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[2011] ZACC 27
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Moutse Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 40/08) [2011] ZACC 27; 2011 (11) BCLR 1158 (CC) (23 August 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 40/08
[2011] ZACC 27
In the matter of:
MOUTSE DEMARCATION FORUM
.......................................................
First
Applicant
WILLIAM MOTHIBA RAMPHISA
…..................................................
Second
Applicant
MPUTLE MAKIDLA
…............................................................................
Third
Applicant
KINNY MMAKOLA
…...........................................................................
Fourth
Applicant
GIVEN PHIRI
….........................................................................................
Fifth
Applicant
CHRISTINA PHATLANE
….....................................................................
Sixth
Applicant
FANIE MOTSELE MOGOTJI
…..........................................................
Seventh
Applicant
ELIONA MATLOU
….............................................................................
Eighth
Applicant
BANGISWANE MTHOMBENI
…...........................................................
Ninth
Applicant
FRIEDA RAKWENA
…............................................................................
Tenth
Applicant
LAWRENCE DITSHEGO
…...............................................................
Eleventh
Applicant
BAFANA ZACHIARIA DUBE
….........................................................
Twelfth
Applicant
THOMAS MAPULE
…......................................................................
Thirteenth
Applicant
TEFO PETER MATHIBEDI
….........................................................
Fourteenth
Applicant
ROSLINA STHEBE
….........................................................................
Fifteenth
Applicant
HAPPY MAHLANGU
…....................................................................
Sixteenth
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 MPUMALANGA PROVINCE
….................................
Fourth
Respondent
MEC FOR LOCAL GOVERNMENT, MPUMALANGA
…..................
Fifth Respondent
SPEAKER OF MPUMALANGA PROVINCIAL
LEGISLATURE
…..................................................................................
Sixth
Respondent
PREMIER OF LIMPOPO
…...............................................................
Seventh
Respondent
MEC FOR LOCAL GOVERNMENT, LIMPOPO
…...........................
Eighth
Respondent
SPEAKER OF LIMPOPO PROVINCIAL
LEGISLATURE
…..................................................................................
Ninth
Respondent
MUNICIPAL DEMARCATION BOARD
….........................................
Tenth
Respondent
SPEAKER OF THE NATIONAL ASSEMBLY
…...........................
Eleventh
Respondent
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES
…..........................................................
Twelfth
Respondent
GREATER MARBLE HALL LOCAL
MUNICIPALITY
…........................................................................
Thirteenth
Respondent
ELIAS MOTSOALEDI LOCAL
MUNICIPALITY
…........................................................................
Fourteenth
Respondent
GREATER SEKHUKHUNE DISTRICT
MUNICIPALITY
…..........................................................................
Fifteenth
Respondent
DR JS MOROKA LOCAL MUNICIPALITY
….............................
Sixteenth
Respondent
NKANGALA DISTRICT MUNICIPALITY
…...........................
Seventeenth
Respondent
ELECTORAL COMMISSION
…...................................................
Eighteenth
Respondent
Heard on : 10 March 2011
Decided on : 23 August 2011
JUDGMENT
JAFTA J:
Introduction
This
is an application for direct access brought in terms of section
167(4)(d) and 167(6)(a) of the Constitution.
1
It is a constitutional challenge to a part of the Constitution
Twelfth Amendment Act of 2005 (Twelfth Amendment) and to the
Cross-Boundary Municipalities Laws Repeal and Related Matters Act
(Repeal Act).
2
The applicants challenge these two enactments to the extent that
they authorise the relocation of the areas known as Moutse
1 and
Moutse 3 from the province of Mpumalanga to the province of
Limpopo. Although these areas fall under different local
municipalities, they are part of the Greater Sekhukhune District
Municipality (Sekhukhune Municipality) situated in the province
of
Limpopo.
Before the impugned laws were enacted, the boundaries of Sekhukhune
Municipality straddled the provinces of Mpumalanga and
Limpopo.
This municipality and other similarly placed municipalities were
described as cross-boundary municipalities.
3
They were established in terms of section 155(6A) of the
Constitution
4
and the Local Government: Cross-Boundary Municipalities Act.
5
Since
their establishment, cross-boundary municipalities have been
difficult to administer. They were jointly administered by
Members
of the Executive Councils (MECs) responsible for local government
in the provinces whose boundaries they straddled.
The joint
administration was, however, limited to the exercise of executive
authority falling within the portfolios of local
government.
Legislation and executive authority, exercised by other
departments, were administered separately by the responsible
MECs.
This resulted in different provincial legislation applying to the
same municipality.
6
The
application of different pieces of legislation resulted in
different standards of service delivery. This made it difficult
to
have in place a workable administrative and legislative system that
was conducive to creating sustainable municipalities.
As a result,
there was generally poor service delivery in these municipalities.
National government had to intervene to provide
support in half of
the 16 established cross-boundary municipalities.
7
In
November 2002 national government took a decision to abolish
cross-boundary municipalities. This decision was implemented
by
enacting the Twelfth Amendment and the Repeal Act, which introduced
three changes. First, a new criterion for determining
provincial
boundaries was established. Instead of defining provincial
boundaries with reference to magisterial districts, the
impugned
laws define them with reference to municipal demarcation maps.
Second, the Twelfth Amendment repealed parts of the
Constitution
8
that authorised the establishment of cross-boundary municipalities.
Similarly the Repeal Act annulled legislation in terms
of which
these municipalities were established. Lastly, the impugned laws
located each of the cross-boundary municipalities
within the
boundaries of a single province.
9
This resulted in some areas being relocated from one province to
another along with the municipality under which they fell.
Communities
in some of the relocated areas were dissatisfied with the transfer
and decided to challenge the validity of the
impugned laws. These
laws were the object of constitutional attacks in a number of
cases. The first challenge related to Matatiele.
10
Thereafter a similar constitutional challenge was mounted
concerning Merafong.
11
In
these cases, as in the present matter, the validity of the impugned
laws was challenged on the grounds of irrationality and
the
provincial legislatures’ failure to facilitate public
participation in the legislative process that resulted in the
passing of these laws. The same grounds were raised in
Poverty
Alleviation Network and Others v President of the Republic of South
Africa and Others
.
