Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June 2008)

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Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 41/07
[2008]
ZACC 10
          Â
MERAFONG
DEMARCATION FORUM                                                     Â
First
Applicant
ISRAEL
MOLEPE MOGALE                                                                    Â
Second
Applicant
PAUL
NGWANE                                                                                            Â
Third
Applicant
PAUL
THABANE MOSENOGI                                                                  Â
Fourth
Applicant
JOHANNES
MOTSUMI                                                                                 Â
Fifth
Applicant
TEBOGO
JEREMIAH DANIEL                                                                    Â
Sixth
Applicant
PEARL
KHANYILE                                                                                   Â
Seventh
Applicant
ALFRED
MOTLOUNG                                                                                Â
Eighth
Applicant
MXOLISI
BLESSING DILIMA                                                                    Â
Ninth
Applicant
MICHAEL
MADULUBE                                                                               Â
Tenth
Applicant
TELEKI
JOHANNES MATHIKGE                                                         Â
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                                                             Â
DEVELOPMENT                                                                                        Â
Third
Respondent
PREMIER OF GAUTENG PROVINCE                                                  Â
Fourth
Respondent
MEMBER OF THE EXECUTIVE COUNCIL                                                                        Â
FOR LOCAL GOVERNMENT, GAUTENG PROVINCE                          Fifth Respondent
GAUTENG PROVINCIAL LEGISLATURE                                               Sixth
Respondent
PREMIER OF NORTH WEST PROVINCE                                           Seventh
Respondent
MEMBER OF THE EXECUTIVE COUNCIL                                                                        Â
FOR LOCAL GOVERNMENT, NORTH WEST PROVINCE                 Eighth Respondent
NORTH WEST PROVINCIAL LEGISLATURE                                        Ninth
Respondent
MUNICIPAL DEMARCATION BOARD                                                   Tenth

Respondent
MERAFONG
CITY LOCAL MUNICIPALITY
                                   Â
Eleventh
Respondent
WEST
RAND DISTRICT MUNICIPALITY
                                          Â
Twelfth
Respondent
SOUTHERN DISTRICT MUNICIPALITY                                         Thirteenth
Respondent
SPEAKER OF THE NATIONAL ASSEMBLY                                 Fourteenth
Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL                                                                Â
OF
PROVINCES                                                                                   Â
Fifteenth
Respondent
ELECTORAL COMMISSION                                                            Â
Sixteenth
Respondent
Heard on         :           20 September 2007
Decided on     :           13 June 2008
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
[1]
The applicants challenge the validity of a
constitutional amendment, brought about by the Constitution Twelfth Amendment
Act of
2005 (Twelfth Amendment).  The Twelfth Amendment changed provincial
boundaries, including the boundary between the provinces of
Gauteng and North West.  One part of the Merafong City Local Municipality (Merafong) was thus relocated
from Gauteng to North West,
where the other part of the same municipality was
located before the passing of the Twelfth Amendment.  The applicants ask this

Court to declare that the Gauteng Provincial Legislature failed to comply with
its constitutional obligation to facilitate public
involvement in its processes
leading up to the approval of the Twelfth Amendment Bill
[1]
(Bill) by the National Council
of Provinces (NCOP).  In the alternative, they seek a declaration that the Legislature
failed to
exercise its legislative powers rationally when it voted in support
of the relevant parts of the Twelfth Amendment Bill in the NCOP.Â
According to
the applicants, the relevant parts of the Twelfth Amendment and the
Cross-boundary Municipalities Laws and Repeal
Related Matters Act (Repeal Act)
[2]
are therefore inconsistent with
the Constitution
[3]
and invalid.
[2]
The first applicant is an organisation which,
according to its founding document, campaigns “for democracy to prevail in
Merafong.”Â
It consists of members of the community drawn from political
organisations, taxi associations, the women’s movement, students,
trade unions,
churches, businesses and professionals, including teachers, nurses and
lawyers.  Its primary purpose is “to fight
and defeat the undemocratic move by
government to transfer Merafong from Gauteng to North West.”  The second
applicant is the
spokesperson for the first applicant and the third to eleventh
applicants are members of the community.
[3]
The respondents are the President of the Republic of South Africa, the relevant national and provincial cabinet members, the two

houses of Parliament, the premiers and legislatures of the two provinces
involved, the three affected municipalities, the Municipal
Demarcation Board
(Demarcation Board)
[4]
and the Electoral Commission.
[5]
Â
The application is opposed by most of the respondents.
[6]
[4]
This judgment begins by dealing with a number of
preliminary issues.  Next, it sets out the applicable constitutional and
statutory
framework, after which the facts are briefly summarised.  The
questions of whether the Gauteng Provincial Legislature fulfilled
its duty to
facilitate public involvement and whether the Legislature acted rationally in
mandating its delegates to support the
Bill in the NCOP are then addressed.
[5]
In the course of carefully considering the
complex questions raised by this application, further evidence and submissions
were considered
to be necessary, and were called for on two occasions in
directions from the Chief Justice and furnished by the parties.  The steps

(referred to below in context) necessarily caused some delay in the
finalisation of this matter.
[6]
Several judgments have also been written in this
matter by my colleagues.  I have had the privilege of reading these and briefly

set out the essential points of agreement and the differences between the
judgments.
[7]
Ngcobo J and I agree on the issue of the facilitation
of public involvement. On the question whether the Gauteng Provincial
Legislature
exercised its powers rationally we largely agree and differ only in
approach and emphasis.  I also associate myself with the views
expressed in the
judgment of Skweyiya J.Â
[8]
Moseneke DCJ and I agree that the Gauteng
Provincial Legislature fulfilled its duty to facilitate public involvement.Â
Sachs J
disagrees on this point.  The disagreement between Moseneke DCJ and me
relates to the inquiry into the rationality of the Legislature’s
conduct.Â
Moseneke DCJ (with whom Madala J agrees in his judgment) concludes that the
conduct was irrational, because the Legislature
misconceived its constitutional
obligations and misconstrued the consequences of the exercise of its powers
under the Constitution.Â
I am unable to find that the conduct of the
Legislature was irrational.  The basis of our disagreement can for convenience
be
summarised as threefold.  We disagree on the rationality standard to be
applied in this matter.  I recognise that legislative
conduct must be rational,
but, in my respectful view, the judgment of my esteemed colleague goes beyond a
constitutionally appropriate
application of the requirement of rationality.  We
furthermore disagree as to the Gauteng Provincial Legislature’s understanding

and appreciation of its constitutional powers and obligations.  I do not hold
that the Legislature materially misunderstood its
constitutional role.
[9]
Lastly, but perhaps most importantly, we
disagree on a fundamental aspect regarding the geographical area and the
community at the
core of this application, namely whether it deals with the
location of the whole of Merafong (the Merafong City Local Municipality),
or only with the part of Merafong that was located in Gauteng before the adoption
of the Bill.  The judgment of my colleague distinguishes
between
“Merafong-Gauteng” and “Merafong-North West”.  His starting point is that the
applicants seek an order that the
part of the Twelfth Amendment that
transferred “Merafong-Gauteng” to North West is inconsistent with the
Constitution and thus
invalid.  After recounting the views put forward by the
community and analysing the reasoning of the Portfolio Committee of the
Gauteng
Provincial Legislature as well as the deliberations in the Select Committee of
the NCOP, he arrives at a conclusion which
results in the division of Merafong
into two parts.
[10]
In my view, this division is not in accordance
with what the applicants or the people of Merafong have been calling for, or
with
any decision of the Gauteng Provincial Legislature or its structures, or
with any constitutional or legislative demand.  This case
is not about only one
part of Merafong, or only those members of the Merafong community who happened
to live on the Gauteng side
of the boundary between Gauteng and North West immediately before the Twelfth Amendment.  It is about the entire geographical
area
and all the people of what is in the papers referred to as the Merafong City Local Municipality, or Merafong City, or simply Merafong.Â
The detail of these
points of disagreement is addressed below, when specific issues are being dealt
with.
Preliminary issues
[11]
A number of preliminary issues must be dealt
with before proceeding to the merits.  These are the applicants’ direct
approach
to this Court, the applicants’ application to amend their notice of
motion, the applications for condonation of the late filing
of papers and the
applicants’ delay in bringing this application.
[12]
Only this Court may decide the constitutionality
of an amendment to the Constitution.
[7]
Â
The applicants therefore had to approach this Court directly.  The relevant
parts of the Repeal Act have to be considered together
with the Twelfth
Amendment.  It is therefore in the interests of justice to allow the applicants
direct access to this Court insofar
as their attack on the constitutionality of
the Repeal Act is concerned.
[13]
The applicants apply for the amendment of their
notice of motion.
[8]
Â
The amendment is not likely to cause any prejudice.  The application is not
opposed and should be granted.
[14]
The applicants and several respondents seek
condonation for the late filing of papers.
[9]
Â
The non-compliance with the relevant prescribed time periods is explained in
affidavits and does not prejudice anyone.  None
of the applications is opposed.Â
Condonation should be granted.
[15]
It is desirable that a challenge to the
constitutional validity of legislation – and constitutional amendments in
particular –
be brought timeously.
[10]
Â
The respondents submitted that the applicants had unreasonably delayed bringing
this application, especially in view of the fact
that they approached this
Court directly.  Counsel for the respondents, however, did not insist during
oral argument that the
delay should bar the applicants from approaching this
Court.  The delay is troublesome.  Considerable time lapsed after the passing

of the Twelfth Amendment and the delivery of this Court’s judgments on which
the applicants rely.
[11]
Â
The location of Merafong has been hotly disputed.  It calls for a speedy
determination.  Yet, the delay has been
explained by the applicants’
legal representative, and though regrettable, it should not prevent the matter
from being considered
by this Court in the present instance.  An unsuccessful
attempt was also made in the Pretoria High Court to interdict the local

government elections, before the applicants approached this Court.  The
applicants furthermore do not represent individual interests,
or the interests
of the organizations only, but views widely held in the community of Merafong.
Constitutional framework
[16]
The nine provinces of South Africa and their
boundaries are recognised in the Constitution.
[12]
Â
Any change of a provincial boundary thus requires a constitutional amendment.Â
The Bill was enacted for this purpose.
[13]
Â
It also altered the basis for the determination of provincial boundaries from
magisterial districts to municipal areas.
[14]
[17]
Like all other bills, a bill amending the
Constitution must be passed by Parliament, which consists of the National
Assembly and
the NCOP.
[15]
Â
The procedure for constitutional amendments is set out in section 74 of the
Constitution.  A bill that alters provincial boundaries
must be passed by the
National Assembly with a two-thirds majority.  It must furthermore be passed by
the NCOP with a supporting
vote of at least six of the nine provinces.
[16]
[18]
Section 74(8) states that if a bill or any part
of the bill concerns only a specific province or provinces, the NCOP may not
pass
the bill or the relevant part, unless it has been approved by the
legislature or legislatures of the provinces concerned.
[17]
  A province may therefore effectively
veto the part of the bill related to the boundaries of that province.  The
meaning and
implications of section 74(8) are more fully discussed below, where
the question of the rationality of the Gauteng Provincial Legislature’s
conduct
is considered.
[19]
Section 118(1)(a) of the Constitution requires
provincial legislatures to facilitate public involvement in the legislative and
other
processes of the legislatures and their committees.
[18]
  This provision mirrors
sections 59(1)(a) and 72(1)(a) of the Constitution regarding the National
Assembly and NCOP respectively.
[19]
[20]
This Court held in
Matatiele 2
[20]
that section 74(8) applies to
the Twelfth Amendment.
[21]
Â
Although the boundaries of all provinces are affected by it, section 74(8) is
applicable because the wording of the section states
that it applies if any
part of the bill concerns only a specific province or provinces.
[21]
The majority of this Court in that case also
decided that provincial legislatures had to facilitate public involvement in
accordance
with section 118(1)(a), in the process of considering bills that
alter provincial boundaries provided for in section 74(8).  This
Court found
that the Legislature of the Eastern Cape complied with section 118(1)(a).  The
Legislature of KwaZulu-Natal, however,
was declared to have failed to comply
with its obligations to facilitate public involvement.  Consequently, the part
of the Twelfth
Amendment transferring Matatiele from KwaZulu-Natal to the Eastern Cape was declared invalid, as was the relevant part of the Repeal
Act.
[22]
In
Matatiele 2
the reasons for the veto
provision in section 74(8) and for the need to facilitate public involvement
were stated as including
the following: when a constitutional amendment alters
provincial boundaries, whole communities may, by the stroke of the proverbial

pen, be relocated from one province to another, even though not physically.
[22]
  They may involuntarily end up
in another province.  A proposed boundary alteration threatens an important and
not easily reversible
change to the provincial status of a clearly defined
section of the Republic.  The fundamental right of a citizen to enter, remain
in
and reside anywhere in the Republic is also at stake.
[23]
  The attachment of people to
provinces in which they live should not be underestimated.  The very identity
of people may be affected.Â
Significant practical factors are also relevant,
including the structures and personnel responsible for service delivery.
[23]
It must be added that the history of South Africa is – sadly – one of the balkanisation of our country, as well as of the
separation
and the forcible removal and relocation of our people.  This often
happened in order to entrench and to further differentiate and
discriminate
between races, between urban and rural, between rich and poor and between
classes of citizens.  Therefore the struggle
against colonialism and the
apartheid regime’s Bantustan policy was also a struggle for one united country,
as well as for the
recognition of the dignity of individuals and communities.
[24]
When democracy was about to dawn and a new
constitutional dispensation was negotiated, the question of whether South Africa should
be a unitary state, or a federation, or a variation of any of these,
was hotly debated.  The Constitution embodies a carefully
crafted balance.  South Africa is one, sovereign, democratic state
[24]
and South Africans enjoy a common citizenship.
[25]
Â
This has been achieved at a great cost over generations.  But our country has
nine constitutionally entrenched provinces with
inhabitants who may well
strongly identify with the province in which they live.  Thus the boundaries,
powers, or functions of
provinces may not easily be altered.  In the event of a
proposed alteration, any one province has the power to block that aspect
of an
amendment in the NCOP, as the body which specifically represents the provinces,
to ensure that provincial interests are taken
into account in the national
sphere.
[26]
[25]
When provincial boundaries are at stake, national
and regional needs and perceptions must often be balanced against each other.Â

Government must be open and responsive to the wishes of communities, which may
not necessarily be adequately represented in national
elections and could
therefore find expression in localised resistance.  But it also must act in the
national interest, be loyal
to those who voted it into office and strive to
realise the constitutional ideal of achieving the equitable distribution of
resources
across the country and between provinces.
[27]
[26]
The meaning of the concept of the facilitation
of public involvement – as it appears in sections 59(1)(a), 72(1)(a) and
118(1)(a)
– was explained in
Doctors for Life
[28]
and
Matatiele 2
.
[29]
  The requirement to facilitate
public involvement is in line with the contemplation in the Constitution of
elements of participatory
democracy, in addition to representative democracy.
[30]
  Participatory and
representative democracy must be seen as mutually supportive.  Public
involvement also enhances responsible
citizenship and legitimate government.Â
It furthermore accords with the constitutional principle of co-operation and
communication
between national and provincial legislatures, as
institutionalised in the NCOP.
[31]
[27]
The obligation to facilitate public involvement
may be fulfilled in different ways.
[32]
Â
It is open to innovation.  Legislatures have discretion to determine how to
fulfil the obligation.  Citizens must however have
a meaningful opportunity to
be heard.  The question for a court to determine is whether a legislature has
done what is reasonable
in all the circumstances.  In determining whether the
legislature acted reasonably, this Court will pay respect to what the
legislature
assessed as being the appropriate method.  The method and degree of
public participation that is reasonable in a given case depends
on a number of
factors, including the nature and importance of the legislation and the
intensity of its impact on the public.Â
In the process of considering and
approving a proposed constitutional amendment regarding the alteration of
provincial boundaries,
a provincial legislature must at least provide the
people who might be affected a reasonable opportunity to submit oral and
written
comments and representations.
Statutory framework
[28]
In addition to the constitutional setting dealt
with above, additional statutes form part of the legal framework regarding
provincial
boundaries and the situation of municipalities.  In terms of the Local
Government: Municipal Demarcation Act, the Municipal Demarcation
Board
determines (and may re-determine) boundaries for municipal areas for the whole
of the country.
[33]
Â
In terms of the Municipal Structures Act the Member of the Executive Council
for Local Government in a province must establish
a municipality in each municipal
area which the Demarcation Board has demarcated in a province.
[34]
  Furthermore, the Repeal Act
was enacted to repeal laws providing for cross-boundary municipalities and to
deal with the consequences
of the Twelfth Amendment’s abolition of
cross-boundary municipalities.  However, this case revolves mainly around the
relevant
constitutional provisions and the procedures leading up to the passing
of the Twelfth Amendment.  The effect on other legislation
is consequential.
Factual history
[29]
A brief factual background to the dispute before
this Court is provided, without detailed references to all relevant
legislation,
documentation and events.  In 2000 the Merafong City Local Municipality was established within the West Rand District Municipality.Â
The smaller
part of Merafong, the southern part, fell in North West, whilst the larger part
fell in Gauteng.  Therefore both Merafong
and the West Rand District Municipality were cross-boundary municipalities.  The applicants allege that 74% of
Merafong’s 308
237 inhabitants live in Gauteng.  This is not denied by the respondents,
with the exception of the sixth respondent which provides
no alternative
figure.
[30]
According to an explanatory memorandum published
with the Twelfth Amendment Bill on 26 August 2005, numerous problems have been experienced
with the administration of cross-boundary municipalities since
their establishment.  Consequently, the Presidential Co-ordinating
Council
resolved on 1 November 2002 that the notion of cross-boundary municipalities should
be done away with and that all municipalities
fall within one province or the
other.  The Twelfth Amendment Bill gave effect to this resolution and, in doing
so, located the
total area of Merafong in North West.
[35]
[31]
On 16 November 2005 the Speaker of the Gauteng Provincial Legislature formally referred the matter to the Local Government
Portfolio
Committee (Portfolio Committee), a committee of the Legislature.  On 17 November 2005 the Portfolio Committee resolved to engage
in a joint public hearing
session with the North West Provincial Legislature, in order to receive written
and oral presentations
from the affected communities.  The Portfolio Committee decided
on 18 November 2005 to adopt a plan of action in relation to a
public hearing, to
be held on 25 November 2007.
[32]
Prior to the public hearing written memoranda
were received from a number of stakeholders, including political parties and
community
organisations.  The submissions were directed to the Gauteng
Provincial Legislature, as well as to the NCOP and other governmental

role-players.  The Speaker of the Gauteng Provincial Legislature referred the
submissions to the Portfolio Committee.  Further
written submissions were
handed over by individuals, community organisations, political parties and
trade unions in the course
of the public hearing.  As pointed out in the
detailed account in the judgment of Moseneke DCJ, vehement opposition to the
incorporation
of Merafong into North West emerged in various forms over a
period of time.
[33]
The joint public hearing was indeed held on 25 November 2005 and was well attended.  The Merafong community agreed in principle with

the phasing out of cross-boundary municipalities.  However, the overwhelming
majority of people was opposed to the incorporation
of Merafong into North West.  They regarded themselves as inseparably part of Gauteng.  A minority, amongst
them the African National
Congress Youth League, supported the inclusion of
Merafong in North West.
[34]
On 29 November 2005 the Portfolio Committee considered the Bill together with a report on the views expressed by the public.  It

adopted a “negotiating mandate”.  According to the minutes, Gauteng would
support the Bill, “on condition that the municipal
area of Merafong is included
in the municipal area of the West Rand District Municipality of the Gauteng Province.”  Before this
conclusion, the following is also stated:
“The Portfolio Committee on Local
Government—
·
in principle, supports the phasing-out of
cross-boundary municipalities as envisaged by the Constitution Twelfth
Amendment Bill
[B33B-2005];
·
in light of the outcome, impact assessment and
analysis of the public hearing submissions, agrees with the inclusion of the
geographical
area of Merafong municipality into the West Rand District municipality in the Gauteng Province;
·
recommends to the House, amendment to Schedule
1A of the Constitution Twelfth Amendment Bill [B33B-2005], to provide for the
inclusion
of the municipal area of Merafong into the municipal area of the West Rand District Municipality of the Gauteng Province.”
[35]
The Portfolio Committee thus appeared to agree
with the view expressed by the majority of the Merafong community at the public
hearing
that the phasing-out of cross-boundary municipalities had to be
supported, but that the entire municipality of Merafong had to be
located in Gauteng.  An amendment to the Bill would be required to locate Merafong in Gauteng.  This negotiating mandate was never
considered by the full Gauteng Provincial Legislature.
[36]
[36]
Following the negotiating mandate, the Portfolio
Committee sent a delegate, Mr Shiceka, to the NCOP to negotiate the suggested
amendment.Â
On 30 November 2005, at a meeting of the Select Committee on
Security and Constitutional Affairs,
[37]
he proposed that the NCOP amend the Bill by incorporating Merafong into Gauteng rather than North West.  He was informed that the
NCOP could not amend the Bill.Â
The legal advisor of the Department of Provincial and Local Government, Dr Bouwer,
stated that
in terms of the law the provinces cannot affect amendments on the
Bill and could only veto the whole or part of the Bill.  Advocate
Razaard, the
State Law Advisor, said that there were no provisions in the Constitution for effecting
amendments in a section 74(8)
bill after being passed by the National Assembly,
and that a provincial legislature can either adopt or reject the part that
directly
affects it.
[37]
Following the meeting with the NCOP Select
Committee, the Portfolio Committee of the Gauteng Provincial Legislature met to
reconsider
its mandate and to formulate a final voting mandate.  The Portfolio
Committee produced a report, entitled “Final Voting Mandate
on Constitution
Twelfth Amendment Bill [B33B-2005]” (final voting mandate).  In this document
it is stated that, after deliberation,
the Portfolio Committee had reviewed its
position, notwithstanding the views of the public.  The document then sets out the
Committee’s
reasons for the change in position.  With these considerations in
mind, the Portfolio Committee adopted the final voting mandate,
which provided
that Gauteng would vote in support of the Bill in the NCOP.  The contents of
and reasoning behind the final voting
mandate are discussed more fully below,
where the rationality of the Legislature’s conduct is dealt with.
[38]
The Portfolio Committee’s report on the final
voting mandate was forwarded to the Gauteng Provincial Legislature and debated by

the Legislature on 6 December 2005.  The final voting mandate subsequently was
adopted and a letter from the Speaker, reflecting
the adoption of the report
and the report itself, were forwarded to the Chairperson of the NCOP on 6 December 2005.
[39]
In the NCOP Gauteng voted in support of the Bill
and it was passed.  It came into force on the President’s order on 1 March 2006.
[38]
  Thereafter the Demarcation
Board demarcated the whole of Merafong into the Southern District Municipality
in North West.  The
Repeal Act regulated the process and consequences of the
relocation.
Issues
[40]
The applicants contend that the Gauteng Provincial
Legislature failed to comply with the requirement to facilitate public
involvement
and, in the alternative, that it acted irrationally.  These
complaints are to some extent separate from one another, but are also

overlapping and inter-related.  For the purposes of this analysis, the two
attacks are dealt with separately.  They are however
also considered
cumulatively in reaching a conclusion.
[41]
The two main issues therefore are whether the
Gauteng Provincial Legislature―
(a)
complied with its obligation to facilitate
public involvement when it considered and approved that part of the Twelfth
Amendment
which concerned Merafong; and
(b)
exercised its legislative powers rationally.
These two main issues raise a
number of further questions which are defined and addressed below.
Was public
involvement facilitated?
[42]
The applicants state in their founding papers
that they seek relief similar to that ordered in
Matatiele 2
.
[39]
  It must be said at the outset
that the conduct of the Gauteng Provincial Legislature in this case differs
vastly from the conduct
of the KwaZulu-Natal Provincial Legislature in
Matatiele
2
.  The KwaZulu-Natal Provincial Legislature considered public hearings to
be required, but none took place and written representations
were never
invited.  In contrast, the conduct of the Gauteng Provincial Legislature in
this case was indeed similar to that of
the Eastern Cape Provincial Legislature,
which was found in
Matatiele 2
to have complied with section 118(1)(a).
[43]
The applicants accept that the public hearing
was publicised, oral and written submissions were made before the hearing took
place
and the community’s views were stated at the hearing.  People were given
an opportunity to be heard.  Their public involvement
complaint revolves, in
the first place, around the allegation that the process of public involvement
was not meaningful, because
the final outcome was always a done deal.  They
argue that the National Executive Committee (NEC) of the African National Congress

