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[2010] ZACC 5
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Poverty Alleviation Network and Others v President of the Republic of South Africa and Others (CCT86/08) [2010] ZACC 5; 2010 (6) BCLR 520 (CC) (24 February 2010)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 86/08
[2010]
ZACC 5
In the matter between:
POVERTY ALLEVIATION
NETWORK
First Applicant
MATATIELE DRAKENSBERG
TAXI ASSOCIATION
Second Applicant
GOVERNING BODY OF THE
KING EDWARD HIGH SCHOOL
Third Applicant
GEORGE MOSHESH TRIBAL
AUTHORITY
Fourth Applicant
MALUTI CHAMBER OF
BUSINESS
Fifth Applicant
MATATIELE AND MALUTI
COUNCIL OF CHURCHES
Sixth Applicant
MPHARANE COMMUNITY
BASED ORGANIZATION
Seventh Applicant
ZIZAMELE PRE-SCHOOL
TRAINING PROJECT COMMUNITY BASED ORGANIZATION
Eighth Applicant
and
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
First Respondent
MINISTER FOR PROVINCIAL AND
LOCAL GOVERNMENT
Second Respondent
MINISTER FOR JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Third Respondent
PREMIER OF THE EASTERN
CAPE
Fourth Respondent
MEMBER OF THE
EXECUTIVE COUNCIL OF THE PROVINCE OF THE EASTERN CAPE FOR LOCAL
GOVERNMENT
Fifth Respondent
PREMIER OF
KWAZULU-NATAL
Sixth Respondent
MEMBER OF THE
EXECUTIVE COUNCIL OF THE PROVINCE OF KWAZULU-NATAL FOR LOCAL
GOVERNMENT
Seventh Respondent
MUNICIPAL DEMARCATION
BOARD
Eighth Respondent
SISONKE DISTRICT
MUNICIPALITY
Ninth Respondent
ALFRED NZO DISTRICT
MUNICIPALITY
Tenth Respondent
O.R. TAMBO DISTRICT
MUNICIPALITY
Eleventh Respondent
UMZIMKULU
MUNICIPALITY
Twelfth Respondent
UMZIMVUBU
MUNICIPALITY
Thirteenth Respondent
MATATIELE MUNICIPALITY
Fourteenth Respondent
SPEAKER OF THE
NATIONAL ASSEMBLY
Fifteenth Respondent
CHAIRPERSON OF THE
NATIONAL COUNCIL OF PROVINCES
Sixteenth Respondent
SPEAKER OF THE EASTERN
CAPE PROVINCIAL LEGISLATURE
Seventeenth Respondent
SPEAKER OF THE KWAZULU-NATAL
PROVINCIAL LEGISLATURE
Eighteenth Respondent
ELECTORAL COMMISSION
Nineteenth Respondent
SOUTH AFRICAN HUMAN
RIGHTS COMMISSION
Twentieth Respondent
Heard on : 3 November
2009
Decided on : 24
February 2010
JUDGMENT
NKABINDE J:
Introduction
This application for
direct access is a sequel to the litigation history of the dispute
between the parties.
1
The applicants challenge the constitutional validity of the
Constitution Thirteenth Amendment Act (Thirteenth Amendment Act),
2
which has the effect of altering the boundary of the Eastern Cape
Province and the KwaZulu-Natal Province. A related attack
is
levelled at the validity of the Cross-boundary Municipalities
Repeal and Related Matters Amendment Act (Repeal Amendment
Act),
3
to the extent that it regulates the transfer of the Matatiele Local
Municipality from the province of KwaZulu-Natal to the
Eastern Cape
Province. The statutes are challenged, mainly, on the grounds that
the lawmaking processes did not measure up
to the constitutional
benchmark of facilitating public involvement as required in terms
of sections 59(1)(a), 72(1)(a) and
118(1)(a) of the Constitution
4
and that the lawmakers exercised their legislative powers to amend
the Constitution under section 74
5
in a manner that was irrational.
Parties
The first to eighth
applicants are a grouping of organisations that claim to represent
the broad spectrum of society in Matatiele
and Maluti. They have
filed joint papers and are collectively referred to as the
applicants.
A number of organs
of state have been cited as respondents. Some of them oppose this
application. Those opposing are: the
second respondent, Minister
for Provincial and Local Government (Minister for Local
Government); the third respondent, the
Minister for Justice and
Constitutional Development (Minister for Justice); the fourth
respondent, Premier of the Eastern Cape;
the fifth respondent,
Member of the Executive Council of the Province of the Eastern Cape
for Local Government (MEC for Local
Government, Eastern Cape); the
sixth respondent, Premier of KwaZulu-Natal; the seventh respondent,
Member of the Executive
Council of the Province of KwaZulu-Natal
for Local Government (MEC for Local Government, KwaZulu-Natal); the
fifteenth respondent,
Speaker of the National Assembly; the
sixteenth respondent, Chairperson of the National Council of
Provinces (Chairperson of
the NCOP); the seventeenth respondent,
Speaker of the Eastern Cape Provincial Legislature and the
eighteenth respondent, Speaker
of the KwaZulu-Natal Provincial
Legislature. Save for the Minister for Local Government, joint
submissions have been filed
on behalf of all the respondents who
oppose this application. For convenience, they are referred to
collectively as the respondents.
The President of the Republic of
South Africa
6
(the President) and the
Umzimvubu Municipality
abide the decision of the Court.
Relief sought
The applicants seek,
in the main, a declaratory order that the National Assembly and the
National Council of Provinces (NCOP)
exercised their legislative
powers to amend the Constitution, in terms of section 74 thereof,
in a manner that was irrational
and unconstitutional. The
applicants contend, in the alternative, that in approving that part
of the Thirteenth Amendment
Act that concerns the Matatiele Local
Municipality, the provincial legislature of KwaZulu-Natal exercised
its legislative power
under section 74(8) of the Constitution in a
manner that was irrational and inconsistent with the Constitution.
In an alternative
prayer, the applicants seek a declaratory order
that Parliament did not comply with its constitutional obligations
in terms
of sections 59(1)(a) and 72(1)(a), alternatively, that the
provincial legislature of KwaZulu-Natal failed to facilitate public
involvement in terms of section 118(1)(a). The applicants also
challenge the constitutional validity of the Repeal Amendment
Act.
Before
I deal with the submissions of the parties, it is convenient to
describe the constitutional and statutory context, as
well as the
background against which this application is brought.
Constitutional and
statutory context
This Court, in
Merafong
,
7
analysed the constitutional and statutory framework relating to
provincial boundaries.
8
It is not necessary to restate this in detail. Suffice it to
mention that the nine provinces of South Africa and their
boundaries are established in Schedule 1A to the Constitution.
Prior to amendment, the provinces were set out in section 103
of
the Constitution.
9
The purpose of the Constitution Twelfth Amendment Act of 2005
(Twelfth Amendment Act) and the Cross-boundary Municipalities
Real
and Related Matters Act (Repeal Act)
10
was to re-determine the geographical areas of the nine provinces,
including the Eastern Cape and KwaZulu-Natal Provinces, by
reference to municipalities. The impugned statutes in this case
seek to achieve the same objective in relation only to the
provinces of KwaZulu-Natal and Eastern Cape.
11
The Thirteenth Amendment Act seeks, by amending Schedule 1A to the
Constitution, to amend the geographical areas of the provinces
of
the Eastern Cape and KwaZulu-Natal.
12
In terms of section
74 of the Constitution, a Bill that alters provincial boundaries
must be passed by the National Assembly
with a two thirds majority.
Additionally, it must be passed by the NCOP with the supporting
vote of at least six of the nine
provinces.
13
Section 74(8) of the
Constitution
14
deals with the powers of the NCOP if a Bill or any part thereof
concerns only a specific province or provinces, as is the case
in
this matter. In that event, the province or provinces concerned
may effectively veto that part of the Bill relating to
its boundary
or their boundaries.
