IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. 40/08
In the matter between:
MOUTSE DEMARCATION FORUM AND 15 Applicants OTHERS and
PRESIDENT OF THE REPUBLIC OF SOUTH Respondents AFRICA AND 17 OTHERS
ANSWERING AFFIDAVIT ON BEHALF OF THE SECOND RESPONDENT
I, the undersigned,
BRIGHTBOY NHLAKANIPHO NKONTWANA
do hereby make oath and state that: 2
A Introduction
1.1. I deposed to the affidavits filed previously on behalf of the second
respondent in this matter.
1.2. I make this affidavit on the second respondent’s behalf, and have been
authorized to do so.
1.3. The facts that I describe in this affidavit fall within my personal
knowledge, unless the context indicates otherwise, and are, to the best
of my knowledge and belief, true and correct.
2. This Court issued directions on 15 May 2009 removing the matter from the roll
of 21 May 2009, and calling for answering affidavits from the respondents by 7
July 2009, followed by replying affidavits and submissions at appropriate
intervals. Due to logistical constraints, it was impossible to finalise these
affidavits in time. In response to a request from the legal representatives of the
second, sixth, seventh, eighth and ninth respondents, this Court issued amended
directions on 01 July 2009, allowing the respondents to file their affidavits on 14
July 2009, with consequent amendments to the remaining dates. 3
3. This affidavit is filed on behalf of the second respondent, in compliance with
those directions. The second respondent has never filed an affidavit in response
to the founding affidavit, having thus far been called upon merely to place
before the Court his efforts to resolve the matter by other means.
B Synopsis of the second respondent’s opposition
4. In this application, the applicants seek to set aside the transfer of areas referred
to in their notice of motion as “Moutse 1, 2 and 3” from the province of
Mpumalanga to the province of Limpopo.
5. They seek to do so by contending that the Constitution Twelfth Amendment Act
of 2005 (“the Amendment Act”) and the Cross-Boundary Municipalities Laws
Repeal an Related Matters Act 23 of 2005 (“the Cross-Boundary Act”) which
effects the transfer of Moutse 1, 2 and 3 to Limpopo province is irrational and
therefore inconsistent with the Constitution (“the rationality argument”).
6. In the alternative, the applicants contend that the province of Mpumalanga failed
to follow the prescribed procedure set out in section 118(1)(a) of the
Constitution by failing to facilitate public involvement in considering and 4
approving the part of the Amendment Act that related to Moutse 1, 2 and 3 (“the
public participation argument”).
7. I respectfully submit that the challenges raised by the applicants are misguided
in that:
7.1. The rationality argument is ill-conceived insofar as the applicants
accept that:
7.1.1. There is a legitimate government purpose sought to be served
by the Amendment Act and Cross-Boundary Act;
7.1.2. There is a rational connection between these Acts and a
legitimate government purpose; and
7.1.3. The Acts are rationally related to the purpose for which the
power was given.
7.2. The applicants however seek to rely on facts which occurred after the
decision was taken to try and demonstrate that the Amendment Act is 5
“incapable of achieving the underlying government purpose”. It is on
this basis that the applicants claim that the Amendment Act is irrational.
7.3. This claim by the applicants is not only a radical departure from the
well-established test for rationality, it is also not sustained by the true
facts. As demonstrated in the answering affidavit deposed to on behalf
of the seventh, eighth and ninth respondents, the factual allegations
relating to a lack of service delivery in Moutse are, in the main, untrue.
The evidence put forward by the seventh, eighth and ninth respondents
demonstrate that although there are challenges and backlogs in service
delivery in the relevant areas, there has been an overall improvement in
delivery in most sectors.
7.4. The rationality argument is accordingly doomed to fail.
7.5. The public participation argument faces a similar demise. This
argument is not supported by the facts as is demonstrated by the
affidavit deposed to on behalf of the sixth respondent which describes
the public participation process followed by the Mpumalanga
legislature. 6
8. In this affidavit, I do not intend to traverse any factual material relating to:
8.1. The public participation argument. These allegations have been fully
dealt with in the affidavit deposed to on behalf of the sixth respondent.
8.2. Service delivery in Moutse 1, 2 and 3.
8.2.1. These allegations have been dealt with in the affidavit filed on
behalf of the seventh, eighth and ninth respondents. I do
however point out that, whilst regrettable, it is impossible to
avoid the reality that there are backlogs in service delivery in
almost every Province in the Republic, including both
Mpumalanga and Limpopo. This applies to former cross-
boundary municipalities as well as municipalities based in one
province only.
