About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2006
>>
[2006] ZACC 12
|

|

Matatiele Municipality and Others v President of the Republic of South Africa and Others (2) (CCT73/05A) [2006] ZACC 12; 2007 (1) BCLR 47 (CC); 2007 (6) SA 477 (CC) (18 August 2006)

Links to summary

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
THE SPEAKER OF THE NATIONAL ASSEMBLY Fourteenth Respondent
THE
CHAIRPERSON OF THE NATIONAL COUNCIL OF
PROVINCES Fifteenth
Respondent
THE
EASTERN CAPE PROVINCIAL LEGISLATURE Sixteenth Respondent
THE
KWAZULU-NATAL PROVINCIAL LEGISLATURE Seventeenth Respondent
THE
ELECTORAL COMMISSION Eighteenth Respondent
Heard
on : 30 March 2006
Decided
on : 18 August 2006
JUDGMENT
NGCOBO J:
Introduction
This
case concerns the validity of the Constitution Twelfth Amendment
Act of 2005 (“the Twelfth Amendment”) and the Cross-boundary
Municipalities Laws Repeal and Related Matters Act 23 of 2005 (“the
Repeal Act”). It raises an important question relating
to the
responsibility of a provincial legislature when its provincial
boundary is to be altered. In particular, it concerns
the
obligation of a provincial legislature to consult with the people
who are to be affected by the re-drawing of provincial
boundaries.
Background
Parliament
adopted the Twelfth Amendment to the Constitution, which altered
the basis for determining provincial boundaries.
The provincial
boundaries are no longer based on magisterial districts, but are
now determined on the basis of municipal areas.
This has resulted
in the alteration of the boundary between the provinces of
KwaZulu-Natal and the Eastern Cape. Among other
changes, the area
that previously formed the local municipality of Matatiele
(designated KZ5a3 by Municipal Notice 147 published
in the
KwaZulu-Natal Provincial Gazette 5535 on 18 July 2000) has been
transferred from KwaZulu-Natal province into the Eastern
Cape
province and new municipal boundaries have been created as a
consequence. It is the transfer of the area that was Matatiele
Local Municipality into the Eastern Cape province which is at the
centre of the present constitutional challenge.
The
former municipality of Matatiele and a diverse group of businesses,
educators, associations and non-governmental organisations
challenged the constitutional validity of the Twelfth Amendment and
the Repeal Act. They contended that the Twelfth Amendment
is
unconstitutional in that it effectively re-demarcated Matatiele
Municipality and removed it from KwaZulu-Natal into the Eastern
Cape without complying with the provisions of the Constitution.
The main thrust of the challenge was 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
challenge was resisted by the President of the Republic of South
Africa, the Minister of Provincial and Local Government and
the
Minister of Justice and Constitutional Development. The other
respondents, who comprised affected members of the Executive
Councils for the provinces of KwaZulu-Natal and the Eastern Cape,
the affected municipalities and the Municipal Demarcation Board,
elected to abide the decision of the Court. The Speaker of the
National Assembly and the Chairperson of the National Council
of
Provinces (“the NCOP”) entered the fray on the side of the
President.
The
matter was heard as one of urgency on 14 February 2006, a day
before the commencement of the Court term. Although there was
a
substantial issue on the papers as to whether the Twelfth Amendment
had been adopted in accordance with the procedures set
out in the
Constitution, this point was not taken in argument. On behalf of
the applicants, it was conceded that the Twelfth
Amendment had been
adopted in accordance with the provisions of the Constitution.
After hearing oral argument, the Court reserved
judgment.
In
the course of considering the matter, it appeared to the Court that
there was a substantial issue as to the correctness of
the
concession that the relevant part of the Twelfth Amendment which
concerns the relocation of Matatiele had been adopted in
accordance
with the procedures set out in the Constitution. In view of the
importance of resolving the question whether the
Twelfth Amendment
had been adopted in a manner that is consistent with the provisions
of the Constitution, the Court considered
it desirable to call for
argument on this question. The Court thus provided the provincial
legislatures of KwaZulu-Natal and
the Eastern Cape, and the
Electoral Commission, which had a substantial interest in this
issue, the opportunity to make submissions
on it.
As
the municipal elections were due to be held on 1 March 2006, it was
impractical to attend to these matters prior to that date.
But at
the same time, it was necessary to give an indication as to whether
the election should go ahead. Thus on 27 February
2006, the Court
delivered judgment rejecting the applicants’ main argument that
in adopting the Twelfth Amendment Parliament
unconstitutionally
usurped the powers of the Municipal Demarcation Board to
re-determine municipal boundaries. It ruled that
the elections
should go ahead, and gave directions dealing with the further
conduct of the case.
1
The
Court did not finally decide the constitutional validity of the
Twelfth Amendment or the Repeal Act. Nor did it deal with
the
question whether the applicants were entitled to approach this
Court directly in relation to the Repeal Act. These issues
are
addressed in this judgment.
The
Court issued further directions calling for submissions on 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) 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 (b) 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 (c) 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?
In
addition, in view of the impact that the proceedings might have on
the provinces of KwaZulu-Natal and the Eastern Cape, and
on the
elections that were due to take place, the Court further directed
that the provincial legislatures of these two provinces
and the
Electoral Commission be joined as parties to the proceedings. All
of the parties were afforded an opportunity to lodge
further
affidavits and written argument dealing with the issues set out in
the further directions. The matter was set down for
further
argument on 30 March 2006.
The
provinces of KwaZulu-Natal and the Eastern Cape have now been
joined. The province of KwaZulu-Natal is resisting the application
and is represented by counsel. The Eastern Cape province has
decided to abide the decision of the Court.
On
the eve of the hearing of this matter, the new municipality of
Matatiele withdrew from the case.
2
No explanation was furnished for the withdrawal. It is common
cause between the parties that the withdrawal of the first

applicant has no consequence for this litigation and that the
remaining applicants are competent to proceed with the litigation.

I am satisfied that this is so.
The
issues presented
Broadly
speaking, the main issues raised in this case are:
Whether
that part of the Twelfth Amendment which concerns the provinces of
KwaZulu-Natal and the Eastern Cape was adopted in accordance
with
the provisions of the Constitution, and if not, the consequences of
such non-compliance;
Whether
the applicants were entitled to come to this Court directly in
relation to the Repeal Act; and
The
constitutional validity of the Repeal Act.
Ordinarily,
the issue of direct access would be considered first, before
considering the merits of the constitutional challenge.
However,
this issue relates to the Repeal Act only and does not affect the
Twelfth Amendment. It will therefore be convenient
to address the
constitutional validity of the Twelfth Amendment first, followed by
the question whether the applicants were entitled
to approach this
Court directly on the issue of the validity of the Repeal Act, and
if so, whether the Repeal Act is constitutionally
valid.
In
view of the differences in the submissions made by the different
respondents, it will be necessary at times to refer to them
separately. In this judgment, I will refer to the President, the
Minister of Provincial and Local Government and the Minister
of
Justice and Constitutional Development as the government, the
National Assembly and NCOP as Parliament and the remaining

respondents by their respective names. Otherwise, all the
respondents will be referred to collectively as simply the
respondents
unless the context requires otherwise.
The
validity of the Twelfth Amendment
Section
74 deals with bills that amend the Constitution. Subsections 3 and
8 deal with constitutional amendments that alter provincial
boundaries, powers, functions or institutions. These subsections
provide:
“
(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.
. . . .
(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.”
It
is common cause between the parties that section 74(3) governs the
Twelfth Amendment. The issue between the parties is whether
the
provisions of section 74(8) apply to the Twelfth Amendment. The
question which must first be considered therefore is whether
the
provisions of section 74(8) are applicable to the Twelfth
Amendment.
Does
section 74(8) apply?
The
government contended that section 74(8) does not apply to the
Twelfth Amendment because the amendment does not affect only
a
specific province or provinces but affects all nine provinces. A
number of submissions were advanced in support of this contention.

