IN THE CONSTITUTIONAL COURT OF

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 .

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 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 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 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