12
This case was a sequel to the initial cases in relation to
Matatiele, which found the provisions unconstitutional for lack
of
public consultation and gave Parliament 18 months to cure the
defect. The case was concerned with whether the Thirteenth
Amendment to the Constitution, passed to cure the defect, was
constitutional.
The
parties
The
first applicant is Moutse Demarcation Forum (Forum), an
organisation established to represent the community of Moutse in
opposing the relocation of the areas from Mpumalanga to Limpopo.
The second to sixteenth applicants are residents of Moutse.
They
bring this application in their own interest as well as in the
public interest.
The
first respondent is the President of the Republic of South Africa.
The second to eighteenth respondents are organs of state
at
national, provincial and local spheres of government. They are
cited in their official capacities. But only the following
respondents oppose the relief sought: the Minister for Provincial
and Local Government (Minister); Speaker of Mpumalanga Provincial
Legislature; Premier of Limpopo (Premier); MEC for Local Government
in Limpopo; and Speaker of Limpopo Provincial Legislature.
Background
The
constitutional challenge raised by the applicants is motivated
primarily by their opposition to the relocation of their
areas from
Mpumalanga to Limpopo. They claim that the redetermination of
provincial boundaries which resulted in the relocation
perpetuates
apartheid-era boundaries. These boundaries were then drawn to
advance ethnic residential segregation which formed
the cornerstone
of the apartheid policy of separate development.
13
By separating the area called Siyabuswa from Moutse and placing the
latter in Limpopo, the applicants asserted that the redetermination
of provincial boundaries concerned has the effect of breaking up
contiguous areas that have a shared history and infrastructure.
Apart
from claiming that the procedure prescribed for legislating
enactments like the impugned laws was not followed, the applicants
contended that these laws are irrational. It is necessary to
briefly set out the history of Moutse so as to illuminate these
arguments.
According
to the applicants the community of Moutse has been in occupation of
the area since 1780. They are predominantly a
Sepedi speaking
community. They have, as their neighbour, an isiNdebele speaking
community occupying the area known as Siyabuswa.
In
accordance with the apartheid government’s legislation that
promoted the policy of separate development,
14
ethnically based homelands were established for Africans who were
classified in terms of language and culture.
15
Africans were later assigned citizenship of a homeland established
for the ethnic group under which they were classified.
16
Under
this scheme the homeland of Lebowa was established for the Sepedi
speaking people. In 1972 Moutse was incorporated into
it. It is,
however, not clear from the papers how Moutse was then configured:
whether it was a single contiguous area or not.
But in court
judgments it was described as a district.
17
Siyabuswa
became part of the homeland of KwaNdebele which was established for
the Ndebele ethnic group. However, this homeland
comprised a small
territorial area and because there was a minority group of Ndebele
speaking people in Moutse, the apartheid
government sought to
increase the territory by excising Moutse from Lebowa and
incorporating it into KwaNdebele. This decision
was opposed by the
community of Moutse and the government of Lebowa which successfully
challenged the incorporation of Moutse
into KwaNdebele.
18
Following
the abolition of the homelands and their reincorporation into the
greater South Africa, the interim Constitution listed
Moutse as
comprising three districts: Moutse 1; Moutse 2 and Moutse 3.
19
These areas were described as districts created in terms of the
Magistrates’ Courts Act
20
and they formed part of the province of the Eastern Transvaal,
later renamed Mpumalanga Province.
21
The
interim Constitution contemplated that defining certain areas as
part of one province or the other was contentious. Section
124
provided for the alteration of provincial boundaries where
specified areas described as contentious were involved.
22
The districts of Moutse 1, 2 and 3 were listed in Part 2(i) of
Schedule 1 to the interim Constitution as areas in which a
referendum could be held for purposes of altering provincial
boundaries by relocating them from one province to the other.
Following
a meeting in April 1996 between the community of Moutse and a
government delegation led by the then Deputy President,
the
community agreed to remain in the province of Mpumalanga. When the
Constitution came into force it defined provincial boundaries
as
those that existed at the time it came into effect. This meant that
the three districts of Moutse remained in Mpumalanga
Province and
formed part of the municipalities established by that province.
Moutse 1 fell under the Greater Marble Hall Local
Municipality,
Moutse 2 became part of the Dr JS Moroka Local Municipality and
Moutse 3 fell within the municipal area of the
Greater Groblersdal
Local Municipality.
The
Greater Marble Hall Local Municipality and the Greater Groblersdal
Local Municipality were located in the Sekhukhune Municipality.
Following the decision to abolish cross-boundary municipalities,
the relocation of the entire Sekhukhune Municipality into
the
province of Limpopo had the effect of transferring Moutse 1 and 3
from Mpumalanga to Limpopo. This relocation was achieved
through
the impugned laws whose effect was, among other things, to change
provincial boundaries.
Consistent
with the requirement that approval of provincial legislatures of
the affected provinces be obtained,
23
the Constitution Twelfth Amendment Bill was submitted to the
relevant legislatures. They in turn were obliged to facilitate
public involvement in their legislative processes.
24
The details of the public consultation process followed by the
Provincial Legislature of Mpumalanga are set out in [51] to
[56]
below.
Issues
The
constitutional attack mounted against the impugned laws is based on
two grounds. First, the applicants contend that these
laws are
irrational in so far as they alter the provincial boundaries of
Mpumalanga and relocate Moutse 1 and Moutse 3 to Limpopo.
Although
in their papers the applicants contended that the Twelfth Amendment
is irrational because it cannot achieve the purpose
of improving
service delivery in the areas concerned, in oral argument they
eschewed any reliance on this basis. Instead they
argued that the
Twelfth Amendment is irrational because it perpetuates boundaries
drawn by the apartheid government.
Second,
the applicants argued that the Mpumalanga Provincial Legislature
failed to adequately facilitate public involvement
in the process
leading up to the decision to support the Constitution Twelfth
Amendment Bill. Before I consider these issues
I must deal with two
preliminary matters.