Sections 59(1)(a)
and 72(1)(a) of the Constitution require the National Assembly and
the NCOP, respectively, to facilitate public
involvement in their
legislative and other processes and those of their committees.
Section 118(1)(a) of the Constitution
echoes the above sections
insofar as the obligations of the provincial legislatures are
concerned.
Background
The history of the
matter is canvassed in
Matatiele 1
.
15
Therefore, it is not necessary to set out in detail the
context in which the constitutional challenges will be considered.
I mention merely that the determination of provincial boundaries by
reference to magisterial districts, pursuant to the establishment
of nine provinces in terms of the Constitution, resulted in certain
municipalities straddling provincial boundaries.
Accordingly, the
Constitution Third Amendment Act
16
was enacted to introduce cross-boundary municipalities. Section
155(6A)
17
of the Constitution authorised the establishment of cross-boundary
municipalities. To give effect to that section, the Local
Government: Cross-boundary Municipalities Act
18
was promulgated for the establishment of these municipalities. A
total of 16 cross-boundary municipalities were established
under
this Act. Those cross-boundary municipalities did not include any
municipalities in KwaZulu-Natal. However, because
Matatiele was
described as a cross-boundary jurisdictional enclave, the boundary
19
between KwaZulu-Natal and the Eastern Cape was considered to raise
issues similar to those raised by the cross-boundary
municipalities.
The cross-boundary
municipalities were to be jointly administered by the MECs of the
two provinces into which each of these
municipalities fell.
However, the joint administration presented economic, political and
other challenges. These challenges
included the exercise of joint
legislative powers by the MECs concerned in relation to local
government matters. That impacted
on the respective provincial
budgets and undermined service delivery in those provinces.
Reports commissioned by the government
recommended that
cross-boundary municipalities be abolished. The recommendation
resulted in the political decision to abolish
cross-boundary
municipalities and the promulgation of the Twelfth Amendment Act
and the Repeal Act to ensure that all municipalities
fell into one
province or the other.
In August 2005 the
Minister for Provincial and Local Government requested the
Demarcation Board to re-determine the boundaries
of Matatiele
Municipality in terms of section 22(1)(b) of the Local Government
Municipal Demarcation Act.
20
The Board recommended that the Matatiele Municipality should
remain in Sisonke District Municipality in KwaZulu-Natal and
that
the Maluti area should be included in KwaZulu-Natal. The Minister
for Justice proposed that the Maluti area be excluded
from
Umzimvubu in KwaZulu-Natal and be included in the Alfred Nzo
District Municipality in the Eastern Cape. During August
2005 the
Minister for Justice signalled her intention to introduce the
Twelfth Amendment Bill, 2005 (Twelfth Amendment Bill).
Comments
were invited from interested parties. The Matatiele Municipality
and others submitted written comments. The Twelfth
Amendment Bill
was introduced in the National Assembly in September 2005. The
Bill was signed into law on 22 December 2005.
To understand the
present matter, I note that the Twelfth Amendment Act altered the
boundaries between a number of provinces,
including the border
between the provinces of KwaZulu-Natal and the Eastern Cape. As a
result, the Matatiele Municipality,
which was previously located in
KwaZulu-Natal, fell within the Eastern Cape. The Repeal Act was
also passed. It provided
for consequential matters that had to be
dealt with as a result of the re-alignment of cross-boundary
municipalities and the
re-determination of the geographical areas
of provinces.
The Twelfth
Amendment Act was the subject matter of the application in both
Matatiele 1
and
Matatiele 2
. In
Matatiele 1
the
Court rejected the applicants’ main argument that in passing
the Twelfth Amendment Act Parliament had usurped the
powers of the
Municipal Demarcation Board. The Court called for further argument
on the issue of constitutional compliance
in relation to the
boundary change between KwaZulu-Natal and the Eastern Cape. On 18
August 2006 and on a narrow basis,
21
the Court found that the provincial legislature of KwaZulu-Natal
had failed to fulfil its constitutional obligation to facilitate
public involvement in terms of section 118(1)(a) read with section
74(1)(a) of the Constitution. The Court declared invalid
that part
of the Twelfth Amendment Act that transferred Matatiele into the
Eastern Cape. The order of invalidity also applied
to that part of
the Repeal Act which related to the relocation of Matatiele. The
orders of invalidity were suspended for a
period of 18 months so as
to allow Parliament the opportunity to correct the constitutional
defect.
As a direct result
of
Matatiele 2
, the Thirteenth Amendment Act and the Repeal
Amendment Act, relating only to the border between the Eastern Cape
and KwaZulu-Natal,
have been passed. As I have indicated, the
Thirteenth Amendment Act seeks to achieve the same result as was
foreshadowed by
the Twelfth Amendment
Act and the Repeal Act
in relation to KwaZulu-Natal. The legislation incorporates
Matatiele into the Eastern Cape and Umzimkulu
into KwaZulu-Natal,
hence the constitutional challenge. The challenge does not relate
to the incorporation of Umzimkulu into
KwaZulu-Natal, but only to
the incorporation of Matatiele into the Eastern Cape. It is,
therefore, necessary to determine
whether the passage and content
of the impugned legislation are consistent with the Constitution.
Parties’
submissions
The applicants
contend that the National Assembly, acting through its Portfolio
Committee, and the NCOP, acting through its
Select Committee,
failed to fulfil their constitutional obligations to facilitate
public involvement by affording the people
of Matatiele a
meaningful opportunity to be heard. In particular, the applicants
submit (a) that Parliament and the KwaZulu-Natal
Legislature failed
to consult only with the
discrete
group, as identified in
Matatiele 2
;
22
(b) that Parliament failed to receive oral submissions from
interested parties and to consider the representations made by
the
residents of Matatiele; and (c) that Parliament, in both cases,
failed to take effective account of their feelings with
regard to
the boundary change. They also contend that Parliament and the
NCOP did not act in a manner in keeping with the
constitutional
values of accountability, responsiveness and openness.
The applicants
submit that in exercising their legislative powers to enact the
Thirteenth Amendment Act, Parliament and the
KwaZulu-Natal
Legislature merely went through the motions of public participation
without considering, in good faith, what
was submitted in that
process. They contend that the enactment of the impugned
legislation was a product of a politically
dictated, pre-determined
decision. The applicants argue that the legislation is irrational
and inconsistent with the Constitution.
The Speakers of the
respective provincial legislatures take issue with the applicants’
contentions. They submit that
the manner in which public
participation was facilitated, both at the provincial and national
level, was in compliance with
the Constitution. In relation to the
rationality of the Thirteenth Amendment Act, the respondents submit
that there is no
evidence to suggest that the Thirteenth Amendment
Act is irrational. The Speakers contend that the applicants have
delayed
unreasonably in bringing their application. They contend
that the delay prejudiced the MEC for Local Government, Eastern
Cape
and the Premier of KwaZulu-Natal. The respondents contend
that the application should, therefore, be dismissed.
The Speaker of the
National Assembly and the Chairperson of the NCOP have applied for
condonation of the late filing of their
answering and confirmatory
affidavits. This must also be dealt with.
Before I define the
issues, I must say something about the basis upon which this Court
determines this case. The determination
of the constitutionality
of an amendment to the Constitution and the decision as to whether
Parliament has failed to fulfil
a constitutional obligation fall
within the exclusive jurisdiction of this Court in terms of section
167(4)(d) and (e) of the
Constitution, respectively.
23
The Repeal Amendment Act is inextricably bound up with the
Thirteenth Amendment Act and should not be dealt with separately.
It is, therefore, in the interests of justice for this Court to
consider the constitutionality of the Repeal Amendment Act
as a
court of first instance as was done in identical circumstances in
Matatiele 2.
24
Direct access in terms of section 167(6)(a) of the
Constitution
25
should be granted.