The mainstay of this contention is that the amendment is of general
application because it alters the nature of the boundaries
of all
provinces by delimiting them on the basis of municipalities rather
than magisterial districts as was the case previously.
The
amendment does not therefore concern a specific province or
provinces as required by section 74(8), so it was argued.
In
its papers, as well as its written argument, the provincial
legislature of KwaZulu-Natal accepted that the provisions of

section 74(8) are applicable. However, contrary to this, in oral
argument, counsel for the KwaZulu-Natal legislature contended
that
section 74(8) does not apply, and that even if it does apply, it
was complied with. No submissions were made in support
of this
contention.
The
applicants contended that the provisions of section 74(8) are
applicable because there are parts of the Twelfth Amendment
which
affect only specific provinces. For its part, Parliament conceded
that section 74(8) is applicable in this case.
The
provisions of section 74(8) are clear and admit of no ambiguity.
They apply where a “Bill . . . or
any part of the Bill
concerns only a specific province or provinces.” (My own
emphasis.) The plain and ordinary meaning of this phrase is that
if any part of a proposed constitutional amendment concerns a
specific province or provinces only, the provisions of section
74(8) apply. It is sufficient that a part of the proposed
constitutional amendment concerns only a specific province or
provinces
and not other provinces. The fact that the proposed
amendment deals with all provinces matters not. What matters is
that there
are parts of the proposed amendment which concern “only
a specific province or provinces” and not other provinces.
By
its very nature and purpose, the Twelfth Amendment must consist of
several parts that deal with the specific provinces because
it
redefines the geographical areas of the nine provinces. The
amendment redraws provincial boundaries by using a new criterion,
namely, municipal boundaries instead of magisterial districts. The
introduction of the new criterion was bound to result in
the
re-determination of geographical areas of each of the nine
provinces in accordance with the new criterion. These geographical
areas are reflected in Schedule 1A to the amendment, which sets out
the geographical areas of each province. The Twelfth Amendment
therefore has different parts, which concern each of the nine
provinces and thus “specific provinces”.
The
part of the amendment that concerns KwaZulu-Natal and the Eastern
Cape is that which redraws their boundaries and relocates
the area
previously known as Matatiele Municipality from Sisonke District
Municipality in KwaZulu-Natal and incorporates it into
Alfred Nzo
District Municipality in the Eastern Cape; and relocates Umzimkhulu
Local Municipality from Alfred Nzo District Municipality
in the
Eastern Cape into Sisonke District Municipality in KwaZulu-Natal.
This part of the amendment concerns only the provinces
of
KwaZulu-Natal and the Eastern Cape and no other province. This, in
my judgment, is sufficient to trigger the provisions of
section
74(8).
It
was submitted on behalf of the government that because the
amendment introduced a new criterion that applied to all provinces,
the provisions of section 74(8) were not engaged. The fundamental
flaw in this submission is that it overlooks the fact that
the
amendment consists of two kinds of provisions. There is a general
provision of the amendment that alters the basis for determining
provincial boundaries. This provision applies equally to all nine
provinces. Then there are specific provisions of the amendment
which define the geographical areas of each of the nine provinces
by reference to the criterion set out in the general provision.

Each of these provisions concerns the specific province to which it
refers. These parts of the amendment trigger the provisions
of
section 74(8) because each of them is a “part of the bill [which]
concerns only a specific province or provinces”.
3
Section
74(8) does not require the provinces to approve the general
provision that defines the new criterion for delimiting provincial
boundaries on the basis of municipalities. The legislatures of
KwaZulu-Natal and the Eastern Cape were only required to approve
those parts of the amendment that concerned them specifically.
However, these two provinces were still required to cast their
votes on the proposed constitutional amendment as a whole in terms
of section 74(3)(b)(ii). Provinces cast their votes by conferring
voting mandates on their delegations in terms of section 65 of the
Constitution.
4
These are the supporting votes that are required at the NCOP to
pass a constitutional amendment. Contrary to the submission
by the
government therefore, the application of the provisions of section
74(8) does not render the provisions of section 74(3)(b)(ii)
redundant.
In
addition, the government’s submission ignores the distinction
between altering the criterion for determining the provincial
boundaries which may or may not result in the alteration of
physical boundaries, and altering the boundaries in the sense of
excising an area from a province and incorporating it into another
province. It is true that the Twelfth Amendment introduced
a new
criterion that applies to all nine provinces. However, the effect
of the application of the criterion, as set out in Schedule
1A, was
that the boundaries of some but not all provinces were altered.
The amendment altered the boundaries of seven of the
nine
provinces. The provincial boundaries of the Free State and the
Western Cape were not altered by Schedule 1A. Only those
provinces
whose boundaries were altered were required to approve the parts of
the amendment that concerned them specifically
in terms of section
74(8).
It
was also submitted that if the provisions of section 74(8) are
applicable here, then section 74(8) will be triggered each time
an
amendment alters provincial boundaries and this would introduce a
third requirement for adopting a constitutional amendment,
which is
not contemplated by the Constitution. But this is precisely what
the Constitution contemplated. It is plain from the
Constitution
that there are three requirements for a constitutional amendment
that alters provincial boundaries: first, it must
be adopted by a
two thirds majority of the National Assembly;
5
second, it must be passed by the NCOP with a supporting vote of at
least six provinces;
6
and third, if the proposed amendment concerns a specific province
or provinces only, it must be approved by the relevant legislature
or legislatures of the province or provinces concerned.
7
In the
First Certification
judgment, this Court recognised
that there are three requirements for a constitutional amendment
that alters provincial boundaries.
Dealing with the question
whether section 74 makes provision for a special majority for a
constitutional amendment as required
by the Constitutional
Principles, the Court explained that section 74 requires that
constitutional amendments which alter provincial
boundaries be
passed by two thirds of the members of the National Assembly and
two thirds of the provinces in the NCOP. It further
held that
“[i]f a bill amending the [Constitution] concerns a specific
province or provinces only, NT 74(3) [the equivalent
provision to
section 74(8) in the Constitution]
also requires the approval of
the relevant legislature or legislatures of the province or
provinces concerned
.”
8
(My own emphasis.)
This
construction of section 74(8) is consistent with our constitutional
scheme of government. This scheme contemplates a “government
[that] is constituted as national, provincial and local spheres of
government which are distinctive, inter-dependent and
interrelated.”
9
The existence of the provinces is essential to this basic
structure of government. To protect the territorial integrity of
the provinces, the framers of our Constitution gave each province
the final say on whether its boundary should be altered. The
effect of section 74(8) is that the boundary of a province may not
be altered without its approval. It protects the provinces
from
having their territories reduced, which could ultimately result in
their disappearance from the South African map. As this
Court
observed in the
First Certification
judgment, this provision
constitutes a “bulwark of provincial integrity.”
10
It
follows therefore that whenever a proposed constitutional amendment
alters provincial boundaries, the provisions of section
74(8) are
engaged. To hold that the applicability of section 74(8) depends
on the precise number of provinces specifically affected
by the
amendment would therefore be contrary to the basic structure of
government. Indeed this would be inconsistent with the
very
purpose of section 74(8), which is aimed at protecting the
territorial integrity of each of the nine provinces.
The
argument by the government and the province of KwaZulu-Natal that
section 74(8) is not applicable in this case must therefore
be
rejected.
The
question which now arises is whether in considering a proposed
constitutional amendment which alters its boundary, a provincial
legislature is obliged to facilitate public involvement as required
by section 118(1)(a).
Does
section 118(1)(a) apply?
Section
118 provides:
“
(1) 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.
(2) A provincial legislature
may not exclude the public, including the media, from a
sitting of a committee unless
it is reasonable and justifiable to do so in an open and democratic
society.”
Identical
duties are imposed on the National Assembly by section 59 and on
the NCOP by section 72.
The
government and the province of KwaZulu-Natal contended that the
provisions of section 118(1)(a) are not applicable when a
provincial legislature considers whether to approve a proposed
constitutional amendment. The main submission advanced in support
of this contention is that section 118(1)(a) governs provincial
legislation and not national legislation. The Twelfth Amendment
is
a national bill and not a provincial bill and therefore section
118(1)(a) does not apply, so it was argued. However, Parliament
accepted that the provisions of section 118(1)(a) are applicable.
Our
Constitution embodies the basic and fundamental objectives of our
constitutional democracy. Like the German Constitution,
it “has
an inner unity, and the meaning of any one part is linked to that
of other provisions. Taken as a unit [our] Constitution
reflects
certain overarching principles and fundamental decisions to which
individual provisions are subordinate.”
11
Individual provisions of the Constitution cannot therefore be
considered and construed in isolation. They must be construed
in a
manner that is compatible with those basic and fundamental
principles of our democracy. Constitutional provisions must
be
construed purposively and in the light of the Constitution as a
whole.
The
process of constitutional interpretation must therefore be
context-sensitive. In construing the provisions of the
Constitution
it is not sufficient to focus only on the ordinary or
textual meaning of the phrase. The proper approach to
constitutional interpretation
involves a combination of textual
approach and structural approach. Any construction of a provision
in a constitution must be
consistent with the structure or scheme
of the Constitution. This provides the context within which a
provision in the Constitution
must be construed. 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
,
12
this Court emphasised this approach to constitutional
interpretation in the context of construing section 155(3) of the
Constitution,
saying:
“
A
provision in a Constitution must be construed purposively and in the
light of the constitutional context in which it occurs.
Our
history, too, may not be ignored in that process.
. . . .
In
order to determine the question presented here, it is necessary to
construe these provisions in the context of the constitutional
scheme of the allocation of powers and functions of the national
government, provincial government and the Demarcation Board in
relation to the establishment of municipalities.
. . . .
Section
155(3)(a) cannot be construed in isolation but must be construed
purposively and in the context in which it occurs. It
occurs in the
context of the scheme of the allocation of powers and functions in
relation to the establishment of municipalities
set out in section
155 and it is that context which must inform its construction. In
particular, it must be construed in the light
of section 155(3)(b)
and the functions that are required to be performed under section
155(3)(b).” (Footnote omitted.)
13
With
that prelude, I turn to consider whether section 118(1)(a) applies
in this case.
The
contention advanced by the government and the province of
KwaZulu-Natal does not take sufficient account of the basic and
fundamental objectives of our constitutional democracy. In the
end, it considers and construes section 118(1)(a) in isolation,
without regard for the basic principles which underlie our
democracy and the other provisions of the Constitution. This
approach
to constitutional interpretation is flawed. One of the
basic and fundamental objectives of our constitutional democracy is
to
establish a democratic government which is constituted as
national, provincial and local spheres of government. What is
more,
section 42(4) of the Constitution describes the role of the
NCOP as being “to ensure that provincial interests are taken into
account in the national sphere of government.” The construction
of the provisions of the Constitution must be informed by
these
basic and fundamental objectives.
Our Constitution contemplates a democracy that is representative,
and that also contains elements of participatory democracy.
As the
preamble openly declares, what is contemplated is “a democratic
and open society in which government is based on the
will of the
people”. Consistent with this constitutional order, section
118(1)(a) calls upon the provincial legislatures to
“facilitate
public involvement in [their] legislative and other processes”
including those of their committees. As we held
in
Doctors for
Life International v The Speaker of the National Assembly and
Others
,
14
our Constitution calls for open and transparent government and
requires legislative organs to facilitate public participation
in
the making of laws by all legislative organs of the State.
15
There
is another fundamental objective of our democracy that is equally
relevant here; the principle of co-operation and communication
between national and provincial legislatures. In
Doctors for
Life International
we held that our Constitution requires
institutional co-operation and communication between national and
provincial legislatures.
16
And we held that the NCOP “institutionalises the principle of
co-operation and communication by involving the nine provinces
directly in the national legislative process and other national
matters.”
17
In addition, in terms of section 70(2)(b), the NCOP “must
provide for . . . the participation of all the provinces in its
proceedings in a manner consistent with democracy”.
Here
it must be recalled that in terms of section 74(3)(b)(ii), a
proposed constitutional amendment that alters provincial boundaries
must be passed by the NCOP “with a supporting vote of at least
six provinces”. And in terms of section 65(1)(a), “each
province has one vote [at the NCOP], which is cast on behalf of the
province by the head of its delegation”.
18
The NCOP “is a council of provinces and not a chamber composed
of elected representatives.”
19
This “[v]oting by delegation reflects accurately the support of
the different provincial legislatures for a measure under
consideration [at the national level]”.
20
In this manner, provinces are given a direct say on a proposed
amendment. Our constitutional enterprise therefore contemplates
that the provinces will participate in the national legislative
process.
In
addition, the Constitution sets out two requirements that must be
complied with by a provincial legislature whose boundary
is being
altered. First, it must decide whether to approve the alteration
of its boundary as required by section 74(8). Second,
it must
decide how to vote on the constitutional amendment as a whole as
required by section 74(3)(b)(ii). The passing of an
amendment that
alters a provincial boundary requires the supporting vote of six
provinces at the NCOP. But such amendment may
not be passed unless
it is approved by the legislature of the province affected. The
Constitution therefore entrusts the approval
of the alteration of a
provincial boundary to the specific province affected. It follows
from this that the process of approving
the alteration of a
provincial boundary is a process of a provincial legislature as
contemplated by section 118(1)(a).
Section
118(1)(a) must therefore be construed purposively and in the
context of a constitutional scheme which requires legislative
organs of the State to facilitate public participation in their
legislative and other processes, and which contemplates that
the
provinces will participate in the national law-making process.
Construed
in this context, section 118(1)(a) envisages that a provincial
legislature will facilitate public involvement whenever
it is
engaged in a legislative process or any other process of the
legislature. Consistent with our democracy, it requires that
when
the legislative organs of the State are involved in those
“legislative [or] other processes”, they should facilitate
public involvement in those other processes.
Much
store was placed by the fact that section 118(1)(a) occurs in
chapter 6 of the Constitution, which deals with the legislative
powers of the provinces. It must be clear from what I have said
above that the starting point of this submission is fallacious.

