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.
The provincial governments under whose jurisdiction the cross-boundary
municipalities fell could not effectively discharge their constitutional functions and
duties with regard to the cross-boundary municipalities. The nett effect was that
service delivery at both local and provincial levels of government became adversely
affected in areas that constituted cross-boundary municipalities.
11. I will also show that the Twelfth Amendment was promulgated in order to re-align
provincial boundaries in a way which effectively dis-established cross-boundary
municipalities, in order to promote service delivery at the local level of government.
The dis-establishment of cross-boundary municipalities required the location of
geographic areas which previously constituted cross-boundary municipalities into one
or other province across whose boundaries they were established. The two primary
considerations which informed the decision to locate into one or other province the
geographic areas which previously constituted cross-boundary municipalities, were -
11.1. the need to effectively provide service delivery at local level of government.
That meant service delivery in areas which previously constituted cross-
boundary municipalities should not, at a minimum, be adversely affected as a
result of locating a municipal entity or entities in one or other province or
provinces; Page 9
11.2. the affected provinces will become or continue to be viable, and be able to
discharge their provincial functions effectively, as a result of the location of
geographic areas that previously constituted cross-boundary municipalities,
within their boundaries. In other words, the provincial boundaries were re-
drawn in order to ensure the viability of the affected provinces. The
boundaries were also re-drawn in order to ensure that the affected provinces
would be able to effectively provide service delivery to their inhabitants on a
sustainable basis, and also, discharge their constitutional obligation to support
and monitor service delivery by municipalities within their respective
geographic borders.
C. The establishment of provinces
12. The Interim Constitution established nine provinces in the Republic. Paragraphs (a) to
(i) of section 124(1) of the Interim Constitution described the provinces which were
established. Subsection (2) of section 124 of the Interim Constitution provided criteria
for the determination of geographic boundaries of the provinces. It did so with
reference to part 1 of schedule 1 to the Interim Constitution. Part 1 of schedule 1 of the
Interim Constitution identified specific areas which fell within the geographic
boundaries of each of the provinces. It did so mainly with reference to magisterial
districts which had been created, at that time, in terms of the Magistrates’ Court Act, 32
of 1944, as amended. Page 10
13. The provinces of North West and Gauteng, which were established in terms of the
Interim Constitution, shared a common boundary, particularly in the western side of the
province of Gauteng. The geographical areas which fell within the North West
Province were determined (in part 1 of schedule 1 of the Interim Constitution ) by
means of two criteria:
13.1. the first was with reference to the magisterial districts created in terms of the
Magistrates’ Court Act. Those districts were specifically identified in the
relevant portion of part 1 of schedule 1 to the Interim Constitution..
13.2. the second is with reference to geographic areas identified in several pieces of
legislation, including the repealed Bophuthatswana Border Extension Act, 8 of
1978, and Proclammations R222 of 28 November 1986, R98 of 30 June 1989
and 103 of 31 October 1991.
14. In regard to the province of Gauteng, part 1 of schedule 1 to the Interim Constitution
identified geographic areas which fell within the boundaries of Gauteng. It described
the specific magisterial districts created in terms of the Magistrates’ Court Act, which
fell within the geographic boundaries of Gauteng. It also provided for the exclusion of
certain areas from the geographic boundaries of Gauteng. The areas which were
excluded are those that had been described in Proclammations R137 of 25 September
1987 and R98 of 30 June 1989. Page 11
15. The number of provinces and geographic boundaries which fell within the provinces
established in terms of the Interim Constitution were perpetuated by the Constitution.
Section 103(1) of the Constitution provided for the establishment of nine provinces in
the Republic. Paragraphs (a) to (i) of that section describe the name of the provinces
thus established. Before its amendment by section 1 of the Twelfth Amendment,
section 103(2) of the Constitution provided that the geographic boundaries of the
provinces were those that existed at a time when the Constitution was brought into
operation. In effect, those were the boundaries established by part 1 of schedule 1 to
the Interim Constitution.
16. When it determined the geographic boundaries of the provinces and described the
geographical areas which fall within the geographic boundaries of the provinces, the
Interim Constitution did not provide at all that those geographic boundaries and
geographical areas would forever remain immutable, or immune from alterations. On
the contrary, the Interim Constitution contemplated that the provincial boundaries
determined by it, and the allocation of specific districts within provincial boundaries
could be altered. For instance, -
16.1. section 163 of the Interim Constitution provided for the establishment of the
Commission on Provincial Government. Section 164 of the Interim
Constitution described the objects of the Commission. One of those objects
was to advise the Constitutional Assembly and make recommendations
regarding the finalisation of the number of provinces for the Republic and the
determination of the boundaries for those provinces; Page 12
16.2. section 124(2) and (3) of the Interim Constitution provided for the inclusion
or exclusion of certain areas within specific provinces by means of a
referendum conducted in accordance with the relevant provisions of
section 124 of the Interim Constitution.
17. I have already pointed out that section 103 of the Constitution established nine
provinces for the Republic. Those were the number of provinces which had already
been established in terms of the Interim Constitution. The Commission on Provincial
Government prepared a report, dated 31 July 1996, dealing with its recommendation to
the Constitutional Assembly, regarding the number of provinces and their boundaries.
The relevant extract of that report is annexed hereto and marked “AA1”.
18. I have also pointed out that the provisions of section 103(2) of the Constitution
perpetuated the provincial boundaries which were established by the Interim
Constitution, and also the allocation of various geographical areas in specific provinces.
I have been advised, and respectfully submit, that the provisions of section 103(2) of
the Constitution do not purport to cast in stone the provincial boundaries which were
determined in terms of part 1 of schedule 1 to the Interim Constitution. Those
provisions did not also purport to cast in stone the allocation of specific magisterial
districts to specific provinces in accordance with part 1 of schedule 1 to the Interim
Constitution.
19. I have also been advised, and respectfully submit, that the provisions of the
Constitution contemplate and authorise the alteration of provincial boundaries which Page 13
were established by the Interim Constitution. They also contemplate the re-
arrangement and reallocation of geographical areas which had been determined in
terms of the Interim Constitution. A clear indication to that effect appears from the
provisions of section 74(3)(b)(ii) of the Constitution.
D. Establishment of municipalities
20. Before the Interim Constitution came into effect, there existed in the Republic a
skewbald system of local government. That system was racially based and provided,
amongst others, for the election of local authorities and allocation of resources to those
local authorities to provide municipal services on the basis of impermissible racial
considerations. The racially-based system of local government was bound to fail, as
did many other racially-based measures. Its demise dawned upon the commencement
of the Interim Constitution.
21. Chapter 10 of the Interim Constitution provided for the establishment of local
government throughout the Republic. I draw attention to the fact that section 174 of the
Interim Constitution required the demarcation of various categories of metropolitan,
urban and rural local governments by a competent authority. Section 179 of the Interim
Constitution also required the election of local government units established under the
Interim Constitution, by means of democratic elections which included proportional
and ward representation. Page 14
22. Because of the fact that the system of apartheid manifested itself egregiously at local
government level, there was an urgent need, after the adoption of the Interim
Constitution, to transform the system of local government created under apartheid. The
first step in the transformation of the system of local government was the enactment
and promulgation of the Local Government Transaction Act, 209 of 1993 (“the
LGTA”). The LGTA provided for the establishment and regulation of local government
systems during the so-called ‘pre-interim phase’. The pre-interim phase commenced
from the first local government elections conducted in terms of the Interim
Constitution.
23. The first local government elections conducted in terms of the Interim Constitution and
the LGTA took place on 1 November 1995, throughout the Republic, except in Kwa-
Zulu Natal Province where they were held on 26 June 1996, and Western Cape
Province where they were held on 29 May 1996. Approximately 1 200 municipalities,
with different designations, were established before the local government elections in
1995 and 1996. I emphasize that before the first local government elections, the system
of local government was confined to urban areas. There was no local government of
significance in rural areas.
24. In terms of the LGTA different transitional local councils were established. They
included transitional metropolitan councils, transitional metropolitan sub-structures and
transitional local councils or local government coordinating committees. These
transitional structures were established by means of the process of negotiations through
racially inclusive local negotiating fora, aimed at bringing about a widely-
representative and all-inclusive system of local government. Page 15
25. The second phase of transforming the system of local government in the Republic was
generally known as the ‘interim phase’. That phase commenced after the first election
of the local governments, pursuant to the provisions of the Interim Constitution and the
LGTA. During the interim phase, the Municipal Demarcation Board was established in
order to demarcate or determine boundaries of municipalities. The Municipal
Demarcation Board was established pursuant to section 2 of the Local Government:
Municipal Demarcation Act, 27 of 1998, as amended (“the Municipal Demarcation
Act”).
