MOUTSE DEMARCATION FORUM and 15 Applicants OTHERS And
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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.