IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: 40/2008
In the matter between -
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 DISEHGO Eleventh Applicant
BAFANA ZACHIARIA DUBE Twelfth Applicant
THOMAS MAPULE Thirteenth Applicant
TEFO PETER MITHIBEDI Fourteenth Applicant
ROSLINA STHEBE Fifteenth Applicant
HAPPY MAHLANGU Sixteenth Applicant
And
PRESIDENT OF THE REPUBLIC OF SOUTH First Respondent AFRICA 2
MINISTER OF PROVINCIAL AND LOCAL Second Respondent GOVERNMENT
MINISTER OF JUSTICE AND Third Respondent CONSTITUTIONAL DEVELOPMENT
PREMIER OF MPUMALANGA Fourth Respondent
MEC FOR LOCAL GOVERNMENT, Fifth Respondent MPUMALANGA
SPEAKER, MPUMALANGA PROVINCIAL Sixth Respondent LEGISLATURE
PREMIER OF LIMPOPO Seventh Respondent
MEC FOR LOCAL GOVERNMENT, LIMPOPO Eighth Respondent
SPEAKER, LIMPOPO PROVINCIAL Ninth Respondent LEGISLATURE
MUNICIPAL DEMARCATION BOARD Tenth Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Eleventh Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL Twelfth Respondent OF PROVINCES
GREATER MARBLE HALL LOCAL Thirteen Respondent MUNICIPALITY
ELIAS MOTSOALEDI LOCAL MUNICIPALITY Fourteenth Respondent
GREATER SEKHUKHUNE DISTRICT Fifteenth Respondent MUNICIPALITY
DR JS MOROKA LOCAL MUNICIPALITY Sixteenth Respondent
NKANGALA DISTRICT MUNICIPALITY Seventeenth Respondent
ELECTORAL COMMISSION Eighteenth Respondent 3
WRITTEN SUBMISSIONS ON BEHALF OF SIXTH RESPONDENT
A. Introduction
1. On 15 July 2008, the Chief Justice issued written directions which called upon
the sixth respondent to respond to the applicants’ attack on the Constitution
Twelfth Amendment Act of 2005 (“the Twelfth Amendment”) and the Cross-
Boundary Municipality Laws Repeal and Related Matters Act, 23 of 2005
(“the Supporting Legislation”), insofar as it related to the Provincial
Legislature of Mpumalanga Province. The Chief Justice also made it clear
that this Court may issue further directions, after it considered the affidavits
filed on behalf of the sixth respondent.
2. On 12 August 2008, the sixth respondent delivered her answering affidavit
pursuant to the directions issued by the Chief Justice. In that affidavit, the
sixth respondent dealt with the constitutional attack on the Twelfth Amendment
and the Supporting Legislation, insofar as they related to the Provincial
Legislature. This Court has not issued directions calling for further affidavits
after the delivery of the sixth respondent’s answering affidavit. 4
3. We have, by way of introduction, referred to the directions of the Chief
Justice, in view of the written submissions made on behalf of the applicants.
In those submissions, the applicants deal with, and support, all of their attacks
on the Twelfth Amendment and the Supporting Legislation, despite the scope
of the issues described in paragraph 1 of the directions of the Chief Justice.1
The applicants appear to have done so, in the light of the further directions
issued by the Chief Justice on 17 September 2008. We consider that the
reference to the merits of the application referred to in the further directions
relate to the issues that have been canvassed in the papers before this Court,
pursuant to the earlier directions of the Chief Justice.
4. In these submissions we deal with the applicants’ constitutional attack on the
Twelfth Amendment and the Supporting Legislation insofar as they concern the
Mpumalanga Provincial Legislature. We do so in the light of the directions of
the Chief Justice, and also the attitude adopted by the sixth respondent in her
affidavit. 2
1 For instance, the applicants deal with the rationality or otherwise of the Twelfth Amendment insofar as it provides for the re-drawing of the boundaries between Mpumalanga and Limpopo Province in a way which located the geographic areas of Moutse within the Limpopo Province.
2 Record: p 265, para 3. 5
B. The nature of the relief and constitutional attack
5. The primary relief sought in the notice of motion is, in form, a declaration of
invalidity directed at both the Twelfth Amendment and the Supporting
Legislation. In substance, however, it is a combination of both a declaration
of invalidity separately directed at the Twelfth Amendment and the Supporting
Legislation, and also a consequential order, flowing from that declaration of
invalidity.
6. Paragraph 1.1 of the notice of motion focuses on the declaration of invalidity
of the Twelfth Amendment, on the basis only that it is inconsistent with the
Constitution insofar as it transfers the geographic areas of Moutse 1, 2 and 3
from the Province of Mpumalanga to that of Limpopo. Paragraph 1.2 of the
notice of motion also focuses on the declaration of invalidity of the Supporting
Legislation, insofar as it provides for consequential arrangements flowing
from the transfer of Moutse 1, 2 and 3 to the Province of Limpopo.
7. Paragraph 1.3 of the notice of motion provides for consequential relief,
flowing from the declaration of invalidity sought in paragraphs 1.1 and 1.2.
The consequential relief sought is a remedial order which would require the
Twelfth Amendment and the Supporting Legislation to be read as if the
geographic areas of Moutse 1, 2 and 3 are situated within the Province of
Mpumalanga. 6
8. The consequential relief sought by the applicants in paragraph 1.3 of the
notice of motion is not rendered insignificant by the order of suspension
sought in paragraph 1.4 of the notice of motion. The order of suspension
would not operate permanently, or indefinitely. It would operate for such
period as this Court would deem just and equitable.
9. The practical effect of the relief sought in paragraphs 1.1 to 1.4 of the notice
of motion, in the event applicants succeed, is that –
9.1. the order suspending the invalidity of the Twelfth Amendment and the
Supporting Legislation will fall away once the period of suspension
expires. In that event, the geographic areas of Moutse 1, 2 and 3 will
fall under the jurisdictional control of the Mpumalanga Province, as a
result of the declaration of the order of invalidity sought in
paragraphs 1.1 and 1.2 of the notice of motion; or -
9.2. the order of suspension would be overtaken by a further amendment
which would be designed to remedy defects in the Twelfth
Amendment and the Supporting Legislation, insofar as they purported
to transfer the geographic areas of Moutse 1, 2 and 3 to the Province
of Limpopo. To remedy that defect, the subsequent amendment
would have to locate those geographic areas within the Province of
Mpumalanga. 7
10. The assumption which underpins the consequential relief sought in paragraph
1.3 of the notice of motion is that it is permissible, within the context of the
current constitutional scheme, to require the Mpumalanga Province to exercise
jurisdiction on the geographic areas of Moutse 1, 2 and 3. We submit that that
assumption is mistaken and does not follow from the limited nature of the
constitutional attack advanced by the applicants. We say so for the following
reasons:
10.1. First, the applicants limit their attack on the Twelfth Amendment and
the Supporting Legislation to the transfer of the geographic areas of
Moutse 1, 2 and 3 from the Province of Mpumalanga to that of
Limpopo. The transfer of those geographic areas is one, and not the
only issue of relevance, that have been dealt with by the Twelfth
Amendment and the Supporting Legislation, insofar as they relate to
those geographic areas.
10.2. Secondly, the Twelfth Amendment deals with the dis-establishment of
cross-boundary municipalities throughout the Republic. It does so in
section 2 thereof, by deleting the whole of sub-section (6A) of
section 155 of the Constitution.