Leave
to file a supplementary affidavit
The
applicants seek leave to file an affidavit deposed to by their
attorney, which sets out the chronology of events that occurred
after the application was lodged. They ask that this affidavit be
admitted into the record for the narrow purpose of explaining
the
delay and showing which parties were responsible for the delayed
hearing of the matter. The respondents do not object to
the
admission of the affidavit, as it will cause them no prejudice. In
these circumstances leave to file the supplementary
affidavit must
be granted.
The delay in launching this application
Although
the rules of this Court do not stipulate the timeframe within which
a case based on the absence of public consultation
should be
brought to Court, these cases must be instituted as soon as
possible after the legislation has been passed.
25
This is even more so where the challenge is directed at an
amendment of the Constitution.
26
Parties who claim to have been denied the opportunity to
participate in a legislative process cannot sit back and years
after the impugned laws were enacted seek to challenge their
validity on the ground of non-compliance with provisions requiring
public participation.
The
rule that requires that these challenges be brought to Court
without delay was laid down in
Doctors for Life International v
Speaker of the National Assembly and Others.
27
In that case this Court stated that it will consider challenges
based on a failure to facilitate public participation only
where:
(a) an applicant has sought and been denied the opportunity to be
heard on the Bill; and (b) the application has been
brought as soon
as practicable after the Bill has been passed.
28
The
Speaker of the Mpumalanga Provincial Legislature contended that the
applicants should be barred from raising the present
challenge
after a period in excess of two years from the date on which the
Twelfth Amendment came into force. She argued that
records relating
to the relevant public hearings could not be located and that the
memories of witnesses had faded. She submitted
that it would be
impractical to reverse processes undertaken after the amendment
came into operation.
Although
the applicants delayed in raising the challenge in this Court, the
respondents were alerted quite early to the fact
that the
applicants were challenging the constitutional validity of the
Twelfth Amendment. Shortly after the amendment came
into operation
the applicants, acting in person instituted proceedings in the
North Gauteng High Court, Pretoria. These proceedings
were later
withdrawn on the advice of their lawyers who were instructed within
a reasonable time to launch a challenge in this
Court. But the
lawyers delayed because they preferred to wait for the judgment in
Matatiele II
which was pending in this Court. Upon delivery
of that judgment they proposed a settlement of this matter based on
the judgment.
In their reply the respondents stated that they were
awaiting legal opinion on the proposal.
The
delay in raising a challenge to the constitutional validity of
legislation is undesirable and may in appropriate cases lead
to the
Court refusing to determine the merits of the matter. In this case,
however, it will not be in the interests of justice
to non-suit the
applicants on this ground. The respondents were well aware of the
impending challenge. They were able to put
up evidence on what
occurred during the consultation process. Moreover, the blame for
the delay can be attributed to the applicants’
lawyers only.
More
importantly, in his affidavit the Minister stated that should the
government be so persuaded it would be willing to reconsider
the
disputed boundaries. Therefore it would not be impractical to
reverse the boundary change on the strength of the impugned
amendments.
It
is now convenient to consider the grounds on which the
constitutional validity of the Twelfth Amendment is challenged.
To the extent that the Twelfth Amendment transfers Moutse 1 and 3
to Limpopo – is it irrational?
The question whether the Twelfth Amendment is rational or not must
be answered with reference to the well established rationality
standard. In this regard the enquiry is whether there is a rational
connection between the impugned provision and the legitimate
government purpose sought to be achieved.
29
Recently
in
Law Society of South Africa and Others v Minister for
Transport and Another
,
30
this Court reaffirmed the rationality test in these terms:
“
It is
by now well settled that, where a legislative measure is challenged
on the ground that it is not rational, the court must
examine the
means chosen in order to decide whether they are rationally related
to the public good sought to be achieved.
It remains to be said that the
requirement of rationality is not directed at testing whether
legislation is fair or reasonable
or appropriate. Nor is it aimed at
deciding whether there are other or even better means that could
have been used. Its use is
restricted to the threshold question
whether the measure the lawgiver has chosen is properly related to
the public good it seeks
to realise. If the measure fails on this
account, that is indeed the end of the enquiry. The measure falls to
be struck down
as constitutionally bad.”
31
(Footnote omitted.)
In
their written argument the applicants contended that the provincial
border that separates Moutse from Siyabuswa is irregular
and
follows no natural contour. The arbitrariness of the border arises,
so they said, from the fact that the boundary was adopted
during
the apartheid era in furtherance of the policy of separate
development.
As
the Twelfth Amendment perpetuates a boundary of the apartheid era,
the argument continued, there should be compelling reasons
which
justify maintaining that boundary. The respondents have failed,
they concluded, to advance a sufficient justification
for retaining
the apartheid-era boundary.
However
and most importantly, the applicants do not dispute that the main
purpose of the Twelfth Amendment is to abolish cross-boundary
municipalities and transform them into economically viable and
sustainable municipalities. The respondents advanced this objective
as the purpose served by the Twelfth Amendment. But the applicants
argued that it constitutes a general purpose, the advancement
of
which is insufficient to make the Twelfth Amendment rational.
Relying on
Van der Merwe v Road Accident Fund and Another
(Women’s Legal Centre Trust as Amicus Curiae)
,
32
the applicants submitted that the generic purpose put forward by
the respondents does not meet the rationality standard.
In
Van der Merwe
this Court said:
“
[T]he
Fund formulated the government purpose pursued by section 18(b) no
higher than the need to regulate patrimonial consequences
of
marriage. It is indeed so that matrimonial property law, whether of
common law or statutory variety, pursues at a generic
level, the
object of regulating proprietary consequences of marriage. That does
not mean, however, that when the constitutional
validity of a
specific rule of the law of matrimonial property is in issue, the
generic purpose overrides the specific purpose
of the rule of law
under challenge. A court remains obliged to identify and examine the
specific government object sought to
be achieved by the impugned
rule of law or provision. In other words, we are obliged to look at
the specific purpose of section
18(b) even though the general
purpose of regulating property arrangements in marriage may not in
itself be open to constitutional
doubt. For present purposes, the
question is not whether it is constitutionally authorised to
regulate patrimonial consequences
of marriage by law, but whether a
specific part of the scheme is constitutionally tolerable.”