26. I point out that during the pre-interim phase, my predecessor published a white paper
on the transformation of local government. A copy of that white paper is annexed
hereto, marked “AA2”. The final phase of the transformation of local government
commenced after the adoption of the Constitution by the Constitutional Assembly.
That system of local government is the one described in Chapter 7 of the Constitution.
27. In order to bring about the system of local government contemplated in Chapter 7 of
the Constitution, the Municipal Demarcation Board was required to determine and
demarcate the geographic boundaries of municipalities. It was also required to do so in
order to prepare for the subsequent local government elections which were held on
5 December 2000. As a result of the demarcation performed by the Municipal
Demarcation Board, 284 municipalities were established. The geographical boundaries
of municipalities so demarcated were wall-to-wall. In other words, they were
established for the whole of the territory of the Republic. Page 16
28. Before the process of demarcation of municipal boundaries by the Municipal
Demarcation Board, it became apparent that there were certain communities which
resided in areas which were socially linked and economically interdependent, and that
those areas cut across boundaries of adjoining provinces. There was not, at that time,
any provision in the Constitution which permitted the establishment of a municipality
in respect of those socially linked and economically inter-dependent areas which cut
across the boundaries of adjoining provinces.
29. It became necessary for Parliament to consider an amendment of the Constitution in
order to authorise the establishment of cross-boundary municipalities in regard to areas
which were socially closely linked and economically inter-dependent, despite the fact
that they cut across the boundaries of adjoining provinces. In order to achieve that
purpose, the Republic of South Africa Second Amendment Bill, 1998, was submitted to
Parliament for consideration. Annexed hereto, marked “AA3”, is a copy of the Bill,
together with the explanatory memorandum, which describes the object of the Bill. On
or about 28 September 1998, the Bill was passed into law. It became known as the
Constitution Second Amendment Act, 1998. It came into opeation as from 7 October
1998.
30. The Constitution Second Amendment inserted section 155(6A) in the Constitution. It
authorised the establishment of cross-boundary municipalities across provincial
boundaries in circumstances where such municipalities could not feasibly be
established within the boundaries of one province, in accordance with the criteria
contemplated in section 155(3) of the Constitution. It also provided for the mechanism Page 17
through which provinces in whose boundaries cross-boundary municipalities were
established would be able to exercise joint executive control.
31. On 1 February 1999, the Local Government: Municipality Structures Act, 117 of 1998,
as amended (“the Structures Act”) came into effect. The Structures Act provides for the
establishment of municipalities throughout the Republic, as contemplated in
section 151(1) of the Constitution. It also provides for the establishment of different
categories of municipalities in order to give effect to section 155(1) of the Constitution.
32. In terms of section 12 of the Structures Act, the Member of the Provincial
Executive Council of each province (“the MEC”) responsible for local government
affairs is required to establish a municipality within his or her province by means of a
notice published in a provincial gazette, in respect of a municipal area which has been
demarcated as such by the Municipal Demarcation Board. In other words, once the
Municipal Demarcation Board has demarcated a particular geographic area as a
municipality, then the MEC of a province concerned is required to establish a
municipality for such an area.
33. Section 90 of the Structures Act dealt with cross-boundary municipalities and how they
should be established. Section 90(1) of the Structures Act provided that where the
Municipal Demarcation Board demarcates a particular area across provincial
boundaries as a cross-boundary municipality, then the MECs of the affected provinces
must, with the concurrence of their provincial legislatures, establish a cross-boundary
municipality by issuing notices in terms of section 12 of the Structures Act. Once Page 18
established, a cross-boundary municipality is subject to the provincial control and
monitoring by the relevant MECs of the affected provinces.
34. Where a cross-boundary municipality has been established the executive authority over
such a cross-boundary municipality would be exercised jointly by the MECs of the
affected provinces, unless their provincial governments have made alternative
arrangements for the exercise of the executive authority in such a municipality, by one
province on behalf of both affected provinces.
35. After the Constitution Second Amendment authorised the establishment of cross-
boundary municipalities, the Municipal Demarcation Board indicated that it is desirable
to establish several cross-boundary municipalities across the boundaries of a number of
provinces. It demarcated the boundaries of those cross-boundary municipalities. The
MECs of the affected provinces issued relevant notices establishing cross-boundary
municipalities.
36. Thereafter, the Local Government: Cross-Boundary Municipalities Act, 29 of 2000, as
amended (“the Cross-Boundary Municipalities Act”) was promulgated. It came into
force with effect from 7 July 2000. That Act gave effect to cross-boundary
municipalities which had been determined by the Municipal Demarcation Board, and
subsequently established by the MECs of the affected provinces. The schedule to the
Cross-Boundary Municipalities Act described the municipal areas which have been
demarcated and established as cross-boundary municipalities, and the provinces within
which they had been so established. Page 19
37. As appears from the schedule of the Cross-Boundary Municipalities Act, Merafong was
demarcated by the Municipal Demarcation Board as a cross-boundary local
municipality, across the boundaries of the Provinces of Gauteng and North West. The
MECs of the provincial governments of Gauteng and North West issued relevant
notices, pursuant to section 12 of the Structures Act, establishing Merafong as a cross-
boundary municipality. Copies of the relevant notices are annexed hereto, marked
“AA4” and “AA5”.
38. In terms of section 90 of the Structures Act, Merafong was subject to the joint executive
control of the MECs for the Provinces of North West and Gauteng. The two provinces
did not opt for or conclude any agency agreement for the exercise of executive control
in respect of Merafong, by one province on behalf of both provinces.
39. On 23 June 2005, the Re-Determination of the Boundaries of Cross-Boundary
Municipalities Act, 6 of 2005, was promulgated. It came into force with effect from 27
June 2005. The purpose of that Act was to further authorise the re-determination of
cross-boundary municipalities. Schedule 1 of that Act describes the local, district and
metropolitan municipalities whose boundaries were re-determined.
E. The practical problems which arose from the establishment of cross-boundary
municipalities
40. In terms of section 153 of the Constitution and the Structures Act, each provincial
government is required to provide legislative support and take other measures to Page 20
promote the capacity of municipalities in its jurisdiction to manage their own affairs
and effectively deliver municipal services and develop local economics. The provincial
government is also required to monitor the performance of a municipality, and if
necessary, take over the provision of services from a municipality in the event that such
a municipality is unable to do so.
41. I emphasize that the Constitution, and also the Structures Act, require a municipality to
have the necessary capacity to deliver services to its local communities in an equitable
and sustainable manner, and to do so effectively. I also emphasize that the provincial
governments have a constitutional obligation to support municipalities in fulfilling their
obligations to provide local communities with services effectively, and to monitor the
performance of municipalities in that regard. That obligation also extends to national
government, which is required, in terms of section 155(7) of the Constitution, to pursue
legislative processes and take other executive steps to promote the effective
performance of municipalities in the discharge of their constitutional obligations.
42. I have already pointed out that a cross-boundary municipality is ordinarily subject to
the executive control of the adjoining provinces in whose boundaries it has been
established. The affected provinces will therefore assume the constitutional obligations
of providing capacity to the cross-boundary municipality to provide local services to its
communities effectively, and to monitor its performance. This type of joint control
created practical problems that affected service delivery in cross-boundary
municipalities. It also affected the quality of services delivered by cross-boundary
municipalities. Some provincial governments attempted to resolve problems by
concluding agency agreements which enabled one province to exercise executive Page 21
control over a cross-boundary municipality, on behalf of the affected provinces. As I
have already indicated, no such arrangement was concluded in respect of Merafong.
43. The agency agreements, and similar arrangements, where they were concluded, did not
resolve the problem of service delivery in cross-boundary municipalities. They raised
further problems in respect of the implementation of the support required from the
provinces in whose geographical area there existed a cross-boundary municipality. The
nett effect is that communities in the cross-boundary municipalities suffered from the
failure by those municipalities to effectively deliver services to them, and to do so on
an sustainable basis.