10.3. Thirdly, the effect of the repeal of subsection (6A) of section 155 of
the Constitution is that from the date of commencement of the 8
Twelfth Amendment, 3 the constitutional basis for the existence, and
more pertinently, the re-establishment, of cross-boundary
municipalities, anywhere within the Republic, no longer exists. In
other words, it is no longer permissible or possible to re-establish a
cross-boundary municipality that previously existed before the
Twelfth Amendment came into force.
10.4. Fourthly, the Supporting Legislation repeals all of the statutory
provisions which authorized the establishment and perpetuation of
cross-boundary municipalities. It does so in section 3 and Schedule 1
thereof. For instance, it repealed section 90 of the Local
Government: Municipal Structures Act, 4 which provided for the
establishment of a cross-boundary municipality when the Municipal
Demarcation Board had demarcated a municipal area across
provincial boundaries of two municipalities. It also repealed the
Local Government: Cross-Boundary Municipalities Act, 29 of 2000,
and subsequent legislation that followed it, which provided for the
establishment of cross-boundary municipalities.
3 The Twelfth Amendment took effect from 31 August 2005.
4 117 of 1998, as amended. 9
10.5. There are two consequences that flow from the repeal of subsection
(6A) of section 155 of the Constitution, and also the repeal of
section 90 of the Structures Act, and related legislation: The first is
that it is no longer permissible to re-establish cross-boundary
municipalities; the second is that it is no longer open to the
Municipal Demarcation Board to demarcate or re-demarcate a
geographic area as a cross-boundary municipality.
10.6. The applicants accept that the geographic areas of Moutse 1, 2 and 3
previously formed part of a cross-boundary municipality. They
accept that the geographic area of Moutse 1 was incorporated into the
Greater Marble Hall Local Municipality (which in itself was a local
municipality) and that the geographic areas of Moutse 2 and 3 were
incorporated into the Greater Groblersdal Local Municipality (also a
local municipality).5 The applicants also accept that these two local
municipalities were part of the Sekhukhune Cross-Boundary District
Municipality, and that the geographic areas of this district
municipality cut across the boundaries of Mpumalanga and Limpopo
Provinces.6
5 Record: p 28 para 91; p 106, Annexure “MWR7” and p 107, Annexure “MWR8”.
6 Record: p 28 para 91. 10
10.7. The consequential relief sought by the applicants would require, at a
minimum, that the geographic areas of the local municipalities and
the district municipality be re-constituted. That would become
necessary in light of the fact that none of the geographic areas of the
affected Moutse areas were previously constituted as local
municipalities.
10.8. We submit that the re-constitution of those municipalities would
simply be impossible in light of the repeal of subsection (6A) of
section 155 of the Constitution and section 90 of the Structures Act,
and related legislation. We emphasize that the applicants have not
attacked the Twelfth Amendment, insofar as it repealed subsection
(6A) of section 155 of the Constitution. They have also not attacked
the Supporting Legislation insofar as it repealed the laws that
provided for the establishment and perpetuation of corresponding
municipalities, in section 3 and Schedule 1 thereof. We therefore
submit that the relief sought by the applicants is inappropriate. This
Court has a discretion to grant or not to grant relief, depending on
whether it is appropriate or in the interests of justice.7 We deal with
this matter in section I of these submissions, when we address the
7 See: JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) at para 15; Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11. 11 issue of appropriate remedy, in the event the applicants’ constitutional attack is upheld, insofar as it relates to the Mpumalanga
Provincial Legislature. 12
C. The basis of the constitutional attack
11. Paragraph 2.1 of the notice of motion foreshadows the basis of the
constitutional attack of the Twelfth Amendment insofar as it relates to the
Mpumalanga Provincial Legislature. The primary contention that predicates
the attack is that the Provincial Legislature of Mpumalanga failed to fulfill its
constitutional obligation to facilitate public involvement in its law-making
process when it considered and approved the Twelfth Amendment, insofar as it
related to the geographic areas of Moutse 1, 2 and 3. The applicants claim, in
that regard, that the Provincial Legislature failed to comply with the provisions
of section 118(1)(a) of the Constitution.
12. In the founding affidavit, the applicants rely on the historic status of the
geographic areas of Moutse 1, 2 and 3, and also various agreements or
arrangements which were reached with Government functionaries, which
allegedly gave the residents of the Moutse areas not only the right, but a
legitimate expectation, that there would be special consultation with them in
the event and before those areas were transferred from Mpumalanga Province
to another province. Paragraph 83 of the founding affidavit usefully captures
the hallmark of the applicants’ case in this way:
“At this meeting with government and the ruling party, the Moutse
community agreed to remain in Mpumalanga. They chose not to 13
pursue a transfer to Gauteng through the referendum proceedings
available to them under section 124(3) of the interim Constitution. I
submit that, given the negotiated nature of this arrangement, the
Moutse community could legitimately expect to be consulted before
they were transferred from Mpumalanga to another province,
regardless of the method of public participation adopted in passing
the constitutional amendment.” 8
13. The applicants accepted that the Provincial Legislature of Mpumalanga
conducted public hearings into the issues raised by the Twelfth Amendment in
the repealing legislation, before it voted in support of those pieces of
legislation. They claim, however, that those public hearings fell short of the
special consideration to which the residents of Moutse were entitled, and
therefore did not measure up to the requirements of section 118(1)(a) of the
Constitution.9
14. The applicants also accepted that, on 8 December 2005, the Portfolio
Committee on Local Government and Housing of the Mpumalanga Provincial
Legislature held a public hearing with the Moutse Community, at the specific
8 Record: p 26 para 83.
See also, - page 24, para 75.3; p 44, para 118.
9 Record: p 44, para 119; p 49 para 132.2; p 50 para 134 to p 51, para 136. 14
request of the first applicant. The applicants claim, however, that that public
hearing was not adequate, but a sham, because:
14.1. the hearing was held on two days’ notice, because of the approaching
deadline of the Provincial Legislature to vote on the Twelfth
Amendment and the Supporting Legislation. They thus contend that
they were afforded very little time to prepare meaningful submissions
on the issues raised by the Twelfth Amendment and the Supporting
Legislation;10
14.2. Only two hours was allocated for the public hearing so organised and
held;11
14.3. In the two hours available there was not enough time to make oral
submissions. Instead, the members of the Portfolio Committee were
happy to take written submissions made to them.12
15. In regard to the issue of facilitation of public involvement, the applicants have
raised a further issue in their written submissions. They claim that the
10 Record: p 53, para 141.1.
11 Record: p 53, para 141.2.
12 Record: p 53- 54, para 141.2. 15
Portfolio Committee did not give proper consideration to the submissions
made on behalf of the first applicant and the Community of Moutse, due to the
belated nature of the hearing that was held on 8 December 2008. They claim
that the unavoidable inference is that that public hearing was held with the
Moutse Community merely as a matter of form.13
16. The above contention is different to the complaint raised in paragraph 143 of
the founding affidavit, in which the applicants contend that the report of the
Portfolio Committee prepared subsequent to the public hearing of 8 December
2008 had to include full and faithful discussions of that public hearing, and
that it was only on the basis of such full and faithful discussions that the
Mpumalanga Legislature would have been entitled to consider its support or
otherwise of the Twelfth Amendment and the Supporting Legislation. 14
16.1. We note that, in regard to the contention made in paragraph 143 of
the founding affidavit, the applicants called upon the respondents to
produce the relevant report of the Portfolio Committee. The minutes
of the public hearing of 8 December 2005 now form part of the
13 The applicants’ written submissions: p 43 paras 4.37 and 4.38.
14 Record: p 55, para 143. 16
Record.15 The report of the Portfolio Committee prepared after the
public hearing of 8 December 2005 also form part of the Record. 16
17. In the founding affidavit, the applicants also advanced a further contention that
the mandate granted by the Provincial Legislature to its provincial delegation
in the National Council of Provinces to vote in favour of the Twelfth
Amendment, was invalid, in that it was not adopted in accordance with the
Rules and Orders of the Provincial Legislature, 17 and that the mandate was
conferred without reference to any of the records or submissions relating to
public participation.18
18. In their written submissions, the applicants do not pursue the above
contentions any further. We deal with those contentions insofar as it may still
be open to the applicants to pursue them.
