IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT /07 In the matter between:
MERAFONG DEMARCATION FORUM 1st Applicant
ISRAEL MOLEPE MOGALE 2nd Applicant
PAUL NGWANE 3rd Applicant
PAUL THABANE MOSENOGI 4th Applicant
JOHANNES MOTSUMI 5th Applicant
TEBOGO JEREMIAH DANIEL 6th Applicant
PEARL KHANYILE 7th Applicant
ALFRED MOTLOUNG 8th Applicant
MXOLISI BLESSING DILIMA 9th Applicant
MICHAEL MADULUBE 10th Applicant
TELEKI JOHANNES MATHIKGE 11th Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1st Respondent
MINISTER OF PROVINCIAL AND LOCAL GOVERNMENT 2nd Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 3rd Respondent
PREMIER OF GAUTENG 4th Respondent
MEC FOR LOCAL GOVERNMENT GAUTENG PROVINCE 5th Respondent
THE GAUTENG PROVINCIAL LEGISLATURE 6th Respondent 2
THE PREMIER OF NORTH WEST 7th Respondent
THE MEC FOR LOCAL GOVERNMENT FOR NORTH WEST 8th Respondent
THE NORTH WEST PROVINCIAL LEGISLATURE 9th Respondent
THE MUNICIPAL DEMARCATION BOARD 10th Respondent
MERAFONG CITY LOCAL MUNICIPALITY 11th Respondent
WEST RAND DISTRICT MUNICIPALITY 12th Respondent
SOUTHERN DISTRICT MUNICIPALITY 13th Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY 14th Respondent
THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES 15th Respondent
THE ELECTORAL COMMISSION 16th Respondent
______
FOUNDING AFFIDAVIT ______
I, the undersigned,
ISRAEL MOLEPE MOGALE state under oath as follows:
1.
I am a teacher at Badirile High School residing at 7817, Extension 1
Khutsong. I have lived in Khutsong for more than 24 years and am 3 the spokesperson for the Merafong Demarcation Forum the First
Applicant, (hereinafter “the MDF”). I am the Second Applicant herein.
The facts contained in this affidavit are to the best of my knowledge both true and correct and are within my personal knowledge.
2.
2.1 The MDF is an organisation of people who are fighting for
democracy to prevail in Merafong. This organisation is
established by the members of the community drawn from
political organisations, Churches, taxi associations, women’s
movements, students, trade unions, small and medium
businesses and other professionals, including teachers, nurses
and lawyers. I attach a copy of the Constitution / Mission of the
MDF hereto as Annexure “1”.
2.2 I submit that the MDF is an association acting in the interests of
its members as contemplated by section 38(e) of the
Constitution of the Republic of South Africa.
2.3 I further submit that I and the other Applicants (i.e. Applicants
three to eleven) also have standing herein by virtue of sections
38(a) and (c) of the Constitution. Furthermore I submit that we 4
are all acting in the public interest as contemplated in section
38(e) of the Constitution.
3.
The Third to Eleventh Applicants herein are the following:
3.1 The Third Applicant is PAUL NGWANE, an adult male taxi
owner residing at 4252 Khayalethu, Khutsong. The Third
Applicant is a member of the Carletonville United Taxi
Association (“CUTA”). He is also the chairman of South African
Leisure and Tourism which is an organisation committed to
promoting tourism in South African townships. The Third
Applicant is also the chairperson of the Khutsong Civic
Organisation. The Khutsong Civic Organisation promotes,
amongst others, efficient service delivery of municipal services.
3.2 The Fourth Applicant is PAUL THABANE MOSENOGI, an adult
male Priest residing at 3784 Khutsong. The Fourth Applicant is
a Priest of the Lutheran Church in Southern Africa, Khutsong
congregation. He is also the deputy chairperson of the Khutsong
Ministers Fraternal. The Khutsong Ministers Fraternal is a body
of interdenominational Pastors. The Fourth Applicant has
resided in Khutsong for approximately nine years. 5
3.3 The Fifth Applicant is JOHANNES MAKGAJE MOTSUMI, an
adult male attorney residing at 14 Umlaas Street, Carletonville.