8.2.2. These difficulties cannot be attributed to the inclusion of the
Moutse 1 and 3 in Limpopo. They must be assessed and
addressed on their own merits. 7
8.2.3. Part of the process of addressing the shortcomings in service
delivery, and in strengthening municipalities’ capacity, is the
review and monitoring function of both the National and
Provincial Governments.
8.2.4. A report on service delivery, annexed as “BNN1”, was
submitted to my office and the relevant Provincial office by
the Elias Motsoaledi Local Municipality in response to
enquiries made in the course of carrying out that monitoring
and review function.
8.2.5. National and Provincial spheres of government are committed
to ensuring that the challenges in the Elias Motsoaledi Local
Municipality are appropriately dealt with, and that the capacity
of the municipality to perform its functions is strengthened.
9. In the remaining part of this affidavit, I intend to confine myself to addressing
the question of rationality. In so doing, I structure the remaining parts of this
affidavit as follows:
9.1. I first deal with the geographical location of Moutse. 8
9.2. I deal with the process which resulted in the decision to move the
municipalities in which much of Moutse is located to Limpopo.
9.3. I set out evidence in support of the conclusion that the decision was
rationally connected to the purpose for which the Amendment Act and
the Cross-Boundary Act were enacted.
10. After dealing with the facts relating to rationality, I set out the latest
developments in the process initiated by the second respondents to resolve the
issues raised by the applicants.
11. Finally, I deal with the relevant allegations in the founding affidavit ad seriatim.
C Rationality
Geographical location of Moutse
12. In their notice of motion, the applicants challenge the transfer of the areas
known as Moutse 1, 2 and 3 from Mpumalanga province to Limpopo province. 9
13. Moutse 1, 2 and 3 comprise disparate areas containing a number of villages. The
areas have in common the fact that they were, in the past, part of the territory of
Lebowa. In addition, the traditional communities in these areas belong
predominantly to the North Sotho group. This is confirmed in the history set out
in WMR2 to the founding affidavit, at page 80 of the record.
14. To describe the location of Moutse 1, 2 and 3, I refer to the two maps annexed as
BNN2 and BNN3.
14.1. The areas shaded red on BNN2 make up Moutse 1, 2 and 3. The areas
are also indicated on the map BNN3, which also reflects the names of
the towns and villages in the area.
14.2. Moutse 1, also known as Moutse West, consists of three tracts, located
north-west of Siyabuswa in the Greater Marble Hall Local
Municipality. The western and south-western borders of the largest part
of Moutse 1 are adjacent to the provincial border.
14.3. Moutse 2, the smallest of the three areas, is to the south of Renosterkop
Dam, and west of Siyabuswa. It is part of the Dr JS Moroka Local
Municipality, and is in Mpumalanga Province. 10
14.4. Moutse 3, also known as Moutse East, is the largest of the three Moutse
areas. There are three tracts making up Moutse East, the largest being
that which extends from the provincial border south of Siyabuswa down
to the part of the provincial border northwest of Loskop Dam. Most of
Moutse 3 is adjacent to the provincial border. There are two other tracts
identified as Moutse 3, the first touching the largest tract at one point,
but lying to the east of the northern most part of it. The third part of
Moutse 3 lies north of Groblersdal Town, just south of the border with
the Greater Marble Hall Municipality. A small portion of Moutse 3
spills over the provincial boundary in the south-west, into the
Thembisile Local Municipality in Mpumalanga province.
14.5. The internal boundaries of Moutse 1 and 3, that is, the boundaries that
do not constitute the provincial boundary with Mpumalanga Province,
are not contiguous. There are spaces between the tracts making up each
area, which do not belong to Moutse, and the boundaries themselves are
convoluted and jagged.
14.6. These boundaries are the same boundaries referred to at paragraph 59
and 60 of the applicants’ founding affidavit, ie. either the original
boundaries allegedly laid down by Paul Kruger, or the boundaries of the
farms that were bought up by the community. 11
14.7. Given that Moutse 2 is not in Limpopo but in Mpumalanga province, it
is unclear why this area is included in the challenge launched by the
applicants.