19. We therefore submit that the issues which have arisen for determination, as
between the applicants and the sixth respondent, are the following:
15 Record: pp 377-381; Annexure “YNP17”.
16 Record: pp 382-388; Annexure “YNP18”.
17 Record: p 55, para 146.1 to p 56 para 146.2.
18 Record: p 57, paras 147.2 and 147.3. 17
19.1. Whether the applicants have acquired a right or a legitimate
expectation for a special consultation of the sort asserted by them, in
the light of the historic status of Moutse and agreements or
arrangements relied upon by them;
19.2. In the event that the applicants have acquired such a right or
legitimate expectation, whether the applicants were, as a matter of
fact, afforded adequate hearing in regard to the matters raised by the
Twelfth Amendment and the Supporting Legislation;
19.3. Whether, in any event, the Provincial Legislature of Mpumalanga has
demonstrated that it fulfilled the constitutional obligation imposed
upon it in terms of section 118(1)(a) of the Constitution; and
19.4. whether the mandate adopted by the Mpumalanga Provincial
Legislature is invalid.
20. We are not altogether certain whether the issue of delay is open for
determination by this Court at this stage of the proceedings, as between the
applicants and the sixth respondent. We nevertheless make submissions on it,
in the event this Court wishes to decide it. 18
21. We deal with each of the above issues in the order of the sequence set out
above. 19
D. The historic status of Moutse
22. It is not necessary, for purposes of our submissions, to refer to the historic
status of the Moutse geographic areas, before the commencement of the
Interim Constitution.19 It is enough simply to point out that, before the
commencement of the Interim Constitution:
22.1. originally, the geographic areas of Moutse were under the
jurisdictional control of the then homeland of Lebowa.20
22.2. The apartheid regime attempted to excise the geographic areas of
Moutse from the territorial control of the Lebowa Legislative
Assembly, with a view to later annexing them to the territory of the
then Kwa-Ndebele Legislative Assembly. It attempted to do so, first,
by promulgating Proclamation R210 of 1980, which effectively
19 The Constitution of the Republic of South Africa Act, 200 of 1993, as amended, which came into force with effect from 27 April 1994.
20 That control was achieved by means of the promulgation of Government Notice R1274 of 1962, which established the Lebowa Territorial Authority, pursuant to the National States Constitution Act 21 of 1971, as amended, and also by the promulgation of Proclamation R224 of 1972, which incorporated the geographic areas of Moutse under the control and jurisdiction of the Lebowa Legislative Assembly. For a useful analysis of this history, see Government of Lebowa v Government of the Republic of South Africa and Another 1988 (1) SA 344 (A), at 355B-J. 20
excised Moutse from the Lebowa Territorial Authority.21 The objects
of that proclamation were repeated in section 16 of the Laws on
Cooperation and Development Act, 102 of 1993.22
22.3. By Proclamation R227 of 1985, the areas of Moutse were purportedly
annexed to the Territorial Authority of the Kwa-Ndebele Legislative
Assembly.23
22.4. Attempts to set aside the proclamations which sought to excise the
Moutse area from the Lebowa Territorial Authority, and annex them
to the Kwa-Ndebele Territorial Authority initially failed,24 but later
succeeded, on the narrow grounds that Proclamation R227 of 1985
was promulgated for ulterior purposes.25 The effect of the
invalidation of Proclamation R227 of 1985 was that the territorial
control of the geographic areas of Moutse was exercised by the then
central government of the Republic. The control of those areas could
21 The Government of Lebowa case, supra, at 356E-H.
22 The Government of Lebowa case, supra, at 356I-357B.
23 The Government of Lebowa case, supra, at 357H-I.
24 The Government of Lebowa case, supra, at 360H-361F.
25 Mathebe v Regering van die Republiek van Suid-Afrika en Andere 1988 (3) SA 667 (A) at 699C-700D. 21
not have been returned to the then Lebowa Territorial Authority, in
light of the fact that the Laws on Cooperation and Development Act,
which subsumed Proclamation R210 of 1980 (a proclamation which
excised the areas of Moutse from the Lebowa Territorial Authority)
remained intact.
22.5. Thus, at the time when the Interim Constitution came into force, the
areas of Moutse were still under the control of the then central
government of the Republic.
23. In “Birth of a Constitution”,26 a useful account is given of how, and what
considerations were taken into account, to define the provincial boundaries of
all the provinces established by the Interim Constitution. 27 They point out
that the model preferred for the demarcation of boundaries of provinces is
called “The Minority Route”, which required that the boundaries be carved out
of the then existing legal territorial entities, which comprised four historic
provinces, four so-called independent homelands, and sixth self-governing
territories.28 The nett effect was that nine provinces were established, in terms
26 De Villiers (ed) Birth of a Constitution (1 ed) (Juta, 1994).
27 Page 223 to 229.
28 At p 224. 22
of the Interim Constitution, and their geographic boundaries were as
determined in Part 1 of Schedule 1 of the Interim Constitution.29
24. The Interim Constitution did not finally resolve all of the issues regarding the
boundaries of the provinces established by it. It provided for the alteration of
certain boundaries in accordance with the procedures set out in section 124.
The boundaries that were subject to a possible alteration included those of the
Provinces of Mpumalanga (which was then called the Eastern Transvaal
Province), and Gauteng Province (previously called Pretoria-Witwatersrand-
Vereeniging Province). In regard to that boundary, Part 2, paragraph (i) of
Schedule 1 of the Interim Constitution identified, inter alia, the geographic
areas of Moutse 1, 2 and 3 as “Affected Areas” for purposes of a possible
boundary change.
25. In terms of section 124(6)(e) of the Interim Constitution, the residents of the
area including Moutse were entitled to determine, by way of majority votes,
through a referendum, whether Moutse should remain in Mpumalanga
Province or should be included in Gauteng Province.
26. The applicants make it clear that although the Interim Constitution
incorporated the geographic areas of Moutse 1, 2 and 3 within the territorial
29 Section 124(1) and (2) of the Interim Constitution. 23
boundaries of the Mpumalanga Province, in terms of Part 1 of Schedule of the
Interim Constitution, the residents of Moutse preferred to be incorporated into
the Province of Gauteng.30 They held several meetings with various
government functionaries and representatives of the ruling party, with a view
to express their concern and pursue the desired incorporation of Moutse into
the Province of Gauteng.31
27. The applicants allege that, at one of those meetings, held in April 1996, the
residents of Moutse elected not to purse the option available to them of a
referendum, pursuant to the provisions of section 124(3) and (6) and (e) of the
Interim Constitution, to bring about the incorporation of Moutse into the
Gauteng Province, as a result of an agreement reached between the Moutse
Community and those functionaries and representatives of the ruling party.