33
(Footnote
omitted.)
Reliance
on
Van der Merwe
is misplaced. It is clear from the
statement quoted that the Fund in that case sought to advance, as a
purpose served by a particular
statutory provision, the general
object of every matrimonial property law. The minister responsible
for the administration
of the impugned provision had advanced a
different purpose which she claimed the provision served. This
Court considered whether
the impugned provision was rationally
related to that purpose. The Court held that the provision drew an
impermissible differentiation
between spouses married in and out of
community of property in respect of the right to recover damages
suffered as a result
of bodily injury caused by the other spouse.
The
present case is distinguishable from
Van der Merwe.
Here
there is nothing to suggest that the Twelfth Amendment aims at
perpetuating apartheid-era boundaries for their own sake.
At the
hearing, this drove counsel for the applicants to concede that it
cannot, on the basis of the evidence on record, be
claimed that the
drafters of the Twelfth Amendment had deliberately sought to
maintain the apartheid-era boundary. Therefore,
the question of
generic and specific purposes does not arise.
Nevertheless
the applicants argued that in seeking to achieve the purpose
advanced by the respondents, the Twelfth Amendment
unwittingly
perpetuates the apartheid-era boundary. Relying on
Zondi v MEC
for Traditional and Local Government Affairs and Others
,
34
the applicants submitted that a law which, on its face, is not
constitutionally objectionable, may still be invalid if it causes
consequences that are inconsistent with the Constitution. In
accordance with this principle, they argued that the Twelfth
Amendment is invalid because it perpetuates the apartheid-era
boundary.
It
is true that a statutory provision may be declared invalid if its
effect is inconsistent with the Constitution, even if on
its face
it appears to be constitutionally compliant. In
Zondi
this
Court stated:
“
A
statute can be held to be invalid either because its purpose or its
effect is inconsistent with the Constitution. If a statute
has a
purpose that violates the Constitution, it must be held to be
invalid regardless of its actual effects. The effect of legislation
is relevant to show that although the statute is facially neutral,
its effect is unconstitutional.”
35
The
reliance on
Zondi
is also misplaced. The applicants did not
point to any provision in the Constitution with which the impugned
boundary is inconsistent.
The fact that it may coincide with a
boundary drawn by the apartheid government does not, in and of
itself, render the Twelfth
Amendment inconsistent with the
Constitution. When the interim Constitution came into force, it
adopted municipal boundaries
that were defined by the apartheid
regime. It was this definition of municipal boundaries that led to
the establishment of
cross-boundary municipalities. In some areas
the magisterial districts, in accordance with which municipal
boundaries were
defined, straddled provincial boundaries.
As
stated earlier, the three Moutse areas were described as separate
districts in the interim Constitution. Later they fell
under
different local municipalities, even though they remained within
the province of Mpumalanga. None of them was placed
in the same
municipality with Siyabuswa. The applicants do not object to these
municipal boundaries. Nor do they challenge
the demarcation that
places Siyabuswa under a different municipality. Instead what they
are opposed to is the relocation of
the two Moutse areas to
Limpopo.
Although
in
Matatiele II
36
the question relating to the rationality of the Twelfth Amendment
was left undecided, it was decided in
Merafong.
37
In the latter case this Court held that the objects of the Twelfth
Amendment were: (a) to introduce new criteria for the determination
of provincial boundaries; (b) to abolish cross-boundary
municipalities; and (c) to create viable and sustainable
municipalities.
The Court held that there was a rational connection
between the Twelfth Amendment and these objectives which were
considered
to be legitimate. The applicants did not argue that
Merafong
was wrongly decided. It follows that the present
rationality challenge too must fail.
Before
I consider the other ground on which the constitutional validity of
the Twelfth Amendment is challenged, it is convenient
to set out
briefly the constitutional setting. In essence the applicants
assert that the procedure prescribed by the Constitution
for its
amendment was not followed by the Mpumalanga Provincial
Legislature.
The constitutional scheme
Section
74 of the Constitution prescribes procedural requirements to be met
when the Constitution is amended. It stipulates
the supporting vote
required both in the National Assembly and the National Council of
Provinces (NCOP) when passing a Bill
that amends the Constitution.
Amendments to different parts of the Constitution require different
degrees of the supporting
vote in the two houses of Parliament. For
present purposes subsections (3) and (8) are relevant. Subsection
(3) 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—
relates to a matter that
affects the Council;
alters provincial
boundaries, powers, functions or institutions; or
amends a provision that
deals specifically with a provincial matter.”
But
if the amendment Bill concerns one province or specific provinces,
it may not be passed by Parliament unless the legislature
of the
province concerned has approved it. This is clear from section
74(8):
“
If a
Bill referred to in subsection (3)(b), or any part of the Bill,
concerns only a specific province or provinces, the National
Council
of Provinces may not pass the Bill or the relevant part unless it
has been approved by the legislature or legislatures
of the province
or provinces concerned.”
The approval required by section 74(8) must follow a legislative
process involving public participation in terms of section
118(1)
of the Constitution. This section obliges provincial legislatures
to facilitate public participation in their business,
irrespective
of whether it is a legislative or some other process. Section
118(1) provides:
“
A
provincial legislature must—
facilitate public involvement
in the legislative and other processes of the legislature and its
committees; and
conduct its business in an
open manner, and hold its sittings, and those of its committees,
in public, but reasonable measures
may be taken—
to regulate public
access, including access of the media, to the legislature and
its committees; and
to provide for the
searching of any person and, where appropriate, the refusal of
entry to, or the removal of, any
person.”
The
importance of the rights conferred on citizens and the
corresponding obligation imposed upon provincial legislatures by
section 118(1) were underscored by this Court in
Matatiele II
.
In that case the Court said:
“
Our
Constitution contemplates a democracy that is representative, and
that also contains elements of participatory democracy.
As the
preamble openly declares, what is contemplated is ‘a
democratic and open society in which government is based on
the will
of the people’. Consistent with this constitutional order,
section 118(1)(a) calls upon the provincial legislatures
to
‘facilitate public involvement in [their] legislative and
other processes’ including those of their committees.