44. My Department undertook an investigation of delivery of services in cross-boundary
municipalities in order to identify the nature and extent of the problems, and
recommend the possible solutions which may be devised to resolve those problems.
The relevant investigation was done and the report compiled in December 2001. A
copy of that report is annexed hereto, marked “AA6”.
45. I draw attention to paragraph 6 of annexure “AA6”, which identifies and discusses
problems arising from the joint administration exercised by provincial governments in
respect of cross-boundary municipalities. I also draw attention to paragraph 7 of
annexure “AA6”, which deals with the administration of cross-boundary municipalities
by means of an agency or delegated agreements concluded by provinces which have an
executive oversight over a cross-boundary municipality. That part of the report also Page 22
discusses the practical problems which arose from the agency or delegated form of
executive control over a cross-boundary municipality.
46. In paragraph 8 of annexure “AA6”, the report recommended a way forward that would
resolve the political, legal and practical difficulties which arose from the administration
of cross-boundary municipalities. The report recommended that provincial boundaries
should be re-aligned in order to dis-establish cross-boundary municipalities. The
following passage of the report reflects the motivation by my department to dis-
establish cross-boundary municipalities:
“The fact that municipal boundaries have become key in service delivery and
developmental initiatives at all three spheres of government, requires that
stumbling blocks be removed to ensure the realisation of such service delivery
and development in South Africa. Taking into consideration the problems
identified under the previous two models, there can be no doubt that the
transformation process, service delivery and development are adversely
affected by the existence of cross-boundary municipalities which were
demarcated and established as a result of dysfunctional provincial
boundaries. During the demarcation of municipal boundaries it became clear
that no consideration was given to the criteria such as the interdependence of
people, communities and economies at local level when provincial boundaries
were determined in the 1993 Constitution. The costs of continuing the notion
of cross-boundary municipalities far outweigh the cost of aligning provincial
boundaries with municipal boundaries and thereby do away with the notion of
cross-boundary municipalities. Page 23
In view of the abovementioned, it appears to be appropriate to consider the
amendment of provincial boundaries. Provincial boundaries can probably be
amended by minor amendment to section 103(2) of the 1996 Constitution to
ensure that provincial and municipal boundaries are aligned. References to
cross-boundary municipalities in the Constitution and other legislation can
then merely be repealed.”
47. The office of the President established the President’s Co-ordinating Council (“the
PCC”). The purpose of the PCC is to continually assess the implementation of policies
by government at different levels. Service delivery to communities by government at
national, provincial and local levels is one of the issues that is continually discussed by
the PCC. The lack of effective delivery of services in cross-boundary municipalities
was one of the issues which were debated at various meetings of the PCC.
48. On 1 November 2002, the report on cross-boundary municipalities prepared by my
department (annexure “AA6”) was discussed by the PCC. Annexed hereto, marked
“AA7”, is the copy of the minutes of the PCC. I draw attention to paragraph 4.3.8 of
the minutes, which shows that the PCC took a policy decision that cross-boundary
municipalities should be done away with. At the end of the meeting of the PCC, I
prepared and issued a press statement informing the public about the policy decision
which was taken by the PCC. A copy of the relevant media statement is annexed
hereto, marked “AA8”. Page 24
49. During November 2003 my department conducted investigation on the provincial
boundaries of provinces which had cross-boundary municipalities. Technical work was
also done, with a view to provide me with possible advice on how provincial
boundaries of provinces affected by cross-boundary municipalities could be altered.
Thereafter my department prepared a report on its work and its recommendations. A
copy of that report is annexed hereto and marked “AA9”. That report discusses various
options on locating areas which constituted cross boundary municipalities into
provinces and reasons therefor. The options which were discussed in respect of
Merafong and the reasons therefor appear on pages 3, 4, 8, 33 and 41 to 45 of annexure
“AA9”.
50. During May 2004, my department performed a review of the performance by all
municipalities in the Republic. The purpose of the report was to establish whether
municipalities were able to deliver services to their local communities effectively or
not, and also to review the quality of the services delivered by them. The review also
had to identify the municipalities which were not able to fulfil their obligations and
identify remedial actions which were required to assist municipalities in fulfilling their
obligations. A report, known as “Project Consolidate” was prepared, after the
wholesale review was done. A copy of that report is annexed hereto, marked “AA10”.
51. As appears from Project Consolidate, eight of the sixteen cross-boundary municipalities
were not able to effectively deliver services to their local communities. They required
intervention by way of support from national government to ensure that they fulfilled
their constitutional obligations. Page 25
52. I have referred to the above information in order to show that there were legitimate,
political, legal and other practical problems that arose after the establishment of cross-
boundary municipalities. Those problems manifested themselves primarily in the
failure by the affected municipalities to effectively deliver local government services to
their communities. The problems also manifested themselves at the provincial level of
government because of the joint executive control that was required to be exercised by
the provincial governments of the adjoining provinces in whose boundaries the cross-
boundary municipality was situated.
53. There was therefore a legitimate basis for national government to take legislative steps
to resolve the problems arising from the cross-boundary municipalities. The solution
adopted by the government was to dis-establish cross-boundary municipalities. That
could be achieved by re-aligning the boundaries of provinces in whose area cross-
boundary municipalities had been established.
F. The promulgation of the Twelfth Amendment
54. On 26 August 2005, the third respondent gave public notice of her intention to
introduce the Constitution Twelfth Amendment Bill, 2005 (“the Bill”), in the National
Assembly. The Bill was published in, amongst others, Government Gazette No 27962
of 26 August 2005. A copy of the Bill as published by the third respondent is annexed
hereto, marked “AA11”). When it was published, the Bill was accompanied by an
explanatory memorandum which described the objects of the Bill. A copy of the Page 26
explanatory memorandum is annexed hereto and marked “AA12”. Clause 2 of
annexure “AA12” describes the objects sought to be achieved by the Bill.
55. A day before the Bill was published in, amongst others, the Government Gazette, the
third respondent informed in writing the Speaker of the National Assembly of her
intention to introduce the Bill in the National Assembly on 30 September 2005. A copy
of the third respondent’s letter to the Speaker of the National Assembly is annexed
hereto, marked “AA13”. At the same time, the third respondent addressed similar
letters to the Speakers of the various provincial legislatures advising them of her
intention to introduce the Bill in the National Assembly on 30 September 2005.
Annexed hereto, marked “AA14” and “AA15” are the letters addressed by the third
respondent to the Speakers of the provincial legislatures of Gauteng and North West
Provinces.
56. On 27 September 2005, the third respondent addressed a letter to the chairperson of the
National Council of Provinces (“the NCOP”) informing him, amongst others, of the
purpose of the Bill. The third respondent indicated to the chairperson of the NCOP that
the Bill sought to give effect to the resolution adopted by the PCC, namely to re-align
provincial boundaries in a way which dispensed with cross-boundary municipalities.
57. In her letter the third respondent also informed the chairperson of the NCOP that I, in
my capacity as the Minister for Provincial and Local Government, have published the
Cross Boundary Municipalities Laws Repeal Bill, 205 (“the Repeal Bill”) in order to
give practical effect to the objectives sought to be achieved by the Bill. The third Page 27
respondent also drew the attention of the chairperson to the fact that the Repeal Bill had
already been submitted to the NCOP, in terms of the joint rules of Parliament. A copy
of the letter from the third respondent to the chairperson of the NCOP is annexed
hereto, marked “AA16”.
58. As appears from Annexure “AA11”, members of the public were invited to submit
written comments or representations on the Bill to the third respondent, and to do so by
no later than 26 September 2005. In annexures “AA14” and “AA15”, the Speakers of
the provincial legislatures of Gauteng and North West Provinces were invited to submit
written comments or representations on the Bill from their provincial legislatures to the
third respondent by no later than 26 September 2005.
59. On or about 27 September 2005, the third respondent submitted the Bill and its
explanatory memorandum to the Speaker of the National Assembly and the chairperson
of the NCOP, as required by the joint rules of Parliament, namely Joint Rule 159. She
also proposed to them certain procedures that could be followed by Parliament to
expedite the promulgation of the Bill, and the Repeal Bill. She then requested the
Speaker of the National Assembly and the chairperson of the NCOP to consider
following procedures proposed by her. Copies of the letters of the third respondent to
the Speaker and the chairperson are annexed hereto, marked “AA17” and “AA18”
respectively. I also refer to an extract of the parliamentary paper called
“ANNOUNCEMENT, TABLINGS AND COMMITTEE REPORTS”, dated 29
September 2005, confirming the submission of the Bill by the third respondent to the
Speaker of the National Assembly and the chairperson of the NCOP, as required by Page 28
Joint Rule 159 of the joint rules of Parliament. A copy of the extract of the
parliamentary paper concerned is annexed hereto, marked “AA19”.