The section cannot be construed in isolation. It must be construed
purposively and in the context of the constitutional scheme
that
regulates the law-making process. That scheme contemplates that
the provincial legislatures will participate in the national
law-making process. It gives them a vote on legislation that is
under consideration at the national level and the power to veto
a
proposed constitutional amendment which alters their provincial
boundaries. The scope of the application of section 118(1)(a)
must
therefore be determined by reference to the constitutional scheme
for the national law-making process, in particular, the
role of the
provinces in that process.
It
is patently clear from this scheme that the role of a provincial
legislature goes beyond legislating for the province; it includes
taking part in the national legislative process. The provisions of
section 118 follow the provincial legislatures and require
them to
facilitate public involvement whenever they are engaged in the
“legislative or other processes of the legislature”.
The
Constitution contemplates the provincial legislatures, consistent
with our constitutional scheme, will be involved in the
law-making
process at national level, such as when they are required to confer
voting mandates on their NCOP delegations or when
they consider
whether or not to approve proposed constitutional amendments that
alter their boundaries. As these processes involve
law-making, the
Constitution requires that they be carried out in a manner that is
consistent with the duty to facilitate public
involvement.
In
my judgment, when provincial legislatures consider a proposed
constitutional amendment that alters their provincial boundaries,
which is under consideration at the national level, decide on how
to vote on the amendment, and cast their votes on the amendment,
they are manifestly involved in a law-making process. To hold that
the provincial legislatures are not required to facilitate
public
involvement when they consider whether to approve a proposed
constitutional amendment that alters their boundaries would
be
contrary to the Constitution’s commitment to democracy and the
principles of accountability, responsiveness and openness.
The
argument by the government and the province of KwaZulu-Natal that
the provincial legislatures are not required to comply with
the
provisions of section 118(1)(a) when considering whether or not to
approve a proposed constitutional amendment that alters
their
provincial boundaries must therefore be rejected. It follows that
the concession that was made by Parliament in this regard
was
properly made. The next question to consider is what the duty to
facilitate public involvement entails.
The
duty to facilitate public involvement
In
Doctors for Life International
, this Court considered the
nature and scope of the duty to facilitate public involvement in
relation to the NCOP.
21
The Court concluded that the proper approach is the following:
“
[T]he duty to facilitate
public involvement must be construed in the context of our
constitutional democracy, which embraces the
principle of
participation and consultation. Parliament and the provincial
legislatures have broad discretion to determine how
best to fulfil
their constitutional obligation to facilitate public involvement in
a given case, so long as it is reasonable to
do so. Undoubtedly,
this obligation may be fulfilled in different ways and is open to
innovation on the part of the legislatures.
In the end, however,
the duty to facilitate public involvement will often require
Parliament and the provincial legislatures to
provide citizens with
a meaningful opportunity to be heard in the making of the laws that
will govern them. Our Constitution demands
no less.
In determining whether
Parliament has complied with its duty to facilitate public
participation in any particular case, the Court
will consider what
Parliament has done in that case. The question will be whether what
Parliament has done is reasonable in all
the circumstances. And
factors relevant to determining reasonableness would include rules,
if any, adopted by Parliament to facilitate
public participation,
the nature of the legislation under consideration, and whether the
legislation needed to be enacted urgently.
Ultimately, what
Parliament must determine in each case is what methods of
facilitating public participation would be appropriate.
In
determining whether what Parliament has done is reasonable, this
Court will pay respect to what Parliament has assessed as
being the
appropriate method. In determining the appropriate level of
scrutiny of Parliament’s duty to facilitate public involvement,
the Court must balance, on the one hand, the need to respect
Parliamentary institutional autonomy, and on the other, the right
of
the public to participate in the public affairs. In my view, this
balance is best struck by this Court considering whether
what
Parliament does in each case is reasonable.
22
The
government submitted that the duty to facilitate public involvement
requires no more than that the legislature should create
space for
the public to be involved. As I understand this argument, it
amounts to this: the Constitution does not require a
legislature to
take positive measures to facilitate public participation in the
law-making process relating to any particular
bill under
consideration; all that is required of the legislature is that it
creates conditions that make it easier for the public
to
participate in the law-making process, such as by, for example,
making rules which facilitate public involvement. Reduced
to its
essence, the submission is that the duty to facilitate public
involvement does not require the public to participate in
the
law-making process. For this narrow view of the duty to facilitate
public involvement, the government relied on the decision
of the
Supreme Court of Appeal in
King and Others v Attorneys’
Fidelity Fund Board of Control and Another
.
23
In
the first place, I do not understand the Supreme Court of Appeal in
the
King
case as suggesting that the duty to facilitate
public involvement requires only that the legislature must have
rules in place.
Nor to be suggesting that the duty does not
include the duty to allow the public to participate in the specific
legislation
under consideration. On the contrary, the Supreme
Court of Appeal in the
King
case expressed the view that
“[p]ublic involvement might include public participation through
the submission of commentary
and representations: but that is
neither definitive nor exhaustive of its content.”
24
It
is apparent from this that the Supreme Court of Appeal accepted
that the duty to facilitate public involvement is not confined
to
taking steps that will make it easier for members to participate in
the law-making process, but may also include the opportunity
to
participate in the legislative process by submitting written or
oral representations. I agree with this view.
In
Doctors for Life International
, we held that there are at least
two aspects of the duty to facilitate public participation and
said:
“
What is ultimately important
is that the legislature has taken steps to afford the public a
reasonable opportunity to participate
effectively in the law-making
process. Thus construed, there are at least two aspects of the duty
to facilitate public involvement.
The first is the duty to provide
meaningful opportunities for public participation in the law-making
process. The second is the
duty to take measures to ensure that
people have the ability to take advantage of the opportunities
provided. In this sense, public
involvement may be seen as ‘a
continuum that ranges from providing information and building
awareness, to partnering in decision-making.’
This construction
of the duty to facilitate public involvement is not only consistent
with our participatory democracy, but it
is consistent with the
international law right to political participation. As pointed out,
that right not only guarantees the
positive right to participate in
the public affairs, but it simultaneously imposes a duty on the
State to facilitate public participation
in the conduct of public
affairs by ensuring that this right can be realised. It will be
convenient here to consider each of these
aspects, beginning with
the broader duty to take steps to ensure that people have the
capacity to participate.” (Footnote omitted.)
25
The
Constitution contemplates that the public should be given the
opportunity to participate in the law-making process.
26
When the provincial legislatures make rules to regulate their
proceedings, they are required to do so “with due regard to
representative and participatory democracy, accountability,
transparency and public involvement.”
27
In addition, they are empowered to hold public hearings
28
and “receive petitions, representations or submissions from any
interested persons or institutions.”
29
They are required to conduct their business in an open manner and
hold their sittings and those of their committees in public;
30
they must provide public access to their proceedings and those of
their committees;
31
and they may not exclude the public from the sittings of their
committees “unless it is reasonable and justifiable to do so
in
an open and democratic society.”
32
All this facilitates public participation.
The
government also submitted that section 118(1)(a) means that the
provincial legislature, as a body that consists of representatives
elected by the citizens of each province, would have the authority
to speak on the amendment and on behalf of the people of the
province. As I understand this submission, in effect it says that
because a provincial legislature consists of duly elected
representatives of the people in the province, it is not necessary
to facilitate public involvement under section 118(1)(a) because
it
is speaking on the behalf of the people of the province. But if
this is true of section 118(1)(a), it must also be true of
section
72(1)(a) which relates to the NCOP and section 59(1)(a) which
relates to the National Assembly. Taken to its logical
conclusion,
this submission would render meaningless the public involvement
provisions and reduce our democracy to a representative
democracy
only. The government has misconceived the nature of our democracy.
Our
constitutional democracy has essential elements which constitute
its foundation; it is partly representative and partly