The Fifth Applicant practices as an attorney for his own account
at Johannes Makgaje Motsumi Attorneys in Carletonville. The
Fifth Applicant was born in Khutsong and has lived in Khutsong
for 35 years.
3.4 The Sixth Applicant is TEBOGO JEREMIAH DANIEL, residing
at 51st Avenue, Welverdien, Carletonville. The Fifth Applicant is
a teacher at Kamohelo Primary School, Khutsong. The Sixth
Applicant is a member of the South African Democratic
Teachers Union (“SADTU”) and is also a member of SADTU’s
executive committee of the local branch. The Sixth Applicant is
also chairperson of the Khutsong Sports Forum, an organisation
promoting participation in sporting activities in Khutsong.
3.5 The Seventh Applicant is PEARL KHANYILE, an adult female
residing at 5810 Extension 2, Khutsong. The Seventh Applicant
is a self-employed businesswoman. She is also a member of the
Khutsong Women’s Forum and a member of the South African
Communist Party (“SACP”).
6
3.6 The Eighth Applicant is ALFRED FANYANA MOTLOUNG, an
adult businessman residing at 6148 Extension 3, Khutsong.
The Eighth Applicant is the owner of a tavern in Khutsong and
has lived in Khutsong for approximately 20 years.
3.7 The Ninth Applicant is MXOLISI BLESSING DILIMA, an adult
businessman residing at 7749 Extension 1, Khutsong. The
Ninth Applicant is the owner of a driving school in Khutsong and
has lived in Khutsong for approximately 20 years.
3.8 The Tenth Applicant is MICHAEL MADULUBE, an adult male
residing at Section 931 Khutsong. The Tenth Applicant is the
chairperson of the Khutsong branch of the United Democratic
Movement.
3.9 The Eleventh Applicant is TELEKI JOHANNES MATHIKGE, an
adult male residing at 3633 Khutsong, Carletonville. The
Eleventh Applicant is a teacher at Badirile High School,
Khutsong. He is also the chairman of the Merafong Demarcation
Forum and has lived in Carletonville for approximately 45 years.
7
4.
All the above Applicants reside in Merafong City Local Municipality
(hereinafter “Merafong”), mainly in the two major townships therein i.e. Carletonville and Khutsong which is situated to the North, immediately outside of Carletonville.
5.
The First Respondent is THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA of West Wing, Union Buildings, Government Avenue,
Pretoria. The First Respondent is cited herein in his capacity as Head of State and as Head of The National Executive c/o THE STATE
ATTORNEY, 8th Floor, Old Mutual Centre, 167 Andries Street, Pretoria.
6.
The Second Respondent is THE MINISTER OF PROVINCIAL AND
LOCAL GOVERNMENT of Cnr Hamilton & Proes Streets, Arcadia,
Pretoria c/o THE STATE ATTORNEY, 8th Floor, Old Mutual Centre, 167
Andries Street, Pretoria. The Second Respondent is cited herein as head of the Department of Provincial and Local Government. 8
7.
The Third Respondent is THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT of Momentum Building, Cnr
Prinsloo & Pretorius Streets, Pretoria c/o THE STATE ATTORNEY, 8th
Floor, Old Mutual Centre, 167 Andries Street, Pretoria. The Third
Respondent is cited herein as head of the Department of Justice and
Constitutional Development.
8.
The Fourth Respondent is THE PREMIER OF GAUTENG PROVINCE of East Wing, 13th Floor, Gauteng Provincial Government Building, 30
Simmonds Street, Marshalltown, Johannesburg. The Fourth
Respondent is cited herein as head of the Gauteng Provincial
Government.
9.
