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1 in the High Court of South Africa Eastern Cape Division 1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION – GRAHAMSTOWN Case no: 2733/2015 Date Heard: 28/05/2015 Date Delivered: 25/06/2015 In the matter between: BAVIAANS MUNICIPALITY APPLICANT and THE MUNICIPAL DEMARCATION BOARD 1ST RESPONDENT JANE THUPANA 2ND RESPONDENT CAMDEBOO LOCAL MUNICIPALITY 3RD RESPONDENT JUDGMENT SMITH J: Introduction [1] The applicant seeks an interdict, inter alia, restraining the Municipal Demarcation Board (“the Board”) from entertaining a request by the Minister of Cooperation, Governance and Traditional Affairs to redraw the boundaries of the Camdeboo, Baviaans and Ikwezi Municipalities, pending the publication and broadcasting of a notice in terms of section 26 of the Local Government: Municipal Demarcation Act, 27 of 1998, (“the Act”). [2] The applicant is the Baviaans Municipality, a local authority established in terms of section 12 of the Local Government: Municipal Structures Act, 117 of 2 1998. The municipality comprises the towns of Rietbron, Steytlerville, and Willowmore (including the Baviaanskloof), and their respective districts. The Board, a juristic person established in terms of section 2 of the Act, has been cited as first respondent, and its chairperson, Jane Thupana, as second respondent. [3] The applicant’s initial challenge to the notice in its founding papers was more comprehensive, and it contested, inter alia, the entitlement of the Board to entertain the Minister’s request before rescinding a previous notice; the reasonableness of time periods determined by the Minister under section 22 (2) of the Act; and asserted that the notice was substantively defective in that it did not contain sufficient information to enable stakeholders to make meaningful representations. It thus also sought an order setting the notice aside on these grounds. [4] When the application first became before me on 31 March 2015, in addition to granting an interim interdict prohibiting the Board from holding any public meetings within the municipal boundaries of the Baviaans Municipality pending the finalisation of the matter, I also ordered that the papers be served on the other two affected municipalities as I was of the view that they may be directly affected by the outcome of the proceedings. That order was, however, not based on a comprehensive assessment of all persons and other organs of state which may have a direct and substantial interest in the proceedings, but was made meru motu, and based only on my preliminary consideration of the papers. I also did not have the benefit of submissions by counsel in this regard at that stage. 3 [5] The Camdeboo Municipality subsequently joined the proceedings as third respondent, and essentially opposed the substantive challenges to the validity of the section 26 notice and the reasonableness of the time periods determined by the Minister in terms of section 22 of the Act. [6] At the hearing of the matter, however, the applicant abandoned its substantive challenge to the validity of the notice, and limited its attack to the contended procedural shortcomings during the publication thereof. It thus contended that the Board did not comply with the procedural prescripts of section 26, in that it failed to: (a) publish the notice in a newspaper circulating within the municipal boundaries of the Baviaans Municipality; (b) broadcast the contents of the notice by radio, or publish it by other appropriate means. [7] Mr Potgieter SC, who appeared for the Camdeboo Municipality, argued that since the applicant abandoned its substantive challenge to the validity of the notice, the Camdeboo Municipality would be entitled to its costs regardless of the outcome of the application. He submitted – in my view correctly so- that it was the substantive challenge to the validity of the notice rather than the complaints in respect of the procedural shortcomings that precipitated the Camdeboo Municipality’s opposition, since it would not have been directly affected by judicial pronouncement based on the latter challenge. I revert to this issue later in my judgment. 4 [8] The broad-based attack on the validity of the notice also gave rise to a point of non-joinder taken by the Board and the second respondent. Ms Van der Merwe, who appeared on behalf of the respondents, however, conceded that the Minister (or for that matter, the other parties mentioned in its answering affidavit) would no longer have a direct and substantial interest in the proceedings, since the challenge has now been confined to alleged procedural shortcomings only. The manner of publication of the section 26 notice is primarily the responsibility of the Board, and the other organs of state would have little, if any, contribution to make in this regard. [9] The only issue which accordingly falls for decision is whether the Board has complied with the peremptory procedural prescripts of section 26 when publishing the