Traditional authority in Moutse 1,2 and 3
14.8. As is indicated on both maps, there are a number of traditional
communities located in Moutse 1 and 3, including the Matlala,
Amandebele A-Moletlane, Matlala Ramoshebo in Moutse 1, and the
Banwana, or Bantoane, and Matlala Lehwelere in Moutse 3.
14.9. In regard to traditional communities in the District Municipality, I refer
to the supporting affidavit of NJ Shai (annexed as “BNN4”), the
Manager: Anthropological Services in the Office of the Premier,
Limpopo Province. I highlight the following points contained in this
affidavit:
14.9.1. There are branches of Matlala people in Moutse as well as
further north in Limpopo Province, including in the Capricorn
and Waterberg Districts. 12
14.9.2. The historical roots of Matlalas are in Limpopo Province. The
Senior Traditional Leader lives in Limpopo Province and there
is much interaction between Matlalas in Moutse and those
elsewhere in the District, particularly where elders are called
upon to preside in rites of passage and cultural practices.
14.9.3. Bantwane or Bantoane people are linked to Limpopo Province
and have a strong link with the Sekhukhune people, to the
extent that marriages between the communities are common,
and cultural practices are similar.
14.9.4. Amandebele Amotletlana people have a direct link with the
Zebediela Matabele of Limpopo Province.
The decision to move the relevant municipalities to Limpopo Province.
The decision to do away with cross-boundary municipalities
15. The decision to abolish cross-boundary municipalities was taken at a meeting of
the President’s Co-ordinating Council of 1 November 2002. I refer to annexure 13
“BNN5”, a memorandum and report to the meeting prepared by the Department of Provincial and Local Government (“DPLG”).
15.1. The report sets out the background to cross-boundary municipalities,
describes the affected areas and identifies certain problems, and sets out
the implications of aligning municipal and provincial boundaries so that
there are no cross-boundary municipalities.
15.2. The report notes of cross-boundary municipalities
“Since their establishment, numerous problems have been
experienced in administering these municipalities. Several attempts
have been made to resolve these issues.”
15.3. It points out that the available models for administering cross-boundary
municipalities were “difficult to implement and adversely impact[ed]
on the administration, governance and service delivery in the areas of
coss-boundary municipalities”. 14
15.4. Another issue highlighted is that “municipal boundaries have become
key in service delivery and developmental initiatives at all three spheres
of government”.
15.5. The issue of traditional leadership was highlighted, particularly with
regard to the Matlala traditional authority area, on the
Limpopo/Mpumalanga boundary. Some of the Matlala community are
found in Moutse, which was then in Mpumalanga, while the seat of the
traditional authority is in Limpopo.
15.6. The report makes no specific recommendation regarding Moutse 1, 2
and 3, but recommends that cross-boundary municipalities be done
away with.
16. I refer next to annexure “BNN6”, which is a report on provincial boundaries
produced by the DPLG (in conjunction with the Municipal Demarcation Board
“MDB”) in June 2004.
16.1. A consideration of options for the Sekhukhune Cross-Boundary District
Municipality can be found at page 66 of the report. Option 1 is to retain
the District Municipality boundaries but to move the whole 15
Municipality into Limpopo Province, in which 78% of the population
of the District Municipality were located. Option 2 is to move Greater
Groblersdal Local Municipality, in which Moutse 3 is located, to
Mpumalanga Province, while the remainder of the District goes to
Limpopo Province.
16.2. The report then sets out considerations regarding each option. I point
out the following:
16.2.1. Option 1 shows the higher level of compliance with the factors
which must be considered by the Demarcation Board in
determining provincial boundaries. These factors are set out at
page 10 of the report.
16.2.2. Particularly, people from other local municipalities in the
district, which are part of Limpopo, access health care and
other facilities in the Greater Groblersdal Municipality. There
are also other linkages between communities in Greater
Groblersdal and communities which were situated in Limpopo
Province. 16
16.2.3. There would be fragmentation of communities and a greater
potential for disruption of service delivery and administration
resulting from the redrawing of municipal boundaries, if option
2 were followed.
16.3. As a result, option 1 was recommended, as can be seen at pages 12 and
33 of the report.
16.4. The report also highlights challenges which would arise from the
redrawing of provincial boundaries. It highlights the need for measures
to be put in place to deal with issues such as transfer of staff, transfer of
provincial service delivery departments, transfer of national and
provincial projects taking place in the relevant municipalities, the
implications as far as traditional authorities are concerned, and the
implications for local government.