participative. These two elements reflect the basic and
fundamental objective of our constitutional democracy. The
provisions
of the Constitution must be construed in a manner that
is compatible with these principles of our democracy.
Our
system of government requires that the people elect representatives
who make laws on their behalf and contemplates that people
will be
given the opportunity to participate in the law-making process in
certain circumstances. The law-making process will
then produce a
dialogue between the elected representatives of the people and the
people themselves.
The
representative and participative elements of our democracy should
not be seen as being in tension with each other. They are
mutually
supportive, as we pointed out in
Doctors for Life International
:
“
In the overall scheme of our
Constitution, the representative and participatory elements of our
democracy should not be seen as
being in tension with each other.
They must be seen as mutually supportive. General elections, the
foundation of representative
democracy, would be meaningless without
massive participation by the voters. The participation by the
public on a continuous basis
provides vitality to the functioning of
representative democracy. It encourages citizens of the country to
be actively involved
in public affairs, identify themselves with the
institutions of government and to become familiar with the laws as
they are made.
It enhances the civic dignity of those who
participate by enabling their voices to be heard and taken account
of. It promotes
a spirit of democratic and pluralistic
accommodation calculated to produce laws that are likely to be
widely accepted and effective
in practice. It strengthens the
legitimacy of legislation in the eyes of the people. Finally,
because of its open and public
character it acts as a counterweight
to secret lobbying and influence peddling. Participatory democracy
is of special importance
to those who are relatively disempowered in
a country like ours where great disparities of wealth and influence
exist.”
33
What
our constitutional scheme requires is “the achievement of a
balanced relationship between representative and participatory
elements in our democracy.”
34
The public involvement provisions of the Constitution address this
symbolic relationship, and they lie at the heart of the legislative
function.
35
The Constitution contemplates that the people will have a voice in
the legislative organs of the State not only through elected
representatives but also through participation in the law-making
process.
It
is difficult to reconcile the submissions made by the government
and the province of KwaZulu-Natal with the commitment of Parliament
and the provincial legislatures to the conception of democracy in
our Constitution. As we noted in
Doctors for Life
International
,
36
Parliament and the provincial legislatures have developed the
notion of the People’s Assembly, whose objectives include the
creation of an opportunity for the public, particularly the most
marginalised communities, to engage with Parliament and the
provincial legislatures in order to build the legacy of active
participation by the public, and to provide a vehicle for people’s
voices to be heard on issues affecting them. As part of its
proceedings, the People’s Assembly 2005 set up workshops which
focused on four commissions, including a commission on public
participation. Apart from noting that the “constitutional

obligation to ensure that the views of the broader public are heard
by conducting public hearings about draft legislation and

amendments to legislation is vigorously implemented at both
national and provincial levels”, the Commission on Public
Participation
also emphasised that–
“
one of the distinctive
features of public participation processes in South Africa has
always been that it is firmly grounded in
the constitutional
imperative of democratic participation and keeping society involved
in legislative, policy and other decision-making
processes. The
Constitution makes Parliament and the provincial legislatures, as
well as municipal councils, the primary democratic
institutions in
South Africa. The people have a voice in these institutions, not
only through elected representatives, but also
through access to
committee meetings and deliberations. The people also have the
right to speak and make representations to committees
and meetings,
which is in line with the Constitution, which states that all people
shall be entitled to take part in the administration
of the
country.”
37
Consistent with this commitment to our conception of democracy,
Rule 6 of the Joint Rules of Parliament makes provision for members
of the public to participate in the joint business of Parliament by
attending the sittings of the Houses and their committees;
commenting in writing on bills or other matters before joint
committees, or giving evidence or making representations or
recommendations
on a bill before the House.
38
The Standing Rules of the Eastern Cape Provincial Legislature make
provision for public hearings.
39
These rules are made pursuant to the provisions of the
Constitution which provide that when legislatures make rules to
regulate
their internal proceedings they must do so “with due
regard to representative and participatory democracy,
accountability,
transparency and public involvement.”
40
To
uphold the government’s submission would therefore be contrary to
the conception of our democracy, which contemplates an
additional
and more direct role for the people of the provinces in the
functioning of their provincial legislatures than simply
through
the electoral process. The government’s argument that the
provisions of section 118(1)(a) are met by having a proposed
constitutional amendment considered only by elected representatives
must therefore be rejected.
In
the event, the argument by the government that the duty to
facilitate public involvement in section 118(1)(a) must be given
a
restrictive meaning, must fail.
Before
leaving this topic, it is necessary to stress two points. First,
the preamble of the Constitution sets as a goal the establishment
of “a society based on democratic values [and] social justice”
and declares that the Constitution lays down “the foundations
for
a democratic and open society in which government is based on the
will of the people.” The founding values of our constitutional
democracy include human dignity
41
and “a multi-party system of democratic government to ensure
accountability, responsiveness and openness.”
42
And it is apparent from the provisions of the Constitution that
the democratic government that is contemplated is partly
representative
and partly participatory, accountable, transparent
and makes provision for public participation in the making of laws
by legislative
bodies.
Consistent
with our constitutional commitment to human dignity and
self-respect, section 118(1)(a) contemplates that members of
the
public will often be given an opportunity to participate in the
making of laws that affect them. As has been observed, a
“commitment to a right to . . . public participation in
governmental decision-making is derived not only from the belief