As we
held in
Doctors
for Life International v Speaker of the National Assembly and
Others
,
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.”
38
(Footnotes
omitted.)
However,
the meaning and scope of the obligation to facilitate public
participation were defined in
Doctors for Life
. While
accepting that Parliament and provincial legislatures have a
discretion to determine how best to facilitate public participation
in a given case, this Court laid down what is required in order to
comply with the duty. The Court said:
“
What
is ultimately important is that the Legislature has taken steps to
afford the public a reasonable opportunity to participate
effectively in the law-making process. Thus construed, there are at
least two aspects of the duty to facilitate public involvement.
The
first is the duty to provide meaningful opportunities for public
participation in the law-making process. The second is the
duty to
take measures to ensure that people have the ability to take
advantage of the opportunities provided. In this sense,
public
involvement may be seen as ‘a continuum that ranges from
providing information and building awareness, to partnering
in
decision-making’. This construction of the duty to facilitate
public involvement is not only consistent with our participatory
democracy, but it is consistent with the international-law right to
political participation. As pointed out, that right not only
guarantees the positive right to participate in public affairs, but
it simultaneously imposes a duty on the State to facilitate
public
participation in the conduct of public affairs by ensuring that this
right can be realised.”
39
(Footnote
omitted.)
It
is against this backdrop that the second ground, on which the
validity of the Twelfth Amendment is challenged, must be evaluated.
Did the Mpumalanga Provincial Legislature act reasonably in
facilitating public participation?
The
determination of this question requires that the steps taken by the
Provincial Legislature, leading up to the approval of
the Twelfth
Amendment, be retraced. In this, we must bear in mind that, unlike
in
Matatiele
II
and
Doctors for Life
, the
complaint here is not that the Provincial Legislature failed
completely to facilitate public participation but that the
facilitation was inadequate.
The
Bill, as section 74 of the Constitution requires, was submitted for
approval to provincial legislatures of the affected
provinces,
including Mpumalanga Province. Upon receipt of the Bill, the
Speaker of the Provincial Legislature in Mpumalanga
referred it to
the relevant Portfolio Committee. She pointed out in her referral
that approval of the Bill by the Provincial
Legislature was
required as it could not be passed by the NCOP without its
approval.
The
Portfolio Committee decided to hold public hearings in the areas
most affected by the changes to the provincial boundaries.
It
identified three affected municipalities. These were Ehlanzeni
District Municipality, Kungwini Municipality and Sekhukhune
Municipality which incorporates both Moutse 1 and 3. The first
hearing was held at KaBokweni in Ehlanzeni District Municipality
on
4 November 2005. It was followed by a hearing at Thaba Chweu on 10
November 2005. Two hearings were held on 28 November
2005 for
Sekhukhune Municipality at Greater Tubatse and Matlerekeng
Community Hall in Moutse 1.
On
29 November 2005 the Portfolio Committee met to consider the
submissions made at the public hearings until then and compiled
a
report for the Provincial Legislature. Meanwhile the applicants
came to know that the public hearings had come to an end.
The Forum
immediately sent a letter to, among others, the Premier and MEC for
Local Government and Housing, requesting that
a public hearing also
be held in Moutse 3. When no hearing was organised on the suggested
date, the Forum organised a march
to the Union Buildings in
Pretoria on 6 December 2005.
On
the same date, the Portfolio Committee invited the Forum to a
public hearing to be held in Dennilton on 8 December 2005.
Dennilton is in Moutse 3. Following this hearing, the Portfolio
Committee compiled a fresh report incorporating reference to
the
representations made at the Dennilton hearing. The report
recommended to the Provincial Legislature that the Bill be
approved. On 12 December 2005 the report was considered and adopted
by the Provincial Legislature, which mandated its representative
in
the NCOP to vote in favour of the Bill.
The
applicants argued that the steps taken by the Provincial
Legislature fell short of what is required by section 118(1) of
the
Constitution, as they were inadequate and unreasonable. This
argument rests on three pillars. The first is that the community
of
Moutse constitutes a discrete group which should have been afforded
the opportunity to make representations on the Bill.
The second
pillar is that the public hearings held were unreasonable and did
not adequately facilitate the community’s
participation. The
third pillar is that the Provincial Legislature was not apprised of
and did not have regard to the views
and concerns of the Moutse
community. I deal with each of these submissions in turn.
Does Moutse constitute a discrete group?
The
phrase “discrete group” was first used by this Court in
Matatiele II
. It was employed to describe a group of people
who are directly affected by an alteration of provincial boundaries
as a result
of being located where the change is effected. For
example, this may occur if an area is relocated from one province
to the
other. In that context, both the relocated group and the
residents of the municipality it joins in the other province
constitute
discrete groups, which the respective provincial
legislatures are expected to hear before the changes are approved.
The phrase
is used in contradistinction to the wider community in a
province.
It
is the direct impact the proposed change has on the group that
gives rise to a reasonable expectation to be heard. In
Matatiele
II
this Court said:
“
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.”
40
On
the definition of the term outlined above, all communities living
on the affected border between Limpopo and Mpumalanga constitute
discrete groups. Without a doubt they include the communities of
Moutse 1 and 3.
There
is, however, a further consideration warranting that the
communities of Moutse 1 and 3 should have been afforded a hearing
before the impugned legislation was approved. It is their history,
the details of which are set out above. In April 1996 these
communities concluded an agreement with the government, in terms of
which they gave up their claim to be placed under the province
of
Gauteng. They accepted the arrangement that their areas would
remain in Mpumalanga. Notwithstanding this persistent communication
of their grievance to government, no public hearing was scheduled
for Moutse 3 before a protest march to the Union Buildings
that
took place on 6 December 2005. But this oversight was later
corrected by arranging a hearing on 8 December 2005.
Was the public hearing of 8 December 2005 inadequate?
For
the opportunity afforded to the public to participate in a
legislative process to comply with section 118(1), the invitation
must give those wishing to participate sufficient time to prepare.