16.5. As far as the implications for local government are concerned, I refer to
the tables at page 28 and 29 of the report, which indicate that in DC31,
the Nkangala District Municipality, to which the applicants wish to be
transferred, each local municipality was authorised to provide water and
sanitation services, whereas in Sekhukhune District Municipality the
local municipalities did not have this authority and the services were 17
provided by the District. As it is pointed out at the top of page 28, this
was an important factor to be taken into account.
16.6. The recommendations at paragraph 15.4 of the report, from page 34
thereof, demonstrate that the challenges inherent in redrawing the
provincial boundaries had been identified, and a plan was to be
implemented to deal with them.
17. Clearly, the abolition of cross-boundary municipalities was not intended only to
improve service delivery. The speech of the Minister, in annexure WMR11 to
the founding affidavit, refers to “social and economic development at regional
and local level, and to enable integrated and effective local government.”
17.1. The Constitution sets out the objects and duties of municipalities in
sections 152 and 153 respectively. The abolition of cross-boundary
municipalities was intended to facilitate the achievement of these
objects and fulfilment of these duties, of which service-delivery is only
one aspect.
17.2. Both the Elias Motsoaledi and the Grater Marble Hall Local
Municipalities have produced annual Integrated Development Plans 18
(IDPs) as all municipalities are required to do. These plans show that
economic and social development and other levels of community
development, including spatial planning and sustainability, are
important municipal functions. The plans are lengthy, and to avoid
prolixity I do not attach them to this affidavit. However, they are
available for inspection by any person who wishes to do so.
17.3. The development of municipal capacity, the development of the region
in which the municipality is located, and the links with other areas and
communities are also reflected in the documents informing the
recommendation that the provincial boundary be demarcated in the way
that it has. The questions of economic and social development at
regional and local level are explicitly reflected in the criteria considered
by the Demarcation Board, listed in the report BNN6 at page 10.
18. The concerns surrounding the effects of the abolition of cross-boundary
municipalities, explored in the report BNN6, which are not unique to the Moutse
areas, were reflected and provided for in the Cross-Boundary Act, at section 5,
which deals with transitional arrangements and the transfer of provincial
functions, assets and liabilities. 19
19. In compliance with this section, an implementation protocol was concluded
between the premiers of the two Provinces, as well as a number of memoranda
of understanding and service level agreements between the relevant Provincial
Departments. The implementation protocol is annexed as “BNN7”.
19.1. Sekhukhune District Municipality is dealt with in Part Two of the
Protocol, which begins at page 5 thereof. I point out the following:
19.1.1. The Limpopo Provincial Government was to take over the
services in the Sekhukhune District Municipality, which were
formerly provided by Mpumalanga, from 31 May 2006, and
was to provide services for the 2006/2007 financial year.
19.1.2. Provision is made for documentation of the functions and
services which were Mpumalanga’s responsibility in the area
to be provided, and for bilateral agreements between the
relevant provincial departments.
19.1.3. Provision is also made for the transfer of assets, liabilities,
rights and obligations of the provinces, and for the transfer of
provincial staff. 20
19.1.4. There is also provision for monitoring at national level.
20. At the time of the transfer of the relevant areas to Limpopo Province, a
Premier’s Emergency Infrastructure Grant (“PEIG”) was allocated to the former
cross-boundary areas to assist in infrastructure development. A list of the
projects initiated as a result of the PEIG is annexed as “BNN8”.
21. As such, it is clear that the challenges inherent in the abolition of cross-boundary
municipalities were anticipated, and provision was made to deal with them.
What is also clear, is that those challenges were of a temporary nature, while the
challenges of administering cross-boundary municipalities would remain as long
as the boundaries were retained.
22. I refer to the “Profile of Greater Sekhukhune District Municipality” prepared by
the DPLG, annexed as “BNN9”, which shows that, although there was a dip in
service delivery in the former cross-boundary municipalities just after the
transfer, service delivery has improved in the last two years.
23. I pause at this point to submit that, were the Moutse 1, 2 and 3 areas to have
retained their unusual status, being reliant on service level agreements for
services and not being integrated into the municipalities with which they are 21
linked, this would have resulted in a situation that was inconsistent with the
Constitutional imperatives that inform local government.