The basis of that agreement is displayed by the applicants as follows:
“On 7 August 1995, the Moutse TLC met with Mohammed Valli
Moosa, Tokyo Sexwale and Matthews Phosa – who represented the
ANC NEC at the time – and the Gauteng and Eastern Transvaal ANC
leaders to discuss, inter alia, essential service delivery to the
residents of Moutse and other parts of the former KwaNdebele. The
30 Record: p 25, para 80.
31 Record: p 25, para 21 to p 26 para 82. 24
meeting determined that essential services had not been properly
provided to the areas historically and would best be provided by
Gauteng Provincial Government on an agency basis. …”32
28. By the time the Twelfth Amendment and the Supporting Legislation came into
force, the geographic areas of Moutse formed part of two separate local
municipalities, in that Moutse 1 was incorporated into the Greater Marble Hall
Municipality; and Moutse 2 and 3 were incorporated into the Greater
Groblersdal Local Municipality.33 As we have already pointed out, both these
local municipalities were part of the Sekhukhune Cross-boundary District
Municipality. The applicants emphasize that by that time, the Provincial
Government of Mpumalanga was responsible for service delivery in those
areas.34
29. We have referred above to the alleged historic status of the Moutse geographic
areas in order to show that the right or legitimate expectation for a special
consultation contended for by the applicants prior to the alteration of the
provincial boundaries of the Mpumalanga and Limpopo Provinces is
unfounded. We say so for the following reasons:
32 Record: pp 25 & 26, paragraph 81; p 102, Annexure “WMR.5”.
33 Record: p 28, para 91.
34 Record: p 29, para 92; p 33 para 105. 25
29.1. First, the historic basis or source of the right or legitimate expectation
contended by the applicants is the right to engage in a referendum,
pursuant to the provisions of section 124(3), read with 124(6)(e) of
the Interim Constitution, as well as Part 2 of Schedule 1 thereof.
Those provisions conferred upon the Moutse Community the right to
engage in a referendum with a view to determine whether or not they
elected (by a majority of votes) to remain in the Mpumalanga
Province or to become part of the Gauteng Province. The right to a
referendum in that regard was confined to a possible boundary
change between the Mpumalanga and Gauteng Provinces. Further,
this right had to be exercised within six months of the 1994 election.
29.2. Secondly, the Moutse Community and their representatives chose not
to exercise their right to call for a referendum in terms of
section 124(6)(e).
29.3. Thirdly, the Moutse Community and their representatives agreed,
after the expiry of the period within which a referendum could be
called for, to remain in Mpumalanga. They did so pursuant to an
agreement whose effect was to ensure that service delivery in the
Moutse geographic areas was not adversely affected, but would be 26
backed up by means of an agency arrangement which entitled the
Gauteng Province to provide those services.35
29.4. Thirdly, the agreement related to service delivery affected two
specific provinces, namely the Mpumalanga and Gauteng Provinces.
The agreement did not deal at all with the subsequent boundary
changes of the Mpumalanga Province, with any other province. It
certainly did not at all deal with or contemplate the possible boundary
alteration, in the future, between the provinces of Mpumalanga and
Limpopo. It follows, therefore, that the bald allegation made in
paragraph 83 of the founding affidavit that the nature of that
agreement required special consultation whenever the Moutse area
was to be transferred to another province, is, on the applicants’ own
version, wholly unfounded.
30. We therefore submit that the applicants have failed, as a matter of fact, to
prove the right or legitimate expectation for a special consultation contended
by them.
31. In any event, we submit that a right or legitimate expectation for a special
consultation does not operate in regard to the law-making process. That is so,
35 Record: p 26, paras 82 & 82. 27
having regard to the constitutional scheme provided for in the Constitution, in
regard to the control of the exercise of public power by different arms of
government. The right or legitimate expectation to be heard ordinarily applies
in regard to the exercise of administrative action.36 There has been a clear
reluctance by this Court to extend the application of the right or legitimate
expectation to be heard to executive acts, such as the constitutional powers of
the President.37
32. The right or legitimate expectation to be heard should not be extended to law-
making process by the Provincial Legislature, such as that of the Mpumalanga
Province. That is so because section 118(1A) of the Constitution requires that
a Provincial Legislature should facilitate public involvement in its law-making
process. That in itself requires, at a minimum, that those affected must be
afforded an opportunity to make representations in regard to the law that
affects them. The question of the nature, extent and degree of public
involvement which a Provincial Legislature is required to facilitate, pursuant
to the obligation imposed upon it in terms of section 118(1)(a) of the
36 Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A).
37 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) paragraphs 159 and 160; Masthla v The President of the Republic of South Africa and Another 2008 (1) BCLR 1 (CC), paras 74-77. 28
Constitution, has been asked and answered in at least three judgments of this
Court.38
33. In the light of the interpretation of section 118(1)(a) of the Constitution by this
Court, it would be inappropriate and undesirable to import the right or
legitimate expectation for a special consultation such as the one contended for
by the applicants.
38 Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC); Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (1) BCLR 47 (CC) (we refer to this decision as “Matatiele No 2”), and Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (10) BCLR 969 (CC). 29
E. The applicants were afforded an opportunity to be heard.
34. The case of the applicants, as we piece it together from various paragraphs of
the founding affidavit, is that such of the public hearings as were afforded to
communities that were affected by the Twelfth Amendment did not constitute a
“proper and meaningful consultation” with the community of Moutse.39 The
applicants do not dispute the fact that the opportunity to be heard was afforded
to the affected communities, including the community of Moutse. For
instance, they accept that a public hearing was held at Marble Hall, and that
another meeting was held at Makhudumathaga on the same date.40 The
applicants say however that they were not aware of these meetings, as neither
the first applicant nor the community Moutse were informed about them.41
They also claim that those meetings were not advertised, and arrangements
were not made to assist the attendance of the members of the community to
those meetings.42 Furthermore, the applicants claim that they were under the
39 Record: pp. 5 and 7, para 148.1.
See also: p. 24, para 75.3 and p. 26, para 83.
40 Record: p. 58, paras 133.1 and 133.2.
41 Record: p. 58, para 138.
42 Record: p. 58, para 134. 30
impression that “the Moutse community” would be afforded its own hearing,
in regard to the possible incorporation into Limpopo Province.43
35. In her founding affidavit, the sixth respondent shows, with reference to
necessary documentation, that the hearings into the issue raised by the Twelfth
Amendment and the Supporting Legislation were publicized not only in the
newspapers, but also through radio broadcasts.44 The Chairperson of the
Portfolio Committee, Ms Gelana Sarian Sindane, confirms that she attended
radio interviews at several radio stations, including Ikwekwezi FM and
Ligwalagwala FM, where she personally indicated the dates, time and places
of the various public hearings.45
36. With reference to Moutse, the sixth respondent drew attention to a media
advisory issued by the provincial legislature of Mpumalanga on 25 November
2005, indicating that public hearings will be held at, amongst others,
Matlerekeng Community Hall in Moutse.46 The media advisory release makes
it clear that the public hearing at Matlerekeng Community Hall in Moutse
would be held on 28 November 2005 at 14:30.
43 Record: p. 58, para 135.
44 Record: p. 268, para 4.10; p. 325, annexure “YNP7”, and p. 324, annexure “YNP8”.
45 Record: p. 269, para 4.10; p. 321, para 3.
46 Record: p. 270, para 4.11; p. 324, annexure “YNP8”. 31
37. The sixth respondent also confirms that the public hearing scheduled for
Matlerekeng Community Hall was, as a matter of fact, held on 28 November
2005. The list of persons and entities that attended the public hearings were
diverse in their representations and interest.47 The minutes of the public
hearing held at Matlerekeng Community Hall were compiled by the
Chairperson of the Portfolio Committee.48 Paragraph 4 of the minutes of the
public hearing at Matlerekeng Community Hall records the nature of the
representations made during that public hearing. There were different views
about the provincial administration of Moutse: some members of the public
wanted Moutse to remain in Mpumalanga; others supported the transfer of
Moutse into Limpopo Province.
