IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO.: In the matter between – MOUTSE DEMARCATION FORUM First Applicant WILLIAM MOTHIBA RAMPHISA Second Applicant MPUTLE MAKIDLA Third Applicant KINNY MMAKOLA Fourth Applicant GIVEN PHIRI Fifth Applicant CHRISTINA PHATLANE Sixth Applicant FANIE MOTSELE MOGOTJI Seventh Applicant ELIONA MATLOU Eighth Applicant BANGISWANE MTHOMBENI Ninth Applicant FRIEDA RAKWENA Tenth Applicant LAWRENCE DITSEHGO Eleventh Applicant BAFANA ZACHIARIA DUBE Twelfth Applicant THOMAS MAPULE Thirteenth Applicant TEFO PETER MATHIBEDI Fourteenth Applicant ROSLINA STHEBE Fifteenth Applicant HAPPY MAHLANGU Sixteenth Applicant and PRESIDENT OF THE REPUBLIC OF SOUTH First Respondent AFRICA MINISTER OF PROVINCIAL AND LOCAL GOVERNMENT Second Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent PREMIER OF MPUMALANGA Fourth Respondent MEC FOR LOCAL GOVERNMENT, MPUMALANGA Fifth Respondent SPEAKER, MPUMALANGA PROVINCIAL LEGISLATURE Sixth Respondent PREMIER OF LIMPOPO Seventh Respondent MEC FOR LOCAL GOVERNMENT, LIMPOPO Eighth Respondent SPEAKER, LIMPOPO PROVINCIAL LEGISLATURE Ninth Respondent MUNICIPAL DEMARCATION BOARD Tenth Respondent SPEAKER OF THE NATIONAL ASSEMBLY Eleventh Respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Twelfth Respondent GREATER MARBLE HALL LOCAL MUNICIPALITY Thirteenth Respondent ELIAS MOTSOALEDI LOCAL MUNICIPALITY Fourteenth Respondent GREATER SEKHUKHUNE DISTRICT MUNICIPALITY Fifteenth Respondent DR JS MOROKA LOCAL MUNICIPALITY Sixteenth Respondent NKANGALA DISTRICT MUNICIPALITY Seventeenth Respondent ELECTORAL COMMISSION Eighteenth Respondent FOUNDING AFFIDAVIT I, the undersigned, WILLIAM MOTHIBA RAMPISA hereby make oath and state – 2 1. I am an adult male building contractor and the second applicant in this matter. I reside at 39 Dennilton Agricultural Holdings, Moutse. In fact, I have lived in Moutse my whole life. I am also the Chairperson of the Moutse Demarcation Forum (“the Forum”), the first applicant in this matter. The nature and purpose of the Forum is dealt with below. I am authorised to depose to this affidavit on behalf of this Forum and the other applicants. 2. The facts contained in this affidavit are within my personal knowledge, save where appears otherwise from the context and are, to the best of my knowledge and belief, both true and correct. Where I make legal submissions, I do so on the advice of my legal representatives. OVERVIEW OF THIS APPLICATION 3. This application is brought by the people of Moutse to challenge the validity of the Constitution Twelfth Amendment Act of 2005 (“the Amendment”), which, inter alia, transferred Moutse from Mpumalanga to Limpopo. 4. I and the other applicants submit that the Amendment was invalid for two reasons, namely – 4.1. the Amendment was irrational in that, in respect of Moutse, it is not capable of achieving the underlying government purpose for which it 3 was enacted, namely to improve service delivery in areas that were formerly cross-border municipalities; and 4.2. the Mpumalanga Provincial Legislature failed to comply with its constitutional obligation to facilitate public participation, in that – 4.2.1. it refused or failed to consult properly with the Moutse community; 4.2.2. submissions made by the Moutse community were not properly placed before the Mpumalanga Legislature; and 4.2.3. the Mpumalanga Legislature did not validly confer a mandate on its NCOP representatives to vote in favour of the Amendment, either at all or because it did not have regard to public participation. 5. The applicants therefore seek to have the provincial boundaries re-drawn to incorporate Moutse into the area of Mpumalanga on such terms and subject to such time frames as this Honourable Court deems meet. 6. I am advised that the this Court has held that the Amendment must be read in conjunction with the Cross-Boundary Muncipalities Laws Repeal and Related Matter Act 23 of 2005 (“the Repeal Act”). The applicants accordingly 4 also challenge the Repeal Act, insofar as it relates to the incorporation of Moutse into Limpopo province. 7. This affidavit will traverse – 7.1. the jurisdiction of the Constitutional Court; 7.2. the parties to the application; 7.3. the geographical location of Moutse; 7.4. the history of Moutse; 7.5. demarcations and provincial allocations of Moutse leading up to the amendment; 7.6. the abolition of cross-boundary municipalities and the re-drawing of provincial boundaries; 7.7. service delivery in Moutse; 7.8. the failure to consult adequately with Moutse; 7.9. legal submissions on the failure to consult and the effect thereof; 7.10. the appropriate remedy; 7.11. delay; and 7.12. the interests of justice in hearing this application. THE JURISDICTION OF THE CONSTITUTIONAL COURT 8. As outlined above, this matter concerns a challenge to the validity of an amendment to the Constitution. In terms of section 167(4)(d) of the Constitution, only the Constitutional Court may decide on the constitutionality 5 of any constitutional amendment. Accordingly, this application is brought before this Honourable Court as a court of first instance. 