23.1. The Moutse 1, 2 and 3 areas would not have been contributing to the
development of local government in the areas, as there would be no
reason for local government to improve or strengthen its capacity.
23.2. The resources in the Moutse 1, 2 and 3 areas, such as the hospitals,
would not have been easily available to other parts of the District
municipality, which relied on them.
23.3. The new boundaries would not have been appropriate with regard to the
links with traditional communities in Limpopo Province.
D Recent developments in the process initiated by the Minister
24. In my affidavit of 20 April 2009, I indicated that Cabinet had decided that:
24.1. A formal, structured and comprehensive consultation process is
necessary in the affected area; 22
24.2. This process is necessary for the purpose of ascertaining the proportion
of people in support of one or other option, by testing the views and
preferences of every potential household and individuals on the ground
with regard to the province of their choice;
24.3. The consultative process and any necessary amendments resulting
therefrom will be dealt with by the next administration and the fourth
Parliament, which will be constituted after the elections on 22 April
2009.
24.4. In assessing the way forward, the new administration will take into
account a broad spectrum of factors, including local economic
development, governance issues and cultural linkages in determining
these amendments.
25. In the period since 20 April 2009, the new Cabinet has approved a focused
consultation process, which is due to be finalised by the end of September 2009.
25.1. The process is intended to be an intensive village-by-village
consultation, in which teams will visit each village in the affected areas 23
in order to obtain the views of individuals who are bona fide resident in
that village.
25.2. The process will take place on the same day in each village, to ensure
that the results are not distorted by itinerant community members.
26. The initial stages of the process have already taken place, in that:
26.1. a technical governmental task-team has been set up to deal with the
process;
26.2. the mayors in the relevant municipalities have been briefed on
Cabinet’s decision, and
26.3. I have had a preliminary meeting with representatives of the first
applicant, led by Mr Mogotshi, on Friday 03 July 2009. At that
meeting, the representatives agreed to participate in an administrative
steering committee, which will be set up shortly.
27. The process will continue as follows: 24
27.1. The Minister will engage with the Member of the Executive Council for
local government in Limpopo Province, and the Executive Mayors of
the affected municipalities. These officials will form a committee to
oversee the process politically.
27.2. Departmental officials will meet with Provincial officials and municipal
representatives to plan the logistics of the consultation process.
27.3. Government representatives will meet with community representatives
to form the steering committee I have referred to above.
27.4. The consultation process will be publicised in the relevant media.
27.5. The consultations will be carried out by teams in all the relevant
villages of the affected areas, on one day.
27.6. Thereafter, a report will be produced by the steering committee and
submitted to the Minister. 25
28. The Minister will then table the report before Cabinet. I anticipate that this will
take place by the end of September 2009.
29. I reiterate that, in any decision that is taken by Cabinet, the views of the people,
while important, are not the sole determining factor.
29.1. A decision to redraw municipal and/or provincial boundaries affects not
only the Moutse communities, but people in the towns and villages
surrounding Moutse as well. Such a decision also involves an
appreciation of integrated development planning and the steps taken
thus far to implement such plans.
29.2. The integrated urban planning policy, to which Government is
committed, requires all the relevant factors to be taken into account.
These include, in addition to the factors I have already alluded to, the
need to:
29.2.1. discourage the focus on metropolitan municipalities as primary
economic centres; 26
29.2.2. invest in rural areas, by developing the resources and capacity
of the towns (such as Groblersdal and Marble Hall);
29.2.3. treat areas with interconnected economic, social and cultural
interests as one holistic unit.
29.3. The provision of services is also to be considered holistically, as these
areas are interdependent as far as services are concerned.
30. In addition to the consultation process I have outlined above, the Department is
also taking steps to assist municipalities, including the Elias Motsoaledi Local
Municipality, improve service delivery.
30.1. In its oversight role, the Department has requested reports from the
Auditor-General and from the Elias Motsoaledi Local Municipality in
order to assess the state of governance and service delivery in the
municipality.
30.2. In addition, the Department is liaising with the Provincial Government
with a view to taking steps to improve the capacity of the municipality
to carry out its functions. 27
E Response to averments in the individual paragraphs of the founding
affidavit.
31. I proceed now to deal with the applicants’ founding affidavit. In order to avoid
prolixity I do not repeat the allegations made in the answering affidavit filed on
behalf of the seventh, eighth and ninth respondents. I specifically ask that those
allegations be read as if specially incorporated in this affidavit. To the extent that
I do not specifically traverse any allegation, it is denied, as far as it is
inconsistent with what I have stated above.