38. We submit that there is undisputed evidence which shows that the meeting at
Matlerekeng Community Hall was properly advertised, and that the Moutse
Community that was affected by the Twelfth Amendment and the Supporting
Legislation was afforded an opportunity to be heard. The fact that the first
applicant itself may not have been aware of the public hearing, does not mean
at all that that public hearing was not properly advertised. Furthermore, the
fact that any representative of the first applicant did not attend the public
47 Record: p. 271, para 4.14 to p. 272, para 4.14.15; p. 235, annexure “YNP8”. Those who attended included the Moutse West Residents Forum, Moutse West United Schools Sports Association and Moutse West Taxi Association.
48 Record: p. 272, para 4.15; pp. 321 to 336, annexure “YNP10”; pp. 337 to 339, annexure “YNP11” and p. 321, para 3. 32
hearing does not mean, either, that the community of Moutse was not afforded
an opportunity to be heard.
39. This Court has emphasized that the right to be heard, or a legitimate
expectation to that effect, is in effect a manifestation of a duty to act fairly, in
the circumstances of each case.49 We submit that, in the circumstances of the
present application, the provincial legislature of Mpumalanga fulfilled its duty
to act fairly towards the affected communities, by advertising, arranging and
conducting public hearings, in the manner we have outlined the preceding
paragraphs of these submissions.
40. We have already pointed out that the applicants, especially the first applicant,
dispute the adequacy of the public hearings held at Matlerekeng Community
Hall, on the ground that it was entitled, either as a matter of right or legitimate
expectation, to a special consultation, in the course of the law-making process
engaged by the Mpumalanga Provincial Legislature. It is precisely for that
49 Premier, Mpumalanga, and Another v Executive Community Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC), at paras 32 to 35, and also paras 38 and 41;
The SARFU Judgment, supra, paras 236 and 219. 33
reason that the applicants engaged in acts of protest, and demanded a special
consultation of their own.50
41. It is common cause that the applicants’ demand for a special consultation was
heeded by the Mpumalanga Provincial Legislature: it invited the applicants to
a public hearing; that invitation was communicated to the applicants on
6 December 2005;51 in addition, the Mpumalanga Provincial Legislature
issued a media release, in which advertised a planned public hearing on 8
December 2005, 52 and the media release identified three separate venues for
the holding of public hearings, including the hearing at Moutse East, in
Dennilton, at Lele’s Building at 14:00.53
42. Again, the sixth respondent refers to radio broadcasting spots at Moutse
Community Radio Station, Ikwekwezi FM and Ligwalagwala FM, publicizing
the public hearings concerned.54
50 Record: p. 51, para 136 to p. 52, para 138.
51 Record: p. 52, para 139; p. 273, para 5 to p. 274, para 5.4.
52 Record: p. 275, para 5.5; p. 374, annexure “YNP14”.
53 Record: p. 374, annexure “YNP14”.
54 Record: p. 275, para 5.5. 34
43. It is common cause that the public hearing of 8 December 2005 took place at,
amongst others, Dennilton, in Moutse East, as advertised.55 Once more, the
sixth respondent refers to a register of attendance, recording the persons and
entities who attended the meeting of 8 December 2005.56 The Co-ordinator of
the Portfolio Committee, Mr Thokozani Sindane, compiled the minutes of the
public hearing of 8 December 2005.57 Once again, the minutes of the public
hearing reflect a range of views expressed on the Twelfth Amendment and the
Supporting Legislation by different representative bodies. The predominant
view expressed at the public hearing was that the Moutse geographic areas
should remain in Mpumalanga Province.
44. After the public hearings of 8 December 2005, the Portfolio Committee
considered all of the representations made, in both written submissions and
oral submissions. It thereafter compiled a report of the public hearings, in
which it, amongst others, captured the essence of the representations.58
45. We digress, for a moment, in order to deal with the applicants’ contention that
the Portfolio Committee did not give proper consideration to the submissions
55 Record: p. 52, para 140.3; p. 275, para 5.6.
56 Record: p. 275, para 5.7; pp. 351 to 376, annexure “YNP16”.
57 Record: p. 275, para 5.8; pp. 377 to 381, annexure “YNP17”.
58 Record: pp. 275 to 276, para 6; pp. 38 to 388, annexure “YNP18”. 35
made by the first applicant and the Moutse Community. As we have already
noted, that contention is made for the first time in the applicants’ written
submissions.59
46. We submit that the applicants’ contention is not borne out by the facts that are
not in dispute. In paragraph 4.7 of the report, the Portfolio Committee
summarized the nature of the representations made at the public hearing held
at Matlerekeng Community Hall. It noted, in that regard, that there were two
main views expressed on the Twelfth Amendment: some of those who attended
expressed the view that they desired the retention of Moutse in Mpumalanga
Province; others who attended expressed a view in favour of the incorporation
of Moutse into Limpopo Province.60 The summary of the views captured by
the Portfolio Committee is consistent with the nature of the representations
that were made at that public hearing.61
47. In paragraph 4.9 of its report, the Portfolio Committee also captured the nature
of the representations made at the public hearing of 8 December 2005. Its
summary of those representations clearly shows that all of the inputs made at
that public meeting were in favour of the retention of the Moutse areas in
59 The applicants’ written submissions: p. 43, para 4.37.
60 Record: p. 386, para 4.7.
61 Record: pp. 337 to 339, annexure “YNP11”. 36
Mpumalanga Province.62 That summary is also consistent with the minutes of
the public hearings of 8 December 2005.63
48. We therefore submit that the applicants’ contention that the Portfolio
Committee did not give proper consideration to the submissions made by the
applicants and the Moutse Community is not supported by the facts.
49. We now revert to the issue whether or not the public hearings afforded to the
applicants on 8 December 2005 manifested the fulfillment of the duty on the
part of the Mpumalanga Provincial Legislature to act fairly towards the
applicants.
50. We accept that the public hearing of 8 December 2005 was held at a later
stage, having regard to the contemplated date for the consideration and
promulgation of the Twelfth Amendment and the Supporting Legislation by
National Parliament. The sixth respondent indicated that, before that public
hearing, there was no claim expressed to the Mpumalanga Provincial
Legislature by the applicants, that they were entitled to a special consultation.
The Mpumalanga Provincial Legislature had already conducted public
hearings, including the public hearing at Matlerekeng Community Hall,
62 Record: p. 387, para 4.9.
63 Record: pp. 378 to 381, para 6. 37
ignorant of the applicants’ claim that they were entitled to a special
consultation process.
51. The first time the applicants made public their claim to special consultative
process, and demanded a public hearing for that purpose was on 29 November
2005.64 Approximately seven days later, the Mpumalanga Provincial
Legislature issued a written invitation to the applicants, in line with their
demand for a special consultative process.65
52. It should also be borne in mind that the date for the consideration and
promulgation of the Twelfth Amendment and the Supporting Legislation was
fast approaching, and it had become urgent and necessary for the Mpumalanga
Provincial Legislature to decide on the Twelfth Amendment and the Supporting
Legislation. The urgency was created by the fact that the local government
elections were approaching, and it was necessary to promulgate the Twelfth
Amendment and the Supporting Legislation, with a view to prepare for those
elections. Having regard to these considerations, the contention that the public
hearing held on 8 December 2005 was belated and was a sham is mistaken.