(ANC) had decided earlier that Merafong would go to North West.  Secondly, they
submit that the Portfolio Committee’s change
of position between the
negotiating mandate and the final voting mandate, without further consultation
with the community, was
unreasonable.
[44]
In support of the first submission, the
applicants refer to passages from the majority judgment of Ngcobo J in
Doctors
for Life
, emphasising the need for citizens to be involved in public
affairs, to identify with institutions of government and to become familiar

with laws.
[40]
Â
Public participation strengthens the legitimacy of legislation in the eyes of
the people.  It is an important counterweight
to secret lobbying and
influence-peddling.
[45]
They also rely on the concurring judgment of
Sachs J in that case, which highlights the assurance that people or groups who
have
been victims of historical silencing will be listened to, and the need for
people to feel that they have been given a real opportunity
to have their say
and that they are taken seriously.
[41]
Â
Whereas here the people were given an opportunity to say what they wished to,
they were not taken seriously, the argument goes,
and the opportunity to be
heard was not meaningful.
[46]
The applicants, furthermore, rely on a passage
from my minority judgment in the same case warning against the mechanical
holding
of cosmetic public hearings in situations where the will of the
majority party will in any event necessarily prevail.
[42]
  This statement, however, must
be understood within the context of the minority’s disagreement with the
majority of this Court
in
Doctors for Life
.  The minority held that
whereas section 118(1)(a) created an obligation for the legislature to
facilitate public participation
in its processes, it was not intended to result
in the possible constitutional invalidity of specific legislation.  It
expressed
scepticism about the practical meaning of requiring public
involvement with regard to every piece of legislation and about the workability

of the yardstick of reasonableness.
[43]
Â
The applicants of course based their case on the majority judgments in
Doctors
for Life
and
Matatiele 2
.  The respondents did not argue that these
judgments were incorrectly decided and that they should not be followed.  This
matter
must therefore be dealt with according to the standards and guidelines
set out in the majority judgments.
[47]
According to the applicants, the NEC of the ANC
decided at the end of 2004 to incorporate Merafong into North West.  They rely
on a document from the ANC’s website to prove this allegation, in the face of
the denial by the Minister of Provincial and Local
Government (the second
respondent) in his answering affidavit.  The applicants submit that the
government was consequently never
open to be persuaded by the views of the
people of Merafong.  Political pressure might have forced the Gauteng Provincial
Legislature
to change its position between the negotiating mandate and the
final voting mandate.  This, according to the applicants, is borne
out by the
respondents’ reluctance to provide reasons for the change that occurred, in
spite of the strong arguments against
incorporation into North West presented
by members of the community.
[48]
On this point counsel for the Premier of North
West (the seventh respondent) argued that, assuming that it is factually
correct
that the NEC of the ANC and the Government were not open to persuasion,
this was irrelevant for the question of whether the Gauteng
Provincial Legislature
complied with its obligation to facilitate public involvement.  If it were
indeed a political reality that
the leadership of the ANC caused the Twelfth
Amendment to be passed in the NCOP, this reality did not mean that the Legislature

did not meet its obligation to facilitate public involvement.
[49]
On the facts of this case it cannot be said that
the Gauteng Provincial Legislature was not open to be persuaded by the views
expressed
by the community.  These views were recorded and discussed in
considerable detail, for example in the above-mentioned final voting
mandate.Â
Furthermore, the negotiating mandate embodied the views expressed by the
majority, namely that the phasing out of cross-boundary
municipalities must be
supported, but that Merafong must be located in Gauteng.  The public meeting
was not a cynical charade,
but held in good faith.  After the public hearing
the Portfolio Committee actually appeared to agree with the majority of the
community.  However, the reality of the future proceedings in the NCOP was also
accepted; hence the mandate was to negotiate, rather
than to take a final
position on how to vote.  This necessarily implied the possibility of a change.
[50]
On the available evidence, it is not possible to
determine whether and to what extent the final voting mandate and the debate in

the NCOP Select Committee were directly or indirectly influenced by previously
formulated policies of the ruling party.  One would
also not know how the party
leadership came to adopt its policy position and to what extent it might have
resulted from a consideration
of public interests or of the views of the
majority.  The passages from the
Doctors for Life
majority judgment,
[44]
referred to by the applicants,
state reasons for constitutionally obliging legislatures to facilitate public
involvement.  But
being involved does not mean that one’s views must
necessarily prevail.  There is no authority for the proposition that the views

expressed by the public are binding on the legislature if they are in direct
conflict with the policies of Government.  Government
certainly can be expected
to be responsive to the needs and wishes of minorities or interest groups, but
our constitutional system
of government would not be able to function if the
legislature were bound by these views.  The public participation in the
legislative
process, which the Constitution envisages, is supposed to
supplement and enhance the democratic nature of general elections and
majority
rule, not to conflict with or even overrule or veto them.
[51]
To say that the views expressed during a process
of public participation are not binding when they conflict with Government’s
mandate from the national electorate, is not the same as cynically stating that
the legislature is not required to keep an open
mind when engaging in a process
of that kind.  Public involvement cannot be meaningful in the absence of a
willingness to consider
all views expressed by the public.
[52]
If it is correct that the submissions of the
community were indeed taken into account, as I conclude, the focus has to shift
to
the change in the Portfolio Committee’s position between the negotiating
mandate and the final voting mandate.  The adoption
of the negotiating mandate
in the language quoted above
[45]
creates the impression that the Portfolio Committee agreed with the community
and formulated the negotiating mandate on the assumption
that the Bill could be
substantively amended in the NCOP to include Merafong in Gauteng.  As is shown
below, this was not possible.
 Did this misconception render the consultation
process unreasonable?  Furthermore, were the members of the Committee obliged

to report back to the community of Merafong during the few days between the
deliberations in the NCOP and the formulation of the
final voting mandate?  Did
they fail to act reasonably in not doing so?
[53]
It was not submitted on behalf of the applicants
that the consultation was unreasonable because the Gauteng Provincial Legislature

or its Portfolio Committee did not fully appreciate the legal position as to
amendments to the Bill in the NCOP at the time of
the consultation.  Nor could
it be so argued persuasively. The facilitation of public involvement is aimed
at the legislature
being informed of the public’s views on the main issues
addressed in a bill, not at the accurate formulation of a legally binding

mandate.  Consultation requires the free expression of views and the
willingness to take those views into account.  This did
happen.
[54]
The applicants’ contention that the Gauteng
Provincial Legislature or the Portfolio Committee was at fault for not
reporting back
to the community emerged mainly during oral argument.  In
response to a suggestion from the bench, counsel for the applicants argued
that
when the Gauteng delegates realised that they were not able to fulfil their
mandate and amend the Bill in the NCOP, they should
have returned to the Merafong
community to explain and again to consult them, before finally mandating their
delegation to the
NCOP.  He submitted that the failure to do so was not
reasonable – and thus fell short of the requirements set out in
Doctors for
Life
and
Matatiele 2
– and also not rational.
[46]
[55]
From the perspective of respectful dialogue and
the accountability of political representatives it might well have been
desirable
to report to the people of Merafong that it was impossible adhere to
the position taken by the Portfolio Committee in the negotiating
mandate.  To
the extent that the community was given the impression that the Committee
agreed with them and that an understandable
expectation was created that their
views would prevail, it was possibly disrespectful not to return to inform them
of subsequent
events.  The question, though, is whether the omission to consult
again after the alteration of the Portfolio Committee’s negotiating
mandate
amounts to a failure to facilitate public involvement in the processes of the Gauteng
Provincial Legislature.
[56]
In my view the failure to report back to the
Merafong community does not rise to the level of unreasonableness which would result

in the invalidity of the Twelfth Amendment which was otherwise properly passed
by Parliament.  It cannot result in a finding that
Gauteng failed to take
reasonable measures to facilitate public involvement, as required by sections 72(1)(a)
and 118(1)(a) of
the Constitution.
[57]
This Court has invoked reasonableness as a
standard by which a court ought to determine whether the measures taken or
methods followed
by a legislature comply with the obligation to facilitate
public involvement.  In this case no one argues that the calling for

submissions and the public hearing were not reasonable measures.  The question
raised is whether the further measures taken or
not taken by the Gauteng
Provincial Legislature in the continuation of its relationship with the
community were reasonable.
[58]
The Portfolio Committee was well aware of the
strong views of the majority of the Merafong community.  There was agreement on
the
need to do away with cross-boundary municipalities.  On the issue of
whether Merafong should be located in Gauteng or North West,
the conflict
between the contents of the Bill and the majority view was stark.  The
Portfolio Committee decided to change its
position as a result of the
deliberations in the Select Committee of the NCOP, where Gauteng’s
representative learned that an
amendment to the Bill, to include Merafong in Gauteng, was not possible.
[59]
If they had gone back to Merafong to explain the
situation to the people, a better understanding might have been fostered, but
it
is unlikely that the majority would have been sufficiently impressed by the
explanation to change their strongly held views.  If
they agreed to the
incorporation into North West, the Bill would in any event have been passed.Â
If they persisted in their original
position, the Gauteng Provincial Legislature
still would not have been bound by their view and would in all likelihood have
proceeded
to vote in favour of the passing of the Bill.  The possibility of the
Portfolio Committee being persuaded anew by views of which
it was already fully
aware, is indeed small.  In all probability little would have been achieved by
another round of exchanging
views, other than to inform and perhaps educate the
community.  Whereas speculation about the likely outcome of further
consultation
is not ultimately decisive, the fact is that the community had a
proper opportunity to air their views.  The previous decisions
of this Court,
on which the applicants rely, do not require an ongoing dialogue.  In fact,
continuing discussion which does not
result in a changed outcome, could
strengthen possible perceptions that the consultation was not meaningful.
[60]
In this case possibly discourteous conduct does
not equal unconstitutional conduct which has to result in the invalidity of the
legislation.  Politicians, who are perceived to disrespect their voters or fail
to fulfil promises without explanation, should
be held accountable.  A
democratic system provides possibilities for this, one of which is regular
elections.
[61]
I am unable to conclude that the Gauteng Provincial
Legislature failed to facilitate public involvement in its procedures leading

to its support for the Twelfth Amendment in the NCOP.
Did the Gauteng Provincial Legislature
exercise its legislative powers rationally?
The rationality standard
[62]
The exercise of public power has to be
rational.  In a constitutional state arbitrariness or the exercise of public
power on the
basis of naked preferences cannot pass muster.  Judgments of this
Court suggest that, objectively viewed, a link is required between
the means
adopted by the legislature and the end sought to be achieved.
[47]
[63]
The fact that rationality is an important
requirement for the exercise of power in a constitutional state does not mean
that a court
may take over the function of government to formulate and
implement policy.  If more ways than one are available to deal with a
problem
or achieve an objective through legislation, any preference which a court has
is immaterial.  There must merely be a rationally
objective basis justifying
the conduct of the legislature.  Provided a legitimate public purpose is
served, the political merits
or demerits of disputed legislation are of no
concern to a court.  In
Pharmaceutical Manufacturers
Chaskalson P made
it clear that the rationality standard does not mean that courts can or should
substitute their opinions for the
opinions of those in whom the power has been vested.
[48]
  A court cannot interfere with
a decision simply because it disagrees with it, or considers that the power was
exercised inappropriately.
[64]
The question of the rationality of the Twelfth
Amendment was left undecided in
Matatiele 2
.
[49]
  In
UDM 2
it was held
that rationality is a minimum requirement for the exercise of public power and
that the
Pharmaceutical Manufacturers
qualification “applies also and
possibly with greater force to the exercise by Parliament of the powers vested
in it by the Constitution,
including the power to amend the Constitution”.
[50]
  In view of the finding below
on rationality in the light of the facts of this case, it is not necessary to
take this specific
point any further.
[65]
The respondents argue that it is eminently rational
to do away with cross-boundary municipalities.  The applicants agree with the

idea of abolishing cross-boundary municipalities and do not attack the
rationality of the Twelfth Amendment as a whole, but only
the part of it that
locates Merafong in North West.  Furthermore, the fact that it is rational for
the whole municipality to be
located in a single province, does not necessarily
mean that the province should be in North West, rather than Gauteng, counsel

for the applicants specifically contended.
[66]
The applicants raise two different issues in
their rationality attack.  Their counsel argued that the abandoning of its
mandate
by the Gauteng delegation to the NCOP was the
first leg
of their
rationality argument.  Gauteng’s change of mind was irrational, because no
proper reason was shown for this change
of position.  The
second leg
relates to the merits of the decision to locate Merafong in North West,
embodied in the Twelfth Amendment, including issues of
service delivery,
Merafong’s closeness to Gauteng’s economic hub and especially the issue of a
province’s equitable share
of revenue from the National Revenue Fund.
Did the Gauteng Provincial Legislature
appreciate its constitutional powers and did it misconstrue the consequences of
its decision?
[67]
As to the
first leg
of the rationality
attack, the applicants argue that the reasons provided for the change of stance
on the amendment do not make
sense and are, in fact, not reasons at all.Â
According to the applicants, they did not know what happened when the Gauteng
Provincial
Legislature decided on its final voting mandate.  They called for
the verbatim record of the Legislature’s debate when the final
voting mandate
was decided, but this was not supplied.  According to the applicants, the
debate resulting in the decision is as
important as the decision itself and the
failure to make it available shows a lack of forthrightness on the part of the
Legislature.Â
The documents filed in response to the December directions
calling for records and documentation should go some way in addressing
the
applicants’ need.
[68]
In order to clarify questions around the
Portfolio Committee’s apparent change of mind, and especially on the Legislature’s
understanding of its constitutional role, the Chief Justice issued further directions
to call for written submissions.
[51]
Â
The parties responded to these directions.
[69]
According to the applicants, the Gauteng
Provincial Legislature accepted that it could only mandate its representatives
in the NCOP
to vote either yes or no in respect of the Bill.  Gauteng was
therefore of the opinion that it was open to them either to support
or to veto
the Bill as a whole, and that it was not an option to propose any amendments to
the Bill.  This view possibly resulted
from the legal advice given to the
Select Committee, as well as from the fact that the legislation was rushed or
“fast-tracked”
through Parliament.  According to the applicants, the
Legislature was mistaken in law and the mistake vitiated its decision to

support the Bill in the NCOP.
[70]
The Gauteng Provincial Legislature argued that
it was not
its contention that it was constitutionally impermissible to
mandate its representatives in the NCOP to vote only against the incorporation

of Merafong into North West.  It was not mistaken in law.  The Premier of North
West (the seventh respondent) and the North West
Provincial Legislature (the
ninth respondent) also submitted that the Gauteng Provincial Legislature did
not accept that the only
constitutionally permissible course would be to mandate
its representatives to vote on the Twelfth Amendment Bill in its entirety.
[71]
The first question requiring attention is
whether the rationality test thus far recognised by this Court allows for an
investigation
of the Gauteng Provincial Legislature’s possibly mistaken
understanding of the law.  After addressing this, I deal with the
constitutional position regarding amendments and voting in the NCOP in the case
of a bill that amends the Constitution by changing
provincial boundaries.Â
Thereafter the alleged misconception of the law on the part of the Gauteng
Provincial Legislature is investigated
by reference to the available evidence.
[72]
In terms of this Court’s existing jurisprudence
on rationality, as well as in view of the nature and functions of a legislature,

an investigation into the correctness or otherwise of the Gauteng Provincial Legislature’s
understanding of the law and of all
the consequences of its decisions is not
unproblematic.  It will be recalled that this Court has on a number of
occasions required
that public power be exercised rationally, rather than
arbitrarily or based on mere preference.  This Court has also emphasised
though
that a court cannot interfere with a decision simply because it disagrees with
it or because the power was exercised inappropriately.
[52]
[73]
A legislature is a deliberative body with a
large number of members and often relies on recommendations of sub-structures
like committees.Â
It is not obliged to accept them.  Each member makes up his
or her own mind.  It decides by way of a majority vote and does not
normally
furnish reasons for its decisions, as would be the case with administrative
bodies.  Many different levels of understanding
and appreciation of the law and
of the perceived consequences of its decisions may occur amongst its members.Â
The exact understanding
of every member of all relevant factors may not only be
difficult to ascertain, but may indeed be irrelevant.  An incomplete or
even
incorrect understanding of the law or of the consequences of a decision does not
necessarily amount to arbitrariness or naked
preference, the evils identified
in this Court’s above-quoted previous decisions on rationality.
[53]
[74]
For the purposes of this judgment I assume – in
view of the contents of the documents reflecting the negotiating and final
voting
mandates and particularly the change that occurred between the two
mandates – that an enquiry into the question of the Gauteng
Provincial
Legislature’s appreciation of its constitutional role may be legitimate and
useful.  This is not to say that any
mistake or inaccurate formulation that can
be detected in the documentation of its proceedings and deliberations would
point to
the absence of rationality as required by this Court.  I therefore
limit my assumption to the question whether the Legislature
materially
misunderstood its powers and obligations under the Constitution.
[75]
Before turning to the Legislature’s
understanding of its constitutional role in the constitutional amendment
process, we must
clarify the constitutional position regarding the powers of a
provincial legislature to propose amendments or to vote against a
bill of the
kind of the Twelfth Amendment, or a part of it, in the NCOP.  This is necessary
especially in view of the conflation
of concepts and the confusion that appear
in the submissions of some of the parties.  A close look at the relevant parts
of sections
74, 75 and 76 of the Constitution is required.
[76]
Section 75 deals with ordinary bills not
affecting provinces.  After being passed by the National Assembly, the bill
must be referred
to the NCOP.  The NCOP must then pass the bill, pass the bill
subject to amendments by it, or reject the bill.  In the case of
an amendment,
the bill must be reconsidered by the National Assembly.
[54]
[77]
Section 76 deals with ordinary bills affecting
provinces and provides for the referral of a bill to the NCOP, where the bill
can
be passed, amended or rejected.  In the event of an amendment, the amended bill
must be referred back to the National Assembly.Â
If the Assembly refuses to
pass the amended bill, it must be referred to the Mediation Committee.
[55]
[78]
Section 74, on the other hand, deals with bills
amending the Constitution.  Section 74(3) specifically requires that a bill
altering
provincial boundaries be supported by six provinces.
[56]
 Section 74(8) requires
approval by the legislature of a province affected by a bill that alters
provincial boundaries for the
bill or the relevant part of it to be passed by
the NCOP.
[57]
[79]
Rule 174(3) of the Joint Rules of Parliament
states that if only a part of a bill requires the approval of a specific
provincial
legislature and the province refuses to grant the approval, that
part of the bill lapses, but the rest of the bill may be proceeded
with subject
to amendments needed to remove the affected part of the bill.
[58]
 In terms of Rule 174(4) the bill
must be referred back to the National Assembly for reconsideration and
amendment, in the event
of this happening.
[59]
[80]
Therefore, if a provincial legislature does not
approve a bill altering its boundaries in the NCOP, the part related to the
boundaries
of that province must be severed from the bill and lapses.  The rest
of the bill may be proceeded with.  However, the severance
requires an
amendment and the bill must be referred back to the National Assembly for that
amendment to be made.  The amendment
referred to here is the formal amendment
that is required for the severance.
[81]
Unlike sections 75 and 76, section 74 does not
provide for substantive amendments in the NCOP and for referral back to the
National
Assembly to consider these amendments.  Although the NCOP fulfils an
important function in the protection of provincial interests,
there is no scope
for debate and for substantive amendments as far as bills altering provincial
boundaries are concerned.  The
reason is of course the mandated nature of the
process.
[60]
 Delegates to the NCOP vote on the basis of provincial mandates.  They cannot
agree to support an amendment which they have not
been mandated by their
provincial legislatures to support.
[82]
It is therefore clear that the Gauteng Provincial
Legislature could not propose an amendment to the Twelfth Amendment Bill in the

NCOP to provide for the inclusion of Merafong in Gauteng instead of in North West.  What was apparently envisaged when the negotiating
mandate was agreed to was
not possible, namely to support the Bill, but to ensure that Merafong would be
in Gauteng.  Gauteng
could indeed effectively veto the part of the Bill that
altered its boundaries, which would then have to be severed and would lapse,

while the rest of the Bill might have been proceeded with.  Furthermore, if
more than three provinces voted against the Bill,
the entire Bill could not
have been passed, in terms of section 74(3)(b)(ii).
[61]
  The legal advice given to the
Legislature’s delegate to the NCOP does not seem to be at odds with this
position.
[62]
Was the Gauteng Provincial Legislature’s
final decision to support the Twelfth Amendment Bill based on a materially
correct appreciation
of its constitutional role? Did it materially misunderstand
its constitutional powers and obligations?
[83]
One could refer to a number of sources to find
the answer to this question, including statements by different office-bearers
of
the Gauteng Provincial Legislature.  The language used is not necessarily
precise and the contents of the statements are not always
consistent.  This
underlines the above-mentioned difficulties in trying to establish the
motivation or legal knowledge of a legislature.Â
The final voting mandate is,
however, specifically put forward in the Legislature’s answering affidavit as demonstrating
the
factors that informed the Portfolio Committee’s final recommendation.  It
differed from the negotiating mandate.  I take the
two mandates as the basis
for the enquiry.
[84]
One disagreement between the judgment of
Moseneke DCJ and mine relates to the Portfolio Committee’s position in the negotiating

mandate.  My colleague’s judgment interprets the negotiating mandate to mean
that the Portfolio Committee conditioned its approval
of the Bill on the
inclusion of only “Merafong-Gauteng” in Gauteng.  In my view, the Portfolio
Committee sought an amendment
to the Bill to include all of the Merafong City Local Municipality in Gauteng.  My understanding is based on the contents of the

document, the public submissions preceding it, the presentation of the
applicants’ case and the debate in the Select Committee
of the NCOP.
[85]
In the negotiating mandate, the Portfolio
Committee concluded that the effect of the Bill would “be the exclusion of the Merafong
Municipality from the Gauteng Province and its inclusion into the North West Province”.  The effect of the Bill would of course
have been that the part of Merafong
in Gauteng would become part of North West.  But the Portfolio Committee
clearly did not intend
its reference to “Merafong Municipality” to be confined
solely to “Merafong-Gauteng”.  As stated earlier, the Merafong
City Local Municipality has been, since its inception, a cross-boundary municipality straddling
both Gauteng and North West.  A
distinction is not made between the two parts
of Merafong.  The Portfolio Committee’s attention is addressed to the entire
municipality.Â
The negotiating mandate concludes that the Gauteng Provincial
Legislature should support the Bill “on condition that the municipal
area of
Merafong is included in the municipal area of the West Rand District municipality of the Gauteng Province.”
[86]
The community’s written submissions, which
culminated in the negotiating mandate, in large part also advocated that the
entire
municipality be located in Gauteng.  For example, the community made the
following recommendation:
“The Merafong City Local Municipality, taking all relevant factors into account, and after consultation with the
community, herewith
submit a fully motivated request that, should action be
taken to do away with cross-boundary municipalities, the total area of
jurisdiction be included in the Gauteng Province.”
[87]
The Khutsong/Carletonville community
[63]
believed that “Merafong should
form part of Gauteng on both Municipal and Provincial Boundary.”  Included
within the submission
is an additional recommendation to allow
Khutsong/Carletonville to remain in Gauteng.  Taken together, these two
recommendations
appear to suggest that the citizens of Khutsong were concerned
that the entire municipality be located in Gauteng, with special
concern for
their own community, Khutsong.  This interpretation is supported by a further
submission from the Khutsong/Carletonville
community, which recommended that—
“it is evident that Merafong City Local Municipality forms an integral and integrated part of the West Rand and therefore Gauteng
Province and a separation of [these] areas will have a substantial negative impact
on the economic, social and institutional stability
and development of the area
as a whole.”
[88]
Many community submissions recounted the
creation of the cross-boundary municipality, Merafong Local City Municipality.  The Wedela
community, in North West,
[64]
submitted in writing:
“[T]he movement of people and goods between
Wedela [located in North West] and Carletonville [located in Gauteng] is such
that
Wedela could by right be viewed as a suburb of Greater Carletonville and
hence the integration of the two municipalities into Merafong
City in 2000.”
The submission concluded with an
identical recommendation that “Merafong should form part of Gauteng on both
Municipal and Provincial
Boundary.”
[89]
Terminology such as that Merafong must “remain”
in Gauteng of course appears in the papers.  This does not mean that only
“Merafong-Gauteng”
is referred to.  In fact, the “inclusion” of Merafong in Gauteng is also referred to in the papers and “Merafong-Gauteng”
was of course already in Gauteng, before the Twelfth Amendment.  It is understandable that the expression of the
community’s
wishes would be focused more on the larger part of Merafong and the
majority of its population, situated in Gauteng before the Twelfth
Amendment,
than on the smaller part and the minority in North West.  This does not mean,
though, that the community of Merafong
wanted its minority to be cut off from
the rest and left in a province which they regard as unacceptable.
[90]
My understanding of the case presented on behalf
of the applicants is also not that they were seeking a division of Merafong
through
an order declaring the part of the Twelfth Amendment that transferred
only “Merafong-Gauteng” to North West inconsistent with
the Constitution and
invalid.  In Prayer 1 of their amended notice of motion,
[65]
a declaration is after all
sought that the Gauteng Provincial Legislature failed to comply with its
constitutional obligation to
facilitate public involvement.  This is the main
relief claimed.  Prayer 2 seeks a declaration that the relevant part of the
Twelfth Amendment is therefore unconstitutional and invalid.  The process of consultation,
which the applicants submit amounts
to insufficient facilitation of public
involvement, never dealt with the Gauteng part of Merafong only.  The public
hearing was
in fact a joint venture between Gauteng and North West and
submissions were made by and on behalf of those Merafong residents who
were at
that stage residing in North West.  If the consultation process fell short of
meeting constitutional requirements, I cannot
understand how it could render
only the part of the Twelfth Amendment that relocates “Merafong-Gauteng”
invalid, without affecting
the part relating to Merafong in North West.  It is
the boundary between Gauteng and North West which is at stake.
[91]
The wording of the applicants’ amended notice of
motion is somewhat confusing.  Prayer 1 refers to the part of the Twelfth
Amendment
“which concerns the Merafong City Local Municipality in the province of Gauteng”, whereas it is well-known that this municipality
was a cross-boundary
municipality in both Gauteng and North West.  Prayer 2 mentions “that part of
the area of Merafong City
Local Municipality (CBLC8) from the province of Gauteng to the province of North West”, but, as stated above, it is difficult to

see how only that part could be unconstitutional, within the context of the applicants’
case as a whole.
[92]
In the applicants’ founding affidavit the
following statement appears:
“The Applicants support the well motivated
conclusion therein (par4 thereof) that Merafong City Local Municipality forms
an integral
and integrated part of the West Rand and therefore Gauteng Province
and a separation of these areas will have a substantial negative
impact on the
economic, social and institutional stability and development of the area as a
whole.”
[93]
The Minister believed that the applicants intended
this paragraph to state the following:
“The applicants appear to accept that there
was no logical basis to re-draw the boundaries of North West and Gauteng Provinces
in a way which would have divided
Merafong
into two or more
separate areas that were located into different provinces.   The applicants
expressly accept that a separation
of
Merafong
into different areas
would have a substantially negative impact on the economic, social and
institutional stability, as well as
the development of
Merafong
as a
whole.  This is significant, because
Merafong
would have had to be
located, in its entirety, either in Gauteng or North West Provinces.  It was
logically necessary to re-draw
the boundaries of Gauteng and North West Provinces in a way which located
Merafong
, in its entirety in one or other
province.”
This statement was not denied by
the applicants in the replying affidavit, even though the prior and subsequent
paragraphs were
expressly disavowed.
[94]
The final voting mandate, under the heading
“Committee Position after Consideration of the Negotiating Mandates by the NCOP
Select
Committee”,
[66]
describes the position taken at the time of the negotiating mandate as the
Portfolio Committee’s “qualified support” for
the Bill.  According to the
Committee, the negotiating mandate indicated that Gauteng would support the
Bill on condition that
the municipal area of Merafong be included in the
municipal area of the West Rand District Municipality in Gauteng.  The final
voting
mandate then states that the Portfolio Committee – subsequent to deliberations
and negotiations in the Select Committee
and after hearing diverse positions
that were advanced – reviewed their initial position, notwithstanding the views
of the public.Â
The Portfolio Committee thus recognised that they changed their
view, and that their newly adopted position did not correspond with
the views
expressed by the majority of the community before the formulation of the
negotiating mandate.
[95]
The statement in the final voting mandate that
provinces can only adopt or reject the Bill in terms of section 74(8) and “say
(aye or nay)” has been criticised as an indication of a misconception on the part
of the Portfolio Committee.  However, the next
sentence in the same paragraph
provides the context.  It states that amendments in the NCOP
are not permissible.  This is of course correct, as
illustrated above.
[67]
 Gauteng had to vote for or against the Twelfth Amendment Bill.  As explained
above,
[68]
the part altering its boundaries would have been severed and lapsed, if it
voted against it.  It could not vote conditionally.
[96]
The document then refers to the deliberations
and negotiations in the NCOP Select Committee and to the Portfolio Committee’s
consideration
of the substance of the issues raised.  The change of position
was based on a number of reasons.  The first two are nothing new,
namely that
the Committee supports the phasing-out of cross-boundary municipalities and
that Gauteng supports the creation of viable
and sustainable municipalities
with a proper revenue base.
[97]
The document then deals with a third reason,
namely the implications of Gauteng not supporting the Twelfth Amendment Bill.Â
It
then makes three points.
[98]
The first of the three points is that if Gauteng’s “veto” applies to the whole Bill as it relates to cross-boundary municipalities,

the Cross-boundary Municipalities Laws Repeal Bill would have to be withdrawn
from Parliament and the local government elections
would be conducted within
the existing municipal configuration with cross-boundary municipalities.  This
statement is heavily
criticised by Moseneke DCJ, but I do not agree with the
criticism.  The wording in the final voting mandate may be less than accurate.
 Of
course, Gauteng on its own could not “veto” the Bill as a whole.  However, if
three or more other provinces also opposed
the Bill, it could not be passed.  Furthermore,
the Portfolio Committee recognised that opposition to the Bill may have
consequences.Â
Read within the context of a proper understanding of section
74(8), and the rest of the final voting mandate, this statement cannot
be said
to indicate a materially wrong understanding on the part of the Committee of
its constitutional powers.
[99]
The document secondly deals with “a narrow
interpretation” and talks of a “veto” or rejection of the part of the proposed

Schedule 1A that defines Gauteng’s territory.  It recognises its power to veto
or cause the severance of the part of the Twelfth
Amendment affecting its
boundaries.  It states that the result would be that the basis for cross-boundary
municipalities would
be revoked, but the current boundary of Gauteng would
remain the same.  The consequences are then described.
[100]
Thirdly, the document notes that municipal boundaries in Gauteng would
still be determined with reference to magisterial districts
and elections would
be conducted “within the current municipal configuration”, which was actually
changed for the rest of the
country by the Twelfth Amendment.
[101]
With these considerations in mind, the Portfolio Committee adopted
the final voting mandate, which provided:
“In terms of Section 65 of the
Constitution, the Local Government Portfolio Committee recommends that the
House confer authority
on the head of its delegation to the NCOP, to
Vote
in Support
of the Constitution Twelfth Amendment.”
[102]
It cannot be said that the Portfolio Committee laboured under a material
misconception of its constitutional powers and obligations.Â
In substance it
was clearly aware of its power to cause the severance of the part of the
Twelfth Amendment Bill that affected its
boundaries, or effectively to veto
that part.  It considered this option and decided against it.  The view of the
applicants
that the Committee was mistaken results from a conflation of the
concepts of a substantive amendment in the NCOP (which was impossible),
the
power to vote for or against the Bill (which the Gauteng Provincial Legislature
had), and the power of effectively vetoing
a part of the Bill (which the Portfolio
Committee realised was possible and indeed considered).
[103]
In his judgment, Moseneke DCJ goes further than the applicants in questioning
the rationality of the Gauteng Provincial Legislature’s
conduct.  He expresses
the view that Gauteng could have supported the Bill, but declined to support
that part of the Bill relating
to the incorporation of “Merafong-Gauteng” into North West.  The twin objectives of terminating cross-boundary municipalities
and defeating
the redrawing of its boundaries could have been achieved simply by voting in
favour of the Bill, while declining
to support that part of the Bill which
affected its boundary.  It was not necessary to turn away from the negotiating mandate.Â