that we improve the accuracy of decisions when we allow people to
present their side of the story, but also from our sense that
participation is necessary to preserve human dignity and self
respect.”
43
Second,
the provincial legislatures have broad discretion to choose the
mechanisms that, in their view, would best facilitate
public
involvement in their processes. This may include providing
transportation to and from hearings or hosting radio programs
in
multiple languages on an important bill, and may well go beyond any
formulaic requirement of notice or hearing.
44
In addition, the nature of the legislation and its effect on the
provinces undoubtedly plays a role in determining the degree
of
facilitation that is reasonable and the mechanisms that are most
appropriate to achieve public involvement. Thus, contrary
to the
submission by the government, it is not enough to point to standing
rules of the legislature that provide generally for
public
involvement as evidence that public involvement took place; what
matters is that the legislature acted reasonably in the
manner that
it facilitated public involvement in the particular circumstances
of a given case.
The
nature and the degree of public participation that is reasonable in
a given case will depend on a number of factors. These
include the
nature and the importance of the legislation and the intensity of
its impact on the public. The more discrete and
identifiable the
potentially affected section of the population, and the more
intense the possible effect on their interests,
the more reasonable
it would be to expect the legislature to be astute to ensure that
the potentially affected section of the
population is given a
reasonable opportunity to have a say. In addition, in evaluating
the reasonableness of the conduct of
the provincial legislatures,
the Court will have regard to what the legislatures themselves
considered to be appropriate in fulfilling
the obligation to
facilitate public participation in the light of the content,
importance and urgency of the legislation.
45
Taking
such factors into account, the question is whether the provinces of
KwaZulu-Natal and the Eastern Cape have taken reasonable
steps to
comply with their duty to facilitate public involvement.
Did
the provincial legislatures of KwaZulu-Natal and the Eastern Cape
comply with the provisions of section 118(1)(a)?
Eastern Cape
The
Eastern Cape legislature received the Twelfth Amendment Bill from
the NCOP and referred it to the NCOP Business Committee.
The
Business Committee determined that the Twelfth Amendment Bill was
an “important national bill”, which meant that the
legislature
and its committees were required to conduct public hearings in
terms of Rule 32 of the Standing Rules of the Eastern
Cape
Legislature.
46
It referred the Bill to the Portfolio Committee on Local
Government and Traditional Affairs with directions to conduct
public
hearings.
The
Portfolio Committee held public hearings in seven areas that it
viewed to be directly affected by the Bill. The hearings
concentrated on both rural and urban parts of these areas. The
Committee also received written submissions from various
stakeholders,
including individuals, municipalities, political
parties and traditional leaders. The Committee’s report on the
public hearings
indicated that the majority of submissions were in
support of the proposed constitutional amendment. It acknowledged,
however,
that the Committee received submissions against inclusion
in the Eastern Cape, which primarily raised issues relating to
service
delivery. The Report also noted an overwhelming demand for
Kokstad to fall under Alfred Nzo District Municipality in the
Eastern
Cape, rather than Sisonke District Municipality in
KwaZulu-Natal.
The
Committee recommended approval of the Twelfth Amendment Bill. It
also recommended, however, based on the concerns expressed
by
members of the public, that special considerations be given to
improving service delivery in Alfred Nzo District Municipality
and
other areas and that the Premier “be mandated to pursue the issue
of Kokstad as an integral part of the Eastern Cape.”
Following
further deliberations at the NCOP and provincial levels, the
Eastern Cape legislature approved the Twelfth Amendment
Bill and
conferred a mandate on the Eastern Cape delegation to the NCOP to
vote in its favour.
It
is therefore clear that the Eastern Cape complied with its duty to
facilitate public involvement in relation to the constitutional
amendment by holding public hearings in the affected areas.
KwaZulu-Natal
It
is common cause that KwaZulu-Natal legislature did not hold public
hearings or invite written representations on the proposed
constitutional amendment. The Deputy Speaker of KwaZulu-Natal
expressly admitted that no public hearings were held by that

province, saying that “it is common cause that no specific
hearing was held in relation to the issue [of Matatiele]”.
The
question is whether the KwaZulu-Natal legislature acted reasonably
by failing to hold public hearings or invite written submissions
on
the Twelfth Amendment Bill.
Did
the KwaZulu-Natal legislature act reasonably in failing to hold
public hearings or invite written representations?
It is clear that both Parliament and the provincial legislatures –
including KwaZulu-Natal – considered public hearings to
be a
reasonable and yet effective way of fulfilling the duty to
facilitate public involvement in relation to the Twelfth Amendment.
During October 2005, the Joint Committee of the National Assembly
and the NCOP issued a proposed program for managing the

constitutional amendment and the Repeal Act that made provision for
public hearings to be held in the provinces during the week
of 14
November.
47
All the provinces which had their boundaries altered held public
hearings, except for KwaZulu-Natal.
Even
in KwaZulu-Natal, the general view was that public hearings were
required. The minutes of the KwaZulu-Natal Portfolio Committee
on
Local Government and Traditional Affairs indicate that after
members of that Committee had received a briefing from the NCOP
delegate, some members of that Committee expressed the view that
public hearings or a referendum should be held on the Bill.
In
addition, when the constitutional amendment was considered by the
legislature sitting in plenary session, a number of speakers
called
for public hearings on the proposed amendment. Others even called
for a referendum.
What
this shows is that holding public hearings in the affected
communities was considered to be the most effective way of ensuring
that the affected communities were given a real opportunity to have
a say on an amendment that altered the boundary of the province
in
which they lived and which was to affect their lives. That the
NCOP and provincial legislatures, including KwaZulu-Natal,
considered public hearings to be desirable in regard to the Twelfth
Amendment militates against the conclusion that KwaZulu-Natal
acted
reasonably in failing to invite written or oral submissions.
In
addition, the legislation involved was a constitutional amendment
that would alter the boundary of KwaZulu-Natal and would
have the
effect of relocating whole communities from one province to
another. This legislation had a direct and profound impact
on a
discrete and identifiable section of the population – the people
of Matatiele. By a stroke of a pen, they were relocated
from the
province of KwaZulu-Natal into the province of the Eastern Cape.
It is true, they were not physically relocated; they
remain in the
same homes, in the same streets for those who live in towns, in the
same neighbourhoods and retain the same neighbours.
But the
difference is this: they now live in another province, which is not
their choice. The attachment of individuals to
the provinces in
which they live should not be underestimated. Indeed there are
“natural sentiments and affections which grow
up for places [in]
which persons have long resided; the attachments to [province], to
home and to family, on which is based all
that is dearest and most
valuable in life.”
48
But
there is more at stake here. The amendment affects one of the
fundamental rights of citizenship; the right “to enter, to
remain
in and to reside anywhere in, the Republic.”
49
Citizens of South Africa, whether rich or poor, have the right to
live in the province of their choice. And if the right to
freedom
of movement and residence guaranteed in the Bill of Rights is to
have any meaning, it must include the right of every
citizen of
this country to enter any province for purposes of establishing
residence therein.
The
proposed boundary alteration threatened an important and not easily
reversible change to the provincial status of a clearly
defined
section of the population. The consequences of the amendment are
of considerable symbolic importance. They affect the
identity of
the people to be transferred. They are of great practical
importance too. They change the structures and personnel
responsible for welfare payments, health services and education.
If
public involvement means anything, it requires that the people of
Matatiele be given a reasonable opportunity to engage with
the
legislature most directly concerned with the matter, namely the
KwaZulu-Natal legislature. The provincial legislature of
KwaZulu-Natal was the legislative organ of the State entrusted by
the Constitution to safeguard the interests of the province,
in
particular, its territorial integrity. So vital was its authority
and responsibility, that the Constitution gave it, like
all
provincial legislatures in its position, the power to veto a
proposed constitutional amendment that specifically altered
its
boundaries. In this respect its decision to reject the boundary
change would trump a unanimous vote in the National Assembly
and
the vote of eight provincial delegations in the NCOP.
Finally,
there was no suggestion that effective public involvement was not
feasible. The Eastern Cape province managed to hold
carefully
monitored public consultations in areas contiguous to Matatiele
where facilities were probably less developed. Furthermore,
the
need for appropriate consultation with the people of Matatiele was
especially intense because another governmental agency,
namely, the
Municipal Demarcation Board, an independent body entrusted with the
constitutional authority to determine municipal
boundaries, had in
fact held public consultation and after listening to the people had
arrived at a completely different conclusion.
Having
regard to all of this, the conclusion that the KwaZulu-Natal
legislature acted unreasonably in failing to hold public hearings
or invite written representations, is unavoidable. This is a
plain, clear and unmistakable violation of section 118(1)(a) of
the
Constitution.
Conclusion
To
sum up therefore, in terms of section 74(8), the KwaZulu-Natal
legislature was required to approve that part of the Twelfth
Amendment that transfers the area that previously formed Matatiele
Local Municipality from the province of KwaZulu-Natal to the
Eastern Cape province. The Constitution contemplates that the
approval in terms of section 74(8) will be given by a provincial
legislature concerned after complying with the provisions of
section 118(1)(a). In considering whether or not to approve that
part of the Twelfth Amendment, the KwaZulu-Natal legislature was
required by section 118(1)(a) to facilitate public involvement
by
holding public hearings in the area of Matatiele. Failure by the
provincial legislature of KwaZulu-Natal to facilitate public
involvement therefore violated not only section 118(1)(a) but also
section 74(8). That part of the Constitution Twelfth Amendment
of
2005 which tranfers the area that previously formed the local
municipality of Matatiele, designated KZ5a3 by Municipal Notice
147
published in the KwaZulu-Natal Provincial Gazette 5535 on 18 July
2000, from the province of KwaZulu-Natal to the province
of the
Eastern Cape was as a consequence adopted in manner that is
inconsistent with the Constitution.
It
now remains to consider the remedy.
Remedy
The
conduct of the provincial legislature of KwaZulu-Natal in failing
to comply with its constitutional obligation to facilitate
public
participation prior to taking a decision to approve that part of
the Twelfth Amendment that affected Matatiele was a violation
of
the provisions of section 118(1)(a) and section 74(8) of the
Constitution. That conduct on the part of KwaZulu-Natal must,
pursuant to section 172(1)(a) of the Constitution, be declared to
be inconsistent with section 118(1)(a) and section 74(8).
But what
are the consequences of this unconstitutional conduct?
In
Doctors for Life International
, we held that the obligation
to facilitate public involvement contemplated in section 72(1)(a)
of the Constitution is a material
part of the law-making process.
50
This applies equally to the obligation contemplated in section
118(1)(a). Legislation that is enacted in a manner that violates
the provisions of section 118(1)(a) is invalid.
51
And this Court has the power under section 172(1)(a) to declare
invalid a law adopted in violation of section 118(1)(a).
52
This applies to a constitutional amendment.
In
terms of section 74(8), the legislature of KwaZulu-Natal was
required to approve that part of the Twelfth Amendment which