60. On or about 30 September 2005, the third respondent submitted the Bill to the Speaker
of the National Assembly for the purposes of tabling and introducing the Bill in the
National Assembly. In terms of section 74(6)(a) of the Constitution, written
representations on the Bill which were received by the third respondent were also
submitted to the Speaker. A copy of the letter of the third respondent to the Speaker
confirming the submission of the Bill for tabling in the National Assembly and also
submitting written representations on the Bill received from interested parties is
annexed hereto, marked “AA20”.
61. On the same date, the third respondent informed the chairperson of the NCOP of the
publication of the Bill in the Government Gazette of 26 August 2005. In terms of
section 74(6)(b) of the Constitution, the third respondent submitted to the chairperson
of the NCOP written comments on the Bill received by her from interested parties. A
copy of the letter of the third respondent to the chairperson, confirming the submission
of the written representations on the Bill by interested parties is annexed hereto, marked
“AA21”.
62. I have already indicated that the third respondent received written representations or
comments on the Bill received from interested parties. I refer only to the written
representations or comments received from – Page 29
62.1. the provincial legislature of Gauteng Province. Those representations or
comments are annexed hereto, marked “AA22”;
62.2. the provincial legislature of North West Province. The representations
concerned are annexed hereto, marked “AA23”.
63. The above facts are confirmed by the third respondent in her confirmatory affidavit,
annexed hereto, marked “AA24”.
64. On 30 September 2005, the Bill was introduced in the National Assembly. Annexed
hereto, marked “AA25” is an extract from the parliamentary paper dated 30 September
2005, which confirms the introduction of the Bill and submission of written
representations on the Bill to the Speaker of the National Assembly and the chairperson
of the NCOP.
65. On 30 September 2005, the chairperson of the portfolio committee issued a press
statement which invited members of the public to make written representations on the
Bill to the Portfolio Committee. A copy of the press statement concerned is annexed
hereto, marked “AA26”. On 19 October 2005, my department and also the department
of Justice and Constitutional Development briefed the Portfolio Committee on the
provisions of the Bill as well as the Repeal Bill.
66. I am aware that the Portfolio Committee met on 21, 25 and 28 October 2005, and also
on 2 November 2005 for the purposes of receiving submissions from any interested Page 30
member of the public and also deliberating on the provisions of the Bill and the Repeal
Bill. On 2 November 2005 the Portfolio Committee voted on the Bill and proposed
amendments to it. The amendments proposed and adopted by the Portfolio Committee
appear from an extract of the parliamentary paper dated 3 November 2005, annexed
hereto, marked “AA27” and “AA28”.
67. The second reading debate in the National Assembly on the Bill, as amended by the
Portfolio Committee took place on 15 November 2005. The Deputy Minister of Justice
and Constitutional Development addressed the National Assembly on the Bill and
explained its objective. The chairperson of the Portfolio Committee also addressed the
National Assembly on the Bill and further explained the objects sought to be achieved
by it. Members of the political parties represented in National Assembly spoke on the
Bill and expressed their view thereon. The transcript of the second reading debate on
the Bill in the National Assembly is annexed hereto, marked “AA29”.
68. After deliberations in the National Assembly, 267 out of 400 members of the National
Assembly voted in favour of the Bill. These facts are confirmed in the extract of the
parliamentary paper dated 15 November 2005, annexed hereto, marked “AA30”. From
what I have explained above, it is clear that the Bill received the supporting vote of at
least two thirds majority of members of the National Assembly, as is required in terms
of section 74(3)(a) of the Constitution.
69. On or about 26 August 2005, I published the Repeal Bill in, amongst others, the
Government Gazette, No 27969 of 26 August 2005. At the same time, I invited Page 31
members of the public to submit comments and representations on the Repeal Bill to
the Director-General of my department by no later than 26 September 2005. A copy of
the relevant Government Gazette is annexed hereto, marked “AA31”. The Repeal Bill,
as published, was accompanied by an explanatory memorandum which describes the
objects of the Repeal Bill. A copy of the explanatory memorandum which
accompanied the Repeal Bill is annexed hereto, marked “AA32”. The Director-General
of my department received several comments or representations on the Bill from a
number of interested parties. Annexed hereto, marked “AA33”, is a summary of the
representations or comments on theRepeal Bill received by the Director-General.
70. On or about 21 September 2005, I submitted the Repeal Bill to the Speaker of the
National Assembly and the chairperson of the NCOP, as was required by Joint Rule
159 of the joint rules of Parliament. I refer, in this regard, to my letters to the Speaker
and the chairperson, dated 21 September 2005, confirming the submission of the
Repeal Bill to them. Copies of those letters are annexed hereto, marked “AA34” and
“AA35”.
71. Because of the fact that the Repeal Bill sought to give effect to the objectives of the
Twelfth Amendment, a proposal was made to the Portfolio Committee on Justice and
Constitutional Development, the Portfolio Committee on Provincial and Local
government affairs and the corresponding select committees of the NCOP, that is the
Select Committee on Security and Constitutional Affairs, and the Select Committee on
Local Government and Administration, to sit together and, where necessary, confer
with each other regarding the processing of the Bill and the Repeal Bill. What that
meant, in practice, was that the four committees were allowed to sit together in the Page 32
consideration of the Bill and the Repeal Bill, but would vote separately on the Bill and
the Repeal Bill, as was required by the applicable parliamentary procedures. This
arrangement dispensed with the need to duplicate parliamentary processes in the
consideration of the Bill and the Repeal Bill.
72. On or about 23 September 2005, my department caused to be published a general
notice which gave public notice of my intention to introduce the Repeal Bill in the
National Assembly, as was required by Rule 241(1)(c) of the National Assembly Rules.
A copy of the public notice is annexed hereto, marked “AA36”. The Repeal Bill was
introduced in the National Assembly on 20 October 2005, as appears from the extract
of the parliamentary paper annexed hereto, marked “AA37”.
73. On 7 December 2005, the Portfolio Committee on Provincial and Local Government
Affairs voted on the Repeal Bill and proposed amendments to it. A copy of the
amendments to the Repeal Bill, proposed by the Portfolio Committee is annexed hereto,
marked “AA38”. I also refer to an extract of the Portfolio Committee’s report, dated
7 December 2005, describing the amendments proposed by the Portfolio Committee.
That report is annexed hereto, marked “AA39”
74. The second reading debate in the National Assembly on the Repeal Bill, as amended by
the Portfolio Committee on Provincial and Local Government Affairs, took place on 13
December 2005. The Repeal Bill was passed by the majority of members of the
National Assembly on 13 December 2005. Annexed hereto, marked “AA40”, is the
relevant copy of the minutes of the deliberations of the National Assembly, reflecting Page 33
the passing of the Bill on 13 December 2005. Thereafter, the Repeal Bill was referred
to the NCOP for its concurrence.
75. The Select Committee on Local Government and Administration met on 13 December
2005. It deliberated on the Repeal Bill and agreed to support it. A copy of the
Parliamentary report reflecting the deliberations of the Select Committee and its
decision to support the Repeal Bill, dated 13 December 2005, is annexed hereto,
marked “AA41”.
76. The Repeal Bill was considered by the NCOP at its sitting on 14 December 2005. After
deliberations on the Repeal Bill, the NCOP supported the Repeal Bill and voted in
favour of it. Annexed hereto, marked “AA42”, is the relevant copy of the
parliamentary paper confirming the deliberations of the NCOP and its vote in favour of
the Repeal Bill.