The Fifth Respondent is THE MEC FOR LOCAL GOVERNMENT
GAUTENG PROVINCE of East Wing, 13th Floor, Gauteng Provincial
Government Building, 30 Simmonds Street, Marshalltown, 9
Johannesburg. The Fifth Respondent is cited herein as head of the
Gauteng Provincial Department of Local Government.
10.
The Sixth Respondent is THE GAUTENG PROVINCIAL
LEGISLATURE situated at Cnr Loveday & President Streets,
Johannesburg.
11.
The Seventh Respondent is THE PREMIER OF NORTH WEST
PROVINCE of 3rd Floor, Ga-Rona Building, Cnr Provident & University
Drive, Mmabatho. The Seventh Respondent is cited herein as the head of the North West Provincial Government.
12.
The Eighth Respondent is THE MEC FOR LOCAL GOVERNMENT
FOR NORTH WEST PROVINCE of 3rd Floor, Ga-Rona Building, Cnr
Provident & University Drive, Mmabatho. The Eight Respondent is 10 cited herein as head of the North West Provincial Department of Local
Government.
13.
The Ninth Respondent is THE NORTH WEST PROVINCIAL
LEGISLATURE of 3rd Floor, Ga-Rona Building, Cnr Provident &
University Drive, Mmabatho.
14.
The Tenth Respondent is THE MUNICIPAL DEMARCATION BOARD a Board with status as a juristic person established in terms of section
2 of the Local Government: Municipal Demarcation Act, No. 27 of
1998, which has its offices at Iparioli Park, 1166 Park Street, Block
D2, Hatfield, Pretoria.
11
15.
The Eleventh Respondent is MERAFONG CITY LOCAL
MUNICIPALITY, a municipality established in terms of the Local
Government: Municipal Structures Act 117 of 1998. Having its principal place of business at Malite Street, Carletonville.
16.
The Twelfth Respondent is WEST RAND DISTRICT
MUNICIPALITY, a District Municipality established in terms of the
Local Government: Municipal Structures Act 117 of 1998, with principal place of business situated at Cnr Sixth and Park Streets,
Randfontein.
17.
The Thirteenth Respondent is THE SOUTHERN DISTRICT
MUNICIPALITY, a District Municipality established in terms of Local
Government: Municipal Structures Act 117 of 1998, with principal place of business at Civic Centre, Patmore Road, Orkney.
12
18.
The Fourteenth Respondent is THE SPEAKER OF THE NATIONAL
ASSEMBLY of Parliament Building, Parliament Street, Cape Town.
19.
The Fifteenth Respondent is THE CHAIRPERSON OF THE
NATIONAL COUNCIL OF PROVINCES of Parliament Building,
Parliament Street, Cape Town.
20.
The Sixteenth Respondent is THE ELECTORAL COMMISSION of
Election House, 260 Walker Street, Sunnyside, Pretoria.
PURPOSE OF THIS APPLICATION:
21.
The purpose of this application is to obtain relief essentially similar to that which was obtained by the Matatiele Municipality in 13
Constitutional court case CCT 73/05. It will be asked by the
Applicants that the Constitution Twelfth Amendment Act, 2005, which transferred Merafong City Local Municipality (previously known as
“CBLC8”) from the Province of Gauteng to the Province of North West be declared inconsistent with the Constitution and therefore invalid.
22.
The basis for the constitutional attack is the following:
22.1 The Provincial Legislature of Gauteng failed to comply with its
constitutional obligation, envisaged in section 118(1)(a) of the
Constitution, to facilitate public involvement in considering and
approving that part of the Twelfth Amendment which concerns
Gauteng and specifically Merafong. It is immediately conceded,
that one public meeting only was held, namely on 25 November
2005 at Carletonville Civic Centre. Applicants will however
argue that this meeting and other forms of communication by
the Government about this issue, was public participation only
in “form” and not in “substance”. The belief of the Applicants is
that the move of Merafong to North West had as long ago as
2004 already been finally decided by political structures and/or 14
government and that nothing that happened thereafter, could
change the Government’s mind in this respect.