64 Record: p. 51, para 136; p. 178, annexure “WMR.18”.
65 Record: p. 52, para 139; p. 234, annexure “WMR.28”. 38
53. In the final analysis, the true nature and essence of the applicants’ complaint is
that the views expressed by the first applicant and representative organizations
of the Moutse Community at the meeting of 8 December 2005 did not prevail,
when the Portfolio Committee formulated its recommendation on the Twelfth
Amendment, and also when the Mpumalanga Provincial Legislature decided to
adopt that resolution, and thereafter granted a voting mandate to its provincial
delegation to support the Twelfth Amendment.
54. That sort of complaint cannot justify a claim that the applicants were not
afforded an opportunity to be heard. Far from it, and on facts that are common
cause, the applicants were afforded an opportunity to be heard, and in fact
made their representations. In fact, they rely on the very fact that they were
afforded an opportunity to be heard, in order to advance their contention that
their views were not taken into account when the recommendation was made
by the Portfolio Committee, and when, ultimately the Mpumalanga Provincial
Legislature accepted that recommendation.
55. We therefore submit that the applicants have failed to show that they were not
afforded an opportunity to be heard, generally, or by a way of a special
consultation demanded by them. They have also not shown that the
opportunity given was not adequate and was a “sham”. 39
F. The constitutional obligation of the Provincial Legislature in terms of
section 118(1)(a) of the Constitution.
56. The question whether the obligation of a provincial legislature to promote
public involvement in its law-making process, in terms of section 118(1)(a) of
the Constitution, is a necessary requirement for a valid amendment of a
constitutional amendment that altered boundaries of provinces, in terms of
section 74(8) of the Constitution, was raised for the first time in Matatiele
Municipality and Others v President of the Republic of South Africa and
Others.66 We refer to this judgment as “the First Matatiele Judgment”.
57. Although the Court did not express a definite view on the nature and scope of
the obligation of a provincial legislature, in terms of section 118(1)(a) of the
Constitution, the majority judgment in that case nevertheless expressed the
view that at a minimum, a provincial legislature whose boundary is affected
by a constitutional amendment, such as the Twelfth Amendment, was required
to provide the people who might be affected by the amendment concerned an
opportunity to submit oral or written representations and comments on the
proposed amendment.67
66 2006 (5) BCLR 622 (CC), 2006 (5) SA 47 (CC).
67 The First Matatiele Judgment, para 65. 40
58. The issue relating to the scope of section 118(1)(a) of the Constitution arose
again in Matatiele Municipality and Others v President of Republic of South
Africa and Others.68 We refer to this judgment as “the Second Matatiele
Judgment”. The majority judgment in that case expressed the definitive view
that the provisions of section 118(1)(a) of the Constitution constituted a
necessary requirement for the appointment of a constitution that altered
provincial boundaries, in terms of section 74(8) of the Constitution.69 The
majority also went further, holding that the process of a provincial legislature
of considering and voting on the approval or disapproval of a constitutional
amendment of that sort constitutes a law-making process, within the ambit of
section 118(1)(a) of the Constitution.70
59. In the determination of the scope of “public involvement”, in the context of
section 118(1)(a) of the Constitution, the majority judgment preferred a
broader meaning of that phrase, to the a narrow one previously preferred by
Supreme Court of Appeal.71 We draw attention to the following two passages
of the majority judgment, which reflect the wide interpretation of public
involvement that was preferred by majority -
68 2007 (1) BCLR 47 (CC), 2007 (6) SA 477 (CC).
69 The Second Matatiele Judgment: para 43.
70 The Second Matatiele Judgment: para 48.
71 King and Others v Attorneys’ Fidelity Fund Board of Control and Another 2006 (1) SA 474 (SCA), para 22. 41
“Second, the provincial legislatures have broad discretion to
choose the mechanisms that, in their view, would best
facilitate public involvement in their processes. This may
include providing transportation to and from hearings or
hosting radio programs in multiple languages on an
important bill, and may well go beyond any formulaic
requirement of notice of hearing. In addition, the nature of
the legislation and its effect on the provinces undoubtedly
plays a role in determining the degree of facilitation that is
reasonable and the mechanisms that are most appropriate to
achieve public involvement. ….”72
And also
“The nature and the degree of public participation that is
reasonable in a given case will depend on a number of
factors. These include the nature and the importance of the
legislation and the intensity of its impact on the public. The
more discrete and identifiable the potentially affected section
of the population, the more intense the possible effect on
their interests, the more reasonable it will be to expect the
72 The Second Matatiele Judgment: para 67. 42
Legislature to be astute to ensure that the potentially
affected section of the population is given a reasonable
opportunity to have a say. In audition, in evaluating the
reasonableness of the conduct of the provincial legislatures,
the Court will have regard to what the Legislatures
themselves considered to be appropriate in fulfilling the
obligation to facilitate public participation in the light of the
content, importance and urgency of the Legislation.”73
60. Applying the test formulated by it, the majority held, in the Second Matatiele
Judgment, that the provincial legislature of the Eastern Cape Province fulfilled
its duty in terms of section 118(1)(a) of the Constitution because it held public
hearings into the Twelfth Amendment and the Supporting Legislation in seven
areas that it considered to be directly affected by the legislation, when they
were still Bills.
61. The majority also concluded that that provincial legislature fulfilled its
obligation in terms of section 118(1)(a) of the Constitution, notwithstanding
the fact that some of the submissions received by its Portfolio Committee
opposed the re-drawing of the boundary between the Eastern Cape Province
73 The Second Matatiele Judgment, supra, para 68. 43
and Kwa-Zulu Natal Province, in a way which would have resulted in
Matatiele becoming part of the Eastern Cape Province.74
62. The majority held, however, that the provincial legislature of Kwa-Zulu Natal
Province failed to fulfill its duty, in terms of section 118(1)(a) of the
Constitution, in that it did not hold any public hearings or invite written
representations on the Twelfth Amendment and the Supporting Legislation.
The majority concluded that the provincial legislature acted unreasonably by
not holding public hearings or inviting written representations, in the light of
the fact that the Twelfth Amendment would alter the provincial boundaries of
Kwa-Zulu Natal Province, and that alteration would have the effect of
relocating some of the communities in its province to the Eastern Cape
Province.75
63. In the present application, it is common cause that public hearings were
advertised, arranged and held by the Portfolio Committee of the Mpumalanga
Provincial Legislature at various places throughout its Province. Those public
74 The Second Matatiele Judgment, supra, paras 71 to 73.
75 The Second Matatiele Judgment, supra, paras 74, 79 to 84. 44
hearings were held in accordance with Rule 113 of the House Rules and
Orders of the Mpumalanga Provincial Legislature.76
64. The sixth respondent has pointed out that the geographic area of Mpumalanga
Province is vast. That meant that public hearings could not be held in all the
municipalities established throughout the Mpumalanga Province. They were
confined mainly to municipalities that were affected by the Twelfth
Amendment and the Supporting Legislation. These included the cross-
boundary municipalities such as the Greater Sekhukhuni District Cross-
Boundary Municipality, which incorporated the two local municipalities
whose areas of jurisdiction included the geographic areas of Moutse 1, 2 and
3.77
65. We have already referred to the fact that public hearings that were arranged
were publicized through newspapers and radio stations, more particularly
community radio stations with coverage in the affected areas.78 We have also
pointed out that the public hearings were attended by several representative
organization and individuals. Insofar as the Twelfth Amendment and the
76 Record: p. 267, para 4.5.
77 Record: p. 268, para 4.7; p. 274, para 5.3.
78 Record: p. 269, para 4.10. 45
Supporting Legislation related to the Moutse areas, we have referred to the
meeting held at Matlerekeng Community Hall on 28 November 2005.