The judgment states that a veto related to the municipal area of Merafong is
localised and discrete and cannot possibly affect
the municipal boundaries of
the rest of Gauteng.  The effect of the veto would be no more than that the
part of the area of Merafong
City Local Municipality that fell within the
municipal area of the West Rand District Municipality would remain in Gauteng,
which
is what the amendment sought to achieve.  The judgment criticises the
Portfolio Committee’s exposition of the possible consequences
of a veto.  It
finds aspects of the Committee’s reasoning startling and evident of a baseless
grandiose notion of the legal
consequences of the veto.
[69]
[104]
For a number of reasons I am respectfully unable to agree.  As
indicated above, neither the negotiating mandate, nor the submissions

expressing the will of the people of Merafong that were reflected in the
negotiating mandate, were aimed at the division of Merafong
into two parts to
be located in different provinces.  Furthermore, the negotiating mandate did
not state separate twin objectives
of supporting the phasing-out of
cross-boundary municipalities, while at the same time preserving the existing
boundary through
Merafong between Gauteng and North West.  It did not express
support for the principle of doing away with cross-boundary municipalities
at
the cost of dividing Merafong.  It rather expressed support for the principle
of phasing-out cross-boundary municipalities
and, consequently, called for the
inclusion of the whole of the Merafong municipal area into Gauteng, because it
agreed with the
submissions of the community.  This is clear from the wording
of the negotiating mandate.
[105]
The option, which Moseneke DCJ is of the view the Gauteng Provincial
Legislature ought to have followed, would require a province
to have several
votes in the NCOP regarding a bill altering provincial boundaries.  In addition
to its vote on the Bill as a whole,
it would have to vote on the part of the
Bill altering its boundaries, and if more than one boundary is altered or if
its boundaries
are altered in more than one place, on each and every one of
those.  (The boundary on which this application is focused is indeed
not the
only alteration of Gauteng’s boundaries affected by the Twelfth Amendment.)  In
my view, this is not envisaged by sections
74(3) and (8) of the Constitution
which refer to a bill or the relevant part of a bill that alters provincial
boundaries.  The
legal advice given by Dr Bouwer and Advocate Razaard also did
not state this to be a possibility.  Dr Bouwer specifically pointed
out that if
Gauteng did not support “the question of Merafong”, the result would be that
part of Merafong would fall in Gauteng
and the other part would be demarcated
to another municipality somewhere in North West.  The delegate of Gauteng was made aware
of this consequence.
[70]
[106]
Furthermore, to fault the Gauteng Provincial Legislature for not
considering a perceived option which was not presented to it by
the people of
Merafong, namely to divide Merafong into two different municipalities in two
provinces, and to tie this to the Portfolio
Committee’s change of position
after the negotiating mandate, goes beyond this Court’s view of the standard of
rationality.Â
The earlier-mentioned decisions of this Court make this clear.
Consequences of a veto
[107]
The criticism that the Portfolio Committee materially misunderstood
the constitutional position also goes to the Committee’s evaluation
of the
consequences
of the options they considered, and not only to their appreciation of their
powers
or
obligations
under the Constitution.  This is a different matter.  The
first question is whether this Court is in a position to judge properly
on this
aspect on the papers before us.  I am not convinced that it is.  In their
written submissions and their oral argument
before this Court, the applicants
did not specifically attack the Gauteng Provincial Legislature’s evaluation of
the consequences
of, for example, the severance of the part of the Twelfth
Amendment Bill altering Gauteng’s boundaries.  The respondents did
not argue
the point either.  Further directions were issued twice since argument was
heard in this matter, calling for records
and other documents and for written
argument on whether the Legislature was mistaken in law on a very specific
point.  None of
these directions called for argument on the correctness or
otherwise of the Legislature’s evaluation of the consequences.
Â
[108]
A range of possible undesirable consequences regarding
cross-boundary municipalities, the boundaries of Gauteng, the ripple effect
on
other municipalities, and even provinces and local government elections are
mentioned in the final voting mandate.  A proper
analysis of these
possibilities is no simple matter and requires a detailed analysis of the Bill,
Schedule 1A to the Bill, the
maps referred to in the Schedule (some of which
are not included in the papers) and perhaps information on the legislative
purpose
behind using these particular maps instead of references to the
municipalities themselves.  The other legislation which has been
passed could
be of great significance.  The role of the Demarcation Board, including the
motivation behind its changed decisions
and the exact timing of demarcation, is
also relevant.  (The record currently includes only press releases.)  Several
of the
above may be open to different constructions or interpretations.
[109]
In my view it would not be in the interests of justice, if at all
possible, to determine this complex set of issues without the benefit
of
further argument specifically on this point.  Insofar as I am, on the papers
before us, able to judge on the consequences,
I am unable to find the
statements in the final voting mandate, inelegantly worded as they are, to
reflect a material misunderstanding
of the legislature’s constitutional powers
or obligations.  An analysis of the contents and structure of the Bill, the
other
applicable legislation and the relevant maps leads me to conclude that if
the part of the Bill relating to Gauteng were indeed severed,
Merafong would
have remained a cross-boundary municipality, other municipalities as well as
the local government elections would
not have been left untouched, and the
people of Merafong might indeed have experienced very negative consequences.
The rationality of the decision to
locate Merafong in North West
[110]
This brings me to the
second leg
of the applicants’
rationality attack, namely the merits of the decision to locate Merafong in North West.  The public’s proposal
that Merafong belongs in Gauteng centred around a number
of submissions, summarised in the final voting mandate.  It was said to
be
better for the effective delivery of services for Merafong to fall within Gauteng.  The Gauteng Department of Social Development
already had offices in Khutsong and
Carletonville
.
  Health and emergency services
were alleged to be inadequate in North West.  Education in North West was
alleged to be lagging
behind.  The capacity of local government structures to
implement water and sanitation services as well as an expanded public works

programme was questioned.  Much emphasis was furthermore placed on Merafong’s
links to Gauteng as the economic hub of South
Africa and indeed the Southern
African region.
[111]
Arguments in favour of locating Merafong in North West were also
mentioned in the document.  On the economic front it was stated
that Merafong depends
heavily on the neighbouring town of Potchefstroom in North West.  Merafong received
correctional, health,
taxi registration, telephone and electric services from North West.  Merafong’s location in North West was better suited for the
macro-economic
strategy of North West, which is based on an economy dependent on natural
resources, namely mining, agriculture
and tourism.
[112]
Counsel for the applicants did not pursue all these points in oral
argument.  In fact, they conceded that the obvious need for effective
service
delivery does not necessarily mean that Merafong cannot be located in North West, where attempts are indeed being made to
improve service delivery.  They stressed
the importance of people’s emotional attachment to a province, and the effect of
a
provincial boundary change on the dignity of the people involved, as recognised
in
Matatiele 1
.
[113]
In their oral submissions, counsel for the applicants focused on the
argument advanced by the Government that locating Merafong in
North West would
increase the population of North West and thus its equitable share of revenue
from the National Revenue Fund.Â
Equitable share of revenue is regulated by sections
213,
[71]
214
[72]
and 227
[73]
of the Constitution.  The applicants argued that although voluminous papers
were filed on this aspect, it was never offered publicly
as a reason and was
not part of the public discourse.  The Merafong community would have strongly
objected to this argument, on
its merits, if they had had the opportunity to do
so.
[114]
Before succumbing to the temptation to enter the debate on the
merits raised by
second leg
of the applicants’ rationality attack, one
must be mindful of this Court’s earlier-mentioned jurisprudence on rationality.
[74]
  What is required, insofar as
rationality may be relevant here, is a link between the means adopted by the
legislature and the
legitimate governmental end sought to be achieved.  It is
common cause that doing away with cross-boundary municipalities is desirable

for improved service delivery and governance.  This is the purpose of the
Twelfth Amendment.  More ways than one of achieving
the objective are however available,
namely to locate Merafong either wholly in Gauteng or wholly in North West.  From economic,
geographical and other perspectives the choice can be debated,
but it is one for the legislature to make.  It is not for this Court
to decide
in which province people must live or to second-guess the option chosen by the Gauteng
Provincial Legislature to achieve
its policy goals and thus to make a finding
on how socially, economically or politically meritorious the Twelfth Amendment
is.
[115]
In the circumstances I am unable to conclude that the Gauteng Provincial Legislature exercised its legislative powers irrationally.
Conclusion
[116]
The applicants have not shown that the Gauteng Provincial Legislature
failed to facilitate public involvement, or acted irrationally,
in supporting
the Twelfth Amendment Bill in the NCOP.  The Legislature created a reasonable opportunity
for the public to express
its views and those views were taken into account.  It
also did not exercise its powers irrationally.  Based on the submissions
of the
public, the Portfolio Committee formulated a negotiating mandate and indeed
negotiated accordingly.  After being informed
of the legal position, the Committee
considered the available options and decided on a final voting mandate.  The
Committee explained
its change of position.  The Legislature debated the issue
and took a decision.  It did not materially misunderstand its constitutional
role.Â
The merits of its decision also do not indicate irrational conduct.  The
application cannot succeed.
Costs
[117]
The applicants brought an important constitutional issue to this
Court and were assisted by a public interest law institution with
a history of campaigning
for the recognition and protection of human rights.  They should not be ordered
to pay the respondents’
costs.
Order
[118]
The following is therefore ordered:
(1)
The application to amend the applicants’ notice of motion is
granted.
(2)
The applications for condonation for the late filing of papers are
granted.
(3)
The application for direct access is granted.
(4)
The application is dismissed.
Langa CJ, Mpati AJ, Ngcobo J, Skweyiya J
and Yacoob J concur in the judgment of Van der Westhuizen J.
MOSENEKE DCJ:
Introduction
[119]
This application for direct access in terms of
section 167(4)(e) of the Constitution,
[1]
concerns a constitutional challenge to a part of the Constitution Twelfth
Amendment Act (Twelfth Amendment).
[2]
Â
The applicants seek an order declaring that the Provincial Legislature of
Gauteng (Provincial Legislature or sixth respondent)
has failed to comply with
its constitutional obligation, as envisaged in section 118(1)(a) of the
Constitution,
[3]
to facilitate public involvement in the legislative processes of considering
and approving that part of the Twelfth Amendment which
concerns the Merafong
City Local Municipality.  As I explain later, this municipality is a
cross-boundary municipality that straddles
the borders of Gauteng and North West Provinces.  For ease of reference, I shall allude to the cross-boundary
municipality as Merafong
and to its constituent municipal areas on each side of
the boundary as Merafong-Gauteng and Merafong-North West, respectively.
[120]
In the alternative, the applicants ask us to declare that, in
approving the impugned provisions of the Twelfth Amendment, the Provincial

Legislature failed to exercise its legislative powers rationally.
[121]
The consequential relief they seek is an order that the part of the
Twelfth Amendment that transferred Merafong-Gauteng to the Province
of North West is inconsistent with the Constitution and invalid.  They also urge us to
hold that the provisions of the Cross-boundary
Municipalities Laws Repeal and
Related Matters Act (the Repeal Act)
[4]
are inconsistent with the Constitution and invalid.  The Repeal Act is a
statute which was enacted to give effect to the Twelfth
Amendment and thus
contains stipulations that regulate the transfer of Merafong-Gauteng to North West Province.
[122]
I have had the distinct benefit of reading the majority judgments of
my colleagues, Van der Westhuizen J and Ngcobo J.  I also had
the pleasure of
reading the judgment of my brother Skweyiya J.  The judgments find no merit in
and dismiss the application for
declaratory and consequential relief.  They
hold that the Provincial Legislature took reasonable steps to facilitate public
involvement
in the legislative process related to the passage of the Twelfth
Amendment.  They also dismiss the alternative claim that the Provincial

Legislature failed to exercise its legislative power rationally.
[123]
As the majority judgments of Van der Westhuizen J and Ngcobo J do, I
am inclined to accept that the steps taken by the Provincial
Legislature to
procure the participation of the people of Merafong, albeit in unseemly haste,
in the legislative processes that
led to the passage of the Constitution
Twelfth Amendment Bill (Bill) are reasonable and do pass constitutional
muster.  However,
I part ways with their respective judgments on whether the
Provincial Legislature acted rationally in the exercise of its legislative

powers conferred by section 74(8) of the Constitution,
[5]
when it approved the
constitutional Amendment, which alters its provincial boundaries.  It also
gives me pleasure to acknowledge
the respective judgments of Sachs J and Madala
J.  They are elegantly crafted and persuasive.  Whilst I part ways with Sachs J

on whether the Provincial Legislature took reasonable steps to facilitate
public involvement in the legislative process related
to the passage of the
Twelfth Amendment, I respectfully support the conclusion reached by both
judgments that the Provincial Legislature
failed to exercise its legislative
power rationally and that its decision to support the passage of the Twelfth
Amendment Act is
a constitutional nullity.
[124]
In my judgement, when the Provincial Legislature abandoned its
decision not to approve the Bill and resolved to support the Bill,
it acted
without a proper appreciation of its powers and duties and therefore
irrationally.  Its decision does not meet the rationality
standard imposed by
our Constitution.  In my view, the decision of the Provincial Legislature to
approve the Bill is therefore
invalid.  This would mean that the relevant
portion of the Twelfth Amendment
[6]
would be inconsistent with the Constitution to the extent that it permits the
incorporation of Merafong-Gauteng into North West.
[125]
In this judgment I propose first to recite the facts.  Happily, the
facts are brief and largely undisputed.
[7]
Â
Thereafter, I describe the operative constitutional framework within which the
impugned decision of the Provincial Legislature
was taken.  Third, I test the
decision for rationality.  And last, I consider what may be an appropriate
remedy.
Background and facts
[126]
The Constitution Second Amendment Act of 1998,
[8]
inserted section 155(6A) into the
Constitution.  The new constitutional provision authorised the establishment of
municipalities
across provincial boundaries if the concerned municipalities
could not feasibly be established within the boundaries of one province
in
accordance with the criteria set by the Constitution.
[9]
  The provision makes it plain
that a cross-boundary municipality may be determined only with the concurrence
of the provinces
concerned and only after national legislation has authorised
the establishment of a municipality within that municipal area.
[127]
The national legislation that gave effect to
section 155(6A) of the Constitution Second Amendment Act was the Local
Government:
Cross Boundary Municipalities Act (Cross boundary Municipalities
Act).
[10]
  The schedule to that legislation described the municipal areas
which have been demarcated by the Municipal Demarcation Board (Demarcation

Board)
[11]
and in regard to which authority to establish cross-boundary
municipalities had been given.  Merafong appears in the schedule as
a local
municipality whose municipal area runs across the boundaries of the provinces
of Gauteng and North West.
[128]
In October 2000, the provinces of Gauteng and North West issued
notices, as required by law, establishing a local municipality known
as Merafong City Local Municipality (Merafong).  The municipal area of Merafong is described
in a map contained in annexure E to
the respective establishing notices and
runs across the boundary of the provinces of Gauteng and North West.
[12]
[129]
The major geographical area of the newly determined cross-boundary
municipality was situated in the north of Merafong and within
the West Rand District Municipality located in Gauteng.  In their founding papers, the applicants
make the undisputed averment
that Merafong had 308 237 inhabitants and nearly
74% of them were living in the residential areas of Carletonville and Khutsong

situated within the Gauteng Province.  The remaining 26% of the inhabitants
were living in Fochville and Wedela which fell within
the Southern District
Municipality in North West.  Once again, for the sake of clarity, I will refer
to this part of Merafong
as Merafong-North West.
[130]
In 2006, the Twelfth Amendment introduced
far-reaching constitutional and legislative changes in three important
respects.  First,
it set a new criterion on how boundaries of our nine
provinces are to be drawn.
[13]
  It will be remembered that before the Twelfth Amendment,
boundaries of provinces were defined as those that existed when the
Constitution took effect in 1996.  In other words, they were to be determined in
the manner prescribed by the interim Constitution
of 1993.  It had drawn
provincial boundaries with reference to magisterial districts.  The Twelfth
Amendment now defines provincial
boundaries with reference to municipal
demarcation maps.  It provides that the geographical areas of the respective
provinces
are made up of the sum of the demarcated areas shown in maps of
municipal areas described in the Notice listed in Schedule 1A to
the Twelfth
Amendment.  Simply put, Schedule 1A allocates every defined municipal area to a
province and the sum of the municipal
areas in a province constitutes its
boundary.
[131]
Second, the Twelfth Amendment repealed all constitutional provisions
that authorised cross-boundary municipalities.
[14]
Â
As its full name suggests, the Repeal Act also, as a consequence, rescinded all
legislation that permitted cross-boundary municipalities.
[15]
  The record before us documents rather well the history of
cross-boundary municipalities and furnishes cogent reasons why this
class of
municipalities has caused more problems than it has resolved and why it had to
be abolished.  It is common cause that
cross-boundary municipalities failed to
facilitate adequate provision of municipal services to their residents.  It is
therefore
appropriate to note at this early stage in the judgment that all
government respondents and indeed all communities within Merafong
agreed that
cross-boundary municipalities should be terminated.  To that extent, the
communities of Merafong supported the passage
of the Twelfth Amendment.  As
will shortly become plain, their disquiet lay elsewhere.
[132]
Third, and perhaps most crucially for present purposes, all parties
accepted, in my view correctly so, that Schedule 1A of the Twelfth
Amendment
locates the total area of Merafong in one province, namely, North West.  So to
speak, it terminated the cross-boundary
municipality by incorporating
Merafong-Gauteng into one province, the Province of the North West.  This
outcome, Schedule 1A of
the Twelfth Amendment achieves by listing the municipal
area of Merafong described by Map No 5 of Schedule 1 to Notice 1998 of 2005
[16]
under the Province of North West.  The annotation to Map 5 states expressly that:
“Merafong City Local Municipality is to be
excluded from the municipal area of the West Rand District Municipality and included
in the municipal area of the Southern
District Municipality.
  Westonaria is to remain in the West Rand District Municipality”.
[133]
It is now opportune to turn to the context
within which the Provincial Legislature made the impugned decision to support
the passage
of the Twelfth Amendment.  To that end, it may be useful to narrate
the encounters between the majority of the residents of Merafong
and certain
state organs shortly before the adoption of the Twelfth Amendment.
[134]
As the facts will shortly show, the interaction was distinguished by
vehement and public opposition of the affected community to
the incorporation
of their residential areas into North West.  The record is replete with copies
of written submissions to national,
provincial and local spheres of government
detailing why the community wishes to remain within Gauteng.  At least seven of
their
written submissions are found in the record.  Often their resistance took
the form of public gatherings or protest marches.  The
opposition played itself
out well ahead of November 2005 when formal involvement of the community in the
law-making process, as
envisaged by section 118(1)(a) of the Constitution, took
place.  In other words, the Minister of Provincial and Local Government

(Minister or second respondent) and the Provincial Legislature were well aware
of the resistance of the majority of the affected
communities to their
incorporation into another province.  It is so that the Bill was introduced and
passed in the National Assembly
on 15 November 2005, despite the protest and
resistance of the overwhelming majority of the residents and formations of
civil society
concerned.  I look at some of the facts more closely.
[135]
On 19 August 2005, at the request of the Minister, the Demarcation
Board, published proposals for the re-determination of boundaries
of certain
municipalities for comment by interested parties.
[17]
  In relation to Merafong, the
published proposal incorporated all of Merafong-Gauteng into the Southern
District Municipality
in North West, keeping in mind that the rest of Merafong
already fell within the Province of the North West.  The proposal led
to
widespread and spontaneous mass protest in the Merafong community.  Residents,
supported by community formations, which included
the labour federation
Congress of South African Trade Unions (COSATU), political organisations such
as local branches of the South
African Communist Party (SACP) and African
National Congress (ANC), non-governmental organisations, churches, taxi
organisations
and social movements, held a protest march leading to Westonaria
on 24 September 2005, and to the Merafong municipal offices on
26 September
2005, where they submitted written representations against the incorporation.
[136]
During October 2005, the chairperson of the Demarcation Board issued
a statement in which he explained that the Demarcation Board
had met to
consider the written views and representations to it.  In relation to its
earlier proposal on Merafong, the statement
explains that the written
submissions “indicate overwhelming resistance to the inclusion of Westonaria
and the City of Merafong
into the Southern District Municipality”.  The
statement continues to explain that “[t]he Board agreed with some motivations

provided, and decided . . . to withdraw its re-determination”.  The statement
concludes by confirming that “the City of Merafong
Local municipality thus
remains within the West Rand District municipality, and the boundaries of the
Southern District municipality
also remain unchanged”.
[137]
The applicants and the broader community welcomed the Demarcation
Board’s withdrawal of the proposed re-determination of the boundaries
of
Merafong.  On 30 October 2005, they held a celebration march for what appeared
then to be a final victory on the incorporation
issue.  The triumph was
short-lived.  Within a day of the celebratory march, on 31 October 2005, the
Demarcation Board issued
a formal notice stating that it had received a fresh
request from the Minister to publish a notice and maps reflecting his
alternative
proposals for re-determination of certain municipal boundaries.
[18]
  In the case of Merafong, the
Minister’s fresh proposal amounted to a repetition of his stance that
Merafong-Gauteng should
be incorporated into North West.
[19]
[138]
The Minister’s fresh proposals led to a new wave of community
discontent and protest.  At the request of the community, on 5 November
2005,
applicants and a broad-based delegation from the community met with the
Minister.  The minute of the meeting suggests that
the discussions were frank
but inconclusive.  Not one of the two sides appears to have made any
concessions.  The community reiterated
its opposition to its incorporation into
North West.  The Minister urged the community delegation to go back and collectively

create conditions for them to participate constructively in the imminent
legislative process.  They were advised to “watch the
space and wait for
parliamentary pronouncement”.  The Minister said that he was bound to take the
relevant legislation to Parliament
and that he would inform Parliament about
the concerns of the residents of Khutsong.
[139]
As a sequel to the meeting with the Minister, between 6 and 17
November 2005, the applicants and the community convened a series
of report-back
gatherings with sectors of the community representing diverse interests such as
labour, youth, education, transport,
religion, business and political
groupings.  A collective memorandum of the sectoral forum was drawn and
submitted to the Minister
on 24 November 2005.  The community repeated its
stern opposition to being incorporated into North West.  They expressed
awareness
and unhappiness that the Bill that provided for the incorporation of
Merafong-Gauteng into North West, had been placed before and
approved by the
National Assembly.  They urged the Local Government Provincial Portfolio
Committee (Portfolio Committee) to discuss
the Bill with the sectors of the
Merafong community before the legislative process of the National Council of
Provinces (NCOP)
and also asked for public hearings so that they may put their
contentions across.
[140]
The heightened concern of the community of Merafong, as expressed in
the memorandum, was well justified.  The legislative process
to decide their
fate had started in earnest.  In fact, on 15 November 2005, the National
Assembly voted in favour of the Bill.Â
On the same day, it was transmitted to
the NCOP for its concurrence.  The very following day, the Speaker of the
Provincial Legislature
referred the Bill to the Portfolio Committee for formal
consideration.  The Speaker then made it known in a formal notice that
the
consideration of the Bill before the NCOP was subject to firm time frames,
which all built up towards 14 December 2005, when
the NCOP would have a plenary
session for the adoption of the Bill.  The respective provinces were to be
briefed on the Bill on
21 and 22 November 2005.  On 30 November 2005, the
Select Committee on Security and Constitutional Affairs (Select Committee) of

the NCOP was required to debate and consider negotiating mandates from the
respective provinces followed by consideration of their
final mandates on 12
December 2005.  This also meant that the provincial legislatures had to receive
representations from the
public and formulate a negotiating mandate before the
NCOP Select Committee session on 30 November 2005.
[141]
In its sitting of 17 November 2005, the Portfolio Committee of the
Provincial Legislature resolved that it would engage in a joint
public hearing
with the North West Provincial Legislature in order to receive representations
from affected communities.  Thereafter,
each legislature would consider the
outcome of the public hearings in its own legislature.  After notice to the
public, a joint
public hearing was held on 25 November 2005.  On all accounts,
it was well attended and the Portfolio Committee received written
as well as
oral submissions and engaged extensively with the concerned communities.
[142]
On 29 November 2005, the Portfolio Committee considered the detailed
provisions of the Bill, as well as a report on an assessment
of the views of
the attendees of the public hearing.  On the occasion, the Portfolio Committee
adopted a written negotiating mandate
to be tabled before the NCOP the
following day.
The negotiating mandate
[143]
The negotiating mandate is a document of seminal importance because
it reveals in considerable detail the reasoning processes of
the legislature.Â
It contains full grounds upon which the Provincial Legislature adopted the
negotiating mandate.  The mandate
first reviews the constitutional and
legislative framework relevant to the Bill.  Of significance is that section
74(8) of the
Constitution is highlighted in bold letters.  Also, the portion of
the mandate quoting 74(8) provides that “the NCOP may not
pass the bill or the
relevant part unless it has been approved by the legislature or legislatures
concerned” is not only in bold
letters but it is boldly underlined.  It seems
to me that the mandate seeks to draw attention to the veto power and obligation

of the Provincial Legislature under section 74(8) and to the fact that the Legislature
itself was well aware of the provision.
[144]
Next, the mandate examines the details of the provisions of the Bill
and thereafter concludes that, in relation to Merafong, the
effect of the Bill
“will be the exclusion of Merafong Municipality from the Gauteng Province and its inclusion into the North
West Province”.  The conclusion is correct.  More
precisely, the effect of the Bill was that Merafong-Gauteng would become part

of the Province of North West.  The mandate then turns to consider an overview
and analysis of public hearings.  It records views
in support of the inclusion
into Gauteng Province.  The community concerns are grouped into a social
development cluster and an
economic development cluster.
[145]
In relation to the social development cluster, the mandate draws
attention to the dissatisfaction of the overwhelming majority of
residents over
the likely absence or lowering of the quality of a number of essential
services, if they were to be transferred
into North West.  These essential
services include the punctual and efficient provision of social grants and
other related services;
services offered by the Department of Home Affairs
concerning the processing of official documentation such as birth, identity and

death certification; health and emergency services; and education.  The
disquiet of the affected communities extends to the capacity
of North West to deliver water and sanitation as well as expanded public works programmes from
which the jobless make a living.Â
Generally, the mandate notes that Gauteng is seen as having an advanced service delivery programme which will benefit the
affected
communities, provided they remain in Gauteng.
[146]
The mandate reports on economic and commercial concerns.  The first
of these is both historical and sentimental.  The affected
communities say that
they want to remain part of the economic hub of the country and of the southern
region of Africa.  They make
the point that the development of Johannesburg as
a “City of Gold” is as a result of the gold mines, including those in Merafong

that have contributed to the gross domestic product and development of
Gauteng.  It is not inapposite to remember that the name
“Merafong” means a
“place of mining”.  Workers from Merafong, represented by labour organisations,
embrace this contention
and point to the fact that the people of Merafong have
supplied labour in the gold mines for many decades and that, in turn, the
mines
have supplied mineral deposits to the Gauteng economy.  They raise an
additional point that it would be unwise to merge
two areas with scarce job
opportunities.  Merafong-Gauteng depends on a mining sector that is currently
confronted by dwindling
gold production and the North West relies on
agriculture with limited employment vacancies.  A merger of the two may
indirectly
deepen poverty in Merafong.
[147]
The mandate records that a sizeable part of the Merafong population
is employed within Gauteng.  This, it is said, flows from the
fact that Gauteng presents greater job opportunities.  Also, the communities see their incorporation
as imposing an additional
financial burden on residents because important
public institutions in North West are located in its capital town, Mafikeng,
which,
aside from other inconveniences, is far and this makes travel there from
Merafong-Gauteng costly.
[148]
The labour federation, COSATU, and some of its eight affiliates in
the area, object to the incorporation on the ground that Merafong
is
economically linked to the city region of Gauteng through an extensive road and
rail network which conveys people and manufactured
goods and makes access to
financial services possible.  They argue that, in contrast, little manufactured
goods or specialist
support find their way from North West to Merafong-Gauteng.
[149]
The mandate then turns to consider views in favour of the inclusion
of Merafong-Gauteng into the North West Province.  The notable
party in support
is the Merafong ANC Youth League.  It sees Merafong-Gauteng as highly dependent
on the neighbouring town of Potchefstroom
in North West and, in particular, on
services related to correctional centres, health, electricity and
telecommunications.  It
also thinks that Merafong-Gauteng is well suited for
the macro-economic strategy of North West related to mining, agriculture and

tourism.  Wards 24 and 25 of the town Fochville are recorded as supporting the
inclusion of Merafong-Gauteng into their Province.Â
It is unclear from the
mandate whether any reasons were furnished for this preference.  No other party
has been recorded as supporting
the proposed incorporation.
[150]
The mandate continues by setting out the key determining principles
that have driven the Portfolio Committee to its conclusion.Â
It records that an
overwhelming majority of the people who attended the public hearing were
opposed to the proposal to incorporate
“due to the fact that they were not
provided with substantive and compelling reasons” and that they considered
themselves as
being an inseparable part of Gauteng with no social and economic
linkages with North West.
[151]
The Portfolio Committee concludes the mandate with an exposition of
its position and the terms of the negotiating mandate.  The
better course is to
render the position of the Portfolio Committee in its own words.  The mandate
records that the Portfolio Committee—
·
“in principle, supports the phasing-out of
cross-border boundary municipalities as envisaged by the Constitution Twelfth
Amendment
Bill [B33B-2005];
·
in light of the outcome, impact assessment and
analysis of the public hearing submissions, agrees with the inclusion of the
geographical
area of Merafong municipality into the West Rand District municipality in the Gauteng Province;
·
recommends to the House, amendment to Schedule
1A of the Constitution Twelfth Amendment Bill [B33B-2005], to provide for the
inclusion
of the municipal area of Merafong into the municipal area of the West Rand District municipality of the Gauteng Province.”
[152]
In the final paragraph of the document, the negotiating mandate
reads that, subject to section 74(8) of the Constitution, the Bill
will be
supported “on condition that the municipal area of Merafong is included in the
municipal area of the West Rand District
municipality of the Gauteng Province.”
Select Committee of the NCOP
[153]
On 30 November 2005, one day after the adoption of the Gauteng negotiating mandate, it was presented to the Select Committee of the
NCOP.  Mr
Shiceka represented Gauteng Province.  In attendance were legal advisors: Mr
Labuschagne from the Department of Justice,
Dr Petra Bouwer and Adv Razaard,
state law advisors, and Adv Kholong from the Department of Local Government.Â
Although the minute
of the proceedings of the Select Committee is not a model
of clear language, it is nonetheless important and instructive.
[154]
It appears from the minute that Mr Shiceka informed all that he
presented the negotiating mandate of Gauteng Province and even furnished