22.2 The second ground for this application is that the exclusion of
Merafong from Gauteng and the inclusion thereof in North West
was irrational. There existed no rational basis for this action
and, in this respect, I am advised that all legislation, including
the Constitution itself, has to pass a minimum threshold of
rationality.
THE ROLE OF THE GAUTENG LEGISLATURE:
23.
The role of the Gauteng Legislature in regard to this issue is evident from a document issued by it prior to the public hearing in November.
This document is annexed hereto as Annexure “2”.
24.
The hearing of 25 November 2005 was published in newspapers and I annex a copy of an advertisement which appeared in the Star
Newspaper dated 22 November 2005 as Annexure “3”. 15
25.
Further, in regard to this public meeting I annex a copy of the agenda of that meeting which was issued by the Gauteng Provincial
Legislature and distributed. A copy of that agenda is Annexure “4” hereto.
26.
I shall proceed to deal with the public hearing of 25 November and events subsequent thereto, before reverting to events which led up to the public hearing on 25 November. The hearing was chaired by the
Chairperson: Local Government Portfolio Committee of Gauteng
Legislature, Ms. Letwaba. The meeting was extremely well attended by the community. All the Applicants were present. Many community-based organisations and stakeholders spoke and handed up submissions motivating why Merafong City should not become part of North West. The latter viewpoint was the overwhelming stance of people at the meeting.
27.
Subsequent to the hearing the Local Government Portfolio Committee produced a document titled “Negotiating Mandate on Constitution 16
Twelfth Amendment Bill”. This document is of crucial importance as it sets out the considered view of this Portfolio Committee after having fully considered the matter and after having heard views from the community. Whilst this whole document is of importance I specifically refer the Court to pages 5 to 10 of that document which reflects its view after having heard all relevant evidence. On page 6, at paragraph 8.1 under the heading “Social Development Cluster” the impact on the Merafong City Community is considered should social services, home affairs, health and emergency service, education systems and local programs be transferred from Gauteng to North
West Province. The considered view in respect of all these aspects is that service delivery in all these areas will be detrimentally affected.
This, of course, is clearly against one of the aims of government. I again refer to Annexure “2” hereto where the following is stated in the second paragraph of page 2:
“The objective is therefore to enhance service delivery by
providing that all municipalities fall within a specific province.”
28.
I further refer to Annexure “5” hereto and specifically paragraph 2 on page 8 thereof. The point there is clearly stated that Merafong is 17 part of the Gauteng Economic Development Cluster i.e. it forms part of the West Rand. The view of the First Applicant has always been that it makes no socio-economic sense to move Merafong City from the Gauteng Economic Hub to another District Municipality which has its economic focus far to the West in places like Klerksdorp,
Potchefstroom and Mmabatho.
29.
It will be noted in Annexure “5” that there were also views in favour of inclusion of Merafong into the North West Province. This is dealt with in Annexure “5”, p9, par8.2. This was by far a minority view and in view of the Applicants that view is not well motivated and stands to be rejected compared to the overwhelming indicators in favour of the view of the Applicants herein.
30.
This was also the view of the Portfolio Committee which found in favour of the view of the Applicants. I refer to page 10 of Annexure
“5” where the following is stated:
18
“9. COMMITTEE POSITION
The Portfolio Committee on Local Government –
• in principle, supports the phasing-out of cross-boundary
municipalities as envisaged by the Constitution Twelfth
Amendment Bill [B33B-2005];
• in light of the outcome, impact assessment and analysis of
the public hearing submissions, agrees with the inclusion of
the geographical area of Merafong municipality into the
West Rand District municipality in the Gauteng Province;
• recommends to the House, amendment to Schedule 1A of
the Constitution Twelfth Amendment Bill [B33B-2005], to
provide for the inclusion of the municipal area of Merafong
into the municipal area of the West Rand District
municipality of the Gauteng Province.”
31.