Members of the public cannot participate meaningfully if
they are
given inadequate time to study the Bill, consider their stance and
formulate representations to be made. In
Doctors for Life
this Court said in relation to notice:
“
Legislatures
must facilitate participation at a point in the legislative process
where involvement by interested members of the
public would be
meaningful. It is not reasonable to offer participation at a time or
place that is tangential to the moments
when significant legislative
decisions are in fact about to be made. Interested parties are
entitled to a reasonable opportunity
to participate in a manner
which may influence legislative decisions.”
41
Two
principles may be deduced from the above statement. The first is
that the interested parties must be given adequate time
to prepare
for a hearing. The second relates to the time or stage when the
hearing is permitted, which must be before the final
decision is
taken. These principles ensure that meaningful participation is
allowed. It must be an opportunity capable of influencing
the
decision to be taken. The question whether the notice given in a
particular case complies with these principles will depend
on the
facts of that case.
In
this case the adequacy of the notice must be assessed with
reference to the following facts. The Forum has been raising the
objection to relocation for a long period of time. Public meetings
and political rallies where the issue was discussed were
convened
by the Forum. Memoranda and letters articulating the reasons for
opposing the relocation to Limpopo were sent to various
organs of
state. In short this has been an ongoing process.
Moreover,
when the applicants received notice of the 8 December 2005 meeting,
they did not complain at the time that the notice
was inadequate
nor did they request more time to prepare. It may well be that if
they had raised concerns about the adequacy
of the notice, the
Provincial Legislature would have reconsidered the date. This did
not happen because nobody raised the issue
and the hearing
proceeded on the footing that the interested parties were ready.
Notably,
the relatively short notice was equal to the period within which
the applicants had requested a hearing in their letter
of 30
November 2005. This demonstrates that had the request been acceded
to the applicants would have been ready for the hearing.
It follows
that they should have been ready for a subsequent hearing upon the
same notice period. Accordingly this complaint
cannot succeed.
Much
was made of the fact that the hearing of 8 December 2005 lasted for
about two hours. Because this hearing was attended
by a large group
of people, the applicants submitted that the Portfolio Committee
should have allocated more time to hear and
consider the
community’s representations. But this argument loses sight of
the fact that, although more than 500 people
attended,
representations were made on behalf of organisations and not
individuals. This much is clear from the minutes of
the hearing,
the accuracy of which the applicants did not dispute.
The
Forum, which represented the applicants, was given the opportunity
to make representations through its chairperson. The
applicants do
not contend that the Forum was precluded from completing its oral
presentation. Significantly the minutes show
that the hearing ended
when there were no further representations. Therefore, the argument
that the hearing itself was inadequate
has no merit.
Was
the Provincial Legislature informed of the community’s views?
Relying
on
Merafong
,
42
the applicants argued that while the Provincial Legislature was
entitled to rely on the advice of the Portfolio Committee,
each
member of the Legislature must ultimately make up his or her own
mind on the issue. Accordingly, it was submitted, each
member must
have been properly apprised of the public’s views and reasons
for supporting or opposing the amendment. The
report presented to
the Provincial Legislature could not, it was argued, serve this
purpose because it failed to fully and
faithfully disclose the
community’s concerns on the relocation of the Moutse areas to
Limpopo Province. Nor did it inform
members of the Provincial
Legislature about the political history of Moutse. It was submitted
that because of the inadequacy
of the report, the Provincial
Legislature has failed adequately to facilitate public
participation.
As
appears below, this approach to the report containing a
recommendation to the Provincial Legislature, is incorrect. It
proceeds from an assumption that each member of the Legislature
must have been fully informed of the reasons why the community
of
Moutse 3 opposed the relocation to Limpopo and that each member
must have made up his or her mind on whether to support
the
legislation or not.
It
is true that in
Merafong
this Court affirmed that
deliberative bodies like the legislatures often rely on
recommendations made by their committees.
In that case Van der
Westhuizen J said:
“
A
legislature is a deliberative body with a large number of members
and often relies on recommendations of substructures like
committees. 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.
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”.
43
(Footnote
omitted.)
The
statement quoted above on which the applicants rely does not lay
down what should be contained in a report by a legislature’s
committee. Nor does it set out what must be considered by each
member of the legislature before voting one way or the other.
Indeed the remarks in the statement were made in a different
context. They were made while determining whether the Gauteng
Provincial Legislature had exercised its legislative power
rationally.
The
cornerstone of the contention that the report was inadequate is the
submission that the Portfolio Committee was obliged
to relay to the
Provincial Legislature fully and faithfully the representations
made at the public hearings. Building on the
argument, it was
submitted that without a full and faithful exposition, the
Provincial Legislature could not have had proper
regard to public
concerns. The applicants claimed that the source of this argument
is the statement referred to above which
was made in
Merafong.
The
plain reading of the statement shows that
Merafong
does not
impose an obligation on the Portfolio Committee to relay
representations fully and faithfully. Instead the statement
makes
an observation on the general role played by committees of
legislatures. As this Court cautioned in
Doctors for Life
:
“
[W]here
the obligation requires Parliament to determine in the first place
what is necessary to fulfil its obligation, a review
by a court
whether that obligation has been fulfilled trenches on the autonomy
of Parliament to regulate its own affairs and
thus the principle of
separation of powers. This is precisely what the obligation
comprehended in section 72(1)(a) does. While
it imposes a primary
obligation on Parliament to facilitate public involvement in its
legislative and other processes, including
those of its committees,
it does not tell Parliament how to facilitate public involvement,
but leaves it to Parliament to determine
what is required of it in
this regard.”
44
In
this case the mandate given to the Portfolio Committee was that it
must facilitate public participation in the legislative
process.
The Portfolio Committee, of its own accord, decided to hold public
hearings as a method of facilitating public involvement.
Its
mandate included receiving representations from the public,
considering them and advising the Legislature on the Bill.