written copies of the mandate.  He presented the negotiating mandate faithfully
and with effusive conviction.  As he finished
the presentation, a debate arose
between members of the committee and the legal advisors.  Dr Bouwer and Adv
Razaard explained
that the provinces whose boundaries are affected by the Bill
have the power to adopt or reject that relevant part.  But provinces
may not
effect amendments on the Bill as adopted by the National Assembly.  Each
provincial legislature must vote for or against
the part of the Bill that
affects it and thereafter vote for or against the rest of the Bill.  Dr Bouwer
explained that the problem
with paragraph 10 of the negotiating mandate of Gauteng was that it did not say whether the Provincial Legislature had resolved to
support
or to veto the provision of the Bill on Merafong, or whether it sought to amend
the Bill.
[20]
  Dr Bouwer made a further and important statement that, if the
Gauteng Legislature were to veto the stipulation that affected Merafong,
its
location would remain the same.  Merafong-Gauteng situated within the West Rand Municipality would remain in Gauteng while
Merafong-North West, situated within the
Southern District Municipality, would remain in North West.  I revisit this
crucial matter
later.  At this stage, let it suffice to flag my view that the
advice of the two law advisors appears correct.
[155]
The minute shows that Mr Shiceka was not
persuaded by Dr Bouwer’s explanation on the law.  And yet, in my view, the two
were
talking past each other.  Although Mr Shiceka thought that Dr Bouwer was
wrong on the law, he emphasised that Merafong-Gauteng
must remain in Gauteng.  In support of this contention, he told the Select Committee that “Gauteng Province has undergone a scientific
process on the issue” and that “[t]he popular
view from affected communities is that the status quo should remain”.  He added

that “[t]he legislature is an unfettered body” and “as an institution, listens
to the views of the people as long as they
are not in violation of any policies
and principles it stands for.”  It should be pointed out here that the people
of Merafong
support, in principle, the elimination of cross-boundary
municipalities.  On the other hand, all what Dr Bouwer was saying was
that, in
order to avoid Merafong-Gauteng being incorporated into the Province of North West, Gauteng Province could simply exercise
its veto in relation to that
part of the Bill that related to Merafong.  As I have intimated before, there
is much to be said
for that view.
[156]
In the face of controversy, the Select Committee
opted to defer the Gauteng issue without resolution.  The Select Committee
expressed
concern that the North West Province had not informed the Select
Committee of its formal attitude to the proposed alteration of
its boundaries.Â
Towards the end of the meeting, the law advisors again requested the Select
Committee to remind delegates present
that “[p]rovinces have to pass
resolutions adopting or rejecting the Bill in respect of the parts of the Bill
directly affecting
them”.
[157]
Two days later, on 2 December 2005, the
Portfolio Committee met.  However, no discussion was pursued with regard to the
proceedings
before the Select Committee.  The chairperson explained that it was
necessary to wait for the minute of the proceedings before
the Select Committee
before formulating a recommendation on a final mandate.
The final voting mandate
[158]
Three days later, on 5 December 2005, a terse minute of the
Portfolio Committee meeting records the adoption of the final voting
mandate on
the Bill “with no dissenting views”.  The text of the final voting mandate
records that the Portfolio Committee
recommended that the Provincial
Legislature confer authority on its delegation to the NCOP to vote in support
of the Bill.
[159]
The following day, being 6 December 2005, the Provincial Legislature
adopted the recommendation of the Portfolio Committee, without
alteration, save
that it was not adopted without dissent.
[21]
Â
On 12 December, the Select Committee met to review final mandates from
provinces.  The record of proceedings shows that Mr Shiceka
again represented
the Gauteng Legislature.  After a brief explanation, he confirmed that his
mandate had changed and that his
Province now supported the entire Bill.  Two
days later, on 14 December 2005, the Bill was agreed to in the NCOP, with all
nine
provinces in favour.  It is fair to record that a number of members of the
NCOP did not support the Bill in some respects.
[22]
Constitutional Framework
[160]
There is no contestation amongst the parties about the
constitutional provisions that regulate the constitutional amendment that
is
the concern of this case.  The controversy is rather about whether the
Provincial Legislature exercised the powers conferred
on it rationally.  It is
thus not necessary to deal with the constitutional framework extensively.Â
Section 74 of the Constitution
regulates bills amending the Constitution.  The
target of the Twelfth Amendment is the definition of provincial boundaries
determined
by section 103
[23]
which, in turn, forms part of chapter 6 of the Constitution.  Chapter 6
regulates the power and duties of provinces.
[161]
Since the constitutional Amendment with which we are concerned
alters provincial boundaries, the procedure set by section 74(3) of
the
Constitution is to be followed.  Section 74(3) provides that any provision of
the Constitution may be amended by a bill passed
by the National Assembly with
the supporting vote of at least two thirds of its members and also by the NCOP
with a concurring
vote of at least six of our nine provinces.  A proviso that
bears repetition is that the amendment should relate to matters that
affect the
NCOP or that alter provincial boundaries and other matters related to provinces
which are now not relevant.
[162]
In the context of a bill amending the Constitution, the NCOP is a
vital and decisive component of Parliament.  Together with the
National
Assembly, it participates in the national legislative process directed at
constitutional amendment as an indispensable
partner.
[24]
  It is appropriate to
recognise that the NCOP represents the provinces and ensures that provincial
interests are not overlooked
in the national sphere of government.  The
Constitution envisages that the NCOP may do this mainly by participating in the
national
legislative process and by providing a national forum for open and
public consideration of issues affecting provinces.
[25]
  It is plain that if a
constitutional amendment implicates a matter that affects the NCOP or alters
vital interests of a province
such as the integrity of its boundaries, the
concurrence of the NCOP and of the province concerned are prerequisites for the
proper
adoption of a bill amending the Constitution.  Section 74(8) confers, in
explicit terms, a veto on a provincial legislature whose
vital interests are
affected by an amending bill.
[163]
The rationale for the NCOP in our Constitution is described in clear
terms by Murray and Simeon
[26]
when they say—
“[t]he NCOP has a somewhat more limited,
but also critical role.  It represents South African citizens not directly, in
their
role as individual citizens, but indirectly, in their role as residents
of the provinces which constitute one of the three spheres
of government
established by the Constitution.  Its role is to represent the provincial
perspective within the national Parliament.Â
As such, it is a concrete
expression of the commitment to ‘co-operative government’ set out in chapter 3
of the Constitution.Â
‘Co-operative government’ means that governing South Africa is to be seen as a partnership among the spheres of government.Â
This in turn
requires, among other things, that national legislation, rather than ignoring,
or riding rough shod over the provinces,
must be sensitive to provincial needs
and concerns.  It also means that provinces do not act alone or in isolation;
rather they
must be deeply integrated into the national legislative process.Â
This is the underlying rationale for the NCOP.”
[27]
[164]
I agree.  What remains is to add that, in order for the bicameral
character of our national legislative process to accomplish the
tasks that the
Constitution requires, the NCOP must be seen as more than a ‘house of the
provinces’.  Its role is to ensure
that Parliament is responsive to provincial
interests and is supportive of the concerns which may afflict a particular
province
and its people.  That is particularly true in relation to the
protection of the territorial integrity of provinces because the
altering of a
provincial boundary tends to have an abiding impact and travels well beyond the
redrawing of geographical lines.Â
O’Regan J, in
Matatiele 1
,
 makes
the point with telling clarity:
“It is quite plain that the redrawing of
provincial boundaries is an intensely controversial matter upon which
communities feel
strongly and which has the potential to undermine the
stability of our democracy and the legitimacy of local and provincial
government
in the areas where boundaries have been moved.  Moreover, the redrawing
of a boundary has a long-term effect that cannot easily
be undone.  A community
whose town or neighbourhood is shifted from one province to another must live
with that change for many
years if not forever.  The social, economic and
political sensitivity of boundary changes, coupled with their essentially
long-term
character underlines the need for the process by which a boundary
change is effected to be legitimate and constitutionally proper.”
[28]
[165]
Another important observation is that the role of the NCOP, in
relation to constitutional amendments under section 74, is legislative
in
character.  Its concurrence is a prerequisite to adopting a bill amending the
Constitution.  However this legislative power
is made possible by the
deliberative and voting roles and powers of the provinces.
[29]
  In other words, the
deliberation and decision by the provincial legislature to vote for or against
a bill amending the Constitution,
and in particular provincial boundaries, is a
legislative process.  This means that the legislative power of a provincial
legislature
must be exercised subject to the dictates of the Constitution.  The
provincial legislature, like all organs of state, is bound
by the rule of law
and must act in a manner that is rational, accountable, responsive and open.Â
This then brings me to the constitutional
requirement of rationality in the
legislative process.
Rationality
[166]
The question must arise whether the Gauteng Provincial Legislature
exercised its powers rationally as required by our Constitution.Â
Initially,
the Provincial Legislature, through the Portfolio Committee, resolved to
support the Bill on condition that the municipal
area of Merafong-Gauteng be
included in the West Rand Municipality in the Gauteng Province.  However,
within days the Provincial
Legislature decided to abandon its earlier resolve
and to support the same Bill unchanged.  For this the Provincial Legislature

furnished reasons.  The applicants contend that the decision of the Provincial
Legislature falls short of the rationality test
which every legislative process
must satisfy.  On the other hand, all government respondents contend that the
Provincial Legislature
was entitled to alter its views on whether to support
the Bill and, what is more, it had good and rational grounds to do so.
[167]
Our constitutional democracy is premised on founding values which
include supremacy of the Constitution and the rule of law.
[30]
  It is by now well settled
that rationality is a minimum requirement for the exercise of public power.
[31]
  This flows from the rule of
law and the supremacy of the Constitution which are the founding values of a
constitutional state.Â
This Court has often warned that the state may not
“regulate” in an arbitrary manner or manifest “naked preferences” that
serve no
legitimate governmental purpose.  In other words, wielders of public power –
whether legislative, executive or administrative
– are, at the very least,
duty-bound to act rationally.  About the purpose of the requirement of
rationality in the exercise
of public power, this Court has expressed itself,
in
Prinsloo v Van der Linde and Another
,
[32]
in the following terms:
“This has been said to promote the need for
governmental action to relate to a defensible vision of the public good, as
well as
to enhance the coherence and integrity of legislation.  In Mureinik’s
celebrated formulation, the new constitutional order constitutes
‘a bridge away
from a culture of authority . . . to a culture of justification’.”  (Footnotes
omitted.)
[33]
[168]
Ackermann J, in S v Makwanyane,
[34]
makes a similar point with reference to the transition initiated by the
founding values of our new constitutional democracy:
“We have moved from a past
characterised by much which was arbitrary and unequal in the operation of the
law to a present and
a future in a constitutional state where State action must
be such that it is capable of being analysed and justified rationally.Â
The
idea of the constitutional state presupposes a system whose operation can be
rationally tested against or in terms of the law.Â
Arbitrariness, by its very
nature, is dissonant with these core concepts of our new constitutional order.”
[35]
[169]
It must be clear from what has been articulated above that a power,
once conferred, must be exercised in a manner which is rationally
related to
the purpose for which such power has been given.  Whether that is so is a
matter of objective evaluation in the light
of all the relevant facts of a
given case.  In
Pharmaceutical Manufacturers
, Chaskalson P, explains the
test in the following manner:
“The question whether a decision is
rationally related to the purpose for which the power was given calls for an
objective enquiry.Â
Otherwise a decision that, viewed objectively, is in fact
irrational, might pass muster simply because the person who took it mistakenly

and in good faith believed it to be rational.  Such a conclusion would place
form above substance, and undermine an important
constitutional principle.”
[36]
[170]
At the same time, this Court has often cautioned that a resort to
the rationality requirement is not a licence for a court to place
its own
preference above that of the public functionary properly charged with the
power.  In the words of Chaskalson P:
“The setting of this standard does not mean
that the courts can or should substitute their opinions as to what is
appropriate,
for the opinions of those in whom the power has been vested.  As
long as the purpose sought to be achieved by the exercise of public
power is
within the authority of the functionary, and as long as the functionary’s
decision, viewed objectively, is rational,
a court cannot interfere with the
decision simply because it disagrees with it, or considers that the power was
exercised inappropriately.”
[37]
Â
(Footnote omitted.)
Was the decision of the Gauteng provincial legislature objectively rational?
[171]
As a general rule courts should not attempt to
second guess the legislature on the wisdom or otherwise of legislation properly
adopted,
nor should they speculate about the motives of the legislators or the
understanding the legislators might have had of the legal
consequences of a law
they adopt.  Here, however, we are confronted with a very specific situation in
which the legislature was
being called upon to assume a very specific
legislative responsibility.  It was not adopting a law of general application,
but
saying yes or no to the alteration of the boundaries of its province.Â
Through the authorised activities of its Portfolio Committee,
the Legislature
had fulfilled its obligations to facilitate public involvement and had come to
a reasoned and cogently motivated
position based on public consultation.  And
in the final mandate the Legislature expressly spelled out its motivation for
the
change of approach.  So one does not have to speculate about what it might
have been.  In these special circumstances, there is
nothing inappropriate in
judicial scrutiny of the understanding the Provincial Legislature had of the
nature and ambit of the power
it was constitutionally called upon to exercise.
[172]
While ordinarily it may be inappropriate for a court
to investigate why a deliberative body like the legislature adopted a
particular
position on a legislative measure; in this case, this Court has the
power, and indeed the obligation, to investigate the reason
for the change in
attitude.  If it were otherwise, the conclusion that the Gauteng Province acted irrationally would be irresistible.
[173]
I have canvassed in some detail the reasons
advanced by the Provincial Legislature for resolving not to support the Bill to
the
extent that it affects its boundaries related to Merafong.  The reasons
were comprehensive, well-worked and facially rational.Â
They were crafted by
the Portfolio Committee and embraced by a unanimous Provincial Legislature.Â
That much is clear from the
final mandate of the Provincial Legislature which
expends considerable space explaining why it supported the negotiating mandate,

in the first place, and why later it abandoned the negotiating mandate in
favour of a decision to support the Bill as a whole and
without the exercise of
a veto.  Equally clear is that the negotiating mandate was animated not only by
the views of the communities
affected by the re-drawing of the boundary but
also by historical and socio-economic imperatives which the negotiating and
final
mandates record meticulously.
[174]
What is significant is that the Legislature through its delegate to
the NCOP emphasised that the Gauteng mandate on the incorporation
of Merafong
into Gauteng was “based on scientific research and views [of the community].”Â
By its own admission therefore,
Gauteng carefully considered the views of the
community and their impact on the policy underlining the Bill and the need to
eradicate
cross-boundary municipalities.  The final voting mandate explains
that it was in—
“[the] light of the outcome, impact
assessment and analysis of the public hearing submissions [that it was decided
to agree] with
the inclusion of the geographical area of Merafong municipality
into the West Rand District municipality in the Gauteng Province.”
We have no reason to disbelieve the
Provincial Legislature when it tells us that it carefully considered the pros
and the cons of
the inclusion of Merafong-Gauteng in the light of the people’s
views.
[175]
A reversal of this position without any explanation, prima facie,
points to arbitrary or irrational conduct.  There must therefore
be a rational
ground for the reversal of its position.  Indeed this was put in issue by the
applicants.  In the absence of such
explanation, its conduct, to my mind, would
constitute arbitrary conduct.  This Court therefore has an obligation to
examine the
reasons advanced by the Provincial Legislature for the reversal of
its position on the incorporation of Merafong into the Gauteng
Province.  The reasons they have furnished, objectively viewed, will determine whether they
have acted arbitrarily or with good
reason.  It is to that enquiry that I now
turn.
[176]
The record suggests that we can gather reasons for the changed
mandate from at least four sources.  The final voting mandate adopted
by the
Provincial Legislature is the primary source of the reasons.  The delegate of
the Provincial Legislature, Mr Shiceka, also
furnished grounds for the change
when he appeared before the Select Committee of the NCOP on 12 December 2005.  The transcript
of the Portfolio Committee’s proceedings of 5 December 2005 also reports on reasons for the change of the mandate furnished by
the
Chairperson of the Portfolio Committee, Ms Letwaba.  And lastly, the Speaker,
Mr Mdakane, has deposed to an answering affidavit
on behalf of the Provincial
Legislature.  He too provides reasons for the change of mandate.  A cursory
examination of the four
sources of reasons for the change suggests that the
reasons furnished are by no means consistent with each other.  Be that as it

may, the final voting mandate should suffice for purposes of this rationality
review.  This is so because the final voting mandate
is the comprehensive and
composite deed of the Legislature.  At once, it contains the reasons for
adopting the negotiating mandate
and the grounds advanced for relinquishing it
in favour of the final voting mandate.
[177]
It is noteworthy that the contents of the final
voting mandate is substantially the same as the original negotiating mandate,
save
for a new paragraph 10,
[38]
which records the position of the portfolio committee “after consideration of
negotiating mandates” by the Select Committee.Â
The final voting mandate states
that the Legislature now knows that provinces can only adopt or reject the Bill
in terms of section
74(8) of the Constitution.  In other words, they can only
vote ‘aye or nay’ to the Bill.  The final voting mandate further
states that
the legislative process applicable to the Bill does not allow for amendments to
be effected in the NCOP.  This belated
discovery in itself is disturbing.  The
Legislature or its Portfolio Committee should have apprised itself of the
legislative
power section 74(8) confers on it before adopting the negotiating
mandate and before participating in the NCOP legislative process.
[178]
The final voting mandate continues to explain
that the Portfolio Committee reviewed its initial position “notwithstanding the
views of the public” after “deliberations and negotiations by the select
committee” and after “hearing diverse positions
advanced” and after the Portfolio
Committee had considered “the substance of the issues raised”.  None of these
considerations
are explained or motivated beyond what is stated.
[179]
What seems to have swayed the Legislature’s
views is found in the section of the final voting mandate which deals with
“[i]mplications
of Gauteng not supporting the Constitution Twelfth Amendment
Bill”.  This heading by itself suggests that the Province considered
that it
had only two options, either to support or reject the Bill.Â
This attitude is consistent with the Province’s
views set out in paragraph 10 of the final voting mandate, namely, that
“[p]rovinces
can only adopt or reject the Constitution Bill in terms of section
74(8) of the Constitution, say (aye or nay).”
[180]
But this is a misconception of the power and
obligation of the Province under the Constitution.  The Province could have
supported
the Bill but declined to support that part of the Bill relating to
the incorporation of Merafong-Gauteng into the North West Province.Â
This is so
because the power and duty of a province in relation to the adoption of a
constitutional amendment that re-draws its
boundary must be distinguished from
the power and duty it bears in relation to any other constitutional amendment.Â
This distinction
was explained to the delegate from Gauteng Province at the meeting of the Select Committee of the NCOP.  Indeed, the position of
the
Province at that meeting was that it supported the phasing out of
cross-boundary municipalities but that it was opposed to
the incorporation of
Merafong-Gauteng into the North West Province.  These twin objectives it could
have achieved simply by voting
in favour of the Bill while declining to support
that part of the Bill which affected its boundary.  Despite the early counsel,

the Legislature thought that the only option it had was to vote ‘aye’ or ‘nay’
on the entire Bill.  This demonstrates
a failure on the part of the Province to
appreciate its nuanced duty under the Constitution.  The Province had at least
two valid
legislative options open to it.  It could have, at once, achieved the
termination of cross-boundary municipalities by supporting
the Bill and
defeated the re-drawing of its boundary in relation to Merafong.
[181]
I now give attention to each of the so-called
three implications of Gauteng not supporting the Bill.  First, the final voting
mandate
states that if the veto of Gauteng Province applies to the whole Bill,
because the Bill relates to cross-boundary municipalities,
the Cross-boundary
Municipalities Laws Repeal Bill
[39]
(Repeal Bill) will have to be withdrawn from Parliament and the local
government elections will have to be conducted within the
current municipal
configuration, that is, with cross-boundary municipalities.
[182]
This is a startling proposition which exposes a
fundamental misunderstanding of the powers conferred on a provincial
legislature
by the provisions of section 74(8) of the Constitution.  First, the
veto conferred on a provincial legislature relates only to
a constitutional
amendment which alters a provincial boundary.  In short, the veto relates only
to a part of a constitution amendment
bill which concerns only a specific
province or provinces and in relation to matters specified in section 74(3)(b)
of the Constitution.Â
It is therefore plain that the Gauteng Legislature does
not have a veto that relates to the whole Bill or over the entire Repeal
Bill.Â
To suggest that the Provincial Legislature could veto the entire Bill or Repeal
Bill is far-fetched and fanciful.
[183]
Equally startling is the reasoning that if the
Gauteng Province were to vote against the Bill the entire Repeal Bill would
have
to be withdrawn from Parliament with the consequence that the local
government elections would have to be held with cross-boundary
municipalities.Â
Again, this is a substantial misconstruction of the authority vested in the
provincial legislature in a legislative
process that involves a constitutional
amendment that implicates a provincial boundary.  The veto power of a province
under section
74(8) is not as pervasive and all-powerful as the Gauteng legislature seems to imagine.  If the province were to exercise a veto,
only the
provision that is a legitimate target of the veto would remain unaltered by the
Bill amending the Constitution and legislation
that gives effect to the
amending Bill.  In other words, the effect of the veto would be that the
boundary between Gauteng and
North West would remain as it was before the
adoption of the Bill.  However, that does not mean that the cross-boundary municipality
of Merafong would survive the adoption of the Bill because the constitutional
amendment and consequential legislation revoke all
authority for the continued
existence of cross-boundary municipalities.  Therefore, there is no rational
basis for suggesting
that the local government elections of any municipality,
other than the West Rand District in Gauteng and the Southern District

Municipality in North West, would be affected or that any local election would
be conducted on a cross-boundary basis.
[184]
It bears repeating that the Bill was meant to
revoke the constitutional authority for the creation or continued existence of
cross-boundary
municipalities.  In turn, the Repeal Act was to rescind all laws
which regulated cross-boundary municipalities.  It must follow
that, first, the
Province had no power to veto the Bill save in relation to the configuration of
its boundary or the Repeal Bill.Â
So there can be no question of any of these
legislative instruments being withdrawn from Parliament solely because of the
veto
of Gauteng Province.  Second, once the Bill is passed, there cannot be
cross-boundary local authorities in any province.  And,
third, it seems plain
that the notion of cross-boundary local authority elections would then become
implausible and a legal fiction.
[185]
The next reason to be found in the final voting
mandate for change is that, even if a narrow interpretation is applied (namely,
that a province may veto only provisions which affect it) “the implications are
just as extensive as if the whole Constitution
Bill is rejected”.  The final
mandate elaborates by saying that:
“Let’s for argument sake say Gauteng can only veto (reject) the part of the proposed Schedule 1A that defines its
territory;
it will mean that the authorisation to have cross-boundary
municipalities is revoked, whilst the current boundary of Gauteng remains
the
same.  The result of this would be that not only West Rand District but also Tshwane, Ekurhuleni and Metsweding would be affected.Â
These municipalities
(and their local municipalities where applicable) would have to be
disestablished and those areas of the municipalities
in question that fall in Gauteng.  The cross-boundary areas falling in the other provinces would likewise have to be
re-demarcated
into the new municipalities.”
[186]
Again, this goes well beyond me.  I am unable to
determine the basis for this grandiose notion of the legal consequences of a
veto
conferred on a province in relation to its territorial integrity.  Another
error of reasoning has crept in here.  It appears in
the reasoning that if a
veto were to be exercised in relation to the boundary between Gauteng and North West, all of the “current
boundary of Gauteng remains the same” in relation to other
cross-boundary municipalities along the Gauteng border.  On this argument,
all
such municipalities in provinces adjacent to Gauteng will have to be
“disestablished” or “re-demarcated” into new municipalities.Â
I have
demonstrated earlier that this suggestion has no merit whatsoever.  The
provincial veto will leave unaltered the boundary
between Gauteng and North West that runs across Merafong and cannot tamper with any other municipal or
provincial boundary which
is not its legitimate target.  It seems to me
self-evident that the proposed re-drawing of provincial boundaries in other
cross-boundary
municipalities along the border of Gauteng could be validly
implemented without the need to “disestablish” or to “re-demarcate”
the local
authorities concerned.  It is clearly erroneous to conclude that, absent a
provincial veto, other cross-boundary municipalities
like Tshwane, Ekurhuleni
and Metsweding would be affected by a veto directed at the border related to
Merafong.  Again this obvious
error about the reach of the provincial veto
power suggests a serious misappreciation of the character of the decision the
legislature
had to make and of the power it was called upon to exercise.
[187]
The final voting mandate advanced a third reason
for the Legislature changing its earlier mandate.  The final voting mandate
explains
that if the Province were to exercise a veto, the current boundaries
of Gauteng would be determined with reference to magisterial
districts whilst
the Bill draws provincial boundaries on the basis of municipal boundaries.  As
I noted earlier, section 1(2)
of the Twelfth Amendment re-defines the
geographical areas of the nine provinces by reference to municipal areas.  This
is a departure
from the position prior to the constitutional amendment which
delineated provincial boundaries by reference to magisterial districts.
[40]
  However, there is no merit
in the suggestion that the provincial veto in relation to the municipal area of
Merafong will cause
the boundary of Gauteng to be determined by magisterial
districts.  It must be remembered that section 1(2) of the Twelfth Amendment

provides that boundaries of a province “comprise the sum of the indicated
geographical areas reflected in the various maps referred
to in the Notice
listed in Schedule 1A”.  This simply means that in the event of a veto, the sum
of the geographical area of
Gauteng will include the extent of the municipal
area of Merafong-Gauteng.  Absent a veto, the geographical area of North West
would increase accordingly.  Given the constitutional amendment that sets the
demarcation of municipal areas as the criterion for
delineation of provincial
boundaries, there is simply no logical room for all of Gauteng reverting to
magisterial districts as
the delineation standard.  To do so would be to resort
to a constitutional standard which would not exist because it would have
been
repealed.
[188]
In any event, the veto would have no impact
whatsoever on municipal areas other than Merafong.  The provincial legislature
seems
to think that all municipalities of Gauteng would be affected.  Again,
this reasoning displays a significant disregard for detail
relating to the
establishment of municipal areas and their part in making up the boundary of a
province.  It will be seen from
Schedule 1A to the Twelfth Amendment that the
re-demarcation of the municipal area of West Rand District Municipality is done
by
means of a discrete provision that relates only to that municipal area and
is described on its own and not in relation to the rest
of the boundary of
Gauteng.
[41]
Â
As I have shown earlier, the explanatory note to Map 5 of Schedule 1 to Notice
1998 of 2005 is cast in precise and distinct terms—
“the municipal area of Merafong City Local Municipality is to be excluded from the municipal area of West Rand District Municipality
and included in the municipal area of Southern District
Municipality.”
[189]
It must follow that a veto related to the
municipal area of Merafong is localised and discrete and cannot possibly affect
the municipal
boundaries of the rest of Gauteng.  The effect of the veto would
be no more than that the part of the area of Merafong City Local
Municipality that fell within the municipal area of the West Rand District Municipality would remain in Gauteng.  That is what the
Twelfth Amendment sought to achieve and
that is what the veto would prevent.  And nothing more.
[190]
As part of the third reason, the final voting
mandate warns that any amendment that would be required to address Gauteng’s boundary
position would not be finalised in time for the local government
elections to be held in March 2006.  I have held that the provincial
veto would
have been directed at a cauterised position of Merafong.  It is irrational to
suggest that, by retaining Merafong within
the West Rand District Municipality, local government elections of March 2006 would be marred or stopped for the
entire Province
of Gauteng.  In my view, once the veto had been exercised in
relation to Merafong, the cross-boundary municipality would have ceased
to
exist.  This would have meant that between December 2005 and March 2006 the
Demarcation Board would have been obliged to determine
and demarcate
municipalities on each side of the Merafong border and in a manner consistent
with the Twelfth Amendment and the
Repeal Act.  It follows that the excuse that
local government elections would be stopped or disrupted is not supportable.
[191]
I remain with no doubt that the Provincial
Legislature misconstrued the power conferred on it under section 74(8) of the
Constitution
in a number of respects which I have pointed out in the preceding
paragraphs.  What seems to have swayed its position is the belated