The further consideration of this matter by the Gauteng Legislature was under severe time constraints as the National Assembly had already on 15 November 2005 voted in favour of the Constitution 19
Twelfth Amendment Bill. Furthermore the local government elections were to be held on 1 March 2006 and, it speaks for itself, that such elections could not proceed without there being finality about the boundaries of Municipalities. I enclose as Annexure “6” hereto a memorandum from the Speaker’s Offices of the Gauteng Provincial
Legislature indicating the legislative program for processing of the Bill as follows:
“The dates for processing of the Bill in the NCOP are as follows:
Monday & Tuesday, 21-22 November
2005 Briefings in Provinces
Wednesday, 30 November 2005 Consideration Negotiating
Mandates by Select
Committee
Monday, 12 December 2005 Consideration Final
Mandates by Select
Committee
Wednesday, 14 December 2005 Plenary”
20
32.
The full course of the passing of the Constitution Twelfth Amendment
Act is summarised in paragraph 24 by the Constitutional Court in the
Matatiele (1) case which I quote as follows:
“On 30 September 2005, the Twelfth Amendment Bill was introduced in
the National Assembly. On 15 November 2005, the National Assembly
voted in favour of the Bill with a narrow two-thirds majority, the Deputy
Speaker casting the deciding vote in support of the Twelfth Amendment.
On 14 December 2005, the NCOP considered the Bill in the light of the
provincial mandates and passed the Bill. On 23 December 2005, the Bill
was signed into law.”
33.
It appears from Annexure “6” that on Monday 12 December 2005 the final mandates were given by Gauteng Provincial Legislature to its representatives in the National Council of Provinces (NCOP) to vote in favour of the Constitution Twelfth Amendment Bill. The Applicants have no idea how that could have happened, given the well- considered view of the Local Government Portfolio Committee as set out in Annexure “5” hereto. The Applicants have up to today not been 21 told WHY Merafong City was incorporated in North West instead of
Gauteng. We can therefore come to no other conclusion that the
Gauteng Legislature’s decision on 12 December 2005 was irrational, arbitrary and probably forced by the will of political superiors.
34.
We therefore call upon the Fourth to Sixth Respondents to provide reasons for the decision. Particularly they are required to make available to the Applicants all other documentation and evidence on which the Sixth Respondent relied and also the verbatim record of the debate in the Gauteng Provincial legislature relating to this issue on
12 December 2005.
THE BACKGROUND TO THE ADOPTION OF THE CONSTITUTION
TWELFTH AMENDMENT IN RELATION TO MERAFONG:
35.
It became public knowledge at the end of 2004 that the National
Executive Committee of the ANC had decided in principle that
Merafong City Local Municipality should be included in North West.
Therefore, at that stage already, Merafong City drafted a motivation 22 in favour of Merafong City to be in Gauteng. I annex a copy of this document hereto as Annexure “7”. It will be noted that this is stamped by the office of the Executive Mayor on 16 November 2004.
36.
As appears from the second paragraph of Annexure “7” it is so that
Merafong City was a Cross-boundary Municipality. Carletonville and
Khutsong, where by far the majority of people reside, fell in the northern part of Merafong City i.e. in Gauteng. In the southern part of Merafong City were the communities of Fochville and Wedela. This appears from Map 27 of Government Gazette 27937 dated 19 August
2005, with which I shall again deal hereunder. It serves no purpose to repeat the contents thereof herein. The Applicants support the well motivated conclusion therein (par4 thereof) that Merafong City
Local Municipality forms an integral and integrated part of the West
Rand and therefore Gauteng Province and a separation of these areas will have a substantial negative impact on the economic, social and institutional stability and development of the area as a whole. It is also of importance to note the statistics therein namely that Merafong
City had approximately 308 000 inhabitants whereof 75% were located in Gauteng.
23
37.
To revert to Government Gazette 27937 of 19 August 2005 (“the
August Gazette”), that Gazette contained a request by the Second
Respondent to the Municipal Demarcation Board (Tenth Respondent) to re-determine the boundaries of certain Municipalities. The maps annexed to that Government Gazette reflected the proposals received from the Minister. I refer to Map 27 thereof, Annexure “8” hereto.