notice. That section provides as follows: ” 26 Public notification of determination of municipal boundaries (1) Before the Board considers any determination of a municipal boundary in terms of section 21, it must publish a notice in a newspaper circulating in the area concerned- (a) stating the Board's intention to consider the matter; and (b) inviting written representations and views from the public within a specified period (which may not be shorter than 21 days). (2) When the Board publishes a notice it must convey by radio or other appropriate means of communication the contents of the notice in the area concerned. (3) The Board must send by registered post, electronic means or by hand a copy of the notice to- (a) the MEC for local government in the province concerned; (b) each municipality that will be affected by the Board's consideration of the matter; (c) the magistrate concerned if any magisterial district is affected; and (d) the provincial House of Traditional Leaders concerned established by provincial legislation in terms of section 212 (2) (a) of the Constitution if the boundary of a traditional authority is affected, and invite them to submit written representations or their views on the matter to the Board within the period determined in terms of subsection (1). 5 The factual background [10] The pertinent facts are as follows. After the 2011 local government elections, the Board, under the previous chairperson, commenced a demarcation process to reconsider the boundaries of the applicant, the Baviaans and Ikwezi Municipalities, on its own initiative in terms of section 22 (1)(a) of the Act. The deadline for the finalisation of that process was 31 January 2013. It appears that the process was effectively abandoned, and that no further steps were taken by the Board after the expiry of the deadline. [11] During February 2015 the Minister, acting in terms of section 22(2) of the Act, requested the Board to consider the amalgamation and re-determination of, inter alia, the boundaries of the abovementioned three municipalities. [12] In terms of section 22(2) of the Act, the Minister set priorities and reasonable time frames within which the Board must complete the process and reach a decision. Since the applicant has accepted that the Board was constrained to act in accordance with the Minister’s request, and has abandoned its challenge in respect of the reasonableness of the time periods determined by the Minister, it is not necessary for me to deal with the substantial volume of allegations and counter-allegations regarding alleged impermissible political interference in the Board’s statutory functions. [13] After the Board published the section 26 notice in the EP Herald and Daily Dispatch newspapers on 10 February 2015, the applicant’s attorneys wrote to it on 19 February 2015, stating that those newspapers are not circulated within its 6 municipal boundaries. They also provided the Board with a list of newspapers, which according to the applicant, circulated within its boundaries. [14] From that list the Board chose Die Burger, and re-published the notice in that newspaper on 26 February 2015. It also informed all the stakeholders of the publication in terms of section 26(3), and requested the affected municipalities to place the notice in public areas, and to bring its contents to the attention of other stakeholders, including members of the community. The English version of the notice reads as follows: MUNICIPAL DEMARCATION BOARD MUNICIPAL DEMARCATION BOARD NOTICE IN TEMRS OF SECTION 26 OF THE LOCAL GOVERNMENT: MUNICIPAL DEMARCATION ACT, 1998 (Eastern Cape) Notice is hereby given in terms of section 26 of the Local Government: Municipal Demarcation Act. 1998 (Act No. 27 of 1998) of the intention of the Municipal Demarcation Board to consider a request received from the Minister of Cooperative Governance and Traditional Affairs to re-determine the boundaries listed in the Schedule. Members of the public are invited to submit written representations and views to: The Municipal Demarcation Board, Private Bag X123, CENTURION 0046 Fax: 086 524 8643 E-mail: [email protected] Written representations and view must reach the above office within 21 days of the date of publication of this notice. Views and representations must be based on the criteria provided for in section 24 and 25 of the Demarcation Act, 1998, and in respect of metropolitan areas, also on the criteria provided for in section 2 of the Structures Act, 1998. The DEM No. Appearing in the first column of the Schedule must be quoted in any correspondence with the Board. Maps reflecting the Minister’s proposal, and Circular 2/2015 containing guidelines for submission can be downloaded from the Board’s web-site: www.demarcation.org.za Maps and circular 2/2015 can also be requested by email from [email protected] or by sending a fax to 086 524 8643. Jane Thupana Chairperson: Municipal Demarcation Board SCHEDULE EASTERN CAPE DEM No.
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