concerned the province of KwaZulu-Natal. As I have held, this
approval should have been given by the KwaZulu-Natal legislature
after complying with the provisions of section 118(1)(a). Failure
by that legislature to comply with the provisions of section
118(1)(a) renders the purported approval of that part of the
amendment which concerns the province of KwaZulu-Natal given by
the
legislature of KwaZulu-Natal, invalid. This is so because the
purported approval was given in a manner that is inconsistent
with
the Constitution. The NCOP could not therefore validly pass that
part of the Twelfth Amendment which concerned the boundary
of
KwaZulu-Natal as required by section 74(8). It follows therefore
that that part of the Twelfth Amendment which concerns Matatiele
cannot be valid.
In
my judgment therefore, that part of the Twelfth Amendment that
transfers the area that previously formed the local municipality
of
Matatiele from the province of KwaZulu-Natal to the province of the
Eastern Cape must be declared invalid.
In
terms of section 172(1)(b), this Court has the power to make any
order that is just and equitable, including an order suspending
an
order declaring invalid a constitutional amendment. What is just
and equitable depends on facts of each case.
53
Considerations that are relevant in this regard include the
potentiality of prejudice being sustained if an order of invalidity
is not suspended; the interests of the parties as well as that of
the public; and the need to promote the constitutional project
and
prevent chaos.
54
Of particular relevance in this case are: the consequences of the
order of invalidity on the elections; the powers of Parliament
to
alter provincial boundaries; and the responsibility of the
provinces in relation to an amendment which alters their
boundaries.
If
that part of the Twelfth Amendment which relocates Matatiele to the
Eastern Cape province is declared invalid, the elections
that took
place consequent to it must be invalid as well. The concession
made by the Electoral Commission in this regard was
properly made.
If this declaration is made with immediate effect, the elections
held on 1 March 2006 will become invalid with
immediate effect.
There will be no municipalities in the affected areas in
KwaZulu-Natal or in the Eastern Cape. This will
have serious
implications for the provision of services in the affected areas.
As
the Electoral Commission explained, the effect of the invalidation
of the Twelfth Amendment is that the affected municipal
areas will
revert to municipalities with the same status, areas of
jurisdiction, wards and number of councillors as they were
listed
immediately before 1 March 2006; that is, the municipalities as
they existed when the general municipal elections were
held on 5
December 2000 but with re-determined boundaries where such
re-determinations became effective before 1 March 2006.
Elections
held in these municipalities on 1 March 2006 will be invalid.
Fresh elections will have to be held in the affected
municipalities.
Various
steps will have to be taken before such elections can be held in
the affected areas. These include: delimitation of the
municipal
boundaries of the affected municipal areas by the Municipal
Demarcation Board; consequential steps that will have to
be taken
by the relevant provincial members of the Executive Council; and
preparation for the holding of fresh elections by the
Electoral
Commission. The Electoral Commission contemplates that it will
take it approximately six months from the time after
the Municipal
Demarcation Board completes delimitation, for it to prepare for the
registration of voters and the holding of elections.
We do not
have the estimation of time required by the Municipal Demarcation
Board to complete the delimitation process.
Taking
these steps in order to prepare for fresh elections will, no doubt,
involve great costs. In addition, the holding of such
elections
will not, of course, prevent Parliament from passing a fresh
constitutional amendment that alters the boundaries of
the
provinces of KwaZulu-Natal and the Eastern Cape in a manner that is
consistent with the Constitution. Were this to happen,
this would
necessitate further elections which will be held consistently with
the new constitutional amendment. This will require
further
expenditure in connection with the preparation for and conduct of
third elections. In my view, justice and equity militate
against
an order of invalidity that takes immediate effect.
On
the other hand, suspending the order of invalidity will allow
Parliament to remedy the constitutional defect and adopt a new
constitutional amendment after complying with the provisions of the
Constitution. This would allow the elections held on 1 March
2006
to stand pending a new constitutional amendment. If Parliament
decides not to proceed with the amendment, or does not enact
it
within the period of suspension, or if the KwaZulu-Natal provincial
legislature decides to veto an amendment that alters its
boundary,
the order of invalidity will take effect and the elections of 1
March 2006 will be rendered invalid. In that event,
fresh
elections will have to be held in accordance with the position of
the municipalities as they were before the Twelfth Amendment
came
into operation. This will therefore require one more election to
be held as opposed to an order of invalidity that takes
immediate
effect, which may require two additional elections, at even greater
costs.
We
are certain that the legislature of KwaZulu-Natal will properly
consider the representations of the people. While it is true
that
the people of the province have no right to veto a constitutional
amendment that alters provincial boundaries, they are
entitled to
participate in its consideration in a manner which may influence
the decisions of the legislature. The purpose of
permitting public
participation in the law-making process is to afford the public the
opportunity to influence the decision of
the law-makers. This
requires the law-makers to consider the representations made and
thereafter make an informed decision.
55
Law-makers must provide opportunities for the public to be
involved in meaningful ways, to listen to their concerns, values,
and preferences, and to consider these in shaping their decisions
and policies. Were it to be otherwise, the duty to facilitate
public participation would have no meaning.
Ultimately,
the power to alter provincial boundaries rests with Parliament and
the provincial legislature concerned. However,
these legislative
bodies may only have the provincial boundaries altered in a manner
that is consistent with the Constitution.
In my judgment, these
legislative bodies must be given the opportunity to correct the
constitutional defect and in a manner
that is consistent with the
Constitution adopt a fresh amendment. To this extent, the
declaration of invalidity must be suspended.
However, if
Parliament decides not to proceed with the amendment, or if the
KwaZulu-Natal legislature decides not to approve
the amendment
proposing the alteration of its boundary, Parliament, together with
all interested parties, must approach this
Court for guidance on
how to deal with the consequences of invalidity of that part of the
Twelfth Amendment that concerns the
boundary of KwaZulu-Natal. An
order to this effect must be made. Similarly, I consider it
desirable to make provision for any
interested person or
organisation to approach this Court for an extension of the order
of suspension or some other relief once
it is apparent that
Parliament will not be able to pass the constitutional amendment
before the expiry of the period of suspension.
What
is just and equitable in this case is to suspend the order
declaring invalid that part of the Twelfth Amendment which concerns
the province of KwaZulu-Natal, for a period of eighteen months.
Finally,
the applicants are a discrete and identifiable group who are
directly affected by that part of the Twelfth Amendment
which
relocates Matatiele to the Eastern Cape province. They have
actively asserted their right to be heard. And once the Twelfth
Amendment was enacted, they immediately approached this Court for
relief. In these circumstances, relief cannot be denied to
them.
Rationality
In
view of the conclusion that I have reached on the validity of the
Twelfth Amendment, it is not necessary to consider the question
of
rationality.
It
now remains to consider the constitutional validity of the Repeal
Act.
The
Repeal Act
Unlike
in the case of a constitutional amendment, this Court does not have
exclusive jurisdiction in relation to the Repeal Act.
Other courts
also have jurisdiction. The question is whether the applicants
were entitled to come directly to this Court with
a challenge to
the Repeal Act.
In
terms of section 167(6)(a) of the Constitution, a person is
entitled to bring a matter directly to this Court when it is in
the
interests of justice to do so and with leave of this Court.
56
The question is whether it is in the interests of justice for the
applicants to be granted leave to approach this Court directly
in
relation to the Repeal Act.
There
can be no question as to the interrelationship between the Twelfth
Amendment and the Repeal Act. This, in my view, is sufficient
to
warrant leave to approach this Court directly. Otherwise, the
applicants would have been required to lodge a constitutional
challenge relating to the Twelfth Amendment in this Court, which is
the only court having jurisdiction in relation to the Twelfth
Amendment, and lodge a separate challenge to the Repeal Act in the
High Court. The result would be two applications in two different
courts raising substantially the same issue. I have no doubt that
the High Court considering the constitutionality of the Repeal
Act
would have had to await the outcome of the challenge to the Twelfth
Amendment. In all the circumstances, I am satisfied
that the
applicants were entitled to approach this Court directly. They are
therefore entitled to leave granting them direct
access to approach
this Court in relation to the Repeal Act.
I
now turn to the merits of the challenge to the Repeal Act.
The
applicants mounted substantially the same challenge to the Repeal
Act as to the Twelfth Amendment, namely, that it unconstitutionally
usurps the functions of the Municipal Demarcation Board. The focus
of the challenge was on the provisions of section 2(4)(a)
of the
Repeal Act. In the view I take of the matter, it is not necessary
to consider whether the provisions of section 2(4)(a)
demarcate
municipal boundaries contrary to the provisions of the
Constitution. And I express no opinion on this issue.
The
repeal Act was enacted in the wake of, first, the abolition of
cross-boundary municipalities and, second, the establishment
of a
new method of defining provincial boundaries, which was by
reference to municipal boundaries. Its declared purpose is 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”. It was
therefore enacted to give effect to the Twelfth Amendment.
Like
the Twelfth Amendment, the Repeal Act contains parts that deal with
specific provinces. If the part of the Twelfth Amendment
that
concerns KwaZulu-Natal is invalid, it follows that that part of the
Repeal Act which concerns KwaZulu-Natal must suffer
the same fate.
Although
the focus of the applicants’ challenge went beyond those parts of
the Repeal Act that concerned KwaZulu-Natal province,
in the course
of oral argument, counsel for the applicants made it clear that the
applicants were only interested in those parts
of the Repeal Act
that affected Matatiele. This attitude on the part of the
applicants is borne out by the respondents that
they cited, namely,
the municipalities that will be affected by the order declaring
invalid that part of the Repeal Act which
affects Matatiele.
In
any event, a constitutional challenge to the Repeal Act as a whole
would have consequences for all the provinces that had