The proposal in regard to Merafong City Local Municipality (CBLC8) and Westonaria Local Municipality (GT414) were that they were to be excluded from the West Rand District Municipality and included into the municipal area of the Southern District Municipality. This fact together with the imminent repeal of Cross-boundary Municipalities would mean that both Merafong and Westonaria would then be situated in North West. It was clearly not the intention at any stage that the Southern District Municipality would be situated in Gauteng.
38.
In accordance with the Second Respondent’s proposal the Tenth
Respondent published its proposals in both the Gauteng and North
West Provincial Gazettes. This publication was, in terms of the
Municipal Demarcation Act, for comment by interested parties and it 24 is stated in the Gazette that any aggrieved person may submit objections within thirty days.
39.
I attach a copy of Gauteng Provincial Gazette Extraordinary (the
North West Gazette Extraordinary is the same) dated 2 September
2005 hereto as Annexure “9”. It will be noted from Map 27 of
Annexure “9” that that proposal by the Tenth Respondent was in accordance with the proposal by the Second Respondent as in
Annexure “8”.
40.
The proposed demarcation as per Annexures “8” and “9” hereto led to spontaneous and widespread mass action in the Merafong
Community. On 24 September 2005 a protest march was held in
Westonaria and on 26 September we marched to Merafong City offices. This mass action was supported by all community structures including the “alliance structures” i.e. COSATU, the SACP and the
Local ANC. Apart from these union and political organisations this action was supported by NGO’s, Churches, taxi organisations and social movements. 25
41.
The Tenth Respondent reconsidered and during October 2005 issued a press statement, a copy of which is Annexure “10” hereto. I quote from the third page of the press statement as follows:
“Gauteng and North West Cross-boundary municipalities
Submissions and motivation in terms of section 24 and 25 of
the Demarcation Act, indicate overwhelming resistance to the
inclusion of Westonaria and the City of Merafong into the
Southern District Municipality. The Board agreed with some
motivations provided, and decided, in terms of section 21(5) of
the Demarcation Act, to withdraw its re-determination in Notice
No.3359 gazetted in the Gauteng Provincial Gazette No. 375 of
2 September 2005, and Notice No. 458 gazetted in North West
Provincial Gazette No. 6208 of 2 September 2005. The
Westonaria Local Municipality and the City of Merafong Local
municipality thus remain within the West Rand District
municipality, and the boundaries of the Southern District
municipality also remain unchanged.”
26
42.
The community celebrated as a result of this determination of the
Demarcation Board in our favour. On 30 October 2005 a celebration march was held in Bekkersdal.
43.
However on 31 October 2005 Government Notice 1998 of 2005 was published in the Government Gazette. I annex pages 2 to 5 as well as page 10 thereof as Annexure “11” hereto. It will be seen that this gazette (“the October Government Gazette”) shows an alternative proposal received by the Tenth Respondent from the Second
Respondent. Map No. 5 now excluded Westonaria from the
Southern District Municipality whilst it included Merafong City in the
Southern District Municipality i.e. in North West. The Second
Respondent never deviated from this proposal as it will be seen that in the Constitution Twelfth Amendment Act of 2005 in schedule 1A thereof the geographical area of North West is defined as inter alia including Map No. 5 of schedule 1 to notice 1998 of 2005 i.e. the eventual determination as per the Twelfth Amendment Act used Map
No. 5 of the October Government Gazette.
27
44.
This immediately again led to strong reaction in the community and we insisted on a meeting with Mr Sydney Mufamadi, the Second
Respondent. Such meeting took place on Saturday 5 November 2005 in Pretoria. I annex as Annexure “12” a document entitled “Sector
Report to Minister: Sydney Mufamadi on the Engagements regarding the Cross-boundary issue affecting Merafong City Local Municipality”.