77. After the Bill and the Repeal Bill were passed by the National Assembly and the
NCOP, they were referred to the first respondent for his assent. The Twelfth
Amendment was assented to by the Acting President on 23 December 2005. It was
thereafter published in Government Gazette No 28364 of 23 December 2005. A copy
of the Twelfth Amendment published in the said Government Gazette is annexed hereto,
marked “AA43”. The Repeal Act was assented to by the Acting President on 23
December 2005. It was thereafter published in Government Gazette No 28363 of 23
December 2005. A copy of the Repeal Act, as published in the said Government
Gazette, is annexed hereto, marked “A44”. Page 34
78. From what I have set out above, it is clear that the Twelfth Amendment was passed in
accordance with the procedures described in section 74 of the Constitution. It received
the supporting votes in the National Assembly of at least a two third majority of its
members, and also the supporting vote of at least six provinces in the NCOP. The
provinces of North West and Gauteng were amongst those provinces which support the
Twelfth Amendment in the NCOP.
79. The applicants do not dispute the need for the promulgation of the Twelfth Amendment
and the Repeal Act in order to re-draw the boundaries of the provinces to dispense with
cross-boundary municipalities. In fact, they accept that the dis-establishment of cross-
boundary municipalities is an important initiative, and that national government was
entitled to pursue that initiative in order to remove barriers to service delivery in
municipalities, including cross-boundary municipalities. Their concern is that the
boundaries of the provinces of North West and Gauteng were re-drawn in such a way
that Merafong became part of the North West Province instead of becoming part of
Gauteng Province. In the sections that follow I shall explain reasons why boundaries of
the two provinces were re-drawn in such a way that Merafong became part of North
West Province and not Gauteng Province.
G. Reasons for drawing the boundaries in a way which resulted in Merafong becoming
part of North West Province
80. Merafong was established as a local municipality by way of amalgamating several
geographical areas, some of which historically were part of Gauteng Province, and Page 35
others were historically part of the North West Province. For instance, the
geographical areas of the Carltonville Transitional Local Council and Gatsrand Rural
Council were situated within the boundaries of Gauteng Province. However, the
geographical areas of the Fochville Transitional Local Council, Wedella Transitional
Local Council and the farming areas surrounding that Local Council, fell within the
provincial boundaries of the North West Province. All of those areas were combined
together and demarcated as the cross-boundary municipality of Merafong by the
Municipal Demarcation Board.
81. After the determination of Merafong as a cross-boundary municipality, the relevant
MECs of Gauteng and North West Provinces published notices in terms of section 12
of the Structures Act, establishing Merafong as a cross-boundary municipality. I have
already annexed the relevant copies of the notices.
82. As a cross-boundary municipality established across the boundaries of the North West
and Gauteng Provinces, Merafong fell under the joint executive control of both the
Gauteng and North West Provinces. In addition to Merafong, there was another cross-
boundary municipalities which was established across the boundaries of Gauteng and
North West Provinces, Tshwane Metropolitan Municipality, which included geographic
areas which previously fell under the North West Province. The provincial boundary
between Gauteng and North West Province was re-aligned in such a manner that the
whole of the Tshwane Metropolitan Municipality was located in Gauteng. That meant
that North West Province lost approximately 412 583 inhabitants, as a result of that
boundary shift. This had an adverse effect on the calculation of the equaitable share for
the North West Province. That adverse effect was ameliorated by the re-alignment of Page 36
the boundary of the two provinces in a way which located Merafong in the North West
Province. By locating Merafong in North West Province, the latter gained
approximately 308 237 inhabitants, and therefore the calculation of its equitable share
would be improved.
83. There were also cross-boundary municipalities which were demarcated and established
across the boundaries of the North West and Northern Cape Provinces. They included
Phokwane Municipality, Ga-Segonyana Municipality, Kgalagadi District Municipality
and Francis Baard District Municipality. I should add that in respect of Gauteng
Province, there were also cross-boundary municipalities established across the
provincial boundaries of Gauteng and Mpumalanga Provinces. These included
Ekurhuleni Metropolitan Municipality, Metsweding Distrct Municipality and Kungwini
Local Municipality. The details of these cross-boundary municipalities are described in
Table 1 of annexures “AA6” and “AA9”.
84. When the geographic boundaries of the Province of North West were re-determined in
order to dis-establish cross-boundary municipalities established across its boundaries
and those of the Northern Cape Province, a substantial portion of the geographical
areas which previously fell under the North West Province became part of the Northern
Cape Province. That meant that significant number of inhabitants were transferred
from North West Province to Northern Cape Province. That re-determination had an
impact on how the geographic boundaries of the Province of Gauteng and North West
Province were to be determined, in order to dis-establish Merafong as a cross-boundary
municipality. Page 37
85. The geographical boundaries of Gauteng and North West Provinces were re-determined
in such a way that the Province of North West should not lose further geographical
areas and inhabitants, having regard to the geographical areas and inhabitants it had
already lost to the Province of the Northern Cape. That meant that Merafong would, in
its entirety, become part of the North West Province.
86. One of the primary considerations which was taken into account in re-drawing the
boundaries of Gauteng and North West Provinces, in a way which resulted in Merafong
becoming part of the North West Province, was the distribution of the equitable shares
which both provinces would be entitled to, in terms of the applicable Division of
Revenue Act enacted every year pursuant to section 214 of the Constitution. The
distribution of equitable share to provinces is one of the important financial instruments
through which provinces are able to provide services to their inhabitants and support
that municipalities are able to provide municipal services to their local communities
equitably, and on a sustainable basis.
87. One of the primary considerations which is ordinarily taken into account in determining
the equitable share of each province is the number of inhabitants in the provinces.
Gauteng Province has a substantial number of inhabitants, compared to those of the
North West Province. Its equitable share greatly exceeds that of North West Province.
I refer to the comparative schedules of the Divisional Revenue Acts of 2006 and 2007
which indicates the allocation of the equitable shares to various provinces, including
Gauteng and North West Provinces, and also allocations to various municipalities.
Copies of the schedules are annexed hereto and marked “AA45” and “AA46”. Page 38
88. Had the Merafong Municipality been left in Gauteng Province, the equitable share of
Gauteng would have greatly increased, and that of North West Province would have
been proportionally reduced. The viability of North West Province, as a province,
would have been adversely affected.
89. I point out in this regard that the Province of Gauteng is already burdened by a
substantial number of individuals who seek residence and prospects of employment in
Gauteng. The nett effect is that the levels of informal settlements in Gauteng continue
to escale disproportionally. That in itself puts a further strain on the financial resources
of Gauteng Province to effectively provided services to residents of informal
settlements on a sustainable basis.
90. These considerations were taken into account by my department when we
recommended to the PCC and to Parliament to re-draw the boundaries of Gauteng and
North West Provinces in such a way that the whole of Merafong became part of the
North West Province.
91. I have been advised, and respectfully submit, that there was a rational basis for
Parliament to re-draw the boundaries of Gauteng and North West Provinces in such a
way that resulted in Merafong to become part of the North West Province. Parliament
was entitled to ensure that the North West Province remained viable, as one of the nine
provinces established under the Constitution and was entitled to receive its equitable
share of the revenue required by each of the provinces to provide services to its
inhabitants. Page 39
92. I have also been advised, and also submit, that Parliament was entitled to ensure that
the Province of Gauteng should no longer continue to be over-burdened in a way which
would promote further informal settlements within its geographical areas and thereby
put further strains on its resources to provide services to persons within informal
settlement areas.
H. Service delivery to Merafong after promulgation of the Twelfth Amendment and the
Repeal Act
93. National Government was concerned that the change in the boundaries of the North
West and Gauteng Provinces, and any other province in whose geographical area a
cross-boundary municipality was established should not adversely affect the delivery of
services in areas which were previously established as cross-boundary municipalities.
For this purpose, national government took steps to encourage the affected provinces to
devise special measures to ensure that service delivery is not adversely affected.
