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First to Third Respondents' Answering Affidavit-10603.Pdf IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT 41/07 In the matter between – MERAFONG DEMARCATION FORUM AND 10 OTHERS Applicants and THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND FIFTEEN OTHERS Respondents ANSWERING AFFIDAVIT OF FIRST TO THIRD RESPONDENTS I, the undersigned, FHOLISANI SYDNEY MUFAMADI make oath and say the following: A. Introduction 1. 1.1. I am a member of the Cabinet of the Republic of South Africa (“the Republic”). I am also the Minister for Provincial and Local Government in the Republic. I have been cited in these proceedings as the second respondent. Page 2 1.2. I make this affidavit on my behalf, and on behalf of the first and third respondents. They have authorised me to do so. All of us oppose the relief sought by the applicants in the notice of motion. We do so on the grounds more fully set out below. 1.3. The facts described in this affidavit fall within my personal knowledge, unless I state otherwise or the context makes it clear that they do not. I confirm that those facts are, to the best of my knowledge and belief, true and correct. 1.4. Some of the averments I will make will be in the nature of legal submissions. I make those legal submissions on the advice of my legal representatives and those of the first and third respondents, which I received in the course of consultation, and which I believe to be correct. 2. In their founding affidavit the applicants make it clear that they have brought the present application to obtain relief similar to that which was obtained by the applicants in the case of Matatiele Municipality and others v President of the RSA and others, Case No CCT 73/05. I am aware that that case was heard by this honourable court on two separate occasions, namely 14 February 2006 and 30 March 2006. On each occasion, I deposed to opposing affidavits on behalf of the first to third respondents. Where necessary, I shall refer to the opposing affidavits that I have previously made. 3. I am also aware that two separate judgments were given by this honourable court in the Matatiele case, on 27 February 2006 and 18 August 2006. I shall refer to the first Page 3 judgment as “the judgment in Matatiele No 1” and the second as “the judgment in Matatiele No 2”. The applicants do not explain why they did not request leave to join in the Matatiele case, despite their knowledge of that case. Their belated approach to this court has brought about an undesirable situation, where the constitutional validity of the impugned legislation is debated in a piece-meal fashion. This is not only costly to the national government, and other affected parties. It also dislocates the efficient functioning of the governments, when it is called upon to duplicate efforts to correct defects in the impugned legislation which ought to have been dealt with at the same time as the Matatiele case. 4. This affidavit will be relatively long. I consider it desirable to indicate, in advance, the nature of the issues I will deal with in this affidavit, in view of its length. I also do so in order to provide a coherent explanation of the defence relied upon by the first to third respondents. I will, in this regard, deal with: 4.1. the rationale for the promulgation of the Constitution Twelfth Amendment Act of 2005 (“the Twelfth Amendment Act”) and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act, 23 of 2005 (“the Repeal Act”). I shall, in this regard, deal with the following matters: 4.1.1. the establishment of the nine provinces in the Republic and the criteria which was then adopted to determine the boundaries of each province; Page 4 4.1.2. the establishment of municipalities throughout the Republic. I shall refer to the legislative and other steps which were taken by the government of the Republic during the transitional and final phases, to bring about the system of local government contemplated in chapter 7 of the Constitution of the Republic of South Africa, 1996, as amended (“the Constitution”). 4.2. the problems which came into sharp focus in the course of transforming the system of local government. I shall, in this regard, confine myself to the establishment of the so-called cross-boundary municipality and how the Constitution was amended, to bring the legislative authority to empower the executive establish such cross-boundary municipality and to regulate them; 4.3. the objectives sought to be achieved by the Twelfth Amendment and the Repeal Act; 4.4. the reasons for locating Merafong City Local Municipality (“Merafong”) in the Province of North West; 4.5. the legislative and other steps taken by the national and provincial governments to ensure that service delivery to the community of Merafong is not adversely affected as a result of locating Merafong in the North West Province; Page 5 4.6. the effect of negotiating and final mandates of provinces in the deliberations and approval of the Twelfth Amendment. 4.7. the responses of the first to third respondents to the allegations and submissions made by the applicants to the individual paragraphs of the founding affidavit; 4.8. the condonation sought by the first to third respondents for the late delivery of their opposing affidavit; 4.9. lastly, the relief sought by the respondents, in the event – 4.9.1. the application is dismissed; or 4.9.2. the Twelfth Amendment and/or the Repeal Act are declared invalid. B. The establishment of nine provinces in the Republic 5. The Twelfth Amendment locates Merafong in the North West Province. It does so in terms of schedule 1A provided for in the Twelfth Amendment, and with reference to Map no. 5, attached to Government Notice 1998 of 2005. 6. The decision by Parliament to locate Merafong in the North West Province must be understood in the context of the system of provincial government which has been Page 6 established in terms of the Constitution. One of the principles underlying the system of provincial government authorised by the Constitution is that provincial governments established in the Provinces must be able to function effectively, in discharging the provincial functions, powers and duties conferred upon them, in terms of the Constitution. I will show that Merafong was located in the North West Province in order to ensure that the provincial governments of both North West and Gauteng Provinces function effectively in the discharge of their provincial functions, powers and duties. 7. The Constitutional Principles (“the CPs”) which were described in schedule 4 to the Interim Constitution provided the basic structure which the final text of the Constitution had to comply with. They also provided that this Court ought to certify that the text of the Constitution complied with the basic structure of the CPs. Of relevance are CPs XVIII.I to XVIII.4, which required, amongst others, that the Constitution should define the powers, functions and boundaries of the provinces. 8. The establishment of provinces in the Republic, their geographic boundaries, powers, functions and duties are described in Chapter 6 of the Constitution. Chapter 6 itself is the product of a certification process which was carefully undertaken by this Court in the first and second certification cases. When it certified the relevant provisions of Chapter 6 of the Constitution, this Court held that the establishment of nine provinces, determination of their geographic boundaries, the allocation of their powers, functions and duties were consistent with the constitutional principles, more particularly CPs XVIII.1 to XVIII.4. I draw attention in this regard to paragraphs 229 to 292 of the first certification case, and paragraphs 8 to 71 and 111 to 127 of the second certification Page 7 case. There exists, therefore, nine provinces in the Republic with their geographic boundaries, powers, functions and duties determined in Chapter 6 of the Constitution. 9. When it certified Chapter 6 of the Constitution, this Court also had regard to the requirements of CP XXI. It held, in that regard, that the provinces had to be established in order to render services to inhabitants of the provinces, and also to deal with the socio-economic and cultural needs and the general well-being of the inhabitants of provinces. I draw attention, in this regard, to the following passage in the first certification Judgment: “The CPs do not contemplate the creation of sovereign and independent provinces; on the contrary, they contemplate the creation of one sovereign State in which the provinces will have only those powers and functions allocated to them by the NT. They also contemplate that the CA will define the constitutional framework within the limits set and that the national level of government will have the powers to transcend provincial boundaries and competencies. Legitimate provincial autonomy does not mean that the provinces can ignore that framework or demand to be insulated from exercise of such power. What is important is that the provinces be vested with powers contemplated by the CPs and be able to exercise such powers effectively. If this is done, the requirement of CP XX relating to legitimate provincial autonomy will have been met.” Page 8 10. I will show, more fully below, that the provincial boundaries which were established by the Interim Constitution, and re-affirmed in terms of section 103(2) of the Constitution resulted in the introduction of the notion of the so-called cross-boundary municipalities. Service delivery in cross-boundary municipalities could not be rolled out effectively.
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