This document contains both the minutes of what happened on 5
November 2005 as well as a report back to the Second Respondent after the community was again engaged in various meetings, as requested by the Second Respondent. The meeting on Saturday 5
November 2005 was attended by most, if not all, the present
Applicants and also by Sr. Bernhard Ncube, the Executive Mayor of the West Rand District Municipality (WRDM).
45.
I quote extensively from the conclusions of the meeting as stated on page 2 of Annexure “12”:
28
“i. That the process is not conclusive and members should
watch the space and wait for the Parliamentary
pronouncement.
ii. That the debate on the issue is not closed by all account.
iii. That the delegation should go back and collectively create
conditions for communities to constructively participate in
the process.
iv. That the delegation should clarify the “grey areas” with
the community on this issue and the processes thereof.
v. That the delegation should strive for the normalization of
the situation in the area and demonstrate a collective
responsibility on the matter.
vi. That a stalemate should not be created where it does not
exist, and that the community must be connected to the
process.
vii. That the Minister will avail himself in Merafong to discuss
the matter after constructive engagements with the
community on the matter. 29
viii. That the Minister is bound to take the “Bill” to Parliament
and that the proposals are meant to initiate discussions.
ix. That the Minister will report to Parliament about this
meeting, but cannot decide on behalf of Parliament.”
46.
We again consulted all structures in Merafong extensively as requested by the Minister and refer to paragraph 2 being a “REPORT” of all the meetings that took place with various structures, as there stated in the period 6 November to 17 November 2005. The abbreviation “CUTA” stands for Carletonville United Taxi Organisation.
It is evident from paragraph 3 of Annexure “12” that the community i.e. the Sectoral Forum unanimously agreed that Merafong City Local
Municipality should be incorporated into Gauteng. It is apparent from the last page of Annexure “12” that this document was returned to the Second Respondent on 24 November 2005, as appears from the official stamp thereon. It also appears from the last page of Annexure
“12” that the document was signed on behalf of various structures such as SACP, COSAS, CUTA, The Executive Mayor, Sr. Ncube etc. I immediately mention that the Second Respondent did not “avail 30 himself in Merafong to discuss the matter” as promised in vii of the previous paragraph.
47.
It will be noted that the date on which Annexure “12” was delivered to the Second Respondent was the date before the scheduled public hearing.
48.
At the public hearing on 25 November 2005 the following further documents were handed to the Chair Ms. Letwaba:
48.1 Annexure “13”: titled “Submission to Gauteng Public Hearing
– Cross-boundary 25 November 2005”.
This document specifically deals with the complaint of the
community of Kokosi, an area of the Cross-boundary
Municipality which fell within North West. This document speaks
of the poor service delivery in regard to social services, home 31
affairs, emergency services, health services and sanitation, to
name just a few examples, in North West.
48.2 Annexure “14”: titled “Merafong City Submission: View of the
Community of Wedela”.
As mentioned previously Wedela is a part of Merafong City
which fell within North West at that stage.
48.3 Annexure “15”: titled “Submissions by South African
Communist Party District in considering the Constitution Twelfth
Amendment Bill in conjunction with Cross-boundary Municipal
Repeal Laws”.
48.4 Annexure “16”: titled “Khutsong / Carletonville Community
View”:
48.5 Annexure “17”: titled “Merafong City Submissions view of
Khutsong”.
I respectfully refer the Court to the contents of these submissions by the community which motivates their strong stance against incorporation in North West. These documents also speak of the passion with which the people viewed this issue. 32
49.
I and the other Applicants support the views as expressed in
Annexures “13” to “17”. We, the Applicants, were all present at the hearing on 25 November 2005. It seems that these well motivated views by the community were accepted by the Local Government
Portfolio Committee, as appears from Annexure “5” hereto. It is therefore, so much more surprising, that the Gauteng Legislature took a different stance.
THE TENTH RESPONDENT:
50.