consideration of the implications of not supporting the Bill.  The legislature
acting through its Portfolio Committee would have
considered the pros and cons
of supporting or not supporting the Bill prior to adopting a negotiating
mandate.  It is difficult
to understand what the Portfolio Committee then meant
by saying “in light of the outcome, impact assessment and analysis of the

public hearing submissions” it agrees with the inclusion of Merafong in the Province of Gauteng.  In assessing the impact of
the submissions one would have thought
that one of the considerations would be the implications of the incorporation
of Merafong
into Gauteng.
[192]
The inescapable conclusion is that the
Provincial Legislature not only misconceived its constitutional obligations but
also misconstrued
the consequences of the exercise of its powers under the
Constitution.  This error led to its view that unless the Provincial
Legislature reneged from its original mandate and supported the Bill as it
stood, dire consequences, at odds with national interest,
would follow.  This,
we know, is simply not so.  The new decision of the Provincial Legislature was
not taken to pursue a legitimate
governmental purpose but to prevent
consequences which, at best, were imaginary.  In these circumstances, I find
that the legislative
conduct of the Provincial Legislature in the exercise of
its power and duty under section 74(8) of the Constitution is irrational
and
inconsistent with the Constitution.
Remedy
[193]
Section 172(1)
[42]
of the Constitution directs
that when this Court decides a constitutional matter and finds any law or
conduct that is inconsistent
with the Constitution, it must declare the conduct
in issue invalid to the extent of its inconsistency.  In that event, this Court

may make an order that is just and equitable.  The remedial jurisdiction of
this Court permits it to limit the retrospective effect
of the declaration of
invalidity.  And if it is just and equitable to do so, this Court may suspend
the declaration of invalidity
for a period in order to allow the competent
authority to correct the defect.
[194]
We have found that the Provincial Legislature
has not exercised its authority under section 74(8) in a manner consistent with
the
Constitution.  We are thus obliged to declare its decision to approve the
Constitution Twelfth Amendment Act invalid.  It must
follow that the adoption
of the Constitution Twelfth Amendment Act and the Cross-Boundary Municipalities
Laws Repeal and Related
Matters Act in relation to the municipal area of Merafong Local City Municipality is itself inconsistent with the Constitution to
that
extent.  It is plain from what I have said that the effect of this judgment is
very limited.  The Constitution Twelfth Amendment
Act continues to be part of
our law in all respects save for the transfer of Merafong-Gauteng to North West Province.
[195]
It is so that the entire municipal area of
Merafong has been located within the Province of North West for over two years
now.Â
The papers suggest that far reaching steps have been taken to facilitate
effective administration and service delivery under the
aegis of the Province of North West.  And yet, a vocal resistance of the concerned communities to the
incorporation appears to
have lived on.  For reasons that are not obscure, it
is just and equitable that the declaration of invalidity be suspended for
a
period to allow the Provincial Legislature to exercise its powers under section
74(8) in a manner consistent with the Constitution
in respect of the municipal
boundaries and the location of that part of Merafong located in Gauteng.  This form of order is careful
not to usurp the legislative power of the
province.  It properly acknowledges that the conduct that this Court has
declared inconsistent
with the Constitution is legislative in character and
thus has to be replaced by another decision of the Provincial Legislature,

should the legislature choose to do so.
[196]
In relation to the time period of suspension of
the order of constitutional invalidity, I have opted for a period of 18 months.
 This decision is motivated by the need to afford the provincial legislature
and later Parliament the space to deliberate.  I
am not unmindful of impending
national and provincial elections within nearly 12 months from now.  This may
place stress on the
legislative timetable of Parliament.  I am also moved by
the need to achieve certainty and stability in the community life of the
people
of Khutsong in particular and of Merafong in general.  The papers before us
suggest that those communities and various
organs of civil society have endured
considerable dislocation of nearly all vital aspects of their community life.Â
A prompt resolution
of this matter can only accrue to the benefit of
communities and people closely affected and to the credit of our fledgling
constitutional
democracy.
Costs
[197]
To escape a challenge on the grounds of
non-joinder, applicants have joined no less than sixteen respondents.  Many
assumed a passive
role and abided the decision of this Court.  The first,
second, third, fourth, fifth, sixth, seventh, eighth and ninth respondents

actively opposed the granting of the relief sought by the applicants.  First,
second and third respondents represent the national
executive.  For that
reason, it would suffice to order the Minister of Provincial and Local
Government (second respondent) to
bear the costs in relation to the national
executive.  Three organs of the Gauteng Province have been cited, the Premier,
the
MEC for Local Government and the Gauteng Provincial Legislature.  A costs
order against the Gauteng Provincial Legislature should
suffice.  And lastly,
three organs of state in the North West have been cited.  They are the Premier,
the MEC for Local Government
and the Provincial Legislature.  A costs order
against the North West Provincial Legislature only would be just and
equitable.Â
I propose to make no costs order in relation to all other organs of
state cited.
Order
[198]
If this were a majority judgment, I would make
the following order:
(a) It is declared that, in approving that part of the Constitution
Twelfth Amendment Act of 2005 which concerns that part of Merafong
City Local Municipality formerly situated in the Province of Gauteng, the Provincial
Legislature of Gauteng exercised its legislative
power under section 74(8) of
the Constitution in a manner that is irrational and inconsistent with the
Constitution.
(b) That part of the Constitution Twelfth Amendment Act of 2005
which transfers the part of Merafong City Local Municipality (designated
DC48
by Map 12 of the Schedule to Notice 1257 of 2005, published in Government
Gazette 28236 of 21 November 2005), formerly situated
in the Province of
Gauteng, to the Province of North West Province is declared to be inconsistent
with the Constitution and therefore
invalid.
(c) That part of the
Cross-boundary Municipalities Laws Repeal and
Related Matters Act 23 of 2005
which regulates the transfer of the part of
Merafong City Local Municipality, situated in the Province of Gauteng
(designated NW405
by Map 14 of Schedule to Notice 1257 of 2005, published in
Government Gazette 28236 of 21 November 2005) to North West Province
is
declared inconsistent with the Constitution and therefore invalid.
(d) The orders in paragraph (b) and (c) above are suspended for a
period of 18 months in order to allow the Provincial Legislature
of Gauteng to
exercise its legislative power under section 74(8) of the Constitution in a
lawful manner.
(e) Should it be apparent that Parliament will not be able to adopt
a new constitutional amendment altering the boundary of the Province
of Gauteng
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.
(f)  If Parliament decides not to proceed with the alteration of the
boundary of Gauteng, or if the Provincial Legislature of Gauteng
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 Gauteng.
(g) The second respondent, sixth respondent and ninth respondent are
ordered, jointly and severally, the one paying the others to
be absolved, to
pay the costs of the applicants, including the costs consequent upon the use of
two counsel.
Madala J, Nkabinde J and Sachs J
concur in the judgment of Moseneke DCJ.
MADALA J:
[199]
I have read the several judgments prepared by some of my colleagues
in this matter and take this opportunity to express my own views
about the Merafong
debacle.  A debacle indeed I call the state of affairs which now exists in
Merafong.  The flames of discontent
raging in the community require a serious
effort in dousing those flames, and should not be dismissed lightly on
technicalities.
[200]
While it is important that there should be finality to legislation
and while applicants need to bring their claims to the courts
timeously,
circumstances alter cases.  The Court should not rely only on technicalities to
dismiss matters but should weigh all
the circumstances, legal and otherwise, on
the scales of justice.
[201]
The facts of this case appear fully from the judgments of both Van
der Westhuizen J and Moseneke DCJ.  It is accordingly not necessary
to set out any
further facts in this regard.
[202]
The question of cross-boundary municipalities has indeed been a
vexed question since the advent of the new constitutional dispensation.Â
It
touched on and affected the lives of communities in respect of administration
and service delivery in particular, and caused
confusion among the
communities.  It was therefore imperative that this state of affairs be
remedied.  The impugned legislation
was an attempt to recognise this anomalous
situation of cross-boundary municipalities and to do away with such
municipalities.Â
Regrettably this has not been achieved in the case of
Merafong, where a part of the Merafong City Local Municipality which formed

part of the West Rand District Municipality was excised from the Gauteng Province and transferred to the North West Province.
[203]
The Merafong community had made representations against the
incorporation of Merafong into the North West Province.  The Minister,
bent on
having Merafong incorporated into North West, instructed the Demarcation Board
to withdraw its earlier determination and
to act in terms of his proposals,
which sought the incorporation of Merafong into North West, despite the
expressed views of the
community to the contrary.
[204]
The excision of Merafong from Gauteng was met with heavy opposition,
resentment and protest among the members of the Merafong community
whose
livelihood has always been in and dependant upon the Gauteng Province, both economically and socially.  In my view it is
important that a lasting solution
of the problem should now be found.  We do not hear of any other cross-boundary
municipalities
where there is an upheaval of the level of Merafong.  To arrive
at a solution to the problem, it is imperative to understand its
genesis.  It
is to this that I now turn.
[205]
I lay the cause of the debacle at Merafong squarely at the foot of
the Gauteng Provincial Legislature, and for that reason cannot
go along with
the decision of my colleagues, Van der Westhuizen J and Ngcobo J, who reasons
that the present application should
be dismissed without further ado, as it
were.
[206]
I am satisfied that the Gauteng Provincial Legislature complied with
the prescripts of section 118(1)
[1]
of the Constitution in facilitating public involvement to sound the
views of the Merafong community regarding the issue of the cross-
boundary
municipality which is the subject of this case.  As Ngcobo J held in
Matatiele
Municipality
and Others v President of the RSA and Others
(
No.
2
):
[2]
“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, s 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 Speaker of the National Assembly and Others
(CCT 12/05),
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.”
[3]
Â
(Footnote omitted.)
[207]
It is indeed satisfactory that section 118 ordains public
involvement in the legislative process.  It will be recalled that during
the
apartheid era the views of the black population were never canvassed when
legislation affecting them was being mooted—however
much they disagreed with
the proposed legislation.  The new democratic order demands that everyone
should play an active role
in the legislative process.
[208]
The involvement of the public in the legislative process was also
intended to salvage the dignity of black people which had been
ravaged by
apartheid.  In the light of this, public involvement in the legislative process
is a cardinal virtue in our
Constitution which should not lightly
be departed from.
[209]
Having sounded the views of the community which were overwhelmingly
against the proposed transfer of Merafong in its incorporation
into the North West P rovince, the next development was the formulation of the negotiating mandate
and the final voting mandate.
[210]
At this stage we enter into a hazy area where the Gauteng Legislature,
armed with a mandate from the people, did an about-turn.Â
Having formulated a
negotiating mandate, the Legislature deviated from that mandate and took a
different position in the final
voting mandate, which reduces their conduct to
irrational.  It appears as though the Legislature misunderstood its role in the

legislative process.  It did not bother to go back to the community.
[211]
In my view the turn around by the Legislature was the precipitate
cause of the debacle which has influenced the feelings of the community.
[212]
I agree with the approach proposed by my colleague Moseneke DCJ and
the order he proposes.
NGCOBO J:
Introduction
[213]
This case raises important questions concerning the powers of a
provincial legislature when considering a constitutional amendment
which
proposes to alter its boundary and the role of this Court to supervise the
exercise of that power.  In particular, it raises
the question of the
competence of this Court to review the reasons which moved a provincial
legislature to support a constitutional
amendment which alters its boundary and
the relationship between a provincial legislature and its portfolio committee.
[214]
These questions arise out of the conduct of the Gauteng Local
Government Portfolio Committee (the Committee) which took a position
in its
Negotiating Mandate to support the Constitution Twelfth Amendment Bill (the
Bill) on condition that the area of the Merafong
City Local Municipality (Merafong) be included in the Gauteng Province.  However, in its recommendation to
the Gauteng Provincial
Legislature (the Legislature) on the final mandate to be
conferred on the delegation to the National Council of Provinces (the NCOP),

the Committee supported the Bill unconditionally.  In respect of each position
it took, the Committee provided reasons for its
position.  Based on the report
and recommendation of the Committee, the Legislature took a decision to support
the Bill unconditionally.Â
The Bill altered the boundary of the Gauteng Province by including Merafong in the North West Province.
[215]
The Merafong Demarcation Forum (the Merafong community) contended
that the change in the position taken on the Bill demonstrates
that the conduct
of the Legislature in supporting the Bill which alters its boundary was
irrational.  In addition, the Merafong
community also contended that in taking
the decision to support the Bill, the Legislature did not comply with the
provisions of
the Constitution which required it to facilitate public
participation in the process leading to the decision to support the Bill.
[216]
I have read the various judgments prepared by my colleagues in this
matter.  All these judgments are well-reasoned and are persuasive.Â
On the
balance, however, I find the conclusion reached in the judgment of Van der
Westhuizen J, upholding the decision of the Legislature,
more persuasive.  I
therefore concur in the judgment and order of Van der Westhuizen J.  Because my
reasons for concurring differ
both in their approach and emphasis, I had better
set them out.
Background
[217]
The background to this case has been set out fully in the various
judgments by my colleagues, in particular, in the judgments of
Moseneke DCJ and
Van der Westhuizen J.  I do not propose to repeat it here.  The history and the
purpose of the Constitution
Twelfth Amendment is also set out in
Matatiele 1
[1]
where we had occasion to consider
this Amendment in the context of a constitutional challenge to the powers of
Parliament to redefine
municipal boundaries.
[2]
Â
It is sufficient for purposes of this judgment to record that the purpose of
the Bill was two-fold, namely, first to redefine
the geographical areas of the
nine provinces using municipal boundaries as the basis for determining
provincial boundaries; and
second, to abolish cross-boundary municipalities.Â
The
Cross-Boundary Municipalities Laws Repeal and Related Matters Act
href="#_ftn122" name="_ftnref122" title="">
class=MsoFootnoteReference>
[3
]
was also introduced
simultaneously with the Bill in order to give effect to the proposed
constitutional amendment.
[218]
The implementation of these two pieces of legislation necessarily
involved a decision as to the province in which areas of former
cross-boundary
municipalities and certain municipalities should be located.  The area of Merafong City Local Municipality, a former
cross-boundary municipality, was one such area
whose fate had to be decided.  The legislation in issue here placed this area
in
the North West Province within the Southern District Municipality.  It is
this incorporation of Merafong into the North West Province
that is resisted
through the present challenge by the Merafong community.
[219]
It must be emphasised right at the outset that what the Merafong
community challenged is the decision of the Legislature to support
a bill which
alters its boundary.  In effect therefore the Merafong community challenged
that part of the Constitution Twelfth
Amendment which alters the boundary of
the Gauteng Province by incorporating the area of Merafong into the North West Province.Â
They mounted two challenges in this regard.  In the first place, they
contended that the Legislature had failed to facilitate public
participation in
its decision to support the Bill as required by section 118(1) of the
Constitution.
[4]
Â
For reasons advanced in the judgment of Van der Westhuizen J, this challenge
cannot succeed.  In the second place, they contended
that the Legislature acted
irrationally when it approved that part of the Bill which included the area of
Merafong in the North
West Province.  It is on this challenge that this Court
is deeply divided and which I consider in this judgment.
[220]
Regrettably this Court is divided not only on the legal principles
applicable to this particular challenge but also on how the background
facts
are to be understood.  Although there is agreement on the legal principles that
govern rationality, the Court is divided
on how those principles should be
applied on the facts of this case.  The Court is further divided on the
competency of this Court
to investigate the reasons which moved the Legislature
to support the Bill.
[221]
It will be convenient at this stage to set out, in broad outline,
the legal framework within which the issues raised in this case
must be
understood.
The applicable legal framework
[222]
The constitutional scheme within which the issues involved in this
case must be considered is provided by sections 74(3)(b) and 74(8)
of the
Constitution.  These sections provide:
“(3)      Any other provision of the
Constitution may be amended by a Bill passed—
(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.”
[223]
What is apparent from these provisions is that whenever a
constitutional amendment contemplates the alteration of any provincial

boundary, at least six provinces must vote in favour of the proposed amendment,
and, in addition, the legislature of the province
whose boundary is to be
altered must approve that part of the amendment that affects it.  In terms of
section 74(8) the NCOP may
not pass a bill that alters a provincial boundary
unless the provincial legislature concerned has approved it.  It necessarily

follows that if the province concerned declines to approve the alteration of
its boundary, regardless of the support that the Bill
might have from other
provinces, the part of a bill that affects it cannot be passed.  In effect,
therefore, the province concerned
has a power to veto that part of a bill that
alters its boundary.
[224]
In
Matatiele 2
[5]
,
we dealt with the effect of these provisions and explained their interaction as
follows:
“The provisions of s74(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’.  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 s74(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.”
[6]
The court continued:
“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 s74(3)(b)(ii).  Provinces cast
their votes by conferring
voting mandates on their delegations in terms of s 65
of the Constitution.  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 s74(8) does not
render the provisions of s74(3)(b)(ii) redundant.”
[7]
 (Footnote omitted.)
And further held:
In the
First Certification
judgment,
this Court recognised that there are three requirements for a constitutional
amendment that alters provincial boundaries.Â
Dealing with the question whether
s74 makes provision for a special majority for a constitutional amendment as
required by the
Constitutional Principles, the Court explained that s74
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 s74(8) in the Constitution]
also requires the
approval of the relevant legislature or legislatures of the province or
provinces concerned
’.”
[8]
 (Footnote omitted.)
[225]
And we concluded that:
“This construction of s74(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’.Â
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 s74(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’.”
[9]
 (Footnotes omitted.)
Voting mandates
[226]
Section 74(8) does not however prescribe the manner in which a
province should signify its approval or disapproval of the part of
a bill that
alters its boundary.  It has been left to the various provinces to develop
their own internal rules for dealing with
this matter.  It appears that in this
case, the provinces followed the same practice that they follow when
considering a vote
that they should cast at the NCOP in terms of section 65 of
the Constitution.
[10]
Â
They confer authority on their delegations to cast votes on their behalf.  This
is the procedure envisaged in section 65(1)(a)
of the Constitution which
provides that “each province has one vote [at the NCOP], which is cast on
behalf of the province by
the head of its delegation”.
[11]
  The vote is cast by the head
of the delegation in accordance with a mandate given by the provincial
legislature.  The Constitution
requires national legislation to determine a
uniform procedure by which legislatures can confer authority to vote on their
delegations.Â
This legislation has not yet been passed.  In the mean time
provincial legislatures have adopted a number of different methods
for
determining mandates.  These methods have to dovetail with the processes of the
NCOP.
[227]
Broadly speaking, the process of the NCOP allows the provincial
delegations to first deliberate and negotiate on the basis of their
negotiating
mandates.  This occurs in the Select Committee of the NCOP.  And this is where
negotiating mandates are considered.Â
After this process, the delegations
report back to their respective portfolio committees.  Portfolio committees
will consider
the deliberations and negotiations of the Select Committee
meetings and other relevant materials and consider the final mandate
that
should be conferred on their respective delegations.
[228]
The relevant portfolio committee must thereafter submit a report to
the legislature recommending a final mandate and provide a motivation
for its
recommendation.  This report will then be tabled in the provincial legislature
for its consideration.  The legislature
will then decide on the final voting
mandate to be conferred on the delegation in the light of the report of the
committee.  Armed
with this, the provincial delegation will attend the plenary
session of the NCOP where it will cast the vote on behalf of the province
in
accordance with the final voting mandate.  The Speaker of the Provincial
Legislature must, in writing, confirm the authority
of the delegation and set
out the final mandate.
[229]
As appears above, there are two types of mandate that are given,
namely, the negotiating mandate which is intended to guide the delegations
at
the first stages of the NCOP discussion; and the final mandate which determines
the vote in the NCOP plenary.  In the Gauteng
Province, the conferral of a
mandate is governed by the rules of the Legislature.  These rules make
provision for a negotiating
and a final mandate.  The negotiating mandate is a
mandate which, as its name indicates, forms the basis of the negotiations at

the NCOP Select Committee discussions.  By its very nature therefore, the
negotiating mandate does not necessarily reflect the
final position of the
province.  It reflects the preferred position of the province and is therefore
subject to reconsideration.Â
By contrast, the final mandate is a mandate which
is given to a delegation instructing it on how to vote on a measure at the
plenary
session of the NCOP.
[230]
The relevant portfolio committee considers and formulates a
negotiating mandate.  The negotiating mandate sets out the position
of the
province on the matter under consideration and must give guidance to the
delegation on the position that it should take
at the initial discussions at
the NCOP.  This is provided for in Standing Rule 235(6) of the Gauteng Province
Legislature which
provides:
“When a committee considers a matter about
which the province’s delegation to the NCOP must negotiate in the NCOP before
voting,
the committee must confer a negotiating mandate on the delegation.  The
negotiating mandate should set out the province’s position
on the matter and
provide guidance to the delegation on the position that it should take.”
[231]
Unlike the final mandate, a negotiating mandate does not require the
approval of the Legislature.  The final mandate must first
be considered by the
portfolio committee in the light of deliberations and the negotiations by the
Select Committee of the NCOP,
including the negotiating positions advanced
during consideration of the negotiating mandate in the NCOP Select Committee.Â
The
portfolio committee must thereafter submit a report to the legislature
setting out its recommendation on the final mandate to be
conferred on the
delegation.  The position is governed by Rules 235(7) and 236(3).  Rule 236(3)
states:
“In the case of a section 76 bill or
another matter on which the province’s NCOP delegation must be given authority
to vote
on behalf of the province, the House must by resolution confer
authority to vote on the province’s delegation to the NCOP.”
And Rule 235(7) provides:
“Before the matter is to be decided in the
NCOP, the committee must report to the House and make a recommendation
concerning the
way that the province’s NCOP delegation should be mandated to
vote in the NCOP.”
[232]
It is implicit, if not explicit from Rule 235(7), that the report of
the committee must not only set out its recommendation, it must
also set out
the motivation for its recommendation.  This rule must of course be read
together with the provisions of Rule 152
which requires, among other things, a
committee considering a bill to submit a written report reflecting its position
on the bill
and provide an explanation for its position on the bill.
[12]
  It is therefore apparent
from these rules that a portfolio committee plays a crucial role in the
consideration, formulation and
conferral of mandates.
The role of a portfolio committee
[233]
A large body such as the legislature, to be effective, must function
through its committees.  Indeed the Constitution permits a
provincial
legislature to establish its committees.
[13]
Â
And the Standing Rules of the Gauteng Province make provision for the
establishment of various committees.  These committees
include the Local
Government Portfolio Committee.  The Standing Rules define the powers of these
committees.  These include dealing
with national bills and other national
matters submitted to the committee by the Speaker and to “perform any other
function assigned
to it by the Legislature.”
[14]
Â
The powers and functions of a portfolio committee are further defined to
include the authority to investigate and report on issues
that are referred to
it or on its initiative.  Where a portfolio committee has considered a bill, it
is required to submit a written
report indicating its position on the bill and
provide an explanation for the position of the committee on the bill.
[15]
  These powers include the
authority to conduct public hearings on the bills before a provincial
legislature, and, as we have seen,
the authority to consider and formulate
negotiating mandates and recommend final mandates to the legislature.  A
portfolio committee
is therefore an engine through which a legislature
functions.
[234]
It is within this legal framework that the issues raised in this
case must be understood and considered.
The process that preceded the
decision of the Legislature
[235]
On 16 November 2005, the Speaker of the Provincial Legislature
formally referred the Bill to the Committee.  On the following day,
the
Legislature resolved that the Committee should hold a joint public hearing
session with the North West Legislature in order
to receive representations
from the affected communities on the Bill.  The Merafong community had already
approached the Legislature
with memoranda and petitions setting out their views
in opposition to the incorporation of Merafong into the North West Province.Â
A public hearing was held in the course of which written and oral submissions were
made.  On 29 November 2005, the Committee deliberated
and considered the
position to be taken on the Bill and the negotiating mandate to be conferred on
the delegation.
[236]
The Committee took the position to: (a) in principle, support the
phasing-out of the cross-boundary municipalities; (b) agree with
the inclusion
of Merafong into the Gauteng Province in the light of the submissions at the
public hearing; and (c) recommend to
the Legislature the amendment to Schedule
1A of the Bill so as to provide for the inclusion of Merafong into the West
Rand District
Municipality in the Gauteng Province.  And based on this
position, it adopted the following Negotiating Mandate:
“Subject to section 74(8) of the
Constitution, the Portfolio Committee on Local Government, will support the
bill on condition
that the municipal area of Merafong is included in the
municipal area of the West Rand District municipality of the Gauteng Province.”
[237]
As the record shows, the Committee adopted this position on the
premise that the Legislature had the authority under section 74(8)
to propose
an amendment to the Bill.  It is not immediately clear what the Committee
sought to convey by prefacing its Negotiating
Mandate with the phrase
“[s]ubject to section 74(8) of the Constitution”.  The phrase seems to convey
that, if section 74(8)
permits, this is the position it would take on the
Bill.  This would suggest that it was unclear to the Committee whether its
position was permitted by section 74(8).  Indeed subsequent events suggest as
much.  This is not surprising given the fact that
section 74(8) is a novel
provision which requires approval of a legislature.  Gauteng was not alone in
this regard, as the North
West Province held a similar view.
[238]
That said, it was pointed out to the Gauteng delegation at the NCOP
Select Committee deliberations that in terms of section 74(8)
provinces do not
have the power to amend the Bill.  Once it became clear to the Committee that
its initial position to recommend
to the Legislature that it should propose an
amendment to the Bill was unworkable, it reconsidered this position.  After
deliberations,
the Committee unanimously adopted the position that the Bill
should be supported by the Legislature.  It accordingly made a recommendation
to
that effect.  And consistently with the Standing Rules, the Committee prepared
a report for the Legislature.
[16]
[239]
This report dealt with a number of issues including an overview and
analysis of the public hearing.  In particular, it sets out
the views in favour
of and against the inclusion of Merafong into Gauteng, as well as the reasons
advanced in support of each view;
the explanation why it had to review its
initial position; the factors it took into consideration in reviewing its
initial position;
and a proposal to address the problem of service delivery in North
West.  The report therefore provides a useful insight into the
reasons which
motivated the Committee to make the recommendation that it made.  The contents
of the report were not disputed.Â
It is necessary to refer to those relevant
parts of the report in some detail.
[17]
The report of the Committee to
the Legislature
[240]
The report pointed out that in principle the Merafong community
supported the phasing-out of cross-boundary municipalities but wanted
to be
included in the Gauteng Province.  It further pointed out that service delivery
between the North West Province and the
Gauteng Province was one of the
contentious issues raised by the community organisations and in the submissions
made during the
hearing.  In order to address “the current service delivery
challenges”, the report proposed a “focused intervention approach”
which “must
provide a supportive framework to the affected [Merafong City Local Municipality]”.  The report explained that
this approach is aimed at—
“promot[ing] economic development and
growth, human resources development and institutional development capacity by [mobilising]

and directing funds to sustainable development projects and related matters”.
[241]
In order to give effect to its recommendation on how to address the
problem of service delivery, the Committee recommended that the
Department of
Local Government should, in consultation with the relevant departments in the
Gauteng Province and in North West,
“conduct a service delivery audit to
establish service delivery backlogs and recommend corrective measures for the
North West
Province” and thereafter prepare a report for submission to the
North West Province.  And finally, on this aspect, the report
noted that the
National Government had pledged to build and create transitional arrangements
to ensure improved and sustainable
service delivery in the affected areas.
[242]
The report next sets out the position that the Committee took at the
negotiating stage and explained why it had adopted that position.Â
What is
apparent from the report is that initially the Committee took the position that
the Legislature should propose an amendment
to the Bill so as to provide for
the inclusion of Merafong into the municipal area of the West Rand District Municipality in the
Gauteng Province.  And consistently with this position, the
Committee formulated a Negotiating Mandate instructing its delegation
to
support the Bill on condition that Merafong was included in the Gauteng Province.  This is the position which the Committee
had hoped to recommend to the
Legislature.  It is for this reason that the Negotiating Mandate contained a
recommendation to the
House.  This recommendation however was not submitted to
the Legislature as the Standing Rules do not require a negotiating mandate
to
be submitted to the Legislature for approval.  What the Committee was hoping to
do eventually was to recommend to the Legislature
that it should propose an
amendment to the Bill.  However, as it turned out, this could not be done under
section 74(8).
[243]
Finally the report sets out the position adopted by the Committee
after the consideration of negotiating mandates by the NCOP Select
Committee.Â
The report explains why the Committee had to review its initial position to
support the Bill on condition that Merafong
was included in the Gauteng Province.  It is apparent from the report that the initial position adopted by the
Committee was taken
on the premise that it was competent for the Legislature to
propose an amendment to the Bill.  And it is plain from the report
that this
position proved to be unworkable because, in terms of section 74(8), a province
may only approve or reject that part
of a constitutional amendment that affects
its boundary.  The report goes on to point out that “[s]ubsequent to
deliberations
and negotiations by the Select Committee and diverse positions
advanced” the Committee decided to review its initial position
“notwithstanding
the views of the public.”  The report further explains that the Committee reviewed
its initial position on
the basis of three factors, namely, (a) the fact that
it supports the phasing-out of cross-boundary municipalities; (b) the fact
that
the Province supports the creation of viable and sustainable municipalities
with proper revenue; and (c) the implications
if the Legislature did not
support the Bill.
The decision of the Legislature to
adopt the report
[244]
On 6 December 2005 the report was tabled in the Legislature for its
consideration.  In the Legislature, the Chairperson of the Committee