94. I am aware that in regard to Merafong, the Premiers of those provinces concluded
implementation protocols, pursuant to the relevant provisions of the Intergovernmental
Relations Framework Act, 13 of 2005 (“the Framework Act”) to ensure that service
delivery in Merafong is not adversely affected. Copies of the implementation protocols
which were concluded by the Premiers of the two provinces are annexed hereto,
marked “AA47” and “AA48”. Page 40
95. Pursuant to the Implementation Protocols to which I have referred, a number of
provincial departments in both Gauteng and North West Provinces concluded Service
Level Agreements in terms of which both sets of the provincial departments undertook
to ensure adequate provision of services to the community of Merafong. I annex hereto
and marked “AA49” to “AA55”, the Service Level Agreements concluded by the
relevant departments of Education, Economic Development, Environment, Housing,
Transport and Sport and Recreation of the North West and Gauteng Provinces, in
which they undertook to ensure adequate provision of services to the community of
Merafong. These agreements were also necessary because:
95.1. at that stage the equitable share allocation to provinces, including Gauteng and
North West Provinces, had already been finalised by the applicable Division
of Revenue Act of 2006;
95.2. there was a compelling need to ensure a smooth continued provision of
services in the affected municipal areas, until the next allocation of the
equitable share of the provinces in terms of the Divisional Revenue Act of
2007. Annexed hereto and marked “AA56” is a copy of the explanatory
memorandum to the Divisional Revenue Bill of 2007 which deal with the
impact of the population shift axising from boundary changes brought about
by the Twelfth Amendment, and how that affected the allocation of the
equitable share of provinces.. Page 41
96. In May and June 2007, my department performed an assessment of performance in
geographical areas which were previously cross-boundary municipalities. This
included an assessment of delivery of services in Merafong. A copy of the reports,
reflecting service delivery in Merafong, is annexed hereto, marked “AA57”. As
appears from that report, a number of wards are functioning adequately, except in the
area of Khutsong. Service delivery has been adversely affected in Khutsong because of
continuing protest action and violent riots which have been taking place in that area.
97. I should add that the national government has devised a special plan to deal with
adequate delivery of services in Merafong and other geographical areas which were
previously cross-boundary municipalities, in order to ensure that those services are
continued to be provided adequately and effectively. Because of the continuing violent
riots in Khutsong it is not practically feasible to put into effect the special plans which
national government has devised.
I. Negotiating and Final Mandates
98. The provinces which are represented in the NCOP were required to vote in favour of
the Bill in accordance with the provisions of section 74(3)(b) of the Constitution.
Before voting on the Bill in the NCOP the provincial legislatures issued negotiating
mandates to their delegations. However, when the time for voting on the Bill came, the
provincial delegations were issued with final mandates authorising them to vote in
accordance with those mandates. Page 42
99. The provinces which voted in favour o the Bill did so in accordance with the final
mandates given to their provincial delegations. The fact that the final mandates
differed from the earlier negotiating mandates is not of significance, simply because at
the time when the negotiating mandates were debated the provincial delegations were
entitled to negotiate as between themselves on whether or not they would or would not
support the Bill. It was important for the provincial delegations to negotiate in terms of
the negotiating mandates because they were required to ultimately approve those
portions of the Twelfth Amendment which effected boundary changes in their
provinces.
100. I therefore submit that the negotiating mandates furnished by the provincial legislatures
to their provincial delegations in the NCOP could legitimately change as a result of the
negotiations in the NCOP, and arising therefrom the provincial legislatures were
entitled to give final mandates to their provincial delegations which may well have
been different to the negotiating mandates they had previously given.
101. Against the above background, I now turn to respond to the averments in the individual
paragraphs of the founding affidavit.
102. Ad paragraph 1
102.1. I admit the description of the second applicant’s particulars. Page 43
102.2. I am not aware that the second applicant is the spokesperson of the first
applicant. For the purposes of the present proceedings, I do not dispute those
allegations.
102.3. I deny that the allegations in the founding affidavit are true or correct, and that
they fall within the personal knowledge of the second applicant.
103. Ad paragraph 2.1
103.1. I admit that the first applicant is an organisation whose objects are set out in
annexure “1” of the founding affidavit.
103.2. I deny, however, that the first applicant is an organisation of people who are
fighting for democracy to prevail in Merafong. I am aware that the deponent
of the founding affidavit in this application also deposed to a founding
affidavit in an application instituted by several applicants in the Transvaal
Provincial Division, under case no. 5673/2006 in which they sought to stop the
conduct of local government election in Merafong in March 2006. That
application was dismissed by the full court of that Division.
103.3. Of relevance are the contents of the founding affidavit in that case. Therein,
the department referred to acts of violence and destruction of property by
persons he described as the members of his organisation. The relevant portion
of that affidavit is annexed hereto and marked “AA58”. That shows that the Page 44
deponent is, at the very least, aware of members of his organisation who are
involved in the unlawful acts and is not willing to persuade them to stop such
unlawful conduct.
103.4. I point out that annexure “1” of the founding affidavit makes it clear that the
initiatives pursued by national government to do away with cross-boundary
municipalities are legitimate activities which would, amongst others, remove
obstacles to adequate services delivery in areas which were previously
demarcated and established as cross-boundary municipalities. These
initiatives would, inevitably have, as they have done, brought about the dis-
establishment of Merafong as a cross-boundary municipality and necessitated
the location of Merafong in either Gauteng or North West Provinces.
103.5. For the reasons which I have given above, Merafong was, in its entirety,
located in the North West Province. The promulgation of the Twelfth
Amendment, with the consequence of locating Merafong in the North West
Province is, inevitably, the logical consequence of the decision to do away
with cross-boundary municipalities, including the dis-establishment of
Merafong. Page 45
104. Ad paragraphs 2.2 and 2.3
104.1. I deny the allegations made in these paragraphs.
104.2. I have been advised, and respectfully submit, that the present application does
not deal at all with the engagement of the fundamental rights described in
Chapter 2 of the Constitution.
104.3. Nowhere in the founding affidavit have the applicants described any of the
fundamental rights described in Chapter 2 of the Constitution, upon which
they rely in their attack on the Twelfth Amendment and the Repeal Act.
105. Ad paragraphs 3.1 to 4
105.1. I have no knowledge of the averments made in these paragraphs.
105.2. For the purposes of the present application, I do not dispute those averments.
106. Ad paragraphs 5 to 20
I do not dispute the averments made in these paragraphs. Page 46
107. Ad paragraph 21
I take note of the purpose of the present application. I deny that the applicants have
shown any basis for the relief sought in the notice of motion.
108. Ad paragraph 22.1
108.1. I deny that the provincial legislature of Gauteng failed to promote public
involvement in its consideration and approval of the Twelfth Amendment. I
have been informed that the provincial legislature of Gauteng will explain to
this honourable Court the steps taken by it to promote the involvement of the
public, when it considered, and thereafter, approved the Twelfth Amendment.
108.2. I point out that the National Assembly and the NCOP took steps to promote
public involvement in its consideration and approval of the Twelfth
Amendment, in addition the steps taken by the Portfolio Committee of the
Gauteng legislature.
108.3. The applicants rely on a “belief” that a decision had already been taken as
early as 2004 in order to “move” Merafong to North West Province.
However, the applicants have not produced objective facts upon which they
entertain or are entitled to hold that belief. They have also not indicated the
source of that belief and how it came to their knowledge. They have not Page 47
indicated which political structures, and who in government, had already taken
the decision to move Merafong to North West Province, as earlier as 2004.
108.4. The first to third respondents object to the admissibility of the applicants’
allegations relating to the alleged belief. Those allegations constitute
inadmissible hearsay. The applicants have not provided a basis on which such
evidence ought to be admitted by this honourable court.
108.5. At the hearing of the application, the first to third respondents will contend
that the steps taken on behalf of the provincial legislature of Gauteng
promoted the involvement of the public in the consideration and approval of
the Twelfth Amendment, within the meaning and purpose of section 118(1) of
the Constitution.
108.6. Even if it is held that the provincial legislature of Gauteng did not comply with
the relevant provisions of section 118(1) of the Constitution, the first to third
respondents will, nevertheless, contend that the National Assembly and the
NCOP took sufficient steps to, and did in fact, promote the involvement of the
public when they considered and subsequently passed the Twelfth Amendment
and the Repeal Act. For that reason, the first to third respondents would
request that the Twelfth Amendment and the Repeal Act ought not to be
declared invalid, even if the provincial legislature of Gauteng failed to comply
with section 118(1) of the Constitution. Page 48
109. Ad paragraph 22.2
109.1. I deny that the location of Merafong in the North West Province was
irrational. I also deny that there was no rational basis for the re-determination
of the provincial boundaries of Gauteng and North West Provinces in a way
which resulted in the inclusion of Merafong in the North West Province.