32. AD PARAGRAPH 1
I have no knowledge of the allegations contained in this affidavit. I accordingly
deny same and put the applicant to the proof thereof.
33. AD PARAGRAPH 2 28
For the reasons set out in this affidavit, I deny that the allegations contained in the
founding affidavit are true and correct.
34. AD PARAGRAPH 3
I deny that the applicants represent the people of Moutse. To the best of my
knowledge, the first applicant is active only in two or three of the twenty-one
wards which comprises Moutse 1, 2 and 3.
35. AD PARAGRAPH 4
For the reasons set out in this affidavit, read with the affidavits filed on behalf of
the sixth, seventh, eighth and ninth respondents, this paragraph is denied.
36. AD PARAGRAPH 5
36.1. I submit that there is no basis to set aside the current incorporation of
Moutse 1 and 3 into Limpopo Province. Furthermore, it is not
practicable to re-draw the provincial boundaries so as to incorporate
Moutse 1 and 3 into Mpumalanga in that: 29
36.1.1. Excising Moutse 1 and Moutse 3 from Limpopo province
would necessitate the redrawing of the municipal boundaries
of Elias Motsoaledi, J S Moroka and Greater Marble Hall
Municipality;
36.1.2. It would entail dissecting Elias Motsoaledi Local Municipality;
36.1.3. Re-transfer will result in an inevitable decline in service
delivery in the same way as the original transfer did;
36.1.4. Transfer in the absence of an enabling legislative framework
will not allow the affected municipalities to benefit from a
concerted and intensive funding and planning programme.
36.1.5. There will be significant costs implications for all three
spheres of government including the three local municipalities
involved. These costs have not been catered for in the current
budgetary allocations.
37. AD PARAGRAPHS 77-79 30
37.1. I point out that Moutse 1, 2 and 3 were not listed as areas independently
from the surrounding areas.
38. AD PARAGRAPHS 50 TO 79
Save as is consistent with what is stated above (and what is contained in the
answering affidavit filed on behalf of the seventh, eighth and ninth respondents)
these allegations are denied.
39. AD PARAGRAPHS 80 TO 81
The contents of these paragraphs are admitted.
40. AD PARAGRAPH 82
I point out that, in terms of section 124(3) of the Interim Constitution, the time
within which a referendum was to be called for had already expired by April
1996.
41. AD PARAGRAPH 83 31
41.1. I deny that the referendum proceedings were available to the Moutse
communities at the time referred to.
41.2. I submit that the consultations and agreements referred to can
appropriately be interpreted as the actions of a government which seeks
to be responsive to the community, rather than the fulfilment of any
obligation.
42. AD PARAGRAPHS 84 TO 90
The contents of these paragraphs are noted.
43. AD PARAGRAPH 91
43.1. Moutse 2 was incorporated into Dr JS Moroka Local Municipality, in
Nkangala District Municipality.
43.2. The area indicated on WMR8 as Moutse 1, 2, 3 is actually only part of
Moutse 3. 32
43.3. Save as set out above, these allegations are admitted.
44. AD PARAGRAPH 92
44.1. These allegations are denied.
44.2. Prior to demarcation, the cross-boundary municipalities of Greater
Groblersdal and Greater Marble Hall, including Moutse 1 and 3, were
administered by both Mpumalanga and Limpopo.
44.3. Moutse 2 was, in fact, part of Nkangala District Municipality.
45. AD PARAGRAPHS 93 TO 96
45.1. These allegations are noted.
45.2. I refer to what I have set out above regarding the decision to abolish
cross-boundary municipalities. 33
45.3. To the extent that they conflict with what I have already set out in this
regard, the allegations under reply are denied.
46. AD PARAGRAPH 97
46.1. Moutse 2 was incorporated in JS Moroka Local Municipality, part of
Nkangala District Municipality in Limpopo.
46.2. Save as set out above, these allegations are admitted.
47. AD PARAGRAPH 98
It is denied that Siyabuswa is contiguous with, and indistinguishable from,
Moutse. To the extent that the boundaries between Moutse 3 and Siyabuswa do
not disclose any clear break in settlement patterns, I point out that the boundary is
not a national or geographical boundary, so that the distinction is meaningless.