highlighted certain aspects of the report focussing on, among other things, the
review and analysis of the public hearing, the
Committee’s recommendation on
how to address the concerns about service delivery, the position taken by the
Committee during
the negotiation stage and the explanation for reviewing its
initial position.  In the Legislature the Chairperson pointed out that
the
Committee reviewed its initial position based on (a) the Committee’s support
for the phasing-out of cross-boundary municipalities;
and (b) the Gauteng Province’s support for the creation of viable and sustainable municipalities.  She
went on to point out that
“it is important to understand what the implications
of Gauteng would be for not supporting the Bill.”  She concluded by saying—
“[t]hese compelling reasons . . . informed
the Committee’s final voting position which is . . . that the House confer
authority
on the Head of the Delegation to the NCOP to vote in support of the
[Bill].”
[245]
Once the recommendation of the Committee was seconded, the Speaker
called for a vote on whether the report should be adopted.  The
Democratic
Alliance and a member of the African National Congress opposed the recommended
Final Mandate.  The letter by the Speaker
to the Chairperson of the NCOP
confirming the Final Mandate of the Gauteng NCOP Delegation reveals that “the
Gauteng Provincial
Legislature adopted the attached report”.  The entire report
was sent to the NCOP.  In this manner, the Legislature took a decision
to
accept the recommendation of the Committee that it should confer a final
mandate supporting the Bill.  In the event the Legislature
approved that part
of the Bill that altered its boundary.
[246]
It is the change of the position from supporting the Bill on
condition that the area of Merafong City Local Municipality be included
in Gauteng Province, to the unconditional support of the Bill which included the area of Merafong
in the North West Province which
is the subject of the constitutional challenge
in this Court.  The Merafong community contended that the reasons advanced for
the change in the position demonstrates irrationality on the part of the
Legislature.
Questions presented
[247]
The contention by the Merafong community raises the following
questions:
(i)
The inter-relation between the Committee and the
Legislature; in particular, the extent to which the position adopted by the
Committee
in the negotiating mandate can be attributed to the Legislature;
(ii)
The competence of this Court to investigate the
reasons that moved the Legislature to adopt the recommendation of the Committee
to support the Bill; and
(iii)
Whether on all the facts and circumstances of
this case the decision of the Legislature to support the Bill was irrational.
Whether the position of the
Committee on the Negotiating Mandate can be attributed to the Legislature
[248]
There is disagreement amongst my colleagues on whether the position
taken by the Committee on the Negotiating Mandate should be attributed
to the
Province.  To my mind the position is governed by Rule 235(6) of the Standing
Rules of the Gauteng Province which states:
“When a committee considers a matter about
which the province’s delegation to the NCOP must negotiate in the NCOP before
voting,
the committee must confer a negotiating mandate on the delegation.  The
negotiating mandate should set out the province’s position
on the matter and
provide guidance to the delegation on the position that it should take.”
[249]
It is clear from this Rule that the Negotiating Mandate reflects not
just the position of the Committee but it “sets out the province’s
position on
the matter” and should guide “the delegation on the position that it should
take.”  The effect of this Rule
is to authorise the Committee to develop a
negotiating mandate on behalf of the Province and not on its behalf only.  What
is
significant here is that the Portfolio Committee is composed of members of
the Legislature and acts on behalf of the Legislature.Â
And, what is more, it
performs “functions assigned to it by the Legislature”.
[18]
  A portfolio committee is an
engine through which a legislature performs its work.  In respect of those
matters entrusted to
it by a legislature, a portfolio committee acts on behalf
of the legislature.
[250]
In the light of the provisions of section 235(6), it is therefore
not inaccurate to hold that the position of the Province as set
out in the
Negotiating Mandate was to support the amendment on condition that Merafong
remain in Gauteng.
[251]
What must be stressed here, however, is that this Negotiating Mandate,
as its name indicates, was no more than a negotiating position.Â
It was
intended to facilitate the discussions at the NCOP Select Committee which
considers negotiating mandates.  It was not cast
in stone.  Indeed it is
crucial that negotiating mandates should be flexible so that they can allow
effective and constructive
deliberation to take place in the NCOP and its
committees.  This enables delegates to debate and discuss with delegates from
other
provinces and to suggest new ideas.  To hold a legislature to a position
adopted during the negotiating session of the NCOP may
well inhibit effective
and constructive deliberations at the NCOP Select Committee.  Indeed this may
inhibit delegates from effectively
advancing the interests of their respective
provinces.
[252]
I am not aware of anything, in principle, that prevents a committee
from changing a position adopted during the negotiating stage,
in particular,
where, as here, the position was premised on a misunderstanding of the powers
conferred on the Legislature.
[253]
The next question to consider is whether it is competent for this
Court to investigate the reasons that moved the Legislature to
support the
Bill.
The competency of this Court to
investigate the reasons for supporting the Bill
[254]
In the context of administrative action it is permissible to look at
the reasons which motivated the decision under review.  This
is so because
these reasons are normally furnished, and if they are not furnished, they may
be demanded.
[19]
Â
However, in the context of legislation, the legislature does not give reasons
for enacting laws.  In the nature of things the
legislature cannot record a
complete catalogue of considerations which moved its members to enact laws.Â
And in the absence of
such a record a court can only speculate as to the
reasons which may possibly have moved the Legislature to enact a particular
law.  This is undesirable.  However, here we are not concerned with
legislation.  Nor are we concerned with a decision which
falls within the
purview of administrative action.
[255]
We are concerned here with a decision which a provincial legislature
is required by the Constitution to make whenever there is a
proposed
constitutional amendment which alters its boundary.  The Constitution requires
such a province to make a decision whether
or not to approve the alteration of
its boundary.  The process by which the decision is taken is in the nature of
law-making process.Â
Yet the process does not itself result in the enactment of
a law by the Province.  Although there is an investigation of the matter
followed
by a report and a recommendation to the legislature, the process itself is
legislative.  The decision was taken after
the report had been presented to the
Legislature.  The information in the report was therefore present to the minds
of the members
of the Legislature.  It does not mean, however, that this was
the only information upon which the decision to support the Bill
was based.Â
They had the purpose of the Bill to consider as well.
[256]
In terms of Rule 235(7) of the Standing Rules of the Gauteng Legislature,
before a matter is decided in the NCOP, “the committee
must report to the House
and make a recommendation concerning the way that the province’s NCOP
delegation should be mandated
to vote in the NCOP.”  Therefore, the report
which sets out the recommendation and the motivation for it by the committee in

terms of Rule 235(7) should, and in this case does, provide a reasonable
account of the factors which moved the committee to make
a particular
recommendation to the legislature on a matter under consideration.  Therefore,
before a legislature takes a decision,
it has the benefit of the report and the
recommendation of the committee.  What is required of the legislature is to
consider
the report and the recommendation including the motivation for the
recommendation, and thereafter decide whether to accept or reject
the
recommendation.
[257]
A report submitted to the legislature may throw light on the
material that the legislature considered in arriving at a decision whether
or
not to accept the recommendation of the committee.  Once the record is
available it cannot, in my view, be said that it is
beyond judicial scrutiny.Â
It forms part of the material that the court may legitimately consider when a
decision flowing from
it is under challenge.  Indeed in
UDM 2
[20]
this Court, in the
context of considering the rationality of floor-crossing legislation, had
regard to the report of a committee
appointed by Parliament to consider draft
legislation dealing with floor-crossing.
[21]
[258]
Here the position is even more compelling.  The Legislature sent the
entire report to the NCOP confirming that it had adopted the
report.  It seems
fair, I think, to say that the Legislature, by sending the report to the NCOP,
was communicating to the world
that it had taken into account the information
and the reasons advanced in the report.  That being the case, I am unable to
conceive
of any reason, both in principle and logic, that would prevent this
Court from having regard to the contents of the report in determining
whether
the decision to support the Bill is rationally related to a legitimate
purpose.  After all, the report motivates the support
for the Bill.  The matter
must therefore be approached on the footing that the Legislature had regard to,
among other things,
the report of the Committee.
[259]
The question which falls to be considered next is whether having
regard to the report of the Committee which was adopted by the Legislature,
the
decision of the Legislature to support the Bill and approve the alteration of
its boundary was rational.  But first, the legal
principles that govern the
rationality of the exercise of public power.
Was the decision of the
Legislature to support the Bill irrational?
The applicable legal principles
[260]
It is by now axiomatic that our Constitution requires legislation to
be rationally related to a legitimate government purpose.Â
If legislation fails
to meet this requirement, it is inconsistent with the rule of law and is
therefore invalid.
[22]
Â
This standard applies not only to statutes but also constitutional amendments.
[23]
  The requirement of
rationality in legislation is a safeguard against arbitrariness or caprice in
the exercise of legislative
power.  It is a requirement of the rule of law, one
of the foundational values of our constitutional democracy.
[261]
The Constitution does not prescribe the objective norms for the
exercise of the power conferred in section 74(8).  And this Court
will not
substitute its judgement for that of the Province.  However, this does not mean
that the decision of a province to approve
or not to approve the alteration of
its boundary can never be subject to review by this Court.  Powers are not
conferred in the
abstract.  They are intended to serve a particular purpose.Â
That purpose can be discerned from the Constitution.  And the Constitution

places specific and general constraints upon the manner in which the power is
to be exercised.  If these limits are transgressed,
this Court is entitled to
intervene and set the decision aside.  Section 74(8) decisions are therefore
reviewable for rationality
in the same way as any decision to pass a law.
[262]
No doubt, the decision whether to approve the alteration of its
boundary called for a political judgement by the Legislature.  But
that
judgement had to be made consistently with the requirements of the
Constitution.  The Constitution places significant constraints
upon the
exercise of public power through the founding principle enshrining the rule of
law.
[24]
Â
These constraints have, as their basis, the foundational principle of the supremacy
of the Constitution, which requires that
all branches of government, the
judiciary, the legislature and the executive comply with the law and the
Constitution.  When we
had occasion to consider the validity of a
constitutional amendment we alluded to this fact, pointing out that “the
Constitution
as the supreme law is binding on all branches of government and no
less on the Legislature and the Executive.”  And we added,
the “Constitution
requires the courts to ensure that all branches of government act within the
law.”
[25]
[263]
The question which falls to be decided therefore is whether, having
regard to the report of the Committee that was placed before
the Legislature
together with the Bill, the decision by the Legislature to support the Bill,
viewed objectively, advances a legitimate
purpose.
The rationality of the decision to
support the Bill
[264]
It is apparent from the report to the Legislature that, in
recommending that the Bill be supported, the Committee was motivated by
two
primary considerations.  The first was its support for the phasing-out of
cross-boundary municipalities.  As the report makes
plain, these municipalities
had proved to be difficult to administer and this had negative consequences for
service delivery.Â
The other consideration was that the Legislature supported
the creation of viable and sustainable municipalities.  Now these are

legitimate objectives to pursue.
[265]
The first advances one of the objects of the Bill.  The Bill had a
dual purpose: (a) to introduce new criteria for determining provincial

boundaries; and (b) to abolish cross-boundary municipalities.  The provincial
boundaries were previously determined by reference
to magisterial districts.Â
This was an apartheid-based criterion.  The determination of provincial
boundaries by reference to
this criterion resulted in some municipalities
straddling provincial boundaries.  This was managed by introducing the concept
of cross-boundary municipalities.
[26]
Â
Since inception, cross-boundary municipalities proved difficult to administer.Â
In
Matatiele 1
we alluded to some of these difficulties and said:
“The problems associated with the
administration of the cross-boundary municipalities led to huge financial
burdens and costs
and often undermined service delivery.  According to the
government, eight of the 16 cross-boundary municipalities ‘experience
service
delivery challenges necessitating national support intervention.’  Various
reports that were commissioned on the cross-boundary
municipalities recommended
that the concept of cross-boundary municipalities should be abolished.  As a
consequence of these recommendations,
the government took a decision as early
as November 2002 to do away with cross-boundary municipalities and to review
provincial
boundaries so as to ensure that all municipalities fall in one
province or the other.  It was this political decision that led
to the
enactment of the Twelfth Amendment and the Repeal Act.”
[27]
[266]
The purpose of the Bill was therefore to achieve the twin objectives
of redefining provincial boundaries on the basis of municipal
areas and
abolishing cross-boundary municipalities.  The pursuit of these twin purposes
is therefore legitimate.
[267]
The same goes for the objective of creating viable and sustainable
municipalities.  Municipalities form an important component of
our
constitutional scheme of government.  They are closer to the community and they
constitute the first line for the delivery
of services.  Indeed one of the
objects of local government is “to ensure the provision of services to
communities in a sustainable
manner”.
[28]
Â
When establishing municipalities, national legislation is enjoined to “take
into account the need to provide municipal services
in an equitable and
sustainable manner.”
[29]
Â
Viable and sustainable municipalities with revenue are crucial to the fulfilment
of these constitutional objectives.
[268]
Once it is accepted, as it must be, that it was legitimate for the
Legislature to pursue these two objectives, the next question
is whether the
decision to support the Bill is rationally related to these two objectives.  To
my mind, it is.  Therefore, when
the Legislature exercised its powers under
section 74(8) to pursue these objectives, it did not act irrationally.  This in
my
view provides sufficient basis for a conclusion that the decision of the
Legislature was rational.
[269]
There is a further consideration which appears in the report.  Ms
Letwaba, the Chairperson of the Committee, alluded to this consideration
when
presenting the report to the Legislature and put it in perspective.  She
emphasised that it was important to understand the
implications that would have
arisen if Gauteng had not supported the Bill.  These implications related to
what would happen to
the boundary of Gauteng as a whole and those of
municipalities falling within Gauteng if the Legislature did not support the
Bill.Â
The Committee was equally concerned about the effect on the pending
elections if Gauteng’s boundaries and its municipalities were
to be
re-configured as a result of its refusal to support that part of the Bill
affecting its boundary.
[270]
Expressing a concern about the implications of not supporting the
Bill is not inappropriate.  It is a proper matter which a legislature
must,
among other considerations, have in mind.  I did not understand any of the
judgments of my colleagues to suggest otherwise.Â
The debate among my
colleagues centres around the validity of the implications expressed by the
Committee and whether they were
decisive in the decision of the Legislature to
support the Bill.  In my view this debate is not germane to the outcome of this

case.  I say this because, first, the considerations advanced by the Committee,
namely, its support for the phasing-out of cross-boundary
municipalities and
the Province’s support for the creation of viable and sustainable municipalities
are sufficient to sustain
the rationality of the decision of the Legislature;
second, I cannot say that these implications were utterly remote; and third,

nor can I say that they were decisive in the decision to support the Bill.
[271]
In alluding to these implications, the Committee was speculating on
the actions that might be taken by the National Assembly in consequence
to its
refusal to support the inclusion of Merafong into North West.  It may well be
that the boundary of Gauteng and possibly
other provinces may have been
reconsidered.  And this may well have resulted in a delay in the holding of the
pending elections.
 I am unable to say, with adequate certainty, that they were
so remote that they should not have entered the reckoning.  It is
not necessary,
however, to speculate on these matters.  It is sufficient to say that in
considering the possible implications
of a refusal to support the Bill, the
Committee acted appropriately; its conduct cannot therefore be criticised.
[272]
There is a further consideration which presents difficulty in
exploring the correctness or otherwise of these implications.  This
is not an
issue which was raised in the papers by the applicants.  It was therefore
neither explored in the papers nor in the
written and oral arguments.  It is
true that this Court did put further questions to the parties.  What is
significant however
is that the role that these implications played in the
ultimate decision to support the Bill was not explored in the papers nor
in the
argument in this Court.  In addition, what compounds the problem is that the
Chairperson of the Committee when presenting
the report in the Legislature
advanced two reasons for the recommendation made by the Committee.  These were
the support for the
phasing-out of the cross-boundary municipalities and the
support for the creation of viable and sustainable municipalities.  After

referring to these two primary considerations she then emphasised that it was
important to understand the implications of a decision
by Gauteng not to
support the Bill.
[273]
We are therefore left to speculate on the impact that these
implications played in the minds of the Committee.  Indeed we are also
left to
speculate on the role that these implications played in the minds of the
members of the Legislature who voted to adopt
the report.  It is not desirable
to do so.  In
S v Lawrence; S v Negal; S v Solberg
,
[30]
and in the context of
rational basis review of legislation, Chaskalson P cited with approval the
following passage from the United
States Supreme Court:
“This restriction upon the judicial
function, in passing on the constitutionality of statutes, is not artificial or
irrational.Â
A state legislature, in the enactment of laws, has the widest
possible latitude within the limits of the Constitution.  In the
nature of the
case it cannot record a complete catalogue of the considerations which move its
members to enact laws.  In the absence
of such a record courts cannot assume
that its action is capricious, or that, with its informed acquaintance with local
conditions
to which the legislation is to be applied, it was not aware of facts
which afford reasonable basis for its action.  Only by faithful
adherence to
this guiding principle of judicial review of legislation is it possible to
preserve to the legislative branch its
rightful independence and its ability to
function.”
[31]
[274]
It is true, there might have been other options that could have been
adopted to avoid the consequences feared by the Committee.Â
But that is not the
issue.  It is not for this Court to tell the Legislature how it should have
accommodated the views of the
majority of the residents of Merafong while at
the same time achieving the objectives of the Bill.  That is for the
Legislature
to decide.  In
Pharmaceutical Manufacturers
and in
UDM 2
we pointed out that rationality is a minimum requirement for the exercise of
legislative power.  This standard does not permit
us to substitute our opinions
as to what is appropriate for the opinions of the Legislature.  Once it is
established that the
purpose sought to be achieved is within the authority of
the Legislature, and as long as the Legislature’s decision, viewed objectively,

is rational, we cannot interfere with that decision simply because we disagree
with it or because we consider that the power was
exercised inappropriately.
[275]
What is significant is that the fact that one of the considerations
that the Committee had regard to may have been unsound, does
not detract from
the fact that the two primary considerations referred to above were legitimate
purposes for the Legislature to
pursue and that the decision to support the
Bill is rationally related to these purposes.  These two primary considerations
provide
sufficient support for the decision to support the Bill.
[276]
Furthermore there were other considerations which support the
rationality of the decision of the Legislature.  The report noted
that the
contentious issue that emerged in the submissions and at the public hearing was
the issue of poor service delivery in
North West.  This was the major concern
of the Merafong community.  In its report the Committee recommended a focused
intervention
approach to address “the current service delivery challenges”.  In
addition, it recommended the compilation of a detailed report
setting out the
problems of service delivery and recommending corrective steps to address the
problems.  This report was to be
submitted to North West for it to implement
the measures recommended.  In addition, the National Government had pledged to
build
and create transitional arrangements that would ensure that service
delivery was offered on a sustained and improved basis.
[277]
In addition, we are told that in order to deal with the concerns
relating to service delivery that were raised by the Merafong community,
the
provincial governments of North West and Gauteng concluded a protocol and
various service-level agreements relating to the
delivery of services in the
affected areas.  These agreements, we are told, imposed certain reciprocal
duties on the provincial
government of Gauteng to continue exercising the
function of service delivery on an agency-basis in the affected areas and the
provincial government of North West to act in accordance with the terms contemplated
in the agreements.  The purpose of concluding
these service-level agreements
was to ensure the continuous delivery of services in the affected areas
notwithstanding the consequent
exclusion of Merafong from Gauteng and its
inclusion into North West.
[278]
What is also apparent from the report is that there were conflicting
views within the community of Merafong as to whether Merafong
should be
included in the North West Province or the Gauteng Province.  There were strong
views from each side.  The Legislature
had to take a decision whether the area
of Merafong had to be included in the North West Province or the Gauteng Province.  The
views of the Demarcation Board, as evidenced by the two demarcations
it made, demonstrates that each view was viable and rational.Â
Ultimately the
Legislature took a political decision that the area of Merafong should be
included in the North West Province.Â
The question is whether this decision is
rationally related to the legitimate purpose pursued by the Legislature.
[279]
As we pointed out in
Pharmaceutical Manufacturers
and
repeated in
UDM 2
, rationality as a minimum requirement for the exercise
of public power—
“does not mean that the Courts can or
should substitute their opinions as to what is appropriate for the opinions of
those in
whom the power has been vested.  As long as the purpose sought to be
achieved by the exercise of public power is within the authority
of the
functionary, and as long as the functionary’s decision, viewed objectively, is
rational, a Court cannot interfere with
the decision simply because it
disagrees with it or considers that the power was exercised inappropriately.”
[32]
[280]
It is true that the report of the Committee does not indicate
whether in adopting its initial position the Committee considered the

implications of not supporting the Bill.  It is apparent from the record, and,
in particular, the report, that at that stage the
Committee was of the view
that it could support the Bill and at the same time propose an amendment to the
Bill.  It did not at
that stage consider not supporting the Bill.  But once it
became clear that it could not propose an amendment to the Bill, the
question
of exercising its power to veto the part of the Bill that affects Gauteng and the implications of the exercise of the veto
power arose.  It does not
necessarily follow therefore that the implications of a veto were decisive in
the initial decision of
the Province whether or not to support the Bill.
[281]
What must be stressed here is that it is the Legislature which
ultimately took the decision to support the Bill.  It did so in the
light of
the report that was submitted to it by the Committee and the Bill itself.  The
report told the Legislature of the position
that was adopted on behalf of the
Province in the Negotiating Mandate.  It was explained to the Legislature why
that position
was reviewed.  The Legislature was informed of the factors that
were taken into consideration in reviewing the initial position.Â
It was told
that steps had been taken to address the problem of service delivery that had
emerged as a major source of concern
at the public hearing.  And the
Legislature was aware that the community of Merafong supported the primary
objectives of the Bill,
namely, the phasing-out of cross-boundary
municipalities and the introduction of municipal boundaries as the new criterion
for
determining provincial boundaries.  Based on at least all this information,
the Legislature accepted the recommendation of the
Committee to support the
Bill.
[282]
Another point which must be stressed is this: the fact that the
majority of the people of Merafong supported the inclusion of Merafong
into the
Gauteng Province is not decisive.  The purpose of facilitating public
involvement under section 118(1) of the Constitution
is not to have the views
of the public dictate to the elected representatives what position they should
take on a bill.  The purpose
of facilitating public involvement is to enable
the legislature to inform itself of the fears and the concerns of the people
affected.Â
The decision as to how to address those concerns and fears is, by
our Constitution, that of the elected representatives.  In this
case what
emerged at the public hearings as the major concern of the Merafong community
was poor service delivery.  The Committee
took steps to ensure that this
problem was addressed.  It did not ignore those concerns.
[283]
As we have said in the past, one of the defining features of our
constitutional democracy is that it is both representative and participative.Â

These two elements should not be seen as being in tension with each other.  On
the contrary, they are mutually supportive as we
noted in
Doctors for Life
:
“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.Â
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 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]
[284]
On all the facts and circumstances of this case, I am unable to
conclude that the decision of the Legislature in supporting the Bill
which
altered its boundary was irrational.  As
Pharmaceutical Manufacturers
teaches us, rationality “is a minimum threshold requirement”.  And as long as
the purpose sought to be achieved by the legislature
is within the authority of
the legislature, and as long as the legislature’s decision, viewed objectively,
is rational, this
Court is not entitled to interfere with the decision of the legislature
simply because it disagrees with it or considers that the
power was exercised
inappropriately.
[34]
[285]
What must be stressed here is that the support of the Constitution
Twelfth Amendment Bill was directed to the concerns relating to
cross-boundary
municipalities, the implementation of the new criteria for determining
provincial
boundaries and the creation of viable
and sustainable municipalities.  Viewed objectively, in the light of the
problems identified
in relation to cross-boundary municipalities, the need to
introduce the new criteria for determining provincial boundaries and the
object
of local government “to ensure the provision of services to communities in a
sustainable manner”,
[35]
the decision to support the Bill, cannot be said to be irrational.
[286]
For all these reasons, I am unable to conclude that the decision of
the Legislature of the Gauteng Province to approve that part
of the
Constitution Twelfth Amendment Bill which altered its boundary, was
irrational.  It follows that the challenge based on
rationality cannot be
upheld.  The application must therefore be dismissed.
Langa CJ, Mpati AJ, Skweyiya J, Van
der Westhuizen J and Yacoob J concur in the judgment of Ngcobo J.
SACHS J:
[287]
I agree with Moseneke DCJ that approval by the
Gauteng Provincial Legislature (the Legislature) of the incorporation of
Merafong
into the province of North West was given in a manner that was
inconsistent with the way it was obliged by the Constitution to exercise
its
powers.  I concur with the order he makes.  I wish to add, however, that I
believe the process was flawed in another respect.Â
I refer to the failure of
the Legislature to communicate with the Merafong community over its plans to
renege on its earlier commitment,
in the form of its Negotiating Mandate for
the National Council of Provinces (NCOP), to oppose the incorporation of Merafong
into
North West Province.  Van der Westhuizen J states that it might have been
good for the Legislature to have reported back to the
community on its change
of stance, but holds that its failure to do so did not reach the level of
unconstitutional conduct contended
for by the community.  I disagree.  What
follow are my reasons for believing that the default went beyond merely showing
a lack
of appropriate political respect, and constituted a breach of a
constitutional obligation.
[288]
I accept fully that the initial engagement of
the Legislature with the Merafong community was not a sham.  On the contrary, members

of the community were given proper notice of the gathering, their diverse
representations were carefully and appropriately recorded,
and there can be no
doubt that their contentions were taken to heart and acted upon.  Indeed, the
Legislature did more than comply
with a minimal duty to give the community a
hearing: it listened.  And it went on to incorporate what it had heard into its
mandate
for the NCOP deliberations.  Its report reads as follows:
“Key determining principles
Joint public hearing between North West and Gauteng Legislature was held successfully.  Among the key principles
underpinning the
approach of the public hearing are as follows:
·
Service delivery and infrastructure development
·
Social and economic development of the affected
areas
·
The current and future human settlements and
migration patterns as it relates to the interdependence of people and
communities
·
Employment, commuting and dominant transport
movements and related costs
An overwhelming majority of people
attending the public hearing were opposed to the proposal to incorporate Merafong City Local Municipality
into the North West Province, due to the fact that they were
not provided with substantive and compelling reasons.
People of Merafong regard themselves as
being an inseparable part of the West Rand District which forms part of the Gauteng Province.Â
In pursuance of their argument it is argued that there are no social and
economic fibre linkages between Merafong and areas in the
North West Province such as Ventersdorp, Lichtenburg, Mafikeng, Klerksdorp or Rustenburg.
Committee Position
The Portfolio Committee on Local
Government—
·
in principle, supports the phasing-out of
cross-boundary municipalities as envisaged by the Constitution Twelfth
Amendment Bill
[B33B-2005];
·
in light of the outcome, impact assessment and
analysis of the public hearing submissions, agrees with the inclusion of the
geographical
area of Merafong municipality into the West Rand District municipality in the Gauteng Province;
·
recommends to the House, amendment to Schedule
1A of the Constitution Twelfth Amendment Bill [B33B-2005], to provide for the
inclusion
of the municipal area of Merafong into the municipal area of the West Rand District municipality of the Gauteng Province.”
The report of the
Local Government Provincial Portfolio Committee (the Portfolio Committee) to
the Legislature concluded as follows:
“Negotiating Mandate
Subject to section 74(8) of the
Constitution, the Portfolio Committee on Local Government, will support the
bill on condition that
the municipal area of Merafong is included in the
municipal area of the West Rand District municipality of the Gauteng Province.”
[289]
The subsequent turn-around could hardly have
been more complete.  Yet, nothing was communicated to the people of Merafong.Â
I
have read the motivation for the change of position and find it far from
clear.  Whatever the reasons might have been, they were
not brought to the
attention of the people of Merafong.  The calendar of events concerning the
NCOP indicates that two weeks were
available for further consultations and nine
days for explaining the reversal of position to the Merafong community.
[1]
  The
consciousness of the need to report back was there.  The chairperson of the
Portfolio Committee stated:
“As responsible public representatives, our
responsibility is also to go back to those people and advise them as to how we
arrived
at this conclusion. . . . Our responsibility is to go out there and
communicate with those people and inform them of how we arrived
at this
position, if there is a need for that.”
[290]
Â
The question then is
whether in the special circumstances of this case the failure to continue the
engagement with the Merafong
community was in breach of the obligation to
facilitate public involvement.
[2]
  In
answering that question I will deal first with the significance of the default,
and secondly with its impact on the reasonableness
of the consultation process.
[291]
Writing for the majority in
Matatiele 2
,
[3]
Ngcobo J pointed
out that our constitutional democracy has two essential elements which
constitute its foundation: it is partly
representative and partly
participative.
[4]
Â
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.  As he observed:
“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.”
[5]
Even though words
from a judgment should not be read with the exacting interpretative lens one
uses when parsing a legislative text,
one cannot escape the significance of the
use of the word “dialogue”.  In some ways an interrupted dialogue, when expectations

