole country contained in a single publication.

This was done for it will be seen that schedule 1A of the Amendment
Act delineates provincial boundaries by reference to the
maps
published in Notice 1998 of 2005. And this cannot be referred to
as the submission by the Minister as an “alternative”
re-determination proposal.
20
Matatiele is represented in map 1of Notice 1998 of 2005. It will
be seen that map 1 of Notice 1998 is identical to map 2 of
Notice
No 326 of 2005 published on 18 October 2005 in Provincial Gazette,
which it will be remembered was the Matatiele configuration
recommended by the Demarcation Board.
We therefore disagree with the
main judgment in relation to the publication in Notice 1998.
21
To complete this aspect two
more Notices must be referred to. The first is Notice No.1257 of
2005 published on 21 November 2005.
22
Suffice it to say that in map 9 attached to this Notice Matatiele
Local Municipality is the same as the map in which the Demarcation
Board determined it after full and proper consultation in the
Provincial Gazette of 19 October 2005, just referred to.
The second Notice of relevance
is the Correction Notice No. 1496 of 2005
23
on 28 November 2005. Matatiele Local Municipality is again in map
9. The municipality is now differently configured. It is
the
Demarcation Board that is responsible for this re-configuration.
And it is this map that reflects the size and shape of
the
Matatiele Local Municipality in the Repeal Act.
There is accordingly nothing
untoward in the interaction between the Minister and the
Demarcation Board. The Minister has done
nothing to usurp the
Board in so far as the shape and size of Matatiele is concerned.
All the Amendment Act and the Repeal Act
do is to place the whole
of this area as determined by the Demarcation Board in the Alfred
Nzo municipality in the Eastern Cape
province. It may be that the
Board wanted it in KwaZulu-Natal but that is neither here nor
there.
For the applicants: A J
Dickson and A A Gabriel
instructed by Austen Smith
Attorneys
For the First, Second and Third
Respondents: I Semenya SC, Vincent Maleka SC,
N Mayet and Portia
Nkutha
instructed by the State
Attorney
(Johannesburg)
For the Fourteenth and
Fifteenth Respondents: K D Moroka SC and K Pillay
instructed by the State
Attorney
(Johannesburg)
1
Government Gazette 28380 GN 4, 6 January 2006.
2
Constitution of the Republic of South Africa Act 200 of 1993 (“the
interim Constitution”), s 124 (2), Schedule 1.
3
Section 103 of the Constitution of the Republic of South Africa,
1996.
4
Schedule 1 Part 1 of the interim Constitution. But as will appear
from this schedule certain land and farms Drumleary 130 and
Stanford
127, which were in KwaZulu-Natal, were proclaimed as part of the
Eastern Cape.
5
Provincial Gazette of KwaZulu-Natal 5535, MN 147, 18 July 2000.
This determination was authorised by the Local Government: Municipal
Demarcation Act 27 of 1998.
6
Provincial Gazette Extraordinary 613 GN 169, 26 July 2000;
Provincial Gazette 636 CN 200, 9 August 2000 (correcting GN169).
7
Section 155(6A) was introduced by the Constitution Third Amendment
Act of 1998. Section 155(6A) provides─
“
If the criteria envisaged in subsection (3)(b)
cannot be fulfilled without a municipal boundary extending across a
provincial boundary—
that municipal boundary may be determined across the
provincial boundary, but only—
with the concurrence of the provinces concerned; and
after the respective provincial executives have been
authorised by national legislation to establish a municipality
within that
municipal area; and
national legislation may—
subject to subsection (5), provide for the
establishment in that municipal area of a municipality of a type
agreed to between
the provinces concerned;
provide a framework for the exercise of provincial
executive authority in that municipal area and with regard to that
municipality;
and
provide for the re-determination of municipal
boundaries where one of the provinces concerned withdraws its
support of a municipal
boundary determined in terms of paragraph
(a).”