cross-boundary municipalities as well as the municipalities
affected. These provinces and municipalities were not joined as

parties to these proceedings. In these circumstances, a
constitutional challenge to the entire Repeal Act cannot be
entertained.
Costs
The
costs should follow the result in this case. The applicants have
in the end been successful. However, they did not succeed
in their
original contention that the Twelfth Amendment is inconsistent with
the provisions of section 155(3)(b) of the Constitution.
This
contention was argued during the first hearing and was dismissed by
the Court on 27 February 2006. This must be reflected
in the order
for costs. The respondents should not be ordered to pay the costs
incurred in relation to the first hearing. Nor
should they be
required to bear the costs of joining the provincial legislatures
of KwaZulu-Natal and the Eastern Cape, and the
Electoral
Commission.
The
President, the Minister of Provincial and Local Government, the
Minister of Justice and Constitutional Development, Parliament
and
the provincial legislature of KwaZulu-Natal actively resisted the
application. They should accordingly bear the costs of
these
proceedings. Those costs are to exclude the costs incurred during
the hearing on 14 February 2006 and those associated
with the
joinder of the provincial legislatures of KwaZulu-Natal and the
Eastern Cape, and the Electoral Commission. The applicants
are
entitled to the costs of two counsel.
Order
In
the event, I make the following order:
It is declared that the provincial legislature of KwaZulu-Natal
has failed to comply with its constitutional obligation,
envisaged in section 118(1)(a) of the Constitution, to facilitate
public involvement in considering and approving that part
of the
Twelfth Amendment which concerns the province of KwaZulu-Natal
pursuant to section 74(8) of the Constitution.
That part of the Constitution Twelfth Amendment of 2005 which
tranfers the area that previously formed the local municipality
of Matatiele, designated KZ5a3 by Municipal Notice 147 published
in the KwaZulu-Natal Provincial Gazette 5535 on 18 July
2000,
from the province of KwaZulu-Natal to the province of the Eastern
Cape is declared to be inconsistent with the Constitution
and
therefore invalid.
That part of the
Cross-boundary Municipalities Laws Repeal and
Related Matters Act 23 of 2005
which relates to the area that
previously formed the local municipality of Matatiele, designated
KZ5a3 by Municipal Notice
147 published in the KwaZulu-Natal
Provincial Gazette 5535 on 18 July 2000, is declared inconsistent
with the Constitution
and therefore invalid.
The orders in paragraph (b) and (c) above are suspended for a
period of eighteen months.
The first, second, third and fourteenth respondents, and the
provincial legislature of KwaZulu-Natal are ordered to pay the
costs of these proceedings, such costs to include the costs of
two counsel. These costs shall exclude the costs of the hearing
on 14 February 2006 and those associated with the joinder of the
provincial legislatures of KwaZulu-Natal and the Eastern
Cape,
and the Electoral Commission, in respect of which each party
shall pay their own costs.
Should it be apparent that Parliament will not be able to adopt a
new constitutional amendment altering the boundary of the
province of KwaZulu-Natal before the expiry of the period of
suspension of the order of invalidity in paragraph (d) above,
any
interested person or organisation, including any party in this
case, may apply to this Court for a further suspension
of the
declaration of invalidity and/or other appropriate relief.
If Parliament decides not to proceed with the alteration of the
boundary of KwaZulu-Natal, or if the provincial legislature
of
KwaZulu-Natal vetoes a proposed constitutional amendment that
alters the boundary of its province, the Speaker of the
National
Assembly and the Chairperson of the National Council of Provinces
must, on notice to interested parties, approach
this Court for
guidance on the consequences of the invalidity of that part of
the Twelfth Amendment that concerns the boundary
of
KwaZulu-Natal.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J and
Sachs J concur in the judgment of Ngcobo J.
SKWEYIYA J:
Having
chosen to concur with Yacoob J in his judgment in
Doctors for
Life International
,
1
as I feel that the position taken by him is the correct approach to
the matter, I find it appropriate to briefly state my position
on
this matter.
I
would also hold that reasonable public involvement is not a
pre-requisite for the validity of constitutional amendments
effected
in terms of section 74(3) read with section 74(8) of the
Constitution and that the Twelfth Amendment Act
2
has accordingly not been shown to have been invalidly adopted.
I
also say nothing with regard to the validity of the Repeal Act for
the reasons advanced by Yacoob J in his judgment in the present
case.
3
Accordingly,
I dissent from the majority judgment written by Ngcobo J as laid
out above, and associate myself with the judgment
of Yacoob J.
VAN DER WESTHUIZEN J:
I
concur in the dissenting judgment of Yacoob J in this matter, for
the reasons stated by him. In addition to the reasons put
forward
by Yacoob J and by me in
Doctors for Life International
1
,
I wish to mention something specifically on section 74 of the
Constitution, dealing with Bills amending the Constitution.
Unlike
sections 59(1)(a) and 72(1)(a), which state that the National
Assembly and the National Council of Provinces (NCOP) must
facilitate public involvement in their processes, section 74 is
located under the heading “National Legislative Process”.
It
therefore deals squarely and specifically with the process of
passing Bills amending the Constitution – as sections 73,
75, 76
and 77 deal with all Bills, ordinary Bills not affecting provinces,
ordinary Bills affecting provinces and money Bills.
Section
74 thus sets out in detail all the procedural requirements and
steps for the passing of constitutional amendments. As
argued by
counsel for the Speaker of the KwaZulu-Natal Legislature there is
no need, or in fact justification, to impose additional
procedural
requirements from a formulation in another provision of the
Constitution onto the procedure set out in section 74.
Subsections
(5) and (6) of section 74 specifically provide for public
involvement in the process of amending the Constitution.
2
Amongst other things, it calls for publication in the Government
Gazette of particulars of the proposed amendment for public
comment
and for the submission of any comments received from the public and
the provincial legislatures to the Speaker of the
National Assembly
and the Chairperson of the NCOP.
These
and other subsections of section 74 were added to the
constitutional text by the Constitutional Assembly, in order to