of candour and open-dealing have been established and certain unambiguous
commitments have been made, can be more disruptive of
a relationship than
silence from the start might have been.
[292]
As was pointed out by the majority in
Doctors for Life
,
[6]
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, to identify themselves with the
institutions of government and
to become familiar with the laws as they are
made.
“[Such participation]
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.Â
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.”
[7]
In the present
matter, the failure of the Legislature to go back to the community and explain
its abrupt about-turn violated each
and every one of these constitutional
goals.  It diminished the civic dignity of the majority.  It denied any spirit
of accommodation
and produced a total lack of legitimacy for the process and
its outcome in the eyes of the people.  And finally, it gave rise to
a strong
perception – reflected in the papers – that the legislative process had been a
sham because an irreversible deal had
already been struck at a political level
outside the confines of the legislative process in terms of which, come what
may, Merafong
was going to go to North West.
[293]
This brings me to the question whether in these
dolorous circumstances the failure to resume consultation breached the constitutional

standard of reasonableness.  In this regard there can be no doubt that
participatory democracy does not require constant consultation
by the
Legislature with the public, nor does it presuppose that the views of the
community will be binding on the Legislature,
nor that the Legislature is
precluded from changing its mind.  Far from it.  What is involved is not a set
of prescriptions but
an appropriate civic relationship.  As with so much in
law, everything will depend on context.Â
In the words of Ngcobo J in
Matatiele 2
:
“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.”
[8]
  (Footnote omitted.)
[294]
Given the discrete nature of the community affected and the intense
impact on their interests, I believe that three factors combined
to make it
unreasonable in the present matter for the Legislature not to have resumed at
least some degree of consultation with
the Merafong community.  Taken together
they created a duty to speak and not to remain silent.
[295]
The first relates to the nature of the legislation under
consideration.  What was at stake was not just an ordinary piece of legislation

of broad nation-wide importance about to be considered in the NCOP.  Nor was it
a constitutional amendment in respect of which
the concurrence of six out of
the nine provinces in the NCOP had to be achieved.  It concerned the possible
exercise of a unique
veto power which the Constitution gives to each provincial
legislature in respect of alterations to its provincial boundaries.
[9]
  At stake were the direct interests of a discrete community
specifically identified by the Constitution Twelfth Amendment itself.Â
There
can be few matters that could have required more intense consultation than
re-delimitation of the area in respect of which
the very writ of the Legislature
itself would run.  Where communities are effectively to be relocated, it is the
existence of
reasonable consultation that marks the difference between a
gracious and constitutionally acceptable goodbye, however sad, and a
harsh and
constitutionally invidious expulsion.
[296]
This is where the second specific factor kicks in, namely the extent
of the potential impact of the proposed change on the Merafong
community.  The
boundary alteration was not merely topographical, it was sociological,
involving more than the loss of a hill
or a river.  As the overwhelming
majority of the Merafong community had in carefully motivated submissions
pointed out, the proposed
transfer stood to affect them both functionally and
emotionally.  The theme of the right to choose one’s identity looms large
in
our Constitution,
[10]
and lawmakers gloss over identity concerns at their peril.
[297]
The crucial third factor governing
reasonableness was a strong public expectation created by two objective
considerations.  The
first was that an independent body, the Municipal
Demarcation Board, had expressly rejected an earlier proposal that Merafong be

incorporated into North West Province.
[11]
 The second was the adoption of the Negotiating Mandate
as referred to above.  The adoption of that mandate had not only corresponded

to what the majority in Merafong wanted.  It had followed a thorough process of
consultation and represented the conclusion of
a carefully reasoned and
fully-motivated report.  None of these objective considerations had changed.Â
The new circumstances
referred to by the Portfolio Committee related to
technical procedures in the NCOP and possible implications for demarcation of

voting districts in the next municipal elections.  On the assumption that
legitimate state objectives were involved, these were
matters that could and
should have been discussed with those whose fate was being decided.
[298]
It is the specific conjunction of these three factors which, in my
view, must guide the
evaluation of the facts in this
matter.  Civic dignity was directly implicated.  Indeed, it is important to
remember that the
value of 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.
[12]
[299]
Given that the purpose of participatory
democracy is not purely instrumental, I do not believe that the critical
question is whether
further consultation would have produced a different
result.  It might well have done.  On the facts, I am far from convinced
that
the outcome would have been a foregone conclusion.  Indeed, the Merafong
community might have come up with temporising proposals
that would have allowed
for future compromise and taken some of the sting out of the situation.  For
its part, the Legislature
might have been convinced that the continuation of an
unsatisfactory status quo would have been better
–
even if just
to buy time for future negotiations
–
than to invite a disastrous
break-down of relations between the community and the government.  Yet even if
the result had been
determinable in advance, respect for the relationship between
the Legislature and the community required that there be more rather
than less
communication.
[300]
There is nothing on the record to indicate that the Legislature took
any steps whatsoever even to inform the community of the about-turn,
let alone to
explain it.  This is not the sort of information that should be discovered for
the first time from the newspapers,
or from informal chit-chat.  Once structured
processes of consultation were put in place, with tangible consequences for the
legislative
process and of central importance to the community, the principle
of participatory democracy required the establishment of appropriately
formal
lines of communication, at least to clarify, if not to justify, the negation of
those consequences.  In my view, then,
it was constitutionally incumbent on the
Legislature to communicate and explain to the community the fact of and the
reasons for
the complete deviation from what the community had been led to
believe was to be the fruit of the earlier consultation, and to pay
serious
attention to the community's response
.
Â
Arms-length democracy is not participatory
democracy, and the consequent and predictable rupture in the relationship
between the
community and the Legislature tore at the heart of what participatory
democracy aims to achieve.
[301]
I would hold that, after making a good start to fulfil its
obligation to facilitate public involvement, the Legislature stumbled
badly at
the last hurdle.  It ended up failing to exercise its responsibilities in a
reasonable manner, with the result that it
seriously violated the integrity of
the process of participatory democracy.  In choosing not to face the music (which,
incidentally,
it had itself composed) it breached the constitutional compact
requiring mutuality of open and good-faith dealing between citizenry
and
government, and thereby rendered the legislative process invalid.
SKWEYIYA J:
[302]
I have had the advantage of reading and studying all the different
judgments written by my colleagues, namely Moseneke DCJ, Madala
J, Ngcobo J,
Sachs J and Van der Westhuizen J and I concur in the judgments of Van der
Westhuizen J and Ngcobo J read together
for the reasons advanced by them.  I
merely wish to add the following.
[303]
This application has been brought to this Court on behalf of many
thousands of people who live in the Merafong City Local Municipality.Â
The municipality of Merafong was situated in two provinces, Gauteng and North West, and was
accordingly a cross-boundary municipality.Â
The constitutional amendment under
debate resulted in the whole of the municipality being situated within the North West Province.Â
The applicants are convinced that the decision to locate the whole of
this municipality in the North West Province is wrong.  They
are opposed to the
decision and have protested in support of their rejection of the decision.Â
There has been violence and destruction
of property as a result of the protest
action taken.
[304]
Most of the people in the communities are convinced that the whole
of the Merafong City Local Municipality should be moved to Gauteng.Â
They have
no doubt that service delivery in virtually all sectors will be much better if
the municipality was situated in Gauteng
than if it was in North West.  I may
say at this stage that no one has ever before suggested, nor could anyone
reasonably suggest
in the circumstances, that the municipality should be
divided into two so that that part of it situated in Gauteng should remain
in
Gauteng, and the part which was in North West should remain in North West.
[305]
The communities expect this Court to achieve the object of ensuring
that the whole of the Merafong City Local Municipality is relocated
from North West to Gauteng.  That is the reason why the applicants seek to set aside the
relevant amendment to the Constitution
as unconstitutional and a nullity.  I
stress that it is not the function of this Court to decide whether it is more
appropriate
for the Merafong City Local Municipality to be in Gauteng or in North West.  That is not an exercise that any of the judges in this
Court is qualified to
undertake.  The determination of provincial boundaries and the inter-related
issue of the demarcation of
municipal boundaries within each province are
complex issues requiring expertise in the fields of town planning, provincial
planning,
sociology, political science and geography, at the very least.  It is
impossible for me to tell at this stage which course is better
for the people
of Merafong, the province of Gauteng, the province of North West and the
country as a whole.  I must say frankly
to the community that it is not ours to
decide where Merafong should be located.  That is a political decision which
must be made
elsewhere.
[306]
I do not agree with the approach or conclusion set out in those
judgments that say that the Constitution has not been complied with
and that
the amendments are unlawful.  All this Court can do is determine whether proper
procedures have been complied with by
the Province of Gauteng and whether the
legislation is rational.  If so, that is the end of the matter.  The
difficulties of
those who believe that the Merafong City Local Municipality has been inappropriately located would not be resolved even if this Court
had
concluded that the procedures were not properly complied with or that the
legislation is irrational.  If this Court had come
to that conclusion the
National Legislature and the provinces would probably have been given 18 months
[1]
to resolve the problem and to
get the amendment procedurally correct.  If the conclusion of the national and
provincial governments,
on advice they currently have in relation to where
Merafong should be located, remains the same as it was at the time of the
constitutional
amendment, the amendment would probably be passed in exactly the
same terms.  This Court is not and cannot be a site for political
struggle.  It
can do nothing to resolve differences within that process.  We are a site for
the vindication of rights and the
enforcement of the Constitution.  All that
this Court can do in relation to a constitutional amendment is to determine
whether
the constitutional requirements for the amendment have been met.  We
have a limited role.
[307]
Van der Westhuizen J makes an important point which is that while
the conduct on the part of democratically elected legislatures
may be
discourteous, this does not necessarily render their actions unconstitutional
and their enacted legislation invalid.
[2]
Â
While the Constitutional Court is the highest court in the land, it cannot and
should not be seen as a panacea.  This does however
not mean that discourteous
officials should be let off the hook merely because this Court cannot
invalidate the legislation.
[308]
The Constitution makes clear that South Africa is a democratic state
founded on the values of dignity, equality and freedom.  As
Van der Westhuizen
J highlights, if voters perceive that their democratically elected politicians
have disrespected them or believe
that the politicians have failed to fulfil
promises made by the same politicians without adequate explanation, then the
politicians
should be held accountable by the voters.  Courts deal with bad
law; voters must deal with bad politics.  The doctrine of separation
of powers,
to which our constitutional democracy subscribes, does not allow this Court, or
any other court, to interfere in the
lawful exercise of powers by the
legislature.
[309]
A democracy such as ours provides a powerful method for voters to
hold politicians accountable when they engage in bad or dishonest
politics:
regular, free and fair elections.  Section 19 of the Constitution embodies this
powerful avenue and provides that—
“(1)   Every citizen is free to make political choices . . .
. . . .
 (2)    Every citizen has the right to free, fair and regular
elections for any legislative body established in terms of the
Constitution.
 (3)    Every adult citizen has the right—
(a)  to vote in elections for any legislative body established in
terms of the Constitution, and to do so in secret”.
[310]
The people of Merafong rightly brought their dispute to this Court.Â
However, Van der Westhuizen J and Ngcobo J are correct in finding
that the
Gauteng Provincial Legislature did not act irrationally and thus this Court
cannot find that the Amendment passed was
invalid.  Our duty ends .here.
Yacoob J concurs in the judgment of
Skweyiya J.
For the Applicants:                                        Advocate AA
Louw SC and Advocate
P Nonyane instructed by Lawyers for Human Rights.
For the First, Second and Third                    Advocate IAM Semenya SC, Advocate
Respondents:                                                 IV Maleka SC, Advocate
KE Masoga and Advocate P Nkhuta instructed by the State Attorney, Pretoria.
For the Sixth Respondent:                            Advocate P
Mokoena instructed by Collin Mabunda Inc.
For the Seventh Respondent:                       Advocate PM Mtshaulana SC and Advocate R Moultrie instructed
by Bowman Gilfillan Attorneys.
For the Ninth Respondent:                           Advocate TJ Bruinders SC instructed by Bowman Gilfillan
Attorneys.
[1]
B33B-2005.
[2]
Act
23 of 2005.
[3]
Constitution of the Republic of South Africa, 1996.
[4]
The Municipal Demarcation Board is an independent and
impartial body whose function is to determine municipal boundaries in
accordance
with the
Local Government: Municipal Demarcation Act 27 of 1998
and
other appropriate legislation enacted in terms of chapter 7 of the
Constitution.
[5]
The Electoral Commission is provided for in sections 190 and
191 of the Constitution and established by
section 3
of the
Electoral
Commission Act 51 of 1996
.  Its functions include the management of national,
provincial and municipal elections, ensuring that elections are free and fair

and declaring election results.  The Commission is further regulated by the
Electoral Act 73 of 1998
.
[6]
The application is opposed by the first to ninth
respondents.  The tenth, fourteenth, fifteenth and sixteenth respondents do not

oppose the application, intending to abide the Court’s decision.  The remaining
respondents, the eleventh to thirteenth, did
not file any opposition nor
appeared before this Court.
[7]
Section 167(4)(d) of the Constitution.
[8]
The amended notice of motion seeks a declaration—
“1.   . . . that the Provincial Legislature of Gauteng 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 Constitution
Twelfth Amendment Act of 2005 which concerns the
Merafong City Local Municipality in the province of Gauteng pursuant to section

74(8) of the Constitution
alternatively
, in approving the said part of
the Twelfth Amendment the Sixth Respondent failed to exercise its legislative
powers rationally.
  2.   That part of the Constitution Twelfth Amendment Act of 2005
which transfers that part of the area of Merafong City Local
Municipality
(CBLC8) from the province of Gauteng to the province of North West is declared
to be inconsistent with the Constitution
and invalid.
  3.   That part of the
Cross-boundary Municipalities Laws Repeal
and Related Matters Act 23 of 2005
which relates to the area described in
prayer 2 above, is declared inconsistent with the Constitution and invalid.
  4.   That the First, Second, Third and Sixth Respondents be
ordered to pay the costs of this application.”
[9]
The applicants and the first to ninth respondents sought
condonation for the late filing of their written submissions, while the
first
to third, sixth and seventh respondents sought condonation for the late filing
of their answering affidavits.  In addition,
the sixth respondent sought
condonation for the late filing of its notice of intention to oppose.
[10]
See
Doctors for Life International v Speaker of the National
Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para
216;
2006 (12) BCLR 1399
(CC) at 1467A-B (
Doctors for Life
) where it is
stated that an applicant must launch an application of this kind as soon as
practicable after the bills have been
promulgated.
[11]
See
Doctors for Life
above n 10;
Matatiele
Municipality and Others v President of the RSA and Others
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) (
Matatiele 1
); and
Matatiele
Municipality
and Others v President of the RSA and Others
[2006] ZACC 12
;
2007 (6)
SA 477
(CC);
2007 (1) BCLR 47
(CC) (
Matatiele 2
).
[12]
Sections 103(1) and (2) of the Constitution (prior to the
Twelfth Amendment) stated:
“(1) The Republic has the following provinces:
(a)   Eastern Cape
(b)   Free State
(c)   Gauteng
(d)   KwaZulu-Natal
(e)   Mpumalanga
(f)    Northern Cape
(g)   Northern Province
(h)   North West
(i)    Western Cape.
(2) The boundaries of the provinces are those that
existed when the Constitution took effect.”
[13]
According to its Preamble, the purpose was “to re-determine
the geographical areas of the nine provinces of the Republic of South
Africa”.
[14]
See
Matatiele 1
above n 11 at para 47.  In
Matatiele
1
, this Court analysed the constitutional and statutory framework
pertaining to provincial boundary changes and the significance thereof
for
local government.
[15]
Section 42(1) of the Constitution.  See the full text of section 42
below n 26.
[16]
Section 74(1) deals with the amendment of section 1 and section
74(2) with the amendment of Chapter 2 (the Bill of Rights).Â
Section
74(3) then states:
“Any other provision of the Constitution may be
amended by a Bill passed—
(a)   by
the National Assembly, with a support 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.”
[17]
Section 74(8) states:
“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.”
[18]
Section
118(1)(a) states:
“A
provincial legislature must
—
(a)   facilitate public involvement in the legislative and other
processes of the legislature and its committees”.
[19]
See also the preceding majority judgment in
Doctors for
Life
above n 10 at paras 73-5 on section 72(1)(a), regarding the NCOP.
[20]
A
bove n 11.
[21]
Id at paras 18-32.
[22]
Id at p
aras 79-81.
[23]
Section 21(3) of the Constitution states: “Every citizen has
the right to enter, to remain in and to reside anywhere in, the Republic.”
[24]
See, for example, section 1 of the Constitution: “The Republic of South Africa is one, sovereign, democratic state”, founded
on values which
include human dignity, universal adult suffrage, a national common voters roll,
responsiveness and openness.
[25]
Section 3(1) of the Constitution.
[26]
Sections 42(1)-(4) of the Constitution set out the role of
the National Assembly and the NCOP:
“(1) Parliament consists of—
(a) the National Assembly; and
(b) the National Council of Provinces.
  (2) The National Assembly and the National Council of Provinces
participate in the legislative process in the manner set out in
the
Constitution.
  (3) The National Assembly is elected to represent the people and
to ensure government by the people under the Constitution.Â
It does this by
choosing the President, by providing a national forum for public consideration
of issues, by passing legislation
and by scrutinizing and overseeing executive
action.
  (4) The National Council of Provinces represents the provinces to
ensure that provincial interests are taken into account in the
national sphere
of government.  It does this mainly by participating in the national
legislative process and by providing a national
forum for public consideration
of issues affecting the provinces.”
[27]
Mashavha v President of the Republic of South Africa and Others
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12) BCLR 1243
(CC) at para 57:
“Effective regulation and effective
performance do not only include procedural and administrative efficiency and
accuracy, but
also fairness and equality, for example as far as the
distribution and application of resources and assistance are concerned.Â
A
system which disregards historical injustices and offends the constitutional
values of equality and dignity could result in instability,
which would be the
antithesis of effective regulation and performance.”
[28]
Above n 10 at paras 118-129, 204.
[29]
Above n 11 at paras 36-40, 45.
[30]
Doctors for Life
above n 10 at paras 110-7, 205,
234-7;
Matatiele 2
above n 11 at para 40.
[31]
See more complete references and quotations below [75]-[81]
and n 54-60.
[32]
Doctors for Life
above n 10 at paras 118-129;
Matatiele
2
above n 11 at paras 50-68.
[33]
See
section 21(1)
of the
Local Government: Municipal Demarcation
Act 27 of 1998
.
[34]
See
section 12(1)
of the
Local Government: Municipal Structures Act
117 of 1998
.
[35]
This appears from Schedule 1A to the Twelfth Amendment Bill, which
incorporated Map 27, detailing the Southern District Municipality
(DC40), of
the Schedule to Notice 1594 of 2005 published in GG 27937 of 19 August 2005.  The Twelfth Amendment Act incorporates
the same Map, redesignated Map 5 of Schedule
1 to Notice 1998 of 2005 published in GG 28189 of 31 October 2005.
[36]
In the interests of greater clarity regarding factual events and
the procedures that followed the adoption of the negotiating mandate,
the Chief
Justice issued further directions to the parties on 6 December 2007.Â
The parties responded to the directions, which were as follows:
“1.   The
sixth and fifteenth respondents are required to file on or before 14 December
2007 the record of proceedings relating
to the consideration and the conferral
of the negotiating mandate and the final voting mandate of the Gauteng
Provincial Legislature
relating to the Twelfth Amendment Bill, by the following
bodies:
(a)   The
Local Government Portfolio Committee of the Gauteng Provincial Legislature;
(b)   The
Gauteng Provincial Legislature;
(c)   The
Select Committee on Security and Constitutional Affairs of the National Council
of Provinces;
(d)   The
National Council of Provinces (including any documents submitted by the Gauteng
Provincial Legislature).
  2.   The
sixth and fifteenth respondents are required to file any documents consulted
or   produced in the course of the
abovementioned proceedings, including:
(a)   Any
resolution of the Gauteng Provincial Legislature conferring voting authority on
the province’s delegation to the National
Council of Provinces;
(b)   Any
proof of the delegation’s authority to cast votes submitted by the Speaker of
the Gauteng Provincial Legislature to
the Chairperson of the National Council
of Provinces.”
[37]
The Select Committee on Security and Constitutional Affairs
is a committee of the NCOP which provides oversight on bills affecting

constitutional affairs.
[38]
Proclamation No R8 of 2006, published in GG 28568 on 27 February 2006.
[39]
Above n 11 paras 90-100, 114.
[40]
Above n 10 at para 115:
“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 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.Â
It strengthens the legitimacy of legislation in the eyes
of the people.Â
Finally, because of its open and public character it acts as a counterweight to
secret lobbying and influence-peddling.”
[41]
Id at para 235:
“All parties interested in legislation should feel
that they have been given a real opportunity to have their say, that they are

taken seriously as citizens and their views will receive due consideration at
the moments when they could possibly influence in
a meaningful fashion.”
[42]
They quote the following from
Doctors for Life
above
n 10 at para 244(10):
“If the will of the Parliamentary majority will in the
end mostly prevail in any event, and all that is required is to ‘involve’
the
public by, for example, mechanically holding public hearings for every piece of
legislation – or to make sure that hearings
are not promised as in this case –
participatory democracy would appear to be quite cosmetic and empty, in spite
of any idealistic
and romantic motivation for promoting it.”
[43]
See eg the views of Van der Westhuizen J in
Doctors for
Life
above n 10 at para 244 and Yacoob J at paras 246-339 of the same
judgment.
[44]
Above n 10 at para 115.
[45]
See above [34].
[46]
See above [26]-[27];
Doctors for Life
above n 10 at
paras 118-29; and
Matatiele 2
above n 11 at paras 50-68.
[47]
See eg
United Democratic Movement v President of the RSA
and Others
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
(CC)
at para 68 (
UDM 2
).;
Bel Porto School Governing Body and Others v
Premier, Western Cape, and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 45;
Pharmaceutical Manufacturers of SA and
Another: In Re Ex Parte President of the RSA and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 85 (
Pharmaceutical
Manufacturers
);
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 36.
[48]
Pharmaceutical Manufacturers
above n 47 at para 90.
[49]
Above n 11 at para 101.
[50]
Pharmaceutical Manufacturers
above n 47
at para
68.
[51]
The relevant part of the directions, issued 24 January 2008,
stated:
“The parties are required to file written argument on
whether:
(a)   The
Gauteng Legislature was mistaken in law when it accepted that it was
constitutionally impermissible to mandate its representatives
in the National
Council of Provinces to vote only against the incorporation of Merafong into
the North West Province; and
(b)   If
this was a mistake whether the mistake vitiates the decision to confer a
mandate on its representatives in the National
Council of Provinces to vote in
favour of the constitutional amendment as a whole; and
(c)   What
should the appropriate remedy be if the decision to confer a mandate were to be
set aside.”
[52]
Above
at [62]-[63] and n 47.
[53]
Above n 47.
[54]
See in particular section 75(1), which reads:
“When the National Assembly passes a Bill other than a
Bill to which the procedure set out in section 74 or 76 applies, the Bill
must
be referred to the National Council of Provinces and dealt with in accordance
with the following procedure:
(a)   The
Council must—
(i)    pass
the Bill;
(ii)   pass
the Bill subject to amendments proposed by it; or
(iii)  reject
the Bill.
(b)   If
the Council passes the Bill without proposing amendments, the Bill must be
submitted to the President for assent.
(c)   If
the Council rejects the Bill or passes it subject to amendments, the Assembly
must reconsider the Bill, taking into account
any amendment proposed by the
Council, and may—
(i)    pass
the Bill again, either with or without amendments; or
(ii)   decide
not to proceed with the Bill.
(d)   A
Bill passed by the Assembly in terms of paragraph (c) must be submitted to the
President for assent.”
[55]
Section 76(1) reads in relevant parts:
“When the National Assembly passes a Bill referred to
in subsection (3), (4) or (5), the Bill must be referred to the National

Council of Provinces and dealt with in accordance with the following procedure:
. . . .
(c)   If
the Council passes an amended Bill, the amended Bill must be referred to the
Assembly, and if the Assembly passes the
amended Bill, it must be submitted to
the President for assent.
(d)   If
the Council rejects the Bill, or if the Assembly refuses to pass an amended
Bill referred to it in terms of paragraph
(c), the Bill and, where applicable,
also the amended Bill, must be referred to the Mediation Committee, which may
agree on―
(i)    the
Bill as passed by the Assembly;
(ii)   the
amended Bill as passed by the Council; or
(iii)  another
version of the Bill.
(e)   If
the Mediation Committee is unable to agree within 30 days of the Bill’s
referral to it, the Bill lapses unless the
Assembly again passes the Bill, but
with a supporting vote of at least two thirds of its members.
(f)    If
the Mediation Committee agrees on the Bill as passed by the Assembly, the Bill
must be referred to the Council, and
if the Council passes the Bill, the Bill
must be submitted to the President for assent.
(g)   If
the Mediation Committee agrees to the amended Bill as passed by the Council,
the Bill must be referred to the Assembly,
and if it is passed by the Assembly,
it must be submitted to the President for assent.
(h)   If
the Mediation Committee agrees on another version of the Bill, that version of
the Bill must be referred to both the
Assembly and the Council, and if it is
passed by the Assembly and the Council, it must be submitted to the President
for assent.”
[56]
See above n 16.
[57]
See above n 17.
[58]
Rule 174(3)
states:
“If only
a part of the Bill requires the approval of a specific provincial legislature
or legislatures and that legislature or
any or all of those legislatures refuse
to grant such approval, that part of the Bill lapses, but the rest of the Bill
may be proceeded
with subject to amendments needed to remove the affected part
of the Bill.”
[59]
Rule
174(4) states:
“
If a Bill referred to in subrule (3) has already been
passed by the Assembly, the Bill must be referred back to the Assembly for

reconsideration and amendment in terms of the Assembly rules.”
[60]
See eg Woolman et al
Constitutional Law of South Africa
,
2
nd
ed. Original Service 07-06
(Juta, Cape Town 2007)
17-5: “Such debate would, for the most part, be irrelevant to the legislative
process because delegates
are voting on the basis of provincial mandates.”
[61]
Above n 16.
[62]
There might be differences of opinion as to the exact
practical working of this process envisaged by the Constitution and whether
a
province has more than one vote in the NCOP (namely, a vote on the part of the
Bill affecting its boundaries and a vote on the
Bill as a whole), or only one
vote (for or against the Bill) which would amount to either approval or a veto
of the part affecting
its boundaries.  In my view a province has only one vote,
namely for or against the Bill as a whole.  A vote in favour of the
Bill is a
formal manifestation of the province’s approval of the part affecting the
province’s boundaries and of support for
the Bill as a whole.  This “approval”
is given by the provincial legislature and – in this case – was stated in a
letter
to the NCOP.  A vote against the Bill amounts to non-approval and thus a
veto of the part affecting the province’s boundaries.Â
The precise position is
not crucial for the outcome of this enquiry though.
[63]
The Khutsong/Carletonville area was located in the southern part of
Merafong, formerly located within the Gauteng Province.
[64]
Wedela is located within the northern part of Merafong which has
always been in North West.
[65]
Above n 8.
[66]
The final voting mandate reads:
“The Portfolio Committee’s
Negotiating Mandate indicated that Gauteng will support the Constitution
Twelfth Amendment Bill on
condition that the municipal area of Merafong is
included in the municipal area of the West Rand District Municipality of the Gauteng
Province.  In the absence of any indication whether the Gauteng Legislature has
adopted or rejected the Constitution Bill in terms
of section 74(8), this
signals a qualified support for the Constitution Bill.
Provinces can only adopt or reject
the Constitution Bill in terms of Section 74(8) of the Constitution say (aye or
nay).  The legislative
processes applicable to the Constitution Bill does not
allow for amendments to be effected in the NCOP.
Subsequent to deliberations and
negotiations by the select committee and the diverse positions advanced, the
portfolio committee
in considering the substance of the issues raised,
notwithstanding the views of the public, reviewed their initial position based

on the following—
1.     The committee supports the phasing out of cross boundary
municipalities as envisaged by the Constitution Twelfth Amendment
Bill
[B33B-2005], cross boundary municipalities have proved difficult to administer
with negative consequences on the delivery
of services.
2.     Gauteng supports the creation of viable and sustainable
municipalities with a proper revenue base.
3.     Implications of Gauteng not supporting the Constitution
Twelfth Amendment Bill [B33B-2005].
·
If the veto of the Gauteng Province applies to the whole
Constitution Bill as it relates to cross-boundary municipalities, the Cross-Boundary