8
Memorandum to the President’s Coordinating
Council to be held on 1 November 2002: Administration of
Cross-Boundary Municipalities.
9
Local Government: Municipal Demarcation Act 27 of
1998
.
10
Provincial Gazette Extraordinary 1442, GN 326, 18 October 2005;
Provincial Gazette of KwaZulu-Natal 6438 GN 94, 20 October 2005.
11
Government Gazette 28236 GN 1257, 21 November 2005.
12
Government Gazette 28273 GN
1496,
28
November 2005.
13
Section 167(4)(d) of the Constitution provides as follows:
“
(4) Only the Constitutional Court may–
. . . .
(d) decide on the constitutionality of any amendment
to the Constitution”.
14
Section 167(6)(a) of the Constitution provides as follows:
“
(6) National legislation or the rules of the
Constitutional Court must allow a person, when it is in the
interests of justice and
with leave of the Constitutional Court–
(a) to bring a matter directly to the Constitutional
Court”.
15
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC).
16
Id at para 47.
17
Id.
18
Section 1(d) of the Constitution.
19
Section 152(1)(a) of the Constitution.
20
Executive Council, Western Cape Legislature
above n 15 at
para 50.
21
Id at para 55.
22
Id at para 68.
23
Demarcation Act above n 9, at s 7.
24
Section
44(1)(a)(i) of the Constitution provides as follows:
“
(1) The national legislative authority as vested in
Parliament
—
(a) confers on the National Assembly the power
—
(i) to amend the Constitution
”.
25
Section 74(3) of the Constitution provides—
“
(3) Any other provision of the Constitution may be
amended by a Bill passed
—
by the National Assembly, with a supporting vote of at
least two thirds of its members; and
also by the National Council of Provinces, with a
supporting vote of at least six provinces, if the amendment—
. . . .
(ii) alters provincial boundaries, powers, functions or
institutions”.
26
Above n 7.
27
Section 25(e) of the Demarcation Act provides as follows:
“
25. Factors to be taken into account.—In order to
attain the objectives set out in section 24, the Board must, when
determining
a municipal boundary, take into account—
. . . .
(e) provincial and municipal boundaries”.
28
See, for example,
GNH Office Automation CC and Another v
Provincial Tender Board, Eastern Cape, and Another
,
1998 (3) SA
45
(SCA) at 51G-H;
Moleah v University of Transkei and Others
,
1998 (2) SA 522
(Tk) 536H-37D. In
Moleah
, Van Zyl J
described at 536H-I the doctrine of implied powers as follows:
“
Applying the principles applicable to the
interpretation of statutes, it is clear that, if certain conduct is
required or authorised,
the authorising act should be interpreted as
impliedly including authorisation to do that which is ‘reasonably
necessary’ to
achieve the main purpose or to perform the action
effectively or that which is ‘reasonably incidental’ or
reasonably ancillary’
to those powers expressly conferred.”
Compare Section 44(3) of the Constitution, which
provides as follows:
“
(3) Legislation with regard to a matter that is
reasonably necessary for, or incidental to, the effective exercise
of a power concerning
any matter listed in Schedule 4, is, for all
purposes, legislation with regard to a matter listed in Schedule 4.”
29
Act 13 of 2005.
30
2006 (1) SA 474
(SCA).
31
Section 59(1)(a) which applies to the National
Assembly is the equivalent of Section 118(1)(a) which applies to
provincial legislatures.
32
King
above n 30
at para 22.
33
1996 (4) SA 671 (CC); 1996 (8) BCLR 1015 (CC).
34
Id at para 16.
35
Executive Council, Western Cape Legislature
above n 15 at
paras 22-23.
36
The Western Cape legislature was not required to approve the Bill in
terms of section 74(8). Nonetheless, its Standing Committee
on
Governance placed advertisements in local newspapers informing the
public about the Twelfth Amendment and Repeal Act Bills and
inviting
them to make submissions and attend the Standing Committee meeting
that would consider the negotiating mandates for those
Bills.