Issues for
determination
The matter raises
the following issues, and a range of subsidiary questions:
Should the
application for condonation for the late filing of the answering
affidavit by the Speaker of the National Assembly
and the
Chairperson of the NCOP be granted?
Was the delay in
launching the application unreasonable?
Issues of public
involvement, including—
whether failure
on the part of the respondents to consult only with the
discrete
group, as identified in
Matatiele 2
,
renders the facilitation of participation by the respondents
unconstitutional;
whether the failure on
the part of the National Assembly to receive oral submissions from
interested parties constitutes non-compliance
with the
constitutional obligation; and
whether the National
Assembly and the KwaZulu-Natal Legislature considered the
representations made by the residents of Matatiele.
Issues of
rationality, including whether the Thirteenth Amendment Act is
rationally connected to a legitimate governmental
purpose.
If the applicants fail on
these issues of public participation and rationality above—
do we reach the
dispute of fact?
If so, is that dispute
material?
What is the
appropriate remedy, if any?
What is the appropriate
costs order?
I deal first with
the preliminary issues relating to the application for condonation
and the reasonableness of the delay in
lodging this application.
Should condonation be
granted?
The Speaker of the
National Assembly and the Chairperson of the NCOP seek condonation
for the late filing of their answering
affidavits. The explanation
advanced includes the fact that the Chairperson of the National
Assembly’s Portfolio Committee
on Provincial and Local
Government, Mr Solomon Lechesa Tsenoli, had intended to depose to
the answering affidavit. However,
at a fairly late stage during
the preparation of the answering affidavit, it became necessary to
substitute the former Chairperson
of the National Assembly’s
Portfolio Committee on Justice and Constitutional Development, Ms
Fatima Chohan, for Mr Tsenoli.
It is explained that Ms Chohan had
an independent recollection of the facts appearing in the
parliamentary documentation.
Therefore, according to the Speaker
of the National Assembly and the Chairperson of the NCOP, Ms
Chohan’s substitution
for Mr Tsenoli and the revision of the
draft affidavit delayed the filing of the opposing papers. The
applicants do not oppose
the application for condonation.
Accordingly, I am satisfied that it is in the interests of justice
to grant condonation.
The next preliminary issue relates to the
reasonableness of the delay in challenging the constitutionality of
the impugned
legislation.
The delay in launching
this application
The Speakers of the
Eastern Cape and KwaZulu-Natal Provincial Legislatures have taken
the point
in limine
that the applicants have delayed in
bringing their application. They argue that the delay has been
prejudicial to the MEC
for Local Governments in the Eastern Cape
and KwaZulu-Natal, respectively, because the process of
transferring civil servants
and assets from the KwaZulu-Natal
Provincial Administration to the Eastern Cape Provincial
Administration had begun. They
contend, among other things, that
the allocation of an equitable share of revenue to both provinces
and the affected municipalities
in terms of section 227 of the
Constitution
26
had already been calculated on the basis of Matatiele being part of
the Eastern Cape. The respondents claim that the reversal
of the
process would adversely impact on service delivery in Matatiele.
Therefore, the respondents contend that the applicants
are not
entitled to the relief they seek.
The Thirteenth
Amendment Act commenced on 14 December 2007 and this application
was lodged on 10 October 2008; a delay of approximately
9 months.
The applicants contend that the delay is reasonable. They explain
that they consulted with their legal representatives
on 13 February
2008 with a view to preparing and lodging this application. In the
meantime, they remained hopeful that the
National Executive would
resolve the issue. This hope was formed after their meeting with
the newly elected President of the
African National Congress, Mr
Jacob Zuma, on 28 December 2007, where they gained an impression
that he favoured the retention
of Matatiele in KwaZulu-Natal. They
also engaged the South African Human Rights Commission (HRC) to
monitor the process.
However, according to the applicants, the HRC
failed to give them a report despite repeated requests. The
applicants claim
that this failure was the greatest source of the
delay. Furthermore, they maintain that they were unsuccessful in
their endeavour
to obtain transcripts of the hearings.
It cannot be
gainsaid that applications of this kind should be brought without
delay after the Bills have been promulgated to
ensure, among other
things, stability and legal certainty.
27
This is particularly so because the impugned legislation has
practical and budgetary consequences for public administration
relating to a wide variety of functional areas of national and
provincial competence. As the respondents point out, these
implications impact on the daily lives of citizens in the areas
affected by the impugned legislation. Therefore, legal certainty
must be obtained as speedily as possible.
In
Doctors for
Life
,
28
this
Court held that a challenge based
on a
failure to facilitate public participation must be launched “as
soon as practicable after the Bills have been promulgated.”
29
The Court added that “applicants who have not pursued their
cause timeously in this Court may well be denied relief.”
30
Legislatures are entitled to know, as soon as possible, whether
the process they followed in enacting the law will be challenged.
This is to enable them to preserve all documents that may be
necessary in the ensuing litigation. Where a litigant has not
acted with promptitude, the litigant must provide a satisfactory
explanation for any delay that has occurred.
The applicants did
not act with promptitude. The explanation that has been proffered
is not entirely satisfactory. This is
not the first litigation
that they have initiated concerning the relocation of Matatiele
into the Eastern Cape. In addition,
they were always opposed to
this relocation. It is, therefore, difficult to understand why it
would have taken them approximately
nine months to bring the
application. The alleged difficulty in securing meetings with
their legal representatives and coordinating
a large group do not
provide a satisfactory explanation for the delay. Nor does the
fact that they were under the impression
that the issue would be
resolved without resorting to litigation. However, in the view I
take of the main issues presented
in this case, it is not necessary
to reach any firm conclusion in this regard.
Although the main
attack is premised on the fact that the National Assembly and the
NCOP exercised their legislative powers
irrationally, it is
appropriate, in the view I take of the matter, to address the issue
relating to the constitutional obligation
to facilitate public
involvement first.
Was there adequate
facilitation of public participation?
Before I address
this question, it is important to highlight the developed
jurisprudence of this Court in relation to it.
Section 59(1)
requires the National Assembly to—
“
(a) facilitate public
involvement in the legislative and other processes of the Assembly
and its committees”.
Section 72(1) requires
the NCOP to—
“
(a) facilitate public
involvement in the legislative and other processes of the Council
and its committees”.
Section 118(1)(a) requires a
provincial legislature to—
“
(a) facilitate public
involvement in the legislative and other processes of the
legislature and its committees”.
This Court’s
approach to constitutional challenges of this nature
is
authoritatively set out by Ngcobo J in
Doctors for Life
31
and
Matatiele 2
,
32
where the nature of our constitutional democracy is aptly
described. That approach establishes that engagement with the
public is essential. Public participation informs the public of
what is to be expected. It allows for the community to express
concerns, fears and even to make demands.
In
any democratic state, participation is integral to its legitimacy.
33
When a decision is made without consulting the public the result
can never be an informed decision.
As this Court
observed in
Doctors for Life
,
34
both the duty to facilitate public involvement and the positive
right to political participation “seek to ensure that
citizens have the necessary information and the effective
opportunity to exercise the right to political participation.”
35
This can be achieved not only through elected representatives, but
also by enabling citizens to participate directly in public
affairs, “through public debate and dialogue with elected
representatives, referendums and popular initiatives or through
self-organisation”.
36
The Court held that
the plain meaning of section 72(1)(a) requires the state to take
steps to ensure that the public participate
in the legislative
process.
37
Furthermore, it was held that legislative bodies “have
considerable discretion to determine how best to fulfil their
duty
to facilitate public involvement.”
38
In determining the adequacy of public participation facilitation,
this Court’s role is to embark on a reasonableness
enquiry so
as to determine whether “there has been the degree of public
participation required by the Constitution.”
39
Striking a balance between the need to respect parliamentary
autonomy on the one hand, and the right of the public to
participate
in the legislative process on the other, is crucial.