109.2. I emphasize, once again, that –
109.2.1. Merafong had previously been determined and established as a cross-
boundary municipality. It had to be dis-established in order to
promote service delivery. That could be achieved by re-drawing the
boundaries of Gauteng and North West Provinces;
109.2.2. Merafong was included in the geographical area of North West
Province for the reasons that I have already given. Those reasons
show that the inclusion of Merafong in the North West Province
would promote the viability of the province to continue to provide
services to its inhabitants by means of, amongst others, the equitable
share which it would obtain from national government. They also
show that the inclusion of Merafong in the North West Province
would be a useful addition to the economic development of that
province. Page 49
109.3. I have carefully considered the representations made by various persons to the
Portfolio Committee of the Gauteng legislature when it held public hearings in
Merafong on 25 November 2004. The substance of those representations is
that there was a concern that government services and local economy would
be adversely affected by the location of Merafong to North West Province.
For that reason, interested parties sought to urge the Portfolio Committee to
recommend that Merafong should become part of the Gauteng Province, so as
to benefit from the capacity of that province to adequately provide services to
the inhabitants of Merafong and possibly its economy.
109.4. I have already indicated how the two provinces took the necessary steps to
ensure that service delivery in Merafong is not adversely affected by the
inclusion of Merafong in the North West Province.
109.5. I have also referred to the initiatives taken by the national government which
would enable it to intervene in Merafong, and other dis-established cross-
boundary municipalities, in order to ensure that service delivery is not
adversely affected.
109.6. It is thus not surprising that the applicants have not produced evidence at all to
show that service delivery in Merafong has adversely been affected as a result
of the commencement of the Twelfth Amendment and the Repeal Act. In the
event that applicants contend otherwise, I invite them to give details so that Page 50
those matters can properly and lawfully be addressed by the relevant
provincial governments and national departments.
110. Ad paragraphs 23 to 25
I do not dispute the averments made in these paragraphs.
111. Ad paragraph 26
111.1. I do not dispute the averments in this paragraph.
111.2. I respectfully submit that the averments in the paragraph under reply show that
the steps taken by the provincial legislature of Gauteng prove that the public
hearing of 25 November 2004 was widely publicised and was brought to the
attention of the widest possible amplitude of members of the community in
Merafong.
111.3. The averments also prove that members of the community were allowed to
make representations to the extent that they wanted to do so. There is no
allegation at all that persons who desired to make representations were
prevented from doing so, or were unable to do so because of logistical
constraints. Page 51
111.4. It is surprising that the applicants will persist with their contention that the
provincial government of Gauteng failed to comply with the provisions of
section 118(1) of the Constitution, in the light of the allegations made by them
in the paragraph under reply, read together with the allegations made in
paragraphs 23 to 25 of the founding affidavit.
112. Ad paragraphs 27 to 34
112.1. The averments made in these paragraphs relate to the steps taken by the
provincial legislature of Gauteng. I have been informed that the provincial
legislature of Gauteng will deal with those averments and explain the steps
taken by it in the course of the consideration and approval of the Twelfth
Amendment.
112.2. However, I point out that on the applicants’ version, the provincial legislature
of Gauteng did consider the recommendation made by its Portfolio Committee
that Merafong should become part of Gauteng Province. The provincial
legislature decided, however, that Merafong should be transferred to the North
West Province, fundamentally because the concerns raised by the members of
the community in Merafong related to service delivery and those matters could
adequately be addressed by, amongst others, the joint efforts of the two
provinces, supported by national government. As I have already indicated,
that has already been done. Page 52
113. Ad paragraph 35
113.1. I deny that at the end of 2004, it became public knowledge that the National
Executive Committee of the ANC decided, in principle, that Merafong should
be included in the North West Province.
113.2. Once again, the applicants have not been able to resist the temptation to make
generalised statements by way of inadmissible hearsay evidence. The first to
third respondents object to the introduction of such hearsay evidence in these
proceedings. No basis at all had been laid for the admissibility of that
evidence.
113.3. In any event, I point out that I am a member of the National Executive
Committee of the ANC. I am therefore aware of the deliberations and policies
adopted by the National Executive Committee of the ANC.
113.4. As far as I am aware, the National Executive Committee of the ANC has
always been concerned with the provincial boundaries which had been
determined in terms of the Interim Constitution, fundamentally because of the
fact that those boundaries created obstacles to proper service delivery in local
communities of various municipalities that were established as cross-boundary
municipalities. There has not been a decision by the National Executive
Committee of the ANC that Merafong should be located in the North West
Province. Page 53
113.5. I have had regard to the contents of annexure “7” referred to by the applicants
in the paragraph under reply. I point out that the contents of that annexure do
not support the applicants’ contention that the National Executive Committee
of the ANC had already decided as early as 2004 that Merafong should be
located in the North West Province.
113.6. Annexure “7” of the founding affidavit appears to have been prepared by
Merafong itself. There is no suggestion at all that that annexure was addressed
to the National Executive Committee of the ANC.
113.7. I note, as a matter of interest, that Annexure “7” also describes the difficulties
encountered by Merafong as a cross-boundary municipality, to provide and
deliver services to its community, adequately, effectively and on an equitable
and sustainable basis.
114. Ad paragraph 36
114.1. I admit the averments made in this paragraph to the extent that they correctly
reflect the contents of annexure “7” of the founding affidavit.
114.2. The applicants appear to accept that there was no logical basis to re-draw the
boundaries of North West and Gauteng Provinces in a way which would have
divided Merafong into two or more separate areas that were located into
different provinces. The applicants expressly accept that a separation of Page 54
Merafong into different areas would have a substantially negative impact on
the economic, social and institutional stability, as well as the development of
Merafong as a whole. This is significant, because Merafong would have had
to be located, in its entirety, either in Gauteng or North West Provinces. It
was logically necessary to re-draw the boundaries of Gauteng and North West
Provinces in a way which located Merafong, in its entirety, in one or other
province.
115. Ad paragraph 37
115.1. I accept that I made proposals to the tenth respondent for the re-determination
of the boundaries of certain municipalities, including Merafong and
Westonaria Local Municipality, in a way which would have placed those two
municipalities in the North West Province, and that those proposals were
published in the Government Gazette of 19 August 2005. I point out that I
was entitled to make those proposals and invite the tenth respondent to re-
determine the relevant boundaries, having regard to the provisions of the
Municipal Demarcation Act. My proposals were motivated by the fact that the
legislative processes for the consideration of the Bill and the Repeal Bill were
imminent.
115.2. I accept that my proposals, had they lawfully been given effect to by the tenth
respondent, they would have resulted in parts of the West Rand District
Municipality becoming part of the North West Province. Page 55
115.3. I emphasize, however, that my proposals were considered by the tenth
respondent, which dealt with them in accordance with the procedures
prescribed in the Municipal Demarcation Act.
116. Ad paragraph 38
I do not dispute the averments made in this paragraph.
117. Ad paragraph 39
117.1. I do not dispute the averments made in this paragraph.
117.2. I point out that the tenth respondent re-determined the boundaries of the West
Rand District Municipality and those of the Southern District Municipality
after the relevant MECs of the North West and Gauteng Provinces and the
affected municipalities indicated their support for my proposals which were
published in the Government Gazette of 19 August 2005.
118. Ad Paragraph 40
118.1. I am aware that the re-determination of the boundaries in terms of annexure
“9” of the founding affidavit, led to some disquiet in Merafong. Page 56
118.2. I am also aware that there were a number of protest marches which were held
in Westonaria and Merafong during September 2005. I do not, however, have
the details relating to those protest marches, and do not know whether other
organisations such as the Congress of South African Trade Union
(“COSATU”), the South African Communist Party (“the SACP”) and the local
branch of the ANC supported the protest marches held in Merafong and
Westonaria.
119. Ad paragraph 41
I do not dispute the contents of this paragraph.
120. Ad paragraph 42
I have no knowledge of the averments made in this paragraph. For the purposes of the
present application, I do not dispute them.
121. Ad paragraph 43
121.1. I do not dispute the averments made in this paragraph.
121.2. The proposals which I submitted to the tenth respondent were published in the
Government Gazette of 31 October 2005, thereby giving public notice of those Page 57
proposals. At that stage the Bill and the Repeal Bill were in the process of
being considered by the Portfolio Committees of the National Assembly and
the Select Committees of the NCOPs, as well as the various provincial
legislatures. In other words, all the constitutional structures duly established
to consider the Bill were in the process of considering it, in order to ultimately
decide whether or not they would support the Bill and approve it.
121.3. Moreover, the Bill referred to Map No. 5, which reflected the proposal to alter
the boundaries of Gauteng and North West Provinces, in a way which would
result in Merafong becoming part of North West Province.