37
The Free State followed similar,
non-participatory procedures.
1
The matter raises the constitutionality of a constitutional
amendment which s
ection 167(4) of the
Constitution reserves as a matter to be determined only by this
Court.
2
Section 159 of the Constitution reads as follows:
“
Terms of Municipal Councils
(1) The term of a Municipal Council may be no more than
five years, as determined by national legislation.
(2) If a Municipal Council is dissolved in terms of
national legislation, or when its term expires, an election must be
held within
90 days of the date that Council was dissolved or its
term expired.
(3) A Municipal Council, other than a Council that has
been dissolved following an intervention in terms of section 139,
remains
competent to function from the time it is dissolved or its
term expires, until the newly elected Council has been declared
elected.”
Section 24
of the
Local Government Municipal Structures
Act, 117 of 1998
reads as follows:
“
Term of municipal councils. –(1) The term of
municipal councils is five years calculated from the day following
the date set for
the previous election of all municipal councils in
terms of subsection (2).”
1
Sachs v Minister of Justice; Diamond v
Minister of Justice
1934 AD 11
at 37.
2
S v Acheson
1991 (2) SA 805
(Nm HC) at 813
(At that time Justice Mahomed was Acting Judge of Appeal in
Namibia, before later becoming Deputy President of this Court and
then Chief Justice of South Africa.)
3
See Mahomed DP in
Premier,
KwaZulu-Natal, and Others v President of the Republic of South
Africa and Others
[1995] ZACC 10
;
1996 (1) SA 769
(CC);
1995 (12) BCLR 1561
(CC) at para 47.
4
United Democratic Movement v President of the Republic of South
Africa and Others (African Christian Democratic Party and Others
intervening; Institute for Democracy in South Africa and Another as
Amici Curiae
) (2)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR
1179
(CC) at paras 18-19.
5
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
intervening; Institute for Democracy in South Africa and Another as
Amici Curiae
)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at para 25.
6
Id.
7
Prinsloo v Van der Linde and Another
1997 (3) SA 1012
(CC) at
paras 25-26.
8
UDM
, above n 4 at para 55.
1
Constitution Twelfth Amendment Act of 2005.
2
The Municipal Demarcation Board created in terms of section 2 of
Local Government Municipal Demarcation Act 27 of 1998
.
3
Paragraph 1 of Ngcobo J’s judgment.
4
This provision appears in identical terms in
section 72(1)
in
relation to the National Council of Provinces and in
section 59(1)
which is binding on the National Assembly.
5
Section 65(2)
provides: “An Act of Parliament, enacted in
accordance with the procedure established by either subsection (1)
or subsection
(2) of section 76, must provide for a uniform
procedure in terms of which provincial legislatures confer authority
on their delegations
to cast votes on their behalf.”
6
King and Others v Attorneys’ Fidelity Fund Board of Control and
Another
2006 (1) SA 474
SCA.
7
Municipal Demarcation Board established by the
Local Government:
Municipal Demarcation Act 27 of 1998
.
8
Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23
of 2005
.
9
Paragraph 25 of the main judgment.
10
Paragraphs 18-30 of the main judgment.
11
Section 155(3)(b) of the Constitution.
12
Section 155(6) read with sections 155(2) and (3) of the Constitution
.
13
Local Government : Municipal Structures Act 117 of 1998.
14
Above note 7.
15
Section 151(1) of the Constitution requires municipalities to be
established for the whole of the territory of the Republic.
16
Government Gazette No. 27937.
17
Notice no 326 of 2005 published in Provincial Gazette No. 1442.
18
In terms of section 26 of the Demarcation Act.
19
Contained in Government Gazette No. 28189.
20
Paragraph 21 of the main judgment.
21
Paragraphs 21 and 22 of the main judgment.
22
Government Gazette No. 28236.
23
Government Gazette No. 28273.
94