The Court went on to say:
“
In determining whether
Parliament has complied with its duty to facilitate public
participation in any particular case, the Court
will consider what
Parliament has done in that case. The question will be whether what
Parliament has done is reasonable in
all the circumstances. And
factors relevant to determining reasonableness would include rules,
if any, adopted by Parliament
to facilitate public participation,
the nature of the legislation under consideration
, and
whether the legislation needed to be enacted urgently. Ultimately,
what
Parliament must determine in each case is what methods of
facilitating public participation would be appropriate
.
In
determining whether what Parliament has done is reasonable, this
Court will pay respect to what Parliament has assessed as
being the
appropriate method
.”
40
(Emphasis added.)
The Court also
pointed out that:
“
Whether a legislature
has acted reasonably in discharging its duty to facilitate public
involvement will depend on a number of
factors. The nature and
importance of the legislation and the intensity of its impact on the
public are especially relevant.
Reasonableness also requires that
appropriate account be paid to practicalities such as time and
expense, which relate to the
efficiency of the law-making process.
Yet the saving of money and time in itself does not justify
inadequate opportunities for
public involvement. In addition, in
evaluating the reasonableness of Parliament’s conduct, this
Court will have regard
to what Parliament itself considered to be
appropriate public involvement in the light of the legislation’s
content, importance
and urgency. Indeed, this Court will pay
particular attention to what Parliament considers to be appropriate
public involvement.”
41
As is apparent from
Matatiele 2
, a new constitutional amendment had to be
enacted to comply with all constitutional and procedural
requirements. It is therefore
necessary to establish the methods
adopted and steps taken by the lawmakers to ensure that public
involvement, as required
by the Constitution, took place.
There can be no
doubt that public participation was indeed facilitated by both
Parliament and the KwaZulu-Natal Provincial Legislature.
That is
borne out by the contents of various transcripts of the public
hearings held at different places, both at national
and provincial
level, and from the minutes of meetings of the Portfolio Committees
on Justice and Constitutional Development
and Provincial and Local
Government, as well as the minutes of the meetings of the NCOP
Select Committee.
At national level,
the Minister for Local Government announced on the government
website,
42
on 17 May 2007, that a constitutional amendment to correct the
defect in the process of correcting boundary anomalies in
KwaZulu-Natal and the Eastern Cape would be introduced. The
Cross-boundary Municipalities Law Repeal and Related Matters Bill,
2007 (the Repeal Amendment Bill) was published in the Government
Gazette.
43
On 25 May 2007 the Minister for Justice signalled her intention of
introducing the Constitution Thirteenth Amendment Bill,
2007 in the
National Assembly and, at the same time, published the Bill for
public comment in accordance with section 74(5)(a)
of the
Constitution. She invited persons wishing to comment on the
proposed amendment to submit written comments by no later
than 25
June 2007. The notice was published in the Government Gazette.
44
On 18 June 2007, and
in reaction to the invitation to the public to comment on the
Bills, the Matatiele/Maluti Mass Action Committee
(Mass Action
Committee)
45
submitted written comments on the Bills. In those submissions, the
Mass Action Committee stated, among other things, that:
“
Government, including
the National Assembly and the National Council of Provinces did not
act in an accountable, responsive, open
or transparent manner. Nor
did they afford the people of Matatiele the basic rights of dignity
and self respect.”
The Mass Action Committee
maintained that: the National Assembly and the NCOP did not “in
a material sense enlighten themselves
as to the merits of the
removal of Matatiele from KwaZulu-Natal”; the government had
seemingly made up its mind to press
ahead with the Bills despite the
opposition by the people of Matatiele and the process followed by
the Demarcation Board and
its provisional re-determination was
neither credible nor thorough. That Committee denied that Matatiele
was ever “a cross-jurisdictional
enclave” as was claimed
by the then Minister for Local Government when he advanced reasons
for the removal of Matatiele
from KwaZulu-Natal. The Mass Action
Committee asked for the withdrawal of the Bills.
On 23 July 2007, the
former Chairperson of the Portfolio Committee on Justice and
Constitutional Development (Chairperson) issued
a press statement
in which she referred to
Matatiele 2
and invited the public
to make submissions on the Thirteenth Amendment Bill by no later
than 7 August 2007. Press statements,
according to the
Chairperson, are well publicised and elicit submissions by members
of the public. In her answering affidavit
the Chairperson points
out that a large number of submissions from the public were
received. This is evidenced by a list of
submissions on both Bills
compiled by the Secretary: Portfolio Committee on Provincial and
Local Government dated 11 November
2008. The Portfolio Committee
on Provincial and Local Government also invited written comments on
the Repeal Amendment Bill
via advertisements in major national
newspapers.
46
The applicants’
submissions were among those that were discussed at a joint meeting
of the Portfolio Committees on Provincial
and Local Government and
Justice and Constitutional Development, held on 28 August 2007.
The minutes of the meeting reflect
that the Chairperson asked the
Department of Provincial and Local Government to extract from the
submissions all concerns pertaining
to service delivery. A
comprehensive report was commissioned on that issue, as well as a
report on the issue of the alignment
of service delivery points
with the municipal boundaries. These averments and the veracity of
the minutes of these meetings
remain unchallenged. The Committees
did not deem it necessary to call for oral submissions.
At provincial level,
the KwaZulu-Natal Legislature referred the Thirteenth Amendment
Bill to its own NCOP Select Committee and
Local Government and
Traditional Affairs Portfolio Committee. After the briefing on the
Bills, a number of public meetings
were arranged during October
2007. Among these meetings was a meeting on 15 October at which
the KwaZulu-Natal Legislature
invited the applicants to attend
public hearings on 23 October at the Matatiele Town Hall. Another
meeting took place on 24
October at the KwaZulu-Natal Legislature
in Pietermaritzburg and yet another on 25 October at the Umzimkulu
Town Hall.
The meeting on 23
October was organised by the Eastern Cape and KwaZulu-Natal
Legislatures. Two meetings seemingly took place.
One was arranged
by the Eastern Cape delegation and the other by the KwaZulu-Natal
delegation. The latter insisted on holding
a separate hearing as
the Court had allegedly ordered. People from as far as Mount Frere
were transported by busses to attend
the meeting. Despite a
chaotic commencement of the KwaZulu-Natal delegation public
hearing, it was eventually brought under
control. That is evident
from the report by the HRC monitor. Those who supported the move
to KwaZulu-Natal based their argument
on two issues: first, lack of
service delivery and, second, corruption in the Eastern Cape
provincial government for which
various examples, including poor
service delivery on roads, electricity, housing and poor feeding
schemes in schools, were
cited. According to the report, many
written submissions were received from individuals and groups. At
that meeting, the
KwaZulu-Natal delegation announced that another
meeting would be arranged at the stadium, in order to accommodate
all people.
In his report, the
HRC monitor concluded that the hearings went well and that the
people of Matatiele were afforded a fair chance
to address the
provincial governments of the Eastern Cape and KwaZulu-Natal on
whether they wanted to be incorporated into
the Eastern Cape or
into KwaZulu-Natal. The monitor remarked that although there was a
disruption during the meeting of the
delegation from KwaZulu-Natal,
not all was lost because another meeting was scheduled to take
place at a bigger venue. Although
the applicants describe the
meeting of 23 October 2007 as a failure, they concede that the
events took place very much as described
by the HRC monitor even
though they disagree with the monitor’s conclusion.
The records of the
meeting at the KwaZulu-Natal Provincial Legislature, held at
Pietermaritzburg, reveal that the applicants
were also invited to
address the Provincial Local Government Portfolio Committee
on
24 October 2007. There, on the applicants’ own version, they
made oral submissions through their legal representatives,
who also
submitted written representations against the Constitution
Thirteenth Amendment Bill. The submissions were substantially
similar to the written submissions submitted on 18 June 2007 and
discussed by the Joint Portfolio Committees in Parliament.