Municipalities Laws Repeal Bill will have to be withdrawn from Parliament, and
the local government elections would be conducted
within the current municipal
configuration, i.e. with cross-boundary municipalities.
·
If the notion of a narrow interpretation is applied to the
provisions of the Constitution Bill which may be vetoed by a province,
the
implications are just as extensive as if the whole Constitution Bill is
rejected.  Lets for argument sake say Gauteng can
only veto (reject) the part
of the proposed Schedule 1A that defines its territory; it will mean that the
authorisation to have
cross-boundary municipalities is revoked, whilst the
current boundary of Gauteng remains the same.  The result of this would be
that
not only West Rand District but also Tshwane, Ekhuruleni and Metsweding would
be affected.  These municipalities (and their
local municipalities where
applicable) would have to be disestablished and those areas of the
municipalities in question that fall
in Gauteng.  The cross-boundary areas
falling in the other provinces would likewise have to be re-demarcated into the
new municipalities.
·
The overall complication would be that the current boundaries of Gauteng are still determined with reference to magisterial districts,
which are not used or
referred to in the Constitution Twelfth Amendment Bill.  Consequently,
amendments that would be required
in the Constitution Bill to address Gauteng’s position may be such that it would not be possible to finalise the bill for the
Local Government Elections, thus, elections would be conducted within the
current municipal configuration.”
[67]
Above
[75]-[82].
[68]
Above [82].
[69]
See [181]-[191] of the Moseneke judgment.
[70]
In the same debate Mr Shiceka said that the people wanted
the status quo to remain.  However, from the rest of the document, it
is clear
that he misunderstood the concept of a cross-boundary municipality and thus the
status quo.  He confused geographical
area with service delivery.
[71]
Section 213(3) states that a province’s equitable share of
revenue raised nationally is a direct charge against the National Revenue
Fund.
[72]
Under the heading “Equitable shares and allocations of
revenue” section 214 states:
“(1) An
Act of Parliament must provide for—
(a)   the
equitable division of revenue raised nationally among the national, provincial
and local spheres of government;
(b)   the
determination of each province’s equitable share of the provincial share of
that revenue; and
(c)   any
other allocations to provinces, local government or municipalities from the
national government’s share of that revenue,
and any conditions on which those
allocations may be made.
  (2) The
Act referred to in subsection (1) may be enacted only after the provincial
governments, organised local government and
the Financial and Fiscal Commission
have been consulted, and any recommendations of the Commission have been
considered, and must
take into account—
(a)   the
national interest;
(b)   any
provision that must be made in respect of the national debt and other national
obligations;
(c)   the
needs and interests of the national government, determined by objective
criteria;
(d)   the
need to ensure that the provinces and municipalities are able to provide basic
services and perform the functions allocated
to them;
(e)   the
fiscal capacity and efficiency of the provinces and municipalities;
(f)    developmental
and other needs of provinces, local government and municipalities;
(g)   economic
disparities within and among the provinces;
(h)   obligations
of the provinces and municipalities in terms of national legislation;
(i)    the
desirability of stable and predictable allocations of revenue shares; and
(j)    the
need for flexibility in responding to emergencies or other temporary needs, and
other factors based on similar objective
criteria.”
[73]
Under the heading “National sources of provincial and local
government funding” section 227 states:
“(1) Local
government and each province—
(a)   is
entitled to an equitable share of revenue raised nationally to enable it to
provide basic services and perform the functions
allocated to it; and
(b)   may
receive other allocations from national government revenue, either
conditionally or unconditionally.
  (2) Additional
revenue raised by provinces or municipalities may not be deducted from their
share of revenue raised nationally,
or from other allocations made to them out
of national government revenue. Equally, there is no obligation on the national
government
to compensate provinces or municipalities that do not raise revenue
commensurate with their fiscal capacity and tax base.
  (3) A
province’s equitable share of revenue raised nationally must be transferred to
the province promptly and without deduction,
except when the transfer has been
stopped in terms of section 216.
  (4) A
province must provide for itself any resources that it requires, in terms of a
provision of its provincial constitution,
that are additional to its
requirements envisaged in the Constitution.”
[74]
Above [62]-[64] and n 47.
[1]
Section 167(4)(e) provides that:
“Only the Constitutional Court may—
(e)   decide that Parliament or the President has failed to fulfil a
constitutional obligation”.
[2]
Constitution Twelfth Amendment Act of 2005 was adopted on 6 December 2005.
[3]
Section 118(1)(a) provides that:
“A provincial legislature must—
(a)   facilitate public involvement in the legislative and other
processes of the legislature and its committees”.
[4]
Act 23 of 2005.
[5]
It states:
“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”.
[6]
Above n 2.
[7]
The single most important dispute of fact has no relevance to the
present rationality enquiry.  It relates to the allegation by
the applicants
that at the end of 2004 the National Executive Committee of the majority party
in Parliament and in the Provincial
Legislature, the African National Congress,
had already resolved to incorporate Merafong-Gauteng into the Province of North West.
[8]
Act 87 of 1998.
[9]
The criteria are prescribed by section 153(a) and (b) of the
Constitution read together with
sections 24
and
25
of the
Local Government:
Municipal Demarcation Act 27 of 1998
, which lay down the demarcation criteria.
[10]
Act 29 of 2000.
[11]
The Municipal Demarcation Board has been established in terms of
the provisions of the
Local Government: Municipal Demarcation Act 27 of 1998
.Â
Its primary function is to determine municipal boundaries in accordance with
legislation enacted in terms of chapter 7 of the
Constitution which regulates
local government.  In terms of section 21(1), the Municipal Demarcation Board
must determine municipal
boundaries within South Africa and may re-determine
any municipal boundaries already determined.  That function it may do on its

own initiative or at the request of the Minister or an MEC for Local Government
(section 22(a)(i) and (ii)).  Section 24 prescribes
demarcation objectives
which are to (a) enable the municipality for that area to fulfil its
constitutional obligations; (b) enable
effective local governance; (c) enable
integrated development; and (d) have a tax base as inclusive as possible of
users of municipal
services in the municipality.  For a discussion of the
relationship between the powers of the Demarcation Board and of Parliament
to
alter provincial boundaries see the majority judgment of Ngcobo J in
Matatiele
Municipality v President of the RSA
[2006] ZACC 2
;
2006 (5) BCLR 622
(CC);
2006 (5) SA 47
(CC) at paras 2, 42, 83 and 105 (
Matatiele 1
).
[12]
The notices establishing the Merafong City Local Municipality
issued by the provincial executives of the two provinces are Notice
no. 6769 of
2000 (Gauteng) and Notice no. 329 of 2000 (North West) both of 1 October 2000
published in Provincial Gazettes Extraordinary
of 1 October 2000.  A later
amending notice was issued on 4 December 2000 as Notice no. 8703 of 2003 (Gauteng).  In particular
the map indicating the location of Merafong before the Twelfth
Amendment is to be found in annexure E of the Notice of 4 December
2000.  For
the history of the establishment of cross-boundary municipalities, also see
Matatiele
1
above n 11 at 12, 14-7.
[13]
See the amended section 103(2) of the Constitution which now reads:
“The geographical areas of the
respective provinces comprise the sum of the indicated geographical areas
reflected in the various
maps referred to in the Notice listed in Schedule 1A.”
[14]
The repealed sections are sections 155(6A) and 157(4)(b) of the
Constitution.
[15]
Such statutes being: Local Government: Cross-boundary
Municipalities Act 29 of 2000; The Re-determination of the Boundaries of
Cross-boundary Municipalities Act 69 of 2000; and The Re-determination of the
Boundaries of Cross-boundary Municipalities Act 6
of 2005.
[16]
Published in GG 28189, 31 October 2005.
[17]
The proposals were published in Gauteng and North West Provincial
Gazettes Extraordinary dated 2 September 2005.  The re-demarcation
proposal
relating to Map 27 in the Schedule to the Notice 3359 of 2005 (being a Gauteng
Provincial Notice) states that Merafong-Gauteng
and Westonaria Local Municipality are to be excluded from the West Rand District Municipality and included
into the municipal area
of the Southern District Municipality in North West.
[18]
In terms of section 22 of the Demarcation Act, the Minister may
request the Demarcation Board to consider re-determining the boundaries
of any
municipality.  Also see above n 11 which sets out the functions of the
Demarcation Board and the role the Minister may
play in the demarcation or
re-demarcation of municipal boundaries.
[19]
In Schedule 1, Map 5 of Notice 1998 of 2005, the Minister proposes
that “Merafong City Local Municipality is to be excluded from
the Municipal
area of the West Rand District Municipality and included in the municipal area
of the Southern District Municipality.”Â
The only change in the new proposal by
the Minister was that Westonaria was to remain in the West Rand District Municipality.
[20]
Paragraph 10 reads:
“Subject to section 74(8) of the Constitution, the
Portfolio Committee on Local Government will support the Bill on condition that

the Municipal area of Merafong is included in the municipal area of the West Rand District municipality of the Gauteng Province.”
[21]
The Democratic Alliance opposed the recommended final mandate as it
was of the opinion that the wish of the people of Merafong not
to be
incorporated into the North West Province had been disregarded, and that, as a
result of this “rather flawed consultation
process”, the credibility of the
Legislature had been tarnished and that more conflict would be stirred up in
the area.  Additionally,
an ANC Member of the Portfolio Committee, Mr Moiloa,
raised personal disquiet with the proposed decision and stated that, although

he fully supported the decision instructing him, as a member of the ANC, to
support the demarcation, he had now been asked to support
another decision.  He
said that he was therefore opposed to the decision that was being taken.
[22]
The Freedom Front Plus believed that the Bill created the
impression that from time to time government changes the Constitution
as it
deems fit, and recorded that it was against the Bill as it set a precedent that
could be used, misused or abused in future
to amend certain boundaries for a
political party’s own benefit.  The Democratic Alliance, too, did not support
the Bill, saying
that it was astounding that a twelfth amendment was being made
to the Constitution “so over-hastily and under such pressure of
time”, and that
with the strong reaction that had emerged from the affected community in this
regard, it was clear that the consultation
process was incomplete and
unsuccessful.
[23]
Before its amendment, section 103(2) of the Constitution provided
that: “The boundaries of the provinces are those that existed
when the
Constitution took effect.”
[24]
See in this regard section 42(1) and (2) of the Constitution which
reads:
“(1) Parliament consists of—
(a)   the
National Assembly; and
(b)   the
National Council of Provinces.
(2)   The
National Assembly and the National Council of Provinces participate in the
legislative process in the manner set out
in the Constitution.”
[25]
See section 42(4), which provides:
“The
National Council of Provinces represents the provinces to ensure that
provincial interests are taken into account in the
national sphere of
government.  It does this mainly by participating in the national legislative
process and by providing a national
forum for public consideration of issues
affecting the provinces.”
[26]
Murray and Simeon “From paper to practice: the National Council of
Provinces after its First Year” (1999) 14 SAPR/PL 96.  Also
see Budlender
“National Legislative Authority” in Woolman et al (eds)
Constitutional Law
of South Africa
(2 ed) (Juta, Cape Town 2006).
[27]
Id at 97.
[28]
Above n 12 at para 89.
[29]
See section 65(1) of the Constitution which reads:
“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.”
[30]
Section 1(c) of the Constitution provides
that:
“The Republic of South Africa is one, sovereign,
democratic state founded on the following
values:
(c)   Supremacy
of the constitution and the rule of law.”
[31]
Pharmaceutical
Manufacturers Association of SA and Others; In Re: Ex Parte Application of
President of the RSA and Others
[2000] ZACC 1; 2000 (3) BCLR 241 (CC); 2000 (2) SA 674 (CC).
[32]
[1997] ZACC 5; 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC).
[33]
Id at para 25.
[34]
[1995] ZACC 3; 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC).
[35]
Id at para 156.  See also
United Democratic Movement v President
of the RSA and Others
(1)
[2002] ZACC 33
;
2002 (11) BCLR 1179
(CC);
2003
(1) SA 472
(CC) at paras 55, 58 and 68 (referred to in the judgments of my
colleagues as
UDM 2
);
New National Party of South Africa v Government
of the RSA and Others
[1999] ZACC 5
;
1999 (5) BCLR 489
(CC);
1999 (3) SA
191
(CC) at paras 24-6; and
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1998 (12) BCLR 1458
(CC);
1999 (1) SA 374
(CC) at paras 56-9.
[36]
Above n 31 at para 86.
[37]
Id at para 90.
[38]
“Committee Position after Consideration of Negotiating Mandates by
the NCOP Select Committee
The Portfolio Committee’s Negotiating
Mandate indicated that Gauteng will support the Constitution Twelfth Amendment
Bill on condition
that the municipal area of Merafong is included in the
municipal area of the West Rand District Municipality of the Gauteng Province.
In the absence of any indication whether the Gauteng Legislature has adopted
or rejected the Constitution Bill in terms of section
74(8), this signals a
qualified support for the Constitution Bill.
Provinces can only adopt or reject
the Constitution Bill in terms of section 74(8) of the Constitution by saying
(aye or nay). The
legislative processes applicable to the Constitution Bill
does not allow for amendments to be effected in the NCOP.
Subsequent to the deliberations and
negotiations by the select committee and the diverse positions advanced, the
portfolio committee
in considering the substance of the issues raised,
notwithstanding the views of the public, reviewed their initial position based

on the following—
1.     The committee supports the phasing out of cross boundary
municipalities as envisaged by the Constitution Twelfth Amendment
Bill
[B33B-2005], cross-boundary municipalities have proved difficult to administer
with negative consequences on the delivery
of services.
2.     Gauteng supports the creation of viable and sustainable
municipalities with a proper revenue base.
3.     Implications of Gauteng not supporting the Constitution
Twelfth Amendment Bill [B33B-2005].
·
If the veto of the Gauteng Province applies to the whole
Constitution Bill as it relates to cross-boundary municipalities, the
Cross-Boundary
Municipalities Repeal Bill will have to be withdrawn from
Parliament, and the local government elections would be conducted within
the
current municipal configuration, i.e. with cross-boundary municipalities.
·
If the notion of a narrow interpretation is applied to the
provisions of the Constitutional Bill which may be vetoed by a province,
the
implications are just as extensive as if the whole Constitution Bill is
rejected.  Let’s for argument sake say Gauteng can
only veto (reject) the part
of the proposed Schedule 1A that defines its territory; it will mean that the
authorization to have
cross-boundary municipalities is revoked, whilst the
current boundary of Gauteng remains the same.  The result of this would be
that
not only West Rand District but also Tshwane, Ekurhuleni and Metsweding would
be affected.  These municipalities (and their
local municipalities where
applicable) would have to be disestablished and those areas of the
municipalities in question that fall
in Gauteng.  The cross-boundary areas
falling in the other provinces would likewise have to be re-demarcated into the
new municipalities.
·
The overall complication would be that the current boundaries of Gauteng are still determined with reference to magisterial districts,
which are not used or
referred to in the Constitution Twelfth Amendment Bill.  Consequently,
amendments that would be required
in the Constitution Bill to address Gauteng’s position may be such that it would not be possible to finalise the bill for the
Local Government Elections, thus, elections would be conducted within the
current municipal configuration.”
[39]
Cross-boundary Municipalities Laws Repeal and Related Matters Bill
[B36B-2005].
[40]
Above n 13 at para 47.
[41]
Reference could also be made to Schedule 5 of the Repeal Act, which
treats the establishment of new municipalities in a province
discretely and
with reference to a unique designation and map of the municipal area as
reflected in a specified government notice.
[42]
Section 172(1) provides as follows:
“When deciding a constitutional matter within its
power, a court—
(a)   must
declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency;
and
(b)   may
make any order that is just and equitable, including—
(i)    an
order limiting the retrospective effect of the declaration of invalidity; and
(ii)   an
order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority
to correct the defect.”
[1]
Section 118(1) states that:
“(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]
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC).
[3]
Id at para 40.
[1]
Matatiele Municipality and Others v President of the RSA and
Others
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) (
Matatiele
1
).
[2]
Id at para 2.
[3]
Act 23 of 2005.
[4]
Section 118(1) states:
“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.”
[5]
Matatiele Municipality and Others v President of
the RSA and Others (No. 2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1)
BCLR 47
(CC) (
Matatiele 2
).
[6]
Id at para 21.
[7]
Id at para 25.
[8]
Id at para 28.
[9]
Id at para 29.
[10]
Section 65 of the Constitution states:
“(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 provincial legislatures
confer authority on their delegations
to cast votes on their behalf.”
[11]
Section 65(1)(a) of the Constitution.
[12]
Rule 152(2)(c) and 190(1) of the Standing Rules of the Gauteng
Provincial Legislature, Version 4, Revision 2, April 2006
http://www.gautengleg.gov.za/Legislature_documents//legislature%20documents/rules/third%20legislature/2006/standing%20rules,%20revision%204%20-%20version%202.pdf
,
accessed on 7 May 2008.
[13]
Section 116(2)(a) of the Constitution.
[14]
Rule 178(2) and (7).
[15]
Rule 152(1) and 152(2)(c).
[16]
Rule 152.
[17]
For convenience, the relevant portions of the report are set out
here.
“8.4 Recommendations on Public
Hearing
In principle the Merafong community
agreed with the phasing out of cross-boundary municipalities but argued for the
inclusion of
the municipal area of Merafong into the municipal area of the West Rand Municipality, Gauteng Province.
The public hearings gave every
indication that the current service delivery challenges require a focused
intervention approach.Â
The purpose of the focused intervention approach will
be to promote economic development and growth, human resource development
and
institutional development capacity, by mobilising and directing funds to
sustainable development projects and related matters
contained herein.
The intervention approach must
provide a supportive framework to the affected Municipality (Merafong City Local Municipality area).
After due analysis of the Portfolio
Committee’s public hearing report the Department of Local Government together
with sector
departments of the Gauteng Province and the North West Province
must conduct a service delivery audit to establish service delivery
backlogs
and recommend corrective measures for the North West Province Government.  E.g.
there is a need to strengthen the human
resource capacity in the provision of
social services including the provision of proper infrastructure in close
proximity to the
affected communities.
Home Affairs related services must be
accessible and sufficient to the needs of the affected communities.
Heath and Emergency Services are said
to be inadequate in the North West Province and clinics are normally without
medicines.Â
These are critical issues which need urgent and immediate
attention, especially the roll-out of anti-retroviral (ARV).
In conclusion the committee will
await a hand-over from the Department of Local Government of the Gauteng Province which report,
must outline recommended corrective measures for the North West Province.
Of emphasis it is important to note
that National Government has pledged to build and create transitional
arrangements that will
ensure the service delivery is sustained and improved in
affected municipalities.
9. COMMITTEE POSITION AT THE
NEGOTIATING STAGE
The Portfolio Committee on Local
Government –
·
in principle, supported the phasing-out of
cross-boundary municipalities as envisaged by the Constitution Twelfth
Amendment Bill
[B33B-2005];
·
in light of the outcome, impact assessment and
analysis of the public hearing submissions, agreed with the inclusion of the
geographical
area of Merafong municipality into the West Rand District municipality in the Gauteng Province;
·
recommended to the House, amendment to Schedule
1A of the Constitution Twelfth Amendment Bill [B33B-2005], to provide for the
inclusion
of the municipal area of Merafong into the municipal area of the West Rand District municipality of the Gauteng province.
10. COMMITTEE POSITION AFTER
CONSIDERATION OF NEGOTIATING MANDATES BY THE NCOP SELECT COMMITTEE
“The Portfolio Committee’s
Negotiating Mandate indicated that Gauteng will support the Constitution
Twelfth Amendment Bill on
condition that the municipal area of Merafong is
included in the municipal area of the West Rand District Municipality of the Gauteng
Province.  In the absence of any indication whether the Gauteng Legislature has
adopted or rejected the Constitution Bill in terms
of section 74(8), this
signals a qualified support for the Constitution Bill.
Provinces can only adopt or reject
the Constitution Bill in terms of Section 74(8) of the Constitution say (aye or
nay).  The legislative
processes applicable to the Constitution Bill does not
allow for amendments to be effected in the NCOP.
Subsequent to deliberations and
negotiations by the select committee and the diverse positions advanced, the
portfolio committee
in considering the substance of the issues raised,
notwithstanding the views of the public, reviewed their initial position based

on the following—
1.     The committee supports the phasing out of cross boundary
municipalities as envisaged by the Constitution Twelfth Amendment
Bill
[B33B-2005], cross boundary municipalities have proved difficult to administer
with negative consequences on the delivery
of services.
2.     Gauteng supports the creation of viable and sustainable
municipalities with a proper revenue base.
3.     Implications of Gauteng not supporting the Constitution
Twelfth Amendment Bill [B33B-2005].
·
If the veto of the Gauteng Province applies to the whole
Constitution Bill as it relates to cross-boundary municipalities, the
Cross-Boundary
Municipalities Laws Repeal Bill will have to be withdrawn from
Parliament, and the local government elections would be conducted
within the
current municipal configuration, i.e. with cross-boundary municipalities.
·
If the notion of a narrow interpretation is applied to the
provisions of the Constitution Bill which may be vetoed by a province,
the
implications are just as extensive as if the whole Constitution Bill is
rejected.  Lets for argument sake say Gauteng can
only veto (reject) the part
of the proposed Schedule 1A that defines its territory; it will mean that the
authorisation to have
cross-boundary municipalities is revoked, whilst the
current boundary of Gauteng remains the same.  The result of this would be
that
not only West Rand District but also Tshwane, Ekhuruleni and Metsweding would
be affected.  These municipalities (and their
local municipalities where
applicable) would have to be disestablished and those areas of the
municipalities in question that fall
in Gauteng.  The cross-boundary areas
falling in the other provinces would likewise have to be re-demarcated into the
new municipalities.
·
The overall complication would be that the current boundaries of Gauteng are still determined with reference to magisterial districts,
which are not used or
referred to in the Constitution Twelfth Amendment Bill.  Consequently,
amendments that would be required
in the Constitution Bill to address Gauteng’s position may be such that it would not be possible to finalise the bill for the
Local Government Elections, thus, elections would be conducted within the
current municipal configuration.
11. FINAL VOTING POSITION ADOPTED BY
THE COMMITTEE
In terms of Section 65 of the
Constitution, the Local Government Portfolio Committee recommends that the
House confer authority
of the Head of its Delegation to the NCOP, to
Vote
in Support
of the Constitution Twelfth Amendment Bill [B33B-2005].”Â
(The emphasis is original).
[18]
Rule 178(7).
[19]
Section 5
of the
Promotion of Administrative Justice Act 3 of 2000
.
[20]
United Democratic Movement v President of the Republic of South
Africa and Others (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as
Amici Curiae
)
(
No. 2
)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
(CC) (
UDM
2
).
[21]
Id at paras 61-7.
[22]
Pharmaceutical Manufacturers Association of SA and Another: In
Re Ex Parte President of the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at paras 84-5.  (
Pharmaceutical
Manufacturers
)  See also
UDM 2
, above n 20 at para 35.
[23]
Above n 20
at para 68.
[24]
Pharmaceutical Manufacturers
above n 22 at para 83.
[25]
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as
Amici Curiae
)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at para 25.
[26]
Above n 1 at para 12.
[27]
Id at para 16.
[28]
Section 152(1)(b).
[29]
Section 155(4).
[30]
S v Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997
(4) SA 1176
(CC);
1997 (10) BCLR 1348
(CC) at para 43.
[31]
Carmichael, Attorney-General of Alabama v Southern Coal &
Coke Co.
[1937] USSC 108
;
301 US 495
(1937) at 510.
[32]
Pharmaceutical Manufacturers
, above n 22 at para 90.  See
also
UDM 2
, above n 20 at para 68.
[33]
Doctors for Life International v Speaker of the National
Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 115;
2006
(12) BCLR 1399
(CC) at 144A-D.
[34]
Pharmaceutical Manufacturers
above n 22 at para 90.Â
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6)
BCLR 759
(CC) at para 36.
[35]
Section 152(1)(b).
[1]
The first discussions in the NCOP took place on 30 November 2005.  For reasons that are not entirely clear on the papers, but are
fully discussed in
the other judgments, the negotiators then formed the view that the Legislature
should no longer comply with
the mandate.  As a result, on 5 December 2005 the Portfolio Committee of the Legislature resolved to recommend to the Legislature

that its delegation to the NCOP vote in support of the Constitution Twelfth
Amendment Bill, thereby agreeing to incorporate Merafong
into North West Province.  On 12 December 2005 the Select Committee of the NCOP considered the final
voting mandate from the provinces,
and on 14 December 2005 the NCOP in plenary session adopted the Constitution Twelfth Amendment Bill.
[2]
As required by
section 118(1)(a) of the Constitution,
interpreted and applied in
Doctors for Life
below n 6 and
Matatiele 2
below n 3
.
It reads:
“A provincial legislature must—
(a)   facilitate
public involvement in the legislative and other processes of the legislature
and its committees”.
[3]
Matatiele Municipality and Others v President of the Republic of South Africa and Others (No 2)
[2006] ZACC 12; 2007 (6) SA 477 (CC); 2007
(1) BCLR 47 (CC).
[4]
Id at paras 57-60.
[5]
Id at para 58.
[6]
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR
1399 (CC).
[7]
Id
at para 115.Â
In
Doctors for Life
the nature of the laws before the NCOP in respect of which reasonable
consultation was required was different.  The laws involved
did not affect the
specific configuration of the province itself.  A one-off opportunity for
anyone in the province to make representations
would have been sufficient.Â
What the majority of the Court found to be unreasonable was for the NCOP to
offer public hearings
and then renege on the offer.  In
Matatiele 2
something more was required.  The Legislature had voted to affirm the boundary
changes without having had any direct consultation
at all with the affected
community.  As Van der Westhuizen J points out, in the present matter there was
direct consultation with
the Merafong community.  The question, however, is
whether, given the nature of the power being exercised and the intense interest

of the Merafong community in the legislative process, it was constitutionally
reasonable for the Legislature to do an abrupt about-turn
without engaging in
any further consultations.
[8]
Above n 3 at para 68.
[9]
Section 74(8) of the Constitution provides:
“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
.”Â
(Emphasis added.)
Section 74(3) provides:
“Any other provision of the
Constitution may be amended by a Bill passed—
(a) Â
by the National Assembly, with a
supporting vote of at least two thirds of its members; and
(b) Â
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) Â
alters provincial boundaries
, powers, functions or
institutions; or
(iii)  amends a provision that deals specifically with a provincial
matter.”  (Emphasis added.)
[10]
See for example
MEC for Education, KwaZulu-Natal and Others v
Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) at
paras 53 and 62-65;
Affordable Medicines Trust and Others v Minister of
Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 59;
Christian Education South Africa v
Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC)
at para 36;
National Coalition for Gay
and Lesbian Equality and Another v Minister of Justice and Others
[
1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at
para 26.
[11]
The Municipal Demarcation Board Press Statement explains:
“Submissions and motivation in terms
of section 24 and 25 of the Demarcation Act, indicate overwhelming resistance
to the inclusion
of Westonaria and the City of Merafong into the Southern
District Municipality.  The Board agreed with some motivations provided,
and
decided, in terms of section 21(5) of the Demarcation Act, to withdraw its
re-determination in Notice No. 3359 gazetted in
the Gauteng Provincial Gazette
No. 375 of 2 September 2005, and Notice No. 458 gazetted in North West
Provincial Gazette No. 6208
of 2 September 2005.  The Westonaria Local Municipality and the City of Merafong Local municipality thus remain within the West
Rand District municipality, and the boundaries of the Southern District municipality
also remain unchanged.”
[12]
See
Bryden “Public Interest Intervention in the Courts”
(1987) 66
Canadian Bar Review
490
at 509, endorsed by the Court of
Appeals of Quebec, Canada, in
Caron v R
20 QAC 45
[1988] RJQ 2333
at
para 14, and cited with approval by Ngcobo J in
Matatiele 2
above n 5 at
para 66.
[1]
See the order proposed by Moseneke DCJ above in [198].
[2]
See above at [60].