comply with Constitutional Principles II and XV of the interim
Constitution, after the text had been referred back to the Assembly
by this Court.
3
The Court then found that section 74 complied with the two
Constitutional Principles in that special procedures – meaning
more stringent procedures in comparison with those required for
other legislation – were indeed prescribed for constitutional
amendments.
4
This is a further indication that the procedure for constitutional
amendments is fully set out in section 74.
YACOOB J:
This
is a very short judgment aimed at setting out the somewhat unusual
position in which I find myself in this case. Although
the
decision in
Doctors for Life
International
1
was handed down yesterday and this judgment is being handed down
today, they were both considered by the Court side by side. I
dissented in
Doctors for Life International
on the basis of
my view that the national legislative process described in section
76 of our Constitution did not require public
involvement as a
prerequisite to its validity. The majority held in that case that
reasonable public involvement was a prerequisite
to the validity of
legislation passed in terms of section 76 of the Constitution.
It
is necessary for me to decide whether to write this judgment on the
basis that I am bound by the decision in
Doctors for Life
International
delivered yesterday or whether to do so on the
basis that both judgments were considered together. I have decided
to follow the
latter course.
In
the circumstances, the minority finding in
Doctors for Life
International
obliges me, for substantially the same reasons to
dissent in relation to this judgment too. I would therefore hold
that reasonable
public involvement is not a prerequisite to the
validity of constitutional amendments effected in terms of section
74(3) read
with section 74(8) of the Constitution and that the
Twelfth Amendment Act
2
has accordingly not been shown to have been invalidly adopted.
I
have also decided to say nothing about the validity of the Repeal
Act
3
despite the fact that a conclusion that the Twelfth Amendment Act
is not invalid would ordinarily require me to enter upon this
subject. I do not do so because the decision of the majority has
declined to deal with the question and I do not wish to pre-empt
the course of proceedings in relation to the constitutional
validity of the Repeal Act should they be brought in another court.
For the applicants: AJ Dickson SC and AA Gabriel instructed by
Austen Smith Attorneys.
For the first to third respondents: I Semenya SC, V Maleka SC, N
Mayet and P Nkutha instructed by the State Attorney, Johannesburg.
For the fourteenth and fifteenth respondents: KD Moroka SC and K
Pillay instructed by the State Attorney, Johannesburg.
For the sixteenth and seventeenth respondents: NM Arendse SC and JI
Hendriques the State Attorney, KwaZulu-Natal and Bisho.
For the eighteenth respondent: JC Heunis SC and GA Oliver instructed
by L Mbanjwa Inc.
1
Matatiele Municipality and Others v President of the Republic of
South Africa and Others
[2006] ZACC 2
;
2006 (5) BCLR 622
(CC) (“
Matatiele
I
”).
2
On 1 March 2006, municipal elections were held,
and new municipalities came into existence pursuant to the Twelfth
Amendment.
3
The government relied on the finding in
Matatiele I
(above n
1) that the new criterion for determining provincial boundaries
applies not only to provinces that had cross-boundary
municipalities, but to all nine provinces. In
Matatiele I
,
we were concerned with the argument that because the amendment
declared itself to be concerned with cross-boundary municipalities
it did not apply to Matatiele Municipality, which had not been a
cross-boundary municipality. It was in this context that we held
that the new criterion applied to all provinces. But as has already
been pointed out in this judgment, the amendment contained
parts
that concerned specific provinces.
4
Section 65 of the Constitution provides:
“
(1) Except where the Constitution provides
otherwise–
(a) each province has one vote, which is cast on behalf
of the province by the head of its delegation; and
(b) all questions before the National Council of
Provinces are agreed when at least five provinces vote in favour of
the question.
(2) 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 legislatures confer authority on their delegations to cast
votes on
their behalf.”
5
Section 74(3)(a) of the Constitution.
6
Section 74(3)(b) of the Constitution.
7
Section 74(8) of the Constitution.
8
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 232.
9
Section 40(1) of the Constitution.
10
First Certification
judgment above n 8 at para 233.
11
1 BVerfGE 14 as translated by Kommers
The Constitutional
Jurisprudence of the Federal Republic of Germany
2 ed (Duke
University Press, Durham and London 1997) at 63.
12
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC).
13
Id at paras 44-5 and 48.
14
CCT 12/05, 17 August 2006, as yet unreported. See also
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amicus Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at paras 111-3.
15
Doctors for Life International
id at para 121. The
Constitution requires public participation in the legislative
processes of Parliament (the National Assembly
(section 59(1)(a))
and the NCOP (section 72(1)(a))) and local government (sections
152(1)(e) and 160(4)(b)).
16
Id at para 81.
17
Id.
18
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the
Republic
of South Africa,
[1996] ZACC 24
;
1996
1997 (2) SA 97
(CC);
1997 (1)
BCLR 1
(CC) at para 62.
19
Id.
20
Id.
21
Above n 14 at paras 118-29.
22
Id at paras 145-6.
23
2006 (1) SA 474
(SCA);
2006 (4) BCLR 462
(SCA).
24
Id at para 22.
25
Above n 14 at para 129.
26
See id at paras 135-41.
27
Section 116(1)(b) of the Constitution. See
similar provisions in relation to the National Assembly (section
57(1)(b)) and the NCOP
(section 70(1)(b)).
28
Section 115(a) and (b) of the Constitution.
29
Section 115(d) of the Constitution.
30
Section 118(1)(b) of the Constitution.
31
Id.
32
Section 118(2) of the Constitution.
33
Doctors for Life International
above n 14 at para 115.
34
Id at para 122.
35
Id.
36
Id at paras 113-4.
37
Parliament of the Republic of South Africa
Announcements, Tablings and Committee Reports No 63, 5 June 2006 at
section 3.3.
38
Rule 6(1) of the Joint Rules of Parliament
provides:
“
Members of the public may participate in the joint
business of the Houses by–
(a) attending joint sittings of the Houses or meetings
of joint committees;
(b) responding to public or specific invitations–
(i) to comment in writing on Bills or other matters
before a joint committee; or
(ii) to give evidence or to make representations or
recommendations before joint committees on such Bills or other
matters, either
in person or through a representative.”
39
Rule 32 of the Standing Rules of the Eastern Cape Provincial
Legislature provides:
“
32.1 The Legislature and its committees must
facilitate public involvement in its legislative and other processes
through implementing
the following–
32.1.1 observing the institutionalised days as provided
in Rule 18;
32.1.2 conducting public hearings on all provincial
bills, except money and technical bills;
32.1.3 conducting public hearings on important national
bills;
32.1.4 receiving and attending to petitions of the
public; and
32.1.5 educating the public on their role in the
Legislature.
32.2
The Legislature and its committees must consider all comments and
inputs received from the public.”
40
Sections 57(1)(b), 70(1)(b) and 116(1)(b) of the Constitution.
41
Section 1(a) of the Constitution.
42
Section 1(d) of the Constitution.
43
Bryden “Public Interest Intervention in the Courts” (1987) 66
Canadian Bar Review
490 at 509, cited with approval by the
Court of Appeals of Quebec, Canada in
Caron v R
20 Q.A.C. 45
[1988] R.J.Q. 2333
at para 14.
44
See
Doctors for Life International
above n 14 at paras 132 and 145.
45
Id at para 128.
46
See above n 39.
47
However, a subsequently revised program which was issued on 14
November 2005 made no provision for hearings, and no explanation
was
given. From what one gathers from the record, these bills suddenly
became urgent and that was probably the reason for dispensing
with
public hearings. Counsel for Parliament was unable to offer any
explanation for this change in attitude.
48
Virginia v Tennessee
[1893] USSC 109
;
148 US 503
, 524 (1893).
49
Section 21(3) of the Constitution.
50
Above n 14 at para 209.
51
Id at paras 208-9.
52
Id at para 211.
53
Zondi v MEC for Traditional and Local Government Affairs and
Others
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) at para 47.
54
Compare id.
55
New Clicks
above n 14 at para 483.
56
Section 167(6)(a) of the Constitution provides:
“
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”.
Section 16(2)(a)
of the
Constitutional Court
Complementary Act 13 of 1995
read with
Rule 18
of the Rules of the
Constitutional Court give effect to this provision.
1
Doctors for Life International v The Speaker of the National
Assembly and Others
CCT 12/05 as yet unreported judgment, 17
August 2006.
2
The Constitution Twelfth Amendment Act of 2005.
3
Yacoob J judgment a
t para 127.
1
Doctors for Life International v The Speaker of the National
Assembly and Others
CCT 12/05, as yet unreported.
2
Section 74(5) states:
“
At least 30 days before a Bill amending the
Constitution is introduced in terms of section 73 (2), the person or
committee intending
to introduce the Bill must–
(a) publish in the national
Government Gazette
,
and in accordance with the rules and orders of the National
Assembly, particulars of the proposed amendment for public comment;
(b) submit, in accordance with the rules and orders of
the Assembly, those particulars to the provincial legislatures for
their
views; and
(c) submit, in accordance with the rules and orders of
the National Council of Provinces, those particulars to the Council
for a
public debate, if the proposed amendment is not an amendment
that is required to be passed by the Council.”
Section
74(6) states:
“
When a Bill amending the Constitution is introduced,
the person or committee introducing the Bill must submit any written
comments
received from the public and the provincial legislatures-
(a) to the Speaker for tabling in the National
Assembly; and
(b)
in respect of amendments referred to in subsection (1), (2) or (3)
(
b
), to the Chairperson of the National Council of Provinces
for tabling in the Council.”
3
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
at paras 152-6
and 159.
4
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the
Republic of
South Africa,
[1996] ZACC 24
;
1996
1997 (2) SA 97
(CC);
1997 (1)
BCLR 1
(CC); at paras 52 and 71.
1
Doctors for Life International v The Speaker
of the National Assembly and Others
CCT 12/05 as yet unreported judgment, 17 August 2006.
2
The Constitution Twelfth Amendment Act of 2005.
3
The
Cross-boundary Municipalities Laws Repeal and Related Matters
Act 23 of 2005
.
70