48. AD PARAGRAPH 99 34
Improving service delivery was only one of the purposes of the abolition of
cross-boundary municipalities. I refer in this regard to what I have already set
out above.
49. AD PARAGRAPH 100
The Department’s Strategic Plan does not cite service delivery alone as the
purpose of the boundary revision.
49.1. I point out that, even in the quoted excerpt, two purposes are listed: to
accelerate the delivery of services and to address the development
challenges in the country.
50. AD PARAGRAPH 101
50.1. I deny that the contention that service delivery is the sole purpose of the
Constitutional Amendment is supported by the Deputy Minister’s
speech. 35
50.2. I point out that, with regard to delivery of services, the intention is not
just to improve them for certain areas but to provide them in “an
equitable and sustainable manner”. The Deputy Minister also mentions
social and economic development at regional and local level, and
integrated and effective local government.
51. AD PARAGRAPH 102
I deny that, in order to be rational, the demarcation must have been capable of
achieving the objective of improving service delivery alone.
52. AD PARAGRAPH 103
52.1. I deny that the Amendment Act and Cross-Boundary Acts have not
improved service delivery.
52.2. I deny that no thought was given to how the demarcation would impact
service delivery in Moutse. The impact on service delivery was one of
the factors considered, as I have set out above. 36
52.3. I deny that service delivery has substantially deteriorated in Moutse
since the Amendment Act.
52.4. I deny further that substantial deterioration was foreseeable and
inevitable. To the extent that a level of deterioration was inevitable, I
point out that this was the case in all cross-boundary municipalities, but
that this was a temporary deterioration limited to the transfer period. I
refer to the annexures “BNN9” and “BNN1” respectively which show
that service delivery has in fact improved in the former cross-border
municipalities.
52.5. I deny that Moutse remains, in practice, a cross-boundary area. I deny
further that Moutse relies on Siyabuswa for supplies and infrastructure.
52.5.1. The applicants have not alleged that people in Moutse further
from Siyabuswa than Walkraal and Kgobokwane rely on
Siyabuswa for specific supplies or services.
52.5.2. The interaction with Siyabuswa by those people located in the
Northern extremity of Moutse 3 is inevitable, as that is closer
than other parts of Moutse, such as Dennilton. 37
52.5.3. I point out that Moutse 3 has a shopping mall and a regional
hospital. In addition to servicing patients from the Greater
Sekhukhune District Municipality, the hospital also services
patients referred from community clinics in the Dr JS Moroka
Local Municipality. In this regard, I refer to the supporting
affidavit of Ntombizandile Jennifer Mabindisa annexed to the
answering affidavit filed on behalf of the seventh, eighth and
ninth respondents.
52.5.4. Infrastructure is provided by the municipalities in which
Moutse 1 and 3 are situated. This is evident from the various
reports attached to this affidavit.
53. AD PARAGRAPHS 150 TO 154
For the reasons set out herein I submit that the applicants have not made out a
case for the relief sought.
54. AD PARAGRAPH 161
54.1. These allegations are denied. 38
54.2. The question of whether the Amendment Act is capable of achieving its
objectives cannot be evaluated with regard to the Moutse areas alone.
Provincial and municipal boundaries have an impact on all the
surrounding areas and therefore the issue needs to be approached
holistically.
Conclusion
55. I submit that the applicants have not demonstrated that:
55.1. they represent the entire community of Moutse;
55.2. Mpumalanga province did not follow an appropriate consultation
process, or
55.3. the Amendment Act and the Cross-Boundary Act are irrational.
56. In these circumstances this application ought to be dismissed.
39
______B N NKONTWANA
THUS DONE AND SIGNED BEFORE ME AT SANDTON ON THIS THE DAY
OF JULY 2009, THE DEPONENT HAVING ACKNOWLEDGED THAT HE/SHE
KNOWS AND UNDERSTANDS THE CONTENTS OF THIS DECLARATION AND
CONSIDERS IT BINDING ON HIS/HER CONSCIENCE, THE REGULATIONS
CONTAINED IN GOVERNMENT NOTICE NUMBER R1258 OF 21 JULY 1972, AS
AMENDED, AND GOVERNMENT NOTICE NO R1648 OF 19 AUGUST 1977, AS
AMENDED, HAVING BEEN COMPLIED WITH.
______COMMISSIONER OF OATHS