Regarding the meeting of the Local Government Portfolio Committee
in Pietermaritzburg, it would seem that no one spoke in
favour of
the Bill.
The meeting at the
Umzimkulu Town Hall took place on 25 October 2007. The report by
the HRC shows that this public hearing
did, indeed, take place and
that most of the submissions received echoed the desire to remain
in KwaZulu-Natal because the
Province provided better services than
the Eastern Cape.
On 30 October 2007
the second public hearing for the people of Matatiele regarding the
Constitution Thirteenth Amendment Bill
was held at the Thandanani
Stadium. Approximately 3 000 people attended. As is apparent from
the transcript of the public
hearings on that date, the community
members clearly supported the applicants’ opposition to
relocation to the Eastern
Cape.
The KwaZulu-Natal
Legislature, thereafter, approved the Bill by 40 to 36 votes with
three absent on 1 November 2007. The applicants
claim that the
public perception of the conduct of the KwaZulu-Natal Legislature
was that the vote in favour of the Thirteenth
Amendment Bill was
ordered and directed by the national government.
Objectively, it is
manifest that participation was facilitated.
47
During oral argument, counsel for the applicants did not dispute
this, nor was it contended that the applicants were unable
to
present their views. The applicants’ complaint, as it was
presented in oral argument, is that the residents of Matatiele
alone, as a
discrete
group, ought to have been afforded an
exclusive opportunity to participate during the public hearings.
It is contended that
because all interested parties, and not only
the residents of Matatiele, were allowed to express their views,
the applicants’
views were watered down. The question then
arises whether failure to consult only with the
discrete
group rendered facilitation of public participation
unconstitutional.
Does failure to
consult only with the discrete group render public participation
inadequate?
I mention at the
outset that the contention regarding the failure to consult the
discrete
and identifiable group was not raised by the
applicants as one of the grounds they contend gave rise to the
constitutional challenge
to the Thirteenth Amendment Act. In any
event, I consider that there is no merit in the argument. Quite
apart from the difficulties
the applicants had in defining who they
meant by the
discrete
group they claimed had to be
consulted, they appear to have misconstrued the judgment in
Matatiele 2
, in which this Court stated the following:
“
[T]he applicants are a
discrete and identifiable group who are directly affected by that
part of the Twelfth Amendment which relocates
Matatiele to the
Eastern Cape province. They have actively asserted their right to
be heard. And once the Twelfth Amendment
was enacted, they
immediately approached this Court for relief. In these
circumstances, relief cannot be denied to them.”
48
And earlier in that
matter the Court remarked that:
“
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.”
49
Properly
understood, the statement does not appear to advocate that when
seeking to involve an identifiable and
discrete
group, participation of only this group, to the exclusion of all
others, is required. What it indicates, I consider, is that
the
group must be afforded a reasonable opportunity to participate
meaningfully in the law-making processes. In any event,
the
alleged
discrete
group is not what the applicants contend it is. As I have
indicated earlier, the impugned legislation affects not only the
people of Matatiele but also those of Maluti and Umzimkulu. It
would have been unreasonable for the Government to have excluded
the people in those areas. As a matter of law and fact, the
complaint is unfounded and also not borne out by the case in the
founding papers.
Accordingly, the constitutional challenge
on this ground must fail.
Next, for
determination, is whether
the failure by the National
Assembly to receive oral submissions from interested parties
constitutes non-compliance with the
constitutional obligation to
involve the public in the law-making process.
Does
the failure to receive oral submissions render public participation
inadequate?
The applicants
contend that the National Assembly’s decision to dispense
with oral submissions was premised on the assumption
that the
applicants’ sole concern was that service delivery would
deteriorate as a result of the relocation of Matatiele.
It is
submitted by the applicants, however, that this was not their sole
concern. Their concern, it is argued, is that they
may have been
able to dispel the illusion that the issue was solely one of
service delivery, had the
discrete
group been afforded the
opportunity to make oral representations.
50
They argue that in being prevented from making oral submissions,
the National Assembly failed to comply with its constitutional
obligation to facilitate public involvement.
Our Constitution
establishes the founding values of the state which include “a
multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
51
The principle that government must act transparently and
accountably bear on the construction of constitutional and
statutory
obligations.
52
The principles of accountability and responsiveness, however,
require that the procedures chosen to fulfil the constitutional
obligation to facilitate public involvement must, in each case, “be
reasonably related to the material they have to consider”
53
and, if challenged, those responsible should account for the
procedures they have adopted.
54
In
Doctors for
Life,
this Court stated:
“
Parliament and the
provincial legislatures have broad discretion to determine how best
to fulfil their constitutional obligation
to facilitate public
involvement in a given case, so long as they act reasonably.
Undoubtedly, this obligation may be fulfilled
in different ways and
is open to innovation on the part of the legislatures. In the end,
however, the duty to facilitate public
involvement will often
require Parliament and the provincial legislatures to provide
citizens with a
meaningful opportunity to be heard
in the
making of the laws that will govern them. Our Constitution demands
no less.”
55
(Emphasis added.)
The applicants concede
that the obligation to facilitate public involvement may be
fulfilled in different ways and that lawmakers
have a discretion to
determine how best to fulfil their constitutional obligation to
facilitate public involvement.
On the applicants’
own admission, they sent full representations
to both the
Minister for Provincial and Local Government and the Minister for
Justice on 18 June 2007. These representations
were received by
the National Assembly acting through its Portfolio Committees and
the NCOP acting through its Select Committee.
The minutes of the
meetings of the Portfolio Committees reveal that those
representations were considered by the National
Assembly, with the
result that the Portfolio Committees observed that the content of
the representations contained no matters
of substance. The
representations were characterised under three distinct themes.
56
After deliberating on all the representations received and having
formed the view that no clarity on the submissions was required
by
the lawmakers, the Portfolio Committees decided to dispense with
oral submissions.
It also needs to be
mentioned that in the context of a constitutional amendment that
affects provinces, public participation
is facilitated at various
levels. In this case, for example, the applicants were afforded a
further opportunity to address
the Portfolio Committee on 24
October 2007. There, the applicants made joint representations
through their legal representatives
who also submitted written
submissions against the Bill. These submissions were, on the
applicants’ version, substantially
similar to those submitted
on 18 June 2007 by the Mass Action Committee. Therefore, there is
nothing to suggest that dispensing
with oral representations
rendered the process nugatory. This argument must, therefore,
fail. Next, is the question whether
the representations made by
the residents of Matatiele were considered by the lawmakers.
Did the National
Assembly and the KwaZulu-Natal Legislature consider the
representations made by the residents of Matatiele?
The applicants argue
that Parliament and the KwaZulu-Natal Legislature did not consider
their representations but merely went
through the motions in
inviting submissions and arranging public meetings so as to secure
constitutional compliance regardless
of the outcome of the process.
They claim that the decision to relocate Matatiele was
pre-determined and that the public hearings
were a formalistic
sham.
It cannot be
gainsaid that citizens must be afforded an opportunity to be heard
and that lawmakers should keep an open mind
and consider the input
by the populace. In
Merafong
,
57
this Court puts it thus:
“
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
.”
58
(Emphasis added.)
In its report, the
Portfolio Committee on Justice and Constitutional Development
maintained that it engaged the public during
its consideration of
the Thirteenth Amendment Bill by calling for written submissions
and that it considered the submissions,
including those submitted
to the Speaker of the National Assembly and the Chairperson of the
NCOP. The applicants’ full
written submissions of 18 June
2007 were undisputedly among those submissions received by the
relevant Portfolio Committees.
As mentioned earlier,
59
these submissions were discussed at the joint briefing of the
Portfolio Committees on Provincial and Local Government and Justice
and Constitutional Development on 28 August 2007. During these
deliberations it became apparent that the issue of service
delivery
was the main concern of the applicants. That gave rise to the
Chairperson of the Portfolio Committee on Justice and
Constitutional Development asking the Department of Provincial and
Local Government to extract from the applicants’ submissions
all issues pertaining to service delivery. The Chairperson also
commissioned a report on that aspect, as well as a report
on the
alignment of service delivery with municipal boundaries.