The
Portfolio Committee gave its written advice in the form of a
report. It sets out, in summarised terms, the divergent views
expressed at various public hearings. Without a doubt the report
is, on the face of it, skeletal. But this can hardly be a
sufficient basis for holding that the Provincial Legislature has
acted unreasonably. The report must be viewed in the context
of all
relevant facts, including the mandate and the role played by the
Portfolio Committee in the entire process. In this
regard sight
should not be lost of the fact that the Committee formed part of
the decision-maker. If there was anything members
of the
Legislature required clarification on, they could easily have
raised it with their colleagues in the Committee. If more
information was required, it could have been called for. Yet no
member complained about the inadequacy of the report.
But
there is another difficulty with the argument that the report was
inadequate. It relates to proof of inadequacy.
The
applicants merely assert that the report does not “include a
full and faithful discussion and consideration of, inter
alia, the
Moutse hearing of 8 December 2005.” But nowhere in the papers
do they set out the actual representations made
at the hearing.
Without this information it is impossible, in my view, to assess
the inadequacy claimed.
In
the written argument the applicants attempted to show the
inadequacy by referring to letters and memoranda sent to the
Minister, the Portfolio Committee in the National Assembly and the
Premier of Mpumalanga.
45
But there is no evidence that these documents were placed before
the Provincial Portfolio Committee at the hearing on 8 December
2005, or at any other time. If they had been, the applicants’
argument on the inadequacy of the hearing itself would
have been
seriously undermined.
Moreover,
it has not been established that members of the Legislature had no
information at their disposal other than the report.
Indeed, during
the debate on the report a representative of the Democratic
Alliance alluded to the history of Moutse in opposing
the Twelfth
Amendment Bill. The Bill was opposed by two political parties only:
the Democratic Alliance and the Christian Party.
On
all the evidence before us, I am unable to assume that the members
of the Legislature knew nothing from any other source.
Even if they
had the skeletal report of the Portfolio Committee only, that does
not entitle a court to pronounce on the adequacy
of the information
at the disposal of a deliberative body such as the legislature
before it makes a decision. Bearing in mind
that the Provincial
Legislature has a discretion to choose the method of facilitating
public participation, it is undesirable
for this Court to prescribe
to the Legislature what a report to it should contain.
As
this Court observed in
Doctors for Life
, what was done by
the legislature in fulfilment of the section 118(1) obligation, may
only be reviewed if the action did not
meet the standard of
reasonableness. Laying down the test for review this Court said:
“
The
question will be whether what Parliament has done is reasonable in
all the circumstances. . . . In determining whether what
Parliament
has done is reasonable, this Court will pay respect to what
Parliament has assessed as being the appropriate method.
In
determining the appropriate level of scrutiny of Parliament’s
duty to facilitate public involvement, the Court must
balance, on
the one hand, the need to respect parliamentary institutional
autonomy, and on the other, the right of the public
to participate
in public affairs. . . . [T]his balance is best struck by this Court
considering whether what Parliament does
in each case is
reasonable.”
46
In
the present circumstances, I am not persuaded that the steps taken
by the Provincial Legislature were unreasonable and that
consequently it had failed to fulfil its obligation to facilitate
public participation. The challenge based on this ground
must also
fail.
The
parties agreed that the outcome of the constitutional challenge to
the Twelfth Amendment would determine the result in respect
of the
Repeal Act. The Constitution prescribes similar procedures that
must be followed when enacting both laws. Accordingly
the challenge
against the Repeal Act must also fail.
Costs
The
failure of the application does not mean that the applicants must
be mulcted with costs. The application was neither frivolous
nor
vexatious. The general rule in constitutional litigation between
private parties and the State is that unsuccessful private
litigants should not be ordered to pay costs unless they are guilty
of conduct deserving censure by the Court.
47
On a
number of occasions this matter could not proceed because the
respondents had indicated their willingness to reconsider
the
disputed boundary and a political process to test the views of the
affected communities by way of a ‘referendum’
was
undertaken. The object of the political process is to find a
resolution to the dispute, outside of the court proceedings.
This
Court allowed the parties to explore the political process and
removed the matter from the roll on various occasions.
This process
is, however, taking a long time to finalise.
It
is the delay in finalising the political process which has led to
postponements and removal of the matter from the roll.
It was set
down for hearing on 18 November 2008. On that date the Court
granted a postponement to 17 March 2009. On the latter
date the
matter was again postponed to 21 May 2009. The Court was informed
that the dispute had been taken to Cabinet and that
the parties
were awaiting Cabinet’s decision. The Minister was directed
to file an affidavit setting out Cabinet’s
decision.
On
21 April 2009 the Minister filed an affidavit stating that Cabinet
had considered it necessary to have a formal and comprehensive
consultation process, covering every village in the affected areas.
On 8 May 2009 the Minister brought an application for a
further
postponement of the matter. The applicants did not oppose it. On 15
May 2009 the matter was removed from the roll.
On 8 September 2009,
it was set down again for hearing on 5 November 2009 and the
respondents were directed to report on developments
in the
political process by 12 October 2009.
On
12 October 2009 the Minister filed an affidavit alleging that a
‘referendum’ had been held in the affected areas
and
that a report on the process was to be prepared. Once more, the
matter was removed from the roll. Nothing happened until
this Court
issued directions calling on the parties to indicate whether they
intended to pursue the case. By letter, the State
Attorney informed
the Court that the matter was to be placed before Cabinet in August
2010. The applicants requested that the
matter be set down for
hearing in November 2010. On 8 November 2010 the Court issued
directions setting the matter down for
10 March 2011. At the
hearing we were informed that the political process was still
underway.
I
consider it fair to order the respondents to pay the costs
occasioned by the postponements and the removal of the matter from
the roll on 18 November 2008, 17 March 2009, 21 May 2009 and 5
November 2009. These should include the costs of all additional
documents filed in this Court from the date of the first
postponement until the date of the actual hearing. All these
postponements
were a direct consequence of the delay in finalising
the political process. Control over that process vested in the
Minister
and therefore it is he who could have avoided the
postponements and expedited the finalisation of the process.
Order
The
following order is made:
1. The applicants are granted leave to file a supplementary
affidavit dated 14 February 2011.
2. The application is dismissed.
3. The Minister for Provincial and Local Government is ordered to
pay the applicants’ costs, including the costs of two
counsel,
occasioned by the postponements on 18 November 2008, 17 March 2009,
21 May 2009 and 5 November 2009, including the costs
of the
preparation and filing of all additional documents lodged in this
Court from the date of the first postponement until
the date of the
actual hearing.