66. Furthermore, we have dealt with the public hearing on 8 December 2005, in
response to the applicants’ demand. That public hearing was also widely
advertised in community radio stations which have coverage in Moutse
geographic areas.79 The public hearing was attended by representative
organizations, including the first applicant and those who attended and made
their representations. The representations made at the meetings held on
28 November and 8 December 2005 were correctly captured in the reports of
the Portfolio Committee that were considered by Mpumalanga Provincial
Legislature, when it voted on the Twelfth Amendment and the Supporting
Legislation.
67. The steps taken by the Mpumalanga Provincial Legislature, in this application,
are markedly different to the attitude adopted by the Provincial Legislature of
Kwa-Zulu Natal in the Matatiele cases. In the present case, there were public
hearings, and those public hearings were held pursuant to the House Rules and
Orders of the Provincial Legislature, designed to promote public involvement
in the law-making process by that Legislature.
79 Record: p. 275, para 5.5. 46
68. The fundamental objection raised by the applicants in regard to the law-
making process pursued by the Mpumalanga Provincial Legislature is that the
views deeply held by the applicants, namely that the geographic areas of
Moutse should remain in Mpumalanga, did not find support in the
recommendation of the Portfolio Committee that was ultimately adopted by
the Mpumalanga Provincial Legislature, when it adopted that report, and when
it decided to confer a mandate to its provincial delegation to vote in favour of
the Twelfth Amendment and the Supporting Legislation, in the National
Council of Provinces.
69. We submit that the fact that the Provincial Legislature decided to confer a
mandate to vote in favour of the Twelfth Amendment and the Supporting
Legislation, does not mean that it did not promote public involvement in its
law-making process. All that it means is that the Provincial Legislature chose
to adopt a view which was different from the views of the applicants. The
decision of the Provincial Legislature, in this regard, is in line with the
representative and participatory democracy that is sought to be promoted by
the Constitution.80 The remedy of those aggrieved by the decision of the
Provincial Legislature to support the Twelfth Amendment and the Supporting
80 Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (10) BCLR 696 (CC), para 114. 47
Legislation, inconsistent with the views deeply held by them, lies elsewhere,
in accordance with our democratic order.81
70. We therefore submit that the Mpumalanga Provincial Legislature did not act
inconsistently with its obligation in terms of section 118(1)(a) of the
Constitution, when it adopted the recommendation of its Portfolio Committee,
and voted in favour of the Twelfth Amendment and the Supporting Legislation,
in a manner inconsistent with the deeply held views of the applicants.
81 Ex Parte: Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC), para 186;
United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as amici curiae) (No. 2) 2003 (1) SA 495 (CC), paras 31 to 34. 48
G. Validity of the mandate adopted by the Provincial Legislature
71. We have already pointed out that the applicants appear not to pursue this point
any further. Insofar as they may still advance this point, we submit that that
contention is mistaken for the reasons that follow.
72. In the founding affidavit the applicants claim that the Provincial Legislature
failed to adopt the report of its Portfolio Committee which contained the
recommendation to vote in favour of the Twelfth Amendment and the
Supporting Legislation.82 Elsewhere in the founding affidavit, the applicants
claim that the Provincial Legislature refused to adopt the report of the
Portfolio Committee.83 The applicants then argue that the alleged failure or
refusal to adopt the report of the Portfolio Committee meant that the
Provincial Legislature could not validly vote in favour of a mandate to support
the Twelfth Amendment and the Supporting Legislation.
73. In the answering affidavit, the sixth respondent explains the process that was
followed by the Portfolio Committee after it formulated its report,
incorporating a recommendation to vote in favour of the Twelfth Amendment
and the Supporting Legislation. She indicates that the report was tabled at the
82 Record: p. 58, para 148.4.
83 Record: p. 57, para 147.2. 49
Provincial Legislature on Monday, 12 December 2005. It was then debated at
the meeting of the Provincial Legislature, and thereafter adopted. Then, the
Provincial Legislature voted in favour of the Twelfth Amendment and the
Supporting Legislation and conferred a mandate to its provincial delegation in
the NCOP.84
74. The sixth respondent also refers to the minutes of the meeting of the
Provincial Legislature, which debated and adopted the recommendation
incorporated in report of the Portfolio Committee.85 It is clear, from those
minutes, that the report was represented to the House for consideration.
Thereafter, the sixth respondent, in her capacity as the Speaker, invited the
House to debate the report as presented by the Chairperson of the Portfolio
Committee.86
75. During the debate in the House, some political parties, through their
representatives, expressed views not in support the Twelfth Amendment and
the Supporting Legislation.87 Other members of the ruling party also spoke in
84 Record: p. 276, para 8 to p. 278, para 11.
85 Record: pp. 389 to 401, annexure “YNP19”.
86 Record: p. 396.
87 Record: p. 396, where Mr L J B Marneweck for the Christian Party recorded the view of his party not to support the Twelfth Amendment; and also p. 397, where Mr C W Hatch of the DA expressly recorded the view of his party not to support the Twelfth Amendment. 50
favour of a motion to support the recommendation contained in the report of
the Portfolio Committee.
76. After the debate in the Provincial Legislature, the sixth respondent repeatedly
put the motion on the report to the House for a decision. Mr Hatch, on behalf
of the DA then called for a “division”. The call for a division was dealt with
in terms of the House Rules and Orders of the Provincial Legislature. That
call, in order to become valid, had to be supported by a minimum of four
members of the Provincial Legislature.88
77. The demand for division by Mr Hatch was not supported by a minimum of
four members of the Provincial Legislature. Once the call for a division was
not successful, the report was adopted, in terms of the House Rules and Orders
of the House.89
78. We therefore submit that the evidence clearly establishes that the report of the
Portfolio Committee, which incorporated the relevant recommendation to vote
in favour of the Twelfth Amendment and the Supporting Legislation was
adopted properly, in accordance with the House Rules and Orders governing
the proceedings of the Mpumalanga Provincial Legislature.
88 Record: p. 400; p. 403, para 68.
89 Record: p. 400; p. 403, para 69; and also p. 278, para 10.4. 51
79. After the adoption of the report, the Provincial Legislature proceeded to grant
the mandate to its provincial delegation in the NCOP. That mandate was
conferred by means of a resolution adopted by the Provincial Legislature on
12 December 2005.90
80. We submit that the mandate was adopted and conferred in accordance with the
House Rules and Orders of the Mpumalanga Provincial Legislature. The
applicants’ contention to the contrary is not borne out by the evidence.
90 Record: p. 278, para 11; p. 406, annexure “YNP21”; p. 407, annexure “YNP22”. 52
H. Applicants’ delay
81. We address the issue of delay, in the event the Court is inclined to consider
and decide that issue, at this stage of the proceedings.
82. By now, it is axiomatic that a litigant who seeks to challenge the validity of a
legislation on a ground that lawmakers have failed to promote public
involvement in their law-making process must do so as soon is practical, after
the promulgation of the impugned legislation.91 In the Merafong case, this
Court was concerned with a delay that was “troublesome” which it considered
to be “regrettable”.92 It however did not deprive the applicants, in that case,
the legal standing to challenge the validity of the Twelfth Amendment and the
Supporting Legislation, having regard to the explanation for the delay given in
that application.