Interestingly, the applicants do not take issue with these
averments or dispute the veracity of the minutes of the meetings of
these committees.
As I understand
their contentions, the applicants’ argument suggests that
compliance with the Constitution depends on
the outcome of the
participation, which must have an impact on the final decision.
Although due cognisance should be taken
of the views of the
populace, it does not mean that Parliament should necessarily be
swayed by public opinion in its ultimate
decision. Differently
put, public involvement and what it advocates do not necessarily
have to determine the ultimate legislation
itself.
60
The fact that the
process of engagement is not reflected in a change to the
legislation, or in the accommodation of the representations
submitted to Parliament, does not necessarily mean that reasonable
public participation did not take place or that the views
of the
public were not considered. Finally on this issue, I conclude that
the applicants have failed to show that Parliament,
the NCOP and
the KwaZulu-Natal Provincial Legislature failed to fulfil their
constitutional obligations to facilitate public
involvement in
terms of sections 59(1)(a), 72(1)(a) and 118(1)(a) of the
Constitution, respectively. Next for consideration
is the issue
relating to the rationality of the legislation in question.
Is the decision to
promulgate the Thirteenth Amendment Act rationally connected to a
legitimate governmental purpose?
The answer to this
question must be in the affirmative.
The principle that
every law and every exercise of public power should not be
arbitrary but rational has been developed by this
Court in a series
of judgments.
61
This principle sets rationality
62
as a necessary condition for legal validity that every law or act
of organs of state should fulfil.
63
In
Merafong,
the Court, per Van der Westhuizen J, stated the following:
“
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.
”
64
(Emphasis added.)
The long title of
the Thirteenth Amendment Act provides:
“
To amend the
Constitution of the Republic of South Africa, 1996, so as to correct
invalid provisions inserted into the Constitution;
and to provide
for matters connected therewith.”
The invalid
provisions that the Thirteenth Amendment Act seeks to correct are
those provisions which were declared invalid by
this Court in
Matatiele 2
.
65
Therefore, the purpose of the Thirteenth Amendment Act must be
assessed in the light of what the Twelfth Amendment Act sought
to
achieve.
66
During oral argument counsel for the applicants stressed that if
public participation is to be meaningful, it must influence
the
outcome. The applicants’ argument seeks to link process with
outcome and, in doing so, muddles up the procedural
requirement for
legislative validity and the requirement that there be a rational
connection between legislation and the legitimate
governmental
purpose sought to be achieved. Rationality necessarily concerns
itself with outcome, in the sense that any legislation
that results
from the process must itself be rational. Legislation passed
without adequate consultation could be rational
but not pass
constitutional muster because of a lack of consultation.
The applicants argue
that Matatiele was never a cross-boundary municipality and
therefore that it should never have been included
within the scheme
of the Twelfth Amendment Act.
67
They argue that the Thirteenth Amendment Act is premised on an
error of fact. The applicants deny that Matatiele was ever
a
cross-jurisdictional enclave. The respondents do not contend that
Matatiele is a cross-boundary municipality. As indicated
above,
they describe Matatiele as a cross-jurisdictional enclave.
68
The respondents submit that the purpose of the Thirteenth
Amendment Act is to make the Matatiele Municipality economically
viable and to improve its governance.
There is no doubt
that Matatiele is a cross-jurisdictional enclave. That is
fortified by the applicants’ own version
that, for years,
since the creation of the former Transkei, there was a bubble of
land around the village of Umzimkulu which
intruded into the
province of KwaZulu-Natal but which was part of the Eastern Cape
Province. The applicants also state that
the settlement of Maluti,
situated in the Umzimvubu Local Municipality within the Alfred Nzo
District Municipality, in the
Eastern Cape, has always been an
adjunct to Matatiele. Needless to say, these straddling
municipalities would, as is the case
with cross-boundary
municipalities, have similar economic and political challenges.
As this Court
observed in
Pharmaceutical Manufacturers
,
69
a court cannot interfere with legislation simply because it
disagrees with its purpose or believes that it should be achieved
in a different way.
70
Unless it can be shown that the objective is arbitrary, capricious
or manifests naked preferences, “it is irrelevant
to this
inquiry whether the scheme chosen by the legislature could be
improved in one respect or another.”
71
Indeed, lawmaking is the function of Parliament alone. This Court
cannot decide in which province people must live or second-guess
the option chosen by Parliament to achieve its policy goals.
In a separate
argument, the applicants sought to demonstrate that the Thirteenth
Amendment Act was irrational because—
(a) the
decision was predetermined;
72
(b) the
lawmakers were instructed to vote in a particular manner; and
(c) the ruling party instructed its representatives in Parliament on
how to vote on the Thirteenth Amendment Bill.
This argument
requires the Court to go behind the rationally enacted
constitutional amendment and investigate the motives of
Parliament
and the ruling party. This the Court cannot do. The Court cannot
concern itself with the individual motives of
legislators.
73
There is good reason for this: if the Court preoccupies itself
with what precedes the passing of the legislation (the motive),
to
the exclusion of its actual purpose, it would fail to focus on the
proper object of the enquiry, which is the rationality
of the
legislation and not necessarily the motives of those who enacted
it.
74
Therefore, any investigation into these matters will, in the
circumstance of this case, focus on matters not shown to be
relevant, instead of enquiring into what was relevant, namely, the
rationality of the legislation.
75
Any
such
interference by a court should be guided by the
principle of separation of powers. As pointed out by this Court in
Doctors for Life
, “[c]ourts must be conscious of the
vital limits on judicial authority and the Constitution’s
design to leave certain
matters to the other branches of
government” and “should not interfere in the processes
of other branches of government
unless to do so is mandated by the
Constitution.”
76
In the light of this
conclusion, the alleged disputes of fact the applicants raise
(which the respondents deny), are irrelevant.
I
conclude that the impugned legislation is rationally connected to a
legitimate governmental end.
The application must, therefore, be dismissed.
Costs
The
general rule on costs in constitutional litigation has been
expressed in
Biowatch
.
77
The applicants contend that their litigation is neither frivolous
nor vexatious. I agree. They contend that each party should
pay
its own costs in the event of them being unsuccessful. During oral
argument, counsel for the Premier of the Eastern Cape,
the MEC for
Local Government, Eastern Cape, the Premier of KwaZulu-Natal, the
Speaker of the National Assembly, the Chairperson
of the NCOP, the
Speaker of the Eastern Cape Provincial Legislature and the Speaker
of the KwaZulu-Natal Provincial Legislature
submitted that it would
be appropriate if each party paid its own costs. Counsel for the
Minister for Provincial and Local
Government did not contend
otherwise. In the circumstances, I am satisfied that it would be
appropriate to order each party
to pay its own costs.
Order
The
following order is made:
(a) The
application for condonation by the Speaker of the National Assembly
and the Chairperson of the NCOP is granted.
(b) Direct
access is granted.
(c) The
application is dismissed.
(d) Each
party is ordered to pay its own costs.
Ngcobo CJ, Moseneke
DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Skweyiya J,
Van der Westhuizen J and Yacoob J concur
in the judgment of Nkabinde
J.
For the Applicants:
For the Fourth, Fifth,
Sixth, Seventh, Fifteenth, Sixteenth, Seventeenth and Eighteenth
Respondents:
For the Second Respondent:Advocate GD Goddard instructed by Venn
Nemeth and Hart Attorneys.
Advocate JC Heunis SC
and Advocate GA Oliver instructed by the State Attorney.
Advocate IV Maleka SC
and Advocate M Lekoane instructed by the State Attorney.
