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 SEVENTH, EIGHTH AND NINTH RESPONDENTS I, the undersigned, PHUTI CHRISTOPHER RAMMUTLA do hereby make oath and state that: 2 1. I am the Chief State Law Advisor in the Office of the Premier, Limpopo Province. 2. I have been authorized to oppose this application and to depose to this affidavit on behalf of the seventh, eighth and ninth respondents. 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. 4. As set out in the answering affidavit deposed to on behalf of the second respondent, the applicants rely on two alternative causes of action in this application: 4.1. They challenge the Constitution Twelfth Amendment Act of 2005 (“the Amendment Act”) and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 (“the Cross- Boundary Act”) which effects the transfer of Moutse 1 and 3 to Limpopo province on the basis that it is irrational and therefore inconsistent with the Constitution (“the rationality argument”). 4.2. They contend that the province of Mpumalanga failed to follow the prescribed procedure set out in section 118(1)(a) of the Constitution 3 by failing to facilitate public involvement in considering and approving the part of the Amendment Act that related to Moutse 1, 2 and 3 (“the public participation argument”). 5. In this affidavit I do not address the public participation argument as this has been dealt with exhaustively in the affidavit filed on behalf of the sixth respondent in this matter. 6. Furthermore, in an effort to avoid prolixity, I do not intend to repeat any of the allegations or submissions made on behalf of the second respondent in relation to the rationality argument. I do however associate myself with those allegations and submissions and ask that they be read as if specifically incorporated herein. 7. In this affidavit I respond to the allegations set out in the founding affidavit relating to service delivery in the Moutse 1 and 3 areas. These allegations relate to the provision of water, health, education, social development services, police, transport, recreation facilities and roads. The pace of service delivery 8. The point of departure in a discussion about service delivery is an appreciation of the challenges facing municipalities in predominantly rural 4 areas. Lamentably, these challenges and backlogs in service delivery are not unique to municipalities in Limpopo province but are part of the national landscape. 9. Despite the enormous challenges facing the Elias Motsoaledi local municipality and the Marble Hall district municipality, it is noteworthy that there has been an overall improvement in delivery in most sectors. 10. This is confirmed in a recent report on service delivery compiled by the Elias Motsoaledi Local Municipality. This report is attached marked “PCR1”. 11. I also refer to an extract from the Municipal Demarcation Board’s Assessment of Capacity for the 2008/2009 Period for Nkangala District Municipality (annexed marked “PCR2”). The similar report for Sekhukhune District Municipality contains information dated 2001, so for purposes of comparison I refer to the figures contained in “BNN9” at pages 71 and 72. To avoid prolixity, I do not attach that annexure to this affidavit. 12. A comparison of the figures for core service delivery reveals, for example, that with regard to water, in Elias Motsoaledi Municipality the backlog was approximately 21% of households, whereas in the adjacent Dr JS Moroka Municipality which falls within the province of Mpumalanga (and to which the applicants seek to be transferred) the backlog was approximately 29%. 5 13. The report, “PCR1”, also describes the challenges experienced in service delivery since the transfer to Limpopo Province, and steps that have been taken to deal with them. 13.1. 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 “PCR3”. 14. I now deal with service delivery in the specific areas identified by the applicants in their founding papers. Water 15. In relation to the provision of water services I refer to the supporting affidavit of Brian Ezekiel Mphosho Masenya, annexed hereto marked “PCR4” 16. The relevant legislative regime entrenches the primary responsibility for the provision of water services as that of local government rather than provincial government. 6 16.1. The Interim Constitution of 1993 allocated to local government the task of making provision for access to water and sanitation, subject to the condition that “such services and amenities can be rendered in a sustainable manner and are financially and physically practicable.” 16.2. Schedule 4 Part B of the 1996 Constitution (“the Constitution”) tasks local government with providing “water and sanitation services, limited to potable water supply systems and domestic wastewater and sewage disposal systems”. 