121.4. There was therefore nothing sinister or improper in the proposals that I have
made to the tenth respondent, which were published in the Government
Gazette of 31 October 2005.
122. Ad paragraph 44
122.1. I admit that I attended a meeting with representatives of the community of
Merafong, which included the second applicant, on 5 November 2005.
122.2. At that meeting, I emphasized the need for the representatives of the
community of Merafong who attended the meeting, to ensure that the
expression of protest in Merafong is not violent. I regretted the fact that they,
as leaders, were not able to give guidance to the community to avoid violent Page 58
protests, destruction of property and threats to lives of duly elected municipal
councillors. I emphasized to them that such violent protests and other
impermissible actions were inimical to the democratic system that is provided
for in the Constitution.
122.3. None of the representatives of the community of Merafong who were present
at the meeting raised any objection to what I told them. It is for that reason
that I agreed to further engage with them in order to ensure that lawful and
peaceful processes were pursued in the resolution of the issues that were raised
by them on behalf of Merafong.
122.4. I want to make it clear that I undertook to avail myself for future meetings in
Merafong to embark on constructive engagement with the community or its
leaders for as long as they desist from violent behaviour.
122.5. In light of the fact that the representatives of the community who were present
at the meeting of 5 November 2005 were not able to urge the community to
stop violent protests, destruction of property and threats to lives of the duly
elected councillors, it became impossible for me to pursue constructive
engagement with. Page 59
123. Ad paragraphs 45 and 46
I do not dispute the averments in these paragraphs. For the reasons already given, I
was not inclined to attend a further meeting with representatives of the first applicant.
124. Ad paragraph 47
I do not dispute the averments made in this paragraph.
125. Ad paragraphs 48 to 49
125.1. I do not dispute the averments made in these paragraphs.
125.2. I point out that on a proper consideration of the submissions made in annexure
“13” to annexure “17” of the founding affidavit, the real concerns raised by
the communities relate to the threat of inadequate or poor service delivery of
municipal and other services to Merafong, in the event that Merafong is
located in the North West Province. For the reasons that I have already
explained, steps were taken to ensure that that does not happen.
125.3. An analysis of the reasons offered for the inclusion of Merafong into the
Gauteng Province shows that the complaint relates to service delivery. I have Page 60
already addressed how those service delivery challenges are sought to be
addressed. I also wish to point to the following in this regard:
125.4. Schedule 5 part A of the Constitution describes the functional areas of
exclusive provincial legislative competence. Part B of that schedule deals
with the matters that are falling within the functional area of local government
within the meaning of section 155(6)(a) and 7 of the Constitution.
125.5. The provision of social services, an aspect sponsored for the inclusion of
Merafong into Gauteng is a matter of national functional competence falling
under schedule 4 part A of the Constitution. Whereas the interdependence of
the three spheres of government is authorised by the Constitution, the
provision of social services is still a matter of national competence and would
not be resolved by locating Merafong in one or either of the provinces.
125.6. The other factor motivating for the locating of Merafong into the Gauteng
province relate to the services offered by the Home Affairs in the provision of
identity documents. It is a matter on which strong feelings were observed. In
this regard Home Affairs is also a matter of national competence and the
location of Merafong into either province would not resolve the challenges
that Home Affairs has.
125.7. The other area offered in support of placing Merafong in Gauteng relates to
the provisions of health and emergency services. These services are primarily Page 61
a matter of national competence and in a narrow sense a matter falling within
the sphere of local government with regard to Municipal Health Services. In
this regard, the provincial sphere of government offers no solution when one
looks at the functional area described in schedule 5 part A of the Constitution.
125.8. The provision of adequate educational systems is also a matter falling within
the functional area of concurrent national and provincial competence. Having
explained the co-operation and the interdependence of the three spheres of
government, these services are primarily matters of national competence and
would not affect the Merafong community by virtue of this location in either
province.
125.9. With regard to the provision of and the capacity to deliver local government
services such as water and sanitation programmes, I point out that this is a
functional area falling within the local government itself and would remain, in
the main, the responsibility of the Merafong City Local Municipality. The
location of Merafong in one or other province, would have no material impact
on the matter.
125.10. The final aspect motivating for Merafong to be located in Gauteng relates to
services that fall under the economic development cluster. I point out that the
challenges relating to unemployment, as well as the right of all citizens to seek
employment where they choose, are matters of concern at a national level. I Page 62
am aware however that because of our history there are people who live in one
province and work in another. This difficulty is not unique to Merafong.
126. Ad paragraphs 50 to 51
I do not dispute the averments made in these paragraphs.
127. Ad paragraph 52
127.1. I dispute the averments made in this paragraph.
127.2. I point out that the Twelfth Amendment did not demarcate or re-determine the
boundaries of Merafong. It merely re-aligned the provincial boundaries of
Gauteng and North West Provinces in a way which resulted in Merafong, in its
entirety, being located in North West Province. That re-alignment of
provincial boundaries did not result in, and was never intended to constitute,
the re-determination of the boundaries of Merafong. For that reason, there
was no need for the Municipal Demarcation Board to undertake a demarcation
enquiry in terms of the relevant provisions of sections 24 and 25 of the
Municipal Demarcation Act.
127.3. In any event, the applicants do not suggest that the notices published by the
tenth respondent constituted an improper and unlawful re-determination of the
municipal boundaries of Merafong. Had that been the case, the logical and Page 63
appropriate method to address those issues would be by way of review. The
applicants, for reasons not explained, have not chosen to pursue that remedy.
128. Ad paragraph 53
128.1. I deny the averments made in this paragraph.
128.2. I respectfully submit that participatory democracy referred to in this paragraph
does not mean at all that the will of the community of Merafong must prevail,
in regard to the re-determination of the provincial boundaries.
128.3. It is disingenuous for the applicants to suggest that the will of the community
of Merafong was not heard. It was heard, as a matter of fact. The fact that
that will did not prevail does not mean at all that it was not heard.
129. Ad paragraph 54
I have given a detailed explanation of how and why the provincial boundaries of
Gauteng and North West Provinces were re-determined in a way which resulted in the
location of Merafong in the North West Province. I respectfully submit that those
reasons show that the Twelfth Amendment and the Repeal Act are rationally connected
to the legitimate governmental sought to be achieved by the Twelfth Amendment in the
Repeal Act. Page 64
J. Condonation
130. This affidavit will be delivered outside the normal time periods prescribed in the rules
of this honourable Court. The first to third respondents’ attorneys approached the
attorneys of the applicants, when it became clear to them that they would not be able to
file within the prescribed time periods. An arranged was reached between the attorneys
that subject to the directions and leave of this Court, the applicants do not have
problems in the late filing of the respondents’ opposing affidavit.
131. The first to third respondents make application for condonation for the late delivery of
their opposing affidavit. The relevant notice of motion, as well as the affidavit upon
which condonation is sought are annexed hereto and marked “AA59” and “AA60”.
K. Appropriate order
132. The first to third respondents request that the application be dismissed.
133. In the event the Twelfth Amendment is declared invalid on the ground only that the
provincial legislature of Gauteng did not comply with section 118(1)(a) of the
Constitution, then the first to third respondents request that an order of a validity should
be suspended for a period of 24 months so as to permit the provincial legislature of
Gauteng an opportunity to comply with the relevant provisions of the Constitution. Page 65
134. I submit that such an order would be appropriate, and in the interest of good
governance, having regard to –
134.1. the fact that Merafong has already been transferred to the Province of North
West, as a result of the operation of the Twelfth Amendment;
134.2. the relevant provincial governments of North West and Gauteng Provinces
have already concluded and are implementing the Implementation Protocols
and Service Level Agreements concluded by their relevant departments in
order to promote adequate service delivery in Merafong. There is therefore no
threat to the delivery of services in Merafong.
134.3. the National Assembly and the NCOP passed the Twelfth Amendment by the
requisite prescribed majorities in the belief that the provincial legislature of
Gauteng had complied with its constitutional obligations to promote the
involvement of the public in the consideration and approval of the Twelfth
Amendment;
135. For those reasons, I submit that the suspension of an order of invalidity would be
appropriate.
Page 66
______DEPONENT
THUS DONE AND SIGNED BEFORE ME AT PRETORIA ON THIS THE DAY OF JULY 2007, 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