1
See
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
[2006]
ZACC
2
[2006] ZACC 2
; ;
2006 (5) BCLR 622
(CC);
2006 (5) SA 47
(CC) (
Matatiele
1
)
and
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
[2006] ZACC 12
;
2007 (1) BCLR 47
(CC);
2007 (6) SA 477
(CC)
(
Matatiele
2
).
The
latter decision made it clear that the proposed legislation, namely,
a Constitutional Amendment Bill, must be processed afresh
in a
manner that complies with all constitutional and procedural
requirements. It is important to mention that although the
order in
Matatiele
2
was formulated with reference to Matatiele Municipality only, the
memorandum on the objects of the Thirteenth Amendment Act show
that
because of the so-called “knock-on effect” on the
municipalities now located in the province of the Eastern
Cape, the
legislative amendments intended to rectify the constitutional defect
in
Matatiele
2
had to include reference also to the Eastern Cape Province.
2
23
of 2007. It amends Schedule 1A to the Constitution. It came into
operation on 14 December 2007.
3
24
of 2007.
4
The
text of these provisions is set out in full at [32] below.
5
Section
74 of the Constitution sets out the procedure for a constitutional
amendment. The full text of the relevant parts thereof
is set out
below at n 13 and 14.
6
Initially,
the President filed a notice of intention to oppose the application.
However, subsequently, he filed a notice to abide.
7
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (10) BCLR
969
(
CC)
[2008] ZACC 10
; ;
2008 (5) SA 171
(CC) (
Merafong
).
8
Id
at paras 16-28. See also in this regard,
Matatiele
1
above n 1 at para 47.
9
Section
103 of the Constitution provided:
“
(1) The Republic has the following provinces:
Eastern
Cape
Free State
Gauteng
KwaZulu-Natal
Mpumalanga
Northern Cape
Northern Province
North West
Western Cape.
(2) The
boundaries of the provinces are those that existed when the
Constitution took effect.”
10
23
of 2005.
11
The
Thirteenth Amendment Act seeks to amend Schedule 1A to the
Constitution as inserted by section 4 of the Twelfth Amendment
Act.
12
Section
1 of the Thirteenth Amendment Act provides:
“
Schedule 1A to the Constitution of the Republic
of South Africa, 1996, is hereby amended by—
the substitution for the determination of the
geographical area of the Province of the Eastern Cape of the
following determination:
. . .
the
substitution for the determination of the geographical area of the
Province of KwaZulu-Natal of the following determination
. . .”..
13
Section
74(3) of the Constitution provides:
“
Any other provision of the Constitution may be
amended by a Bill passed—
by
the National Assembly, with a supporting vote of at least two
thirds of its members; and
also by the National
Council of Provinces, with a supporting vote of at least six
provinces, if the amendment—
(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.”
14
Section
74(8) 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.”
15
Above
n 1 at paras 8-30.
16
87
of 1998.
17
Section
155(6A) of the Constitution was introduced by the Third Amendment
Act. This section provides:
“
If the criteria envisaged in subsection (3)(b)
cannot be fulfilled without a municipal boundary extending across a
provincial
boundary—
that municipal boundary may be determined across the
provincial boundary, but only—
with the concurrence of the provinces
concerned;
and
after the respective
provincial executives have been authorised by national legislation
to establish a municipality within that
municipal area; and
national legislation may—
subject to subsection, (5), provide for the
establishment in that municipal area of a municipality of a type
agreed to between
the provinces concerned;
provide a framework for
the exercise of provincial executive authority in that municipal
area and with regard to that municipality;
and
provide
for the re-determination of municipal boundaries where one of the
provinces concerned withdraws its support of a municipal
boundary
determined in terms of paragraph (a).”
18
29
of 2000.
19
In
this regard see
Matatiele
1
above n 1 at paras 8-10.
20
27
of 1998.
21
The
Court did not decide the constitutional validity of the Twelfth
Amendment Act or the Repeal Act. It ruled that the then pending
elections should go ahead and issued directions dealing with the
further conduct of the case.
22
In
the replying affidavit the applicants refer to the
discrete
and identifiable group of citizens as the people of the original
municipality of Matatiele.
23
Section
167(4)(d) and (e) provides that:
“
Only the Constitutional Court may—
. . .
(d) decide on the constitutionality of any amendment to
the Constitution;
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation. . . .”.
See in this regard
Women’s Legal Centre Trust v President of the Republic of
South Africa and Others (United Ulama Council of South Africa;
Women’s Cultural Group; Association of Muslim Lawyers and
Accountants; Islamic Unity Convention; Coalition of Muslim Women
as
Amici Curiae)
[2009] ZACC 20
;
2009 (6) SA 94
(CC) at para 13 and
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (12) BCLR 1399
(CC);
2006 (6) SA
416
(CC) at paras 13-31 (
Doctors for Life
). See also
King
and Others v Attorneys Fidelity Fund Board of Control and Another
2006 (4) BCLR 462
(SCA);
2006 (1) SA 474
(SCA) at para 23 (
King
).
24
Above
n 1 at para 105 where Ngcobo J held:
“
There can be no question as to the
interrelationship between the Twelfth Amendment and the Repeal Act.
This, in my view, is sufficient
to warrant leave to approach this
Court directly. Otherwise, the applicants would have been required
to lodge a constitutional
challenge relating to the Twelfth
Amendment in this Court, which is the only court having jurisdiction
in relation to the Twelfth
Amendment, and lodge a separate challenge
in relation to the Repeal Act in the High Court.”
See also
Merafong
above n 7 at para 12.
25
Section
167(6)(a) of the Constitution provides:
“
National legislation or the rules of the
Constitutional Court must allow a person, when it is in the
interests of justice and
with the leave of the Constitutional Court—
to bring a matter
directly to the Constitutional Court.”
26
Section
227(1) provides:
“
(1) Local government and each province—
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
may
receive other allocations from national government revenue, either
conditionally or unconditionally.”
27
See
in this regard
Doctors
for Life
above
n 23 at para 216 where this Court, per Ngcobo J, stressed the need
to launch applications as soon as practicable after the
Bills have
been promulgated. The Court, at para 218, remarked that relief
might be denied to those who have not pursued their
cause timeously.
See also
Merafong
above
n 7 at para 15.
28
Above
n 23.
29
Id
at para 216.
30
Id
at para 218.
31
Above
n 23 at paras 110-7.
32
Matatiele
2
above
n 1.
33
Above
n 7 at para 44 where Van der Westhuizen J noted the following:
“
Public participation strengthens the legitimacy
of legislation in the eyes of the people. It is an important
counterweight to
secret lobbying and influence-peddling.”
34
Above
n 23.
35
Id
at para 92. See also articles 9 and 13 of the African [Banjul]
Charter on Human and Peoples’ Rights (African Charter)
adopted
on 27 June 1981, after the International Covenant on Civil and
Political Rights (ICCPR) and acceded to by South Africa
on 9 July
1996.
36
Doctors
for Life
above n 23 at para 99. This practice of allowing the public to
participate in the conduct of public affairs is akin to the
traditional means of public participation in the lekgotla or imbizo,
the process that was, and still is, followed within African
communities where issues affecting the community are debated.
37
Id
at para 120.
38
Id
at paras 123-4 and 145.
39
Id
at para 124.
40
Id
at para 146.
41
Id
at para 128.
42
South
African Government Information,
Government
corrects legislative defect in the transfer of Matatiele
Municipality from KwaZulu-Natal to Eastern Cape
http://www.info.gov.za/speeches/2007/07051716451003.htm,
accessed on 16 July 2007.
43
GG
29895 GN 621 of 2007, 18 May 2007.
44
GG
29910 GN 639 of 2007, 25 May 2007.
45
This
Committee consists of various organisations that are representatives
of the broad spectrum of the residents of the affected
areas. The
organisations are: Poverty Alleviation Network; Cedarville and
District Farmers Association; Matatiele Chamber of
Commerce;
Governing Body of the King Edward High School; George Moshesh Tribal
Authority; Maluti Chamber of Business; Matatiele
and Maluti Council
of Churches; Moharane Community Based Organization and Zizamele
Pre-school Training Project.