Ngcobo
CJ, Moseneke DCJ, Froneman J, Cameron J, Khampepe J, Mogoeng J,
Mthiyane AJ, Nkabinde J, Van der Westhuizen J, Yacoob J
concur in
the judgment of Jafta J.
For the
Applicants: Advocate G Marcus SC; S Budlender; I Goodman instructed
by Lawyers for Human Rights.
For the
Second, Sixth, Seventh, Advocate IV Maleka SC; S Eighth and Ninth
Respondents: Yacoob instructed by the State Attorney.
1
Section
167(4)(d) provides:
“
Only the
Constitutional Court may—
(d) decide on the
constitutionality of any amendment to the Constitution”.
Section
167(6)(a) provides:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and
with leave of the
Constitutional Court—
to bring a matter
directly to the Constitutional Court”.
2
Act
23 of 2005.
3
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) (
Matatiele I
) at para 12.
4
Section
155(6A) provided:
“
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).”
5
Act
29 of 2000.
6
Memorandum
to the President’s Co-ordinating Council (PCC) which was to be
held on 1 November 2002 regarding Administration
of Cross-Boundary
Municipalities.
7
Matatiele
I
above n 3 at para 16.
8
It
repealed sections 155(6A) and 157(4)(b) of the Constitution.
9
Schedule
1A to the Twelfth Amendment.
10
This
attack spawned two reported cases: see
Matatiele I
above n 3
and
Matatiele Municipality and Others v President of the Republic
of South Africa and Others
(No2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) (
Matatiele II
).
11
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008
(10) BCLR 969
(CC) (
Merafong
).
12
[2010]
ZACC 5
;
2010 (6) BCLR 520
(CC).
13
Western
Cape Provincial Government and Others: In Re DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at paras 41-2.
14
Id
at paras 42-3. In terms of this policy each racial group was
allocated land to occupy and any development pertaining to each
group could be undertaken within its segregated area.
15
The
Promotion of Bantu Self-Government Act 46 of 1959, now repealed,
divided Africans into 8 ethnic groups.
16
The
Bantu Homelands Citizenship Act 26 of 1970, now repealed.
17
Government
of Lebowa v Government of the Republic of South Africa and Another
1988 (1) SA 344
(A) and
Mathebe v Regering van die Republiek van
Suid-Afrika en Andere
1988 (3) SA 667
(A).
18
Id.
19
Part
1 of Schedule 1 to the interim Constitution Act 200 of
1993.
20
Act
32
of 1944.
21
Section
13 of the Constitution of the Republic of South Africa Second
Amendment Act 44 of 1995.
22
Section
124(2) and (3)(a) of the interim Constitution provided:
“
(2) The areas of the
respective provinces shall be as defined in Part 1 of Schedule 1:
Provided that the establishment of the
Northern Cape as a separate
province, the establishment in the area of the Eastern Cape of one
province, and the inclusion of
the areas specified in paragraphs (a)
to (f) and (i) to (n) of Part 2 of Schedule 1 within the provinces
as defined in Part 1
of Schedule 1, shall be subject to alteration
in accordance with this section.
(3)(a) A referendum may be held in terms of this
section in each of the areas specified in paragraphs (a) to (n) of
Part 2 of
Schedule 1 (hereinafter referred to as an affected area)
to determine the views of the voters ordinarily resident in such
area
regarding an issue referred to in subsection (5) or (6).”
23
The
provisions of section 74(3)(b)(ii) are set out in [45] below.
24
Section
118 of the Constitution binds provincial legislatures to facilitate
public participation in their business. The text of
section 118 is
quoted at [47] below.
25
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)
(
Doctors for Life
).
26
Merafong
above n 11 at para 15.
27
Above
n 25.
28
Id
at para 216.
29
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at paras 25-6;
Union of Refugee
Women and Others v Director: Private Security Industry Regulatory
Authority and Others
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007
(4) BCLR 339
(CC) at para 36.
30
[2010]
ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC).
31
Id
at paras 34-5.
32
[2006]
ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC).
33
Id
at para 33.
34
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC).
35
Id
at para 90.
36
Matatiele
II
above n 10 at para 101.
37
Merafong
above n 11 at paras 264-8.
38
Matatiele
II
above n 10 at para 40.
39
Doctors
for Life
above n 25 at para 129.
40
Matatiele
II
above n 10 at para 68.
41
Doctors
for life
above n 25 at para 171.
42
Merafong
above n 11.
43
Merafong
above n 11 at para 73.
44
Doctors
of Life
above n 25 at para 26.
45
The
applicants submitted:
“
5.38 Neither of [the extracts
in the report] do justice to the myriad and complex concerns raised
by the Moutse community, which
appear in the written submissions
attached to the founding affidavit. These include—
5.38.1 Moutse’s particular history under
Apartheid;
5.38.2 The agreement reached concerning Moutse’s
incorporation into Mpumalanga rather than Gauteng ten years
previously;
5.38.3 The failure of Sekhukhune District Municipality
to manage its budget and implement policies, and the prejudice this
had
caused the community;
5.38.4 The lack of information provided to, and
interaction with, the Moutse community by the municipality;
5.38.5 Concerns that the process of municipal and
provincial demarcation was motivated by ulterior purposes and was
not being
pursued in a consultative manner;
5.38.6 Submissions that the geographical location of
Moutse meant that it could more effectively be serviced by
Mpumalanga;
5.38.7 Concerns around service delivery generally, and
particularly in regard to—
5.38.7.1 the standards of water provision;
5.38.7.2 education;
5.38.7.3 access to magistrates’ courts;
5.38.7.4 access to local state departments, including
the traffic department, Home Affairs and Social Development;
5.38.7.5 access to and standards of hospitals and
clinics; and
5.38.7.6 roads.” (Footnote omitted.)
These factors are drawn from the letters and memoranda
sent to other parties.
46
Doctors
for Life
above n 25 at para 146.
47
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at paras 21 and
43.and
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 138.