83. In the present case, the applicants accept that they delayed their challenge
against the Twelfth Amendment and the Supporting Legislation.93 They
describe their delay simply as “a period of time [that] has passed” in which
91 Doctors for Life case, supra, para 216.
92 The Merafong case, supra, para 15.
93 Record: p. 62, para 155. 53
they did not institute the application to challenge the Twelfth Amendment and
the Supporting Legislation.
84. We submit that the description of the degree of the delay in the present case by
the applicants is euphemistic in real terms, that delay was substantially
inordinate, having regard to the fact that the Twelfth Amendment was assented
to by the President on 22 December 2005, and came into force as from 1
March 2006. The same is the case with regard to the Supporting Legislation.
85. More troubling about the applicants’ delay, is the fact that the Twelfth
Amendment and the Supporting Legislation immediately became a subject-
matter of constitutional challenge in this Court, soon after they were
promulgated.94
86. The constitutional challenge in the First Matatiele Judgment was a highly
contested matter. The applicants do not indicate whether or not they were of
the challenge, and what steps they took in the light of that challenge. They
merely indicate that before June 2006 they delayed their challenge to the
Twelfth Amendment and the Supporting Legislation, because of the fact that
94 For example, in the First Matatiele Judgment, the applicants approached this Court by way of urgency and that application was dealt with by this Court, with the required degree of urgency. 54
they did not have access to legal representation.95 They do not indicate at all
what steps they took prior to June 2006 in order to procure legal assistance,
and what the outcome of those attempts were.
87. Nevertheless, the applicants admit that in June 2006 they became aware of the
fact that this Court had reserved judgment in the Second Matatiele Judgment.96
They also indicate that they became aware of the constitutional challenge in
the Merafong case, but claim that they could not join in those proceedings.
Precisely why the applicants could not join in the Merafong case, is a matter
which is not explained, save for reference to counsel’s opinion that the
applicants’ case had no merit.
88. Remarkably, the applicants’ legal representatives elected to wait for the
judgment of this Court in the Matatiele case before they decided whether or
not it would have been worthwhile for the applicants to proceed with the
Merafong case, or the present application. It is to be borne in mind that the
same legal representatives were involved in the Merafong case.
89. The Second Matatiele Judgment was delivered on 18 August 2006. The
applicants indicate that after that judgment, they engaged in correspondence
95 Record: p. 255, para 8.
96 Record: p. 256, para 10. 55
with the office of the State Attorney with the view to obtain concession from
it. It must have been clear to the applicants, on their version, that, by March
2007, the concession sought by them would not be forthcoming from the State
Attorney.97 Since then, there were further delays in bringing the application.
90. The explanation given for the further delay is hardly satisfactory. That
explanation shows that the further delay was that of the applicants’ own
making and for the convenience of their legal representatives. The applicants,
and their legal representatives, were not entitled to institute legal proceedings
at their own convenience.98
91. The consequence of the applicants’ inordinate delay is serious:
91.1. The respondents were not able to procure all the relevant supporting
documentation and information, in order to show the full nature and
extent of the steps taken by the Mpumalanga Provincial Legislature,
to promote public involvement in its law-making process;
91.2. Mpumalanga Provincial government has, throughout, arranged its
affairs on the reasonable basis that the provisions of the Twelfth
97 Record: p. 257, para 10.8.
98 Darries v Sheriff, Magistrate’s Court, Wynberg and Another 1998 (3) SA 34 (SCA), at 44E-F. 56
Amendment and the Supporting Legislation were valid, as they had
not been immediately challenged. A delay of almost three years has
reinforced;
91.3. There have already been local government elections, based on the
alterations of provincial boundaries pursuant to the Twelfth
Amendment;
91.4. local government structures have now been re-arranged, in line with
the new boundaries.
92. We submit that having regard to the degree of the delay, the explanation given
by the applicants, and the consequences of that delay, this is an appropriate
case which this honourable Court would be entitled to deny the applicants
legal standing to challenge the validity of the Twelfth Amendment and the
Supporting Legislation, regardless of the merits or otherwise of their
contentions. 57
I. Appropriate remedy
93. In the introductory portion of these submissions, we have, to some extent,
dealt with the nature of the relief sought by the applicants. We have pointed
out that the relief sought is not only inappropriate, but also impossible, having
regard to the limited nature of the constitutional challenge asserted by the
applicants. In the paragraphs that follow, we briefly elaborate on our
submission on this issue.
94. In the founding affidavit, the applicants make it clear that the nature of the
relief sought is in the form of a “reading-in”, in order to cure the irrationality
caused by the Twelfth Amendment and the Supporting Legislation.99 The
remedy in the form of a “reading-in” is pursued in the event that the
constitutional challenge based on a claim of irrationality is upheld. We do not
address the appropriateness or otherwise of this remedy, at this stage of the
proceedings, since the constitutional challenge based on the contention of
irrationality does not fall within the ambit of the directions issued by the Chief
Justice.
95. In paragraph 154 of the founding affidavit, the applicants persist with the
orders sought in prayers 2.1 to 2.4 of the notice of motion, in the event that
99 Record: p. 60, para 153.1. 58
their contention that the Mpumalanga Provincial Legislature failed to fulfill its
constitutional obligation in terms of section 118(1)(a) of the Constitution is
upheld.100
96. The relief sought in paragraphs 2.1 to 2.4 mirrors, both in formulation and
substance, the relief sought in paragraph 1.1 to 1.4 of the notice of motion.
We submit that the relief sought in paragraphs 2.1 to 2.4 is open to the same
criticisms that were leveled in regard to the relief sought in paragraphs 1.1 to
1.4 of the notice of motion. For the reasons that we have already given, and
which we do not repeat in this part of these submissions, that relief is not only
impractical, but also undesirable.
97. We emphasize that the practical difficulties for the relief sought in prayers 2.1
to 2.3 of the notice of motion is not ameliorated by the order of suspension
sought in paragraph 2.4 of the notice of motion. The present application, and
the relief sought, are markedly different to the application in the Matatiele
case, and the relief granted therein. The fundamental point of difference is
that in the Matatiele case, the Court dealt with a local municipality which was
not a cross-boundary municipality, as contemplated in section 155(6)(a) of the
Constitution, and also section 90 of the Structures Act and Related
Legislation.
100 Record: pp. 61 to 62, para 154. 59
98. We therefore submit that the relief sought by the applicants is inappropriate. 60
J. Conclusion
99. The applicants have approached this honourable Court by way of direct
access. They claim that it is in the interest of justice that this honourable
Court should determine, by way of direct access, not only the validity of the
Twelfth Amendment (it being a matter which squarely falls within the
exclusive jurisdiction of this honourable Court) but also the validity of the
Supporting Legislation (which is a matter that other Courts have jurisdiction
of the first instance).
100. We accept that this honourable Court has exclusive jurisdiction in regard to
the validity or otherwise of the Twelfth Amendment. We submit that the
validity or otherwise of the Supporting Legislation is closely connected to the
validity or otherwise of the Twelfth Amendment. It is appropriate, desirable
and in the interest of justice that both issues should be considered by the
Court.
101. We submit, however, for the reasons given, that the constitutional challenge
based on the contention that the Mpumalanga Provincial Legislature failed to
promote public involvement in its law-making process, pursuant to section
118(1)(a) of the Constitution is unfounded. 61
102. In the circumstances, the sixth respondent requests that the application be
dismissed.
DATED AT SANDTON ON THIS THE 27TH DAY OF OCTOBER 2008
______I V MALEKA SC
______MS S YACOOB
THE SIXTH RESPONDENT’S COUNSEL