46
These
newspapers included:
Business
Day
,
Mail
& Guardian
,
Sowetan
and
Sunday
Times
.
47
See
Doctors
for Life
above
n 23
at
para 127, where the standard of reasonableness is stated.
48
Above
n 1 at para 100.
49
Id
at para 68.
50
Their
other concerns were the deterioration of the town in general and the
financial reserves of the Municipality as well as the
increase in
its rates and obligations as a result of large loans.
51
See
section 1(d) of the Constitution.
52
See
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004]
ZACC 20
;
2005 (4) BCLR 301
(CC);
2005 (2) SA 359
(CC)
at
para 76.
53
See
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and
Others; In re: Application for Declaratory Relief
[2005]
ZACC 14
;
2006 (8) BCLR 872
(CC);
2006 (2) SA 311
(CC)
at
para 633.
54
The
Speaker of the National Assembly drew the Court’s attention to
the stipulated procedure for introducing a Constitution
Amendment
Bill. The Rules of the National Assembly, in particular, Rule
258(2)(b) read with section 74(5) of the Constitution,
stipulate
that a Bill must be published in the Government Gazette and must
contain a notice stating the intention to introduce
the Bill, the
objects of the Bill and—
“
an invitation to interested persons and
institutions to submit
written representations
on the draft
constitutional amendment to the person or committee intending to
introduce the bill.” (Emphasis added.)
After receiving written
comments, a Portfolio Committee proceeds to the “public
participation” stage, in that it would
formally engage with
the content of the submissions made, and depending on the clarity of
the submissions received; this stage
may
include the receipt
of oral submissions.
55
Above
n 23 at para 145. See also
King
above
n 23 at para 21.
56
The
Parliamentary Records reveal that the Committees, after considering
the written submissions, characterised the applicants’
submissions under three headings, namely, (a) personal preferences
either for the retention of Matatiele in the Eastern Cape
or the
inclusion thereof in the province of KwaZulu-Natal; (b) calling for
incorporation of Matatiele into the province of KwaZulu-Natal
based
on historic, ethnic and cultural links with that province; and (c)
relating to future lack of service delivery.
57
Merafong
above
n 7.
58
Id
at
para 51.
59
See
[42] above.
60
See
in this regard
Merafong
above
n 7 at para 50 where the Court remarked:
“
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.” (Emphasis added.)
61
See
for example
Affordable
Medicines Trust and Others v Minister of Health of RSA and Another
[2005]
ZACC 3
;
2005 (6) BCLR 529
(CC);
2006 (3) SA 247
(CC) at paras 74-9;
Merafong
above
n 7 at paras 62-6;
United Democratic Movement v President of the RSA and Others (1)
[2002]
ZACC 21
;
2002 (11) BCLR 1179
(CC);
2003 (1) SA 495
(CC) at para 55
(
UDM
2
)
;
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] ZACC 1
; ;
2000 (2) SA 674
(CC) at paras 85 and 90 (
Pharmaceutical
Manufacturers
);
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 19 and
24 (
New
National Party
)
and
S v Makwanyane
and
Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) at para
156.
62
The
source of the Court’s power to review the validity of the
legislation and the exercise of public power is the principle
of
legality, which is justified by the broader value of the rule of
law. See in this regard
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
56-8 and
Pharmaceutical
Manufacturers
above n 61 at para 85.
63
See
in particular
Pharmaceutical
Manufacturers
above n 61 at para 90 where this Court stated:
“
Rationality in this sense is a minimum threshold
requirement applicable to the exercise of all public power by
members of the
executive and other functionaries. Action that fails
to pass this threshold is inconsistent with the requirements of our
Constitution,
and therefore unlawful.”
64
Merafong
above
n 7 at para 114. See also
New
National Party
above n 61 at para 25.
65
Matatiele
2
above
n 1 at para 114. The relevant portion of the order provided:
“
(b) That part of the Constitution Twelfth
Amendment of 2005 which transfers the area that previously formed
the local municipality
of Matatiele, designated KZ5a3 by Municipal
Notice 147 published in the KwaZulu-Natal Provincial Gazette 5535 on
18 July 2000,
from the province of KwaZulu-Natal to the province of
the Eastern Cape is declared to be inconsistent with the
Constitution and
therefore invalid.”
66
The
Twelfth Amendment Act declares that its purpose is “to
re-determine the geographical areas of the nine provinces of
the
Republic of South Africa; and to provide for matters connected
therewith”, while the Repeal Act declares its purpose
as being
amongst other things, to—
“
provide for consequential matters as a result of
the re-alignment of former cross-boundary municipalities and the
re-determination
of the geographical areas of provinces; and provide
for matters connected therewith.”
See also
Matatiele 1
above n 1 at para 16 where this Court stated the following:
“
The problems associated with the administration
of the cross-boundary municipalities led to huge financial burdens
and costs and
often undermined service delivery. . . . Various
reports that were commissioned on the cross-boundary municipalities
recommended
that the concept of cross-boundary municipalities should
be abolished. . . . It was this political decision that led to the
enactment of the Twelfth Amendment and the Repeal Act.”
67
For
that reason, it is contended that the present matter should be
differentiated from
Merafong
.
68
In
the report entitled “Former Cross Boundary Municipalities”
dealing with the issue of cross-boundary municipalities
prior to the
passing of the Thirteenth Amendment Act, the following is stated:
“
Problems
around provincial boundaries were not limited to cross boundary
municipalities and problems were also created around
the Eastern
Cape/KwaZulu-Natal boundary.”
Furthermore even at the
time of the Twelfth Amendment Act, when this matter came before the
Court in
Matatiele 1
, it was made clear that the
complicated demarcation of the district rendered it difficult to
sustain development and basic service
provision in the area.
The
parliamentary debates and minutes from committee meetings all
indicate that service delivery is a problem in the area and
that,
technically, Matatiele is not a cross-boundary municipality but
problems associated with cross-boundary municipalities
are common to
Matatiele because of its complicated boundary.
69
Above
n 61 at para 90.
70
See
in this regard
East
Zulu Motors (Pty) Limited v Empangeni/Ngwelezane Transitional Local
Council and Others [1997] ZACC 19; 1998 (1) BCLR 1 (CC);
1998 (2) SA
61
(CC)
at para 24 where O’Regan J stated the following:
“
The question is not whether the government may
have achieved its purposes more effectively in a different manner,
or whether its
regulation or conduct could have been more closely
connected to its purposes.”
See also
Prinsloo v
Van der Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC) at para 36 and
Weare
and Another v Ndebele NO and Others
[2008] ZACC 20
;
2009 (4) BCLR
370
(CC);
2009 (1) SA 600
(CC)
at
para 46
.
71
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
[1998] ZACC 18
;
1999 (2) BCLR 139
(CC);
1999 (2) SA 1
(CC) at para
17.
72
The
applicants’ contention that the voting on the Bills was
predetermined and subject to pressure by the National Assembly
seems
to be based on the assumption that there was “absence of
willingness to consider all views expressed”.
73
See
UDM
2
above n 61 at para 56 where the Court stated the following:
“
Courts are not, however, concerned with the
motives of the Members of the Legislature who vote in favour of
particular legislation.”
74
See
Pharmaceutical
Manufacturers
above
n 61
at
para 86 where this Court stated the following:
“
The question whether a decision is rationally
related to the purpose for which the power was given calls for an
objective enquiry.
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.”
75
In
any event, in the view I take of the matter, any such investigation
would be of no moment.
76
Above
n 23 at para 37.
77
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (10) BCLR 1014
(CC);
2009 (6) SA 232
(CC) at
paras 21-4.