16.3. In terms of the Water Services Act 36 of 1998, national government, through the Department of Water Affairs and Forestry (“DWAF”) is responsible for sector policy, support and for regulation. DWAF operates water resource infrastructure and some bulk water supply. 16.4. Water Service Authorities (WSA’s), being metropolitan municipalities, some district municipalities and authorized local municipalities, are in terms of the Water Services Act, responsible for ensuring access of consumers to water services. 17. The WSA in charge of providing water services to the Moutse 1 and 3 areas is the Greater Sekhukhune District Municipality. 7 17.1. Soon after the transfer of the former cross-boundary areas to Limpopo Province, water was identified as a service delivery priority. The following challenges were acknowledged: 17.1.1. Although there was reticulation infrastructure in some parts of Moutse, there was no water supply for this infrastructure. 17.1.2. The delivery of water in tanks was not consistent, and the amount delivered was not sufficient. 17.1.3. Where wards or villages had boreholes, these were often not working. 17.2. As a result, it was decided to focus firstly on repairing existing boreholes and improving bulk water supply (tankers). In addition, existing reticulation systems would be resuscitated, and finally, reticulation would be installed in as many villages as possible. 17.3. These projects were dealt with under the PEIG. 8 17.4. I annex hereto annexure “PCR 5”, a report on interventions in Moutse by the Limpopo Department of Local Government and Housing. According to this report R41.163 million was spent by July 2008 on projects in water, sanitation and electricity. Specifically, 6634 households had benefited from the water projects. 17.5. The list of PEIG projects from the 2006/2007 Financial Year (annexed as “PCR3” hereto) lists in detail the projects and amounts spent on them. 17.6. The biggest intervention made in relation to water is the establishment of a water treatment works by the Sekhukhune District Municipality. Health 18. In relation to health services, the supporting affidavit of Ntombizandile Mabindisa, annexed hereto marked “PCR6” shows that the people of Moutse have access to comprehensive health services provided by the Philadelphia Hospital which is a regional hospital. They also have access to a district hospital, Groblersdal Hospital. This is in addition to services provided by community clinics. 9 19. The only services not provided by this hospital are tertiary health services. Philadelphia Hospital has however entered into collaborative agreements with tertiary hospitals (most notably George Mukhari Hospital in Garankuwa and Steve Biko Academic Hospital in Pretoria) in terms of which patients who require services not provided at Philadelphia Hospital can be transferred or referred to these hospitals, space permitting. 20. The Limpopo provincial government have made a number of interventions in relation to Health in Moutse: 20.1. As at 31 July 2008: 20.1.1. R15 500 000-00 was spent on staff accommodation, palisade fencing, upgrading of ward ablution and replacing of the standby generator at Philadelphia Hospital; 20.1.2. A laundry upgrade of R9 660 093-00 was made at Philadelphia Hospital; 20.1.3. A project involving the construction of a new emergency medical centre costing R5 116 000-00 is currently underway; 10 20.1.4. In the year 2011/12, plans are underway for the upgrade of Outpatient Department, casualty and the gateway clinic. The budget for this project is R19 000 000-00. 20.2. In relation to the Groblersdal Hospital, projects by Limpopo province include: 20.2.1. the recent completion of staff accommodation and palisade fencing which cost R10 848 127-00; and 20.2.2. a project which is still in the tender stage for a new forensic pathology facility which will cost R8 800 000-00. Education 21. In relation to Education, the Limpopo Department of Education has implemented the National School Nutrition Programme. From April to June 2008 almost R2 million was spent on 103 schools in the area. 11 22. Other initiatives introduced include the further training of educators. Topics dealt with include: 22.1. Moderation on continuous assessment; 22.2. Subject advisors training; 22.3. Training for educators in technology; information communication technology; mathematics and science; 22.4. Early childhood development. This entailed further training of Grade R practitioners. Thus far at least 40 of 140 educators have received further training in early childhood development.