In the meantime, on 15 November 2005, the National Assembly had already voted in favour of the Bill by a narrow two-thirds majority. In the view of the Government’s intractable stance the Municipal
Demarcation Board had no choice but to redefine the municipal boundaries to conform with the Constitution Twelfth Amendment Bill.
This is evident from Notice 1257 of 2005 by the Municipal
Demarcation Board as published in the Government Gazette on 21
November 2005. I quote from page 3 of the said Government
Gazette which reads as follows: 33
“Based on the re-alignment of provincial boundaries as reflected
in the Constitution Twelfth Amendment Bill of 2005, and the
imminent repeal of legislative provisions related to Cross-
boundary municipalities, the Municipal Demarcation Board
hereby proposes the re-demarcation, as envisaged by section
21 of the Local Government: Municipal Demarcation Act, 1998
(Act No. 27 of 1998), of the boundaries of municipalities as
reflected in the Schedule and maps.”
The said Schedule reflected that Merafong City Local Municipality
(CBLC8) was to be excluded from West Rand District Municipality and included in Southern District Municipality. The map reflecting this is map no. 13 in the November Government Gazette. I do not attach this map as it is identical to map no. 5 of the October
Government Gazette (See: Annexure “11”).
51.
The November 2005 Government Gazette also stated that:
34
“Any proposed re-determination contained in this notice is to be
sanctioned by National Legislation.”
On 23 December 2005, the day the Bill was signed into law, the
Tenth Respondent issued a press statement for immediate release.
This is Annexure “18” hereto. I quote from Annexure “18” the following:
“The Constitution Twelfth Amendment Bill and the Cross-
boundary Municipalities Laws Repeal and Related Matters Bill
that were passed by the National Council of Provinces earlier
this month, have been signed by the Acting President and will
be promulgated as Acts today.
The Municipal Demarcation Board has considered all relevant
factors and the provisions in the two Acts, and has decided to:
- Vary its re-determination of the boundaries of West Rand
District Municipality (DC48) and Southern District
Municipality (DC40) as follows: The municipal area of
Merafong City Local Municipality (NW405) is excluded
from the municipal area of West Rand District
municipality, and included into the municipal area of
Southern District Municipality.” 35
It seems that the Tenth Respondent was faced with Hobson’s choice.
52.
It seems to me that in these circumstances the demarcation objectives (section 24) and the factors to be taken into account in demarcation (section 25) of the Municipal Demarcation Act, 27 of
1998, became empty letters.
CONCLUSION:
53.
In regard to the demand of section 118(1)(a) of the Constitution that the provincial legislature had to “facilitate public involvement” we believe that the Sixth Respondent only went through the motions but was not in fact open to persuasion. In the Matatiele (2) judgment it was stated that our Constitution contemplates a democracy that is representative, and it also contains elements of participatory democracy. We do not believe that in the present case the will of the people was heard at all. In spite of all the communities’ submissions and petitions Government stuck to its original stance already 36 expressed in the August 2005 Government Gazette, namely that
Merafong City should be incorporated in North West. Although it seems that the views of the community were heard and accepted by the Local Government Portfolio Committee, as appears from Annexure
“5” hereto, these views did not seem to have any influence on the decision of the Sixth Respondent.
54.
The Applicants still ask WHY? the decision was taken. As was stated in the Matatiele (1) judgment it is so that all legislation should pass the test of showing that the legislation is rationally connected to a legitimate government purpose. Nobody has yet provided any reason to us, let alone a rational one.
WHEREFORE the Applicants ask for the relief as set out in the annexed notice of motion.
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DEPONENT
37
SIGNED AND SWORN TO AT PRETORIA ON THIS DAY OF MAY 2007 THE DEPONENT HAVING ACKNOWLEDGED THAT HE/SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT AND THAT IT IS TRUE AND CORRECT AND THAT HE/SHE CONSIDERS THE OATH TO BE BINDING ON HIS/HER CONSCIENCE.
______COMMISSIONER OF OATHS