9. Should the application be refused, we will not be heard in any other forum. We submit that this will curtail our right of access to court protected under section 34 of the Constitution, and leave our grievances unaired. 10. Given that one of our causes for complaint arises from our inability to access public and state fora and to make ourselves heard, I submit that it is the interests of justice that this matter be set down for hearing. I will return to a full consideration of the interests of justice later in this affidavit. THE APPLICANTS 11. The first applicant is the MOUTSE DEMARCATION FORUM, an organisation constituted to represent the community of Moutse in issues relating to and arising from the demarcation of municipal and provincial boundaries generally, and particularly the transfer of Moutse from Mpumalanga to Limpopo. 12. The Forum was established in June 2004 by residents and civic organisations in Moutse to oppose its transfer to Limpopo. The Forum had 6 ties to and liaised with various other representative groups and organizations, but it was the body primarily responsible for, inter alia, - 12.1. making submissions to the Municipal Demarcation Board concerning Moutse; 12.2. writing letters and requesting that the Mpumalanga Legislature and the Minister for Provincial and Local Government (“the Minister”) give Moutse a hearing on the issue of provincial boundaries; 12.3. organizing protest marches by the Moutse community; and 12.4. reporting to and consulting with the Moutse community on any steps taken or to be taken. 13. As will be detailed further below, the Forum became the primary representative body of the Moutse community because the Municipal Council tasked with representing it was effectively inoperative by early 2003. 14. I am the second applicant. 15. The third applicant is MPUTLE MAKIDLA, an adult male businessman and the Chairperson of the Elandsdoorn Land Committee, Elandsdoorn, Moutse. 7 He has lived in Moutse since his birth in 1945 and resides at Stand No. 1, Elandsdoorn, Moutse. The Elandsdoorn Land Committee is a civic organisation that assists and represents local communities with issues dealing with tenure security and land claims. 16. The fourth applicant is KINNY MMAKOLA, an adult female currently employed by the Moutse Civic Organisation at 1030 Masanfo Stand, Vuka Africa, Dennilton, Moutse. 17. The fifth applicant is GIVEN PHIRI, an adult male and an executive member of the Elandsdoorn Youth Club, as well as a member of the South African Commuters Organisation. He currently resides at 52 Jabulani Section, Elandsdoorn F, Moutse. 18. The sixth applicant is CHRISTINA PHATLANE, an adult female administrative clerk currently employed at Magateleope Primary School, Mpheleng, Moutse. She is also the Branch Secretary of the Moutse State Administrative Branch of the National Education and Health Allied Workers Union (“NEHAWU”). 19. The seventh applicant is FANIE MOTSELE MOGOTJI, who was born in 1973, and is currently employed by the Department of Correctional Services. He resides at 521 Mtwane Village, Dennilton, Moutse. He is also the Chairperson of the South African Communist Party’s Mtwane Branch. 8 20. The eighth applicant is ELIONA MATLOU, an adult female teacher who currently resides at 5 Morgan, Dennilton, Moutse. 21. The ninth applicant is BANGISWANE MTHOMBENI, who was born in Moutse in 1970 and currently resides at 333 Elandsdoorn Township, Moutse. She is a financial adviser at African Life (Pty) Ltd. She also works at the Dennilton Advice Centre, which provides advice to members of the Dennilton community. 22. The tenth applicant is FRIEDA RAKWENA, an adult female community worker who resides at 1010 Walkraal Extension, Kgobokwane. 23. The eleventh applicant is LAWRENCE DITSEHGO, an adult male businessman who currently resides at 274 Elandsdoorn B, Marapong, Moutse. 24. The twelfth applicant is BAFANA ZACHIARIA DUBE, an adult male and the President of South Africa Stop Child Abuse (“SASCA”). He currently resides at 492 Elandsdoorn E, Dennilton, Moutse. 25. The thirteenth applicant is THOMAS MAPULE, an adult male and the Chairperson of the South African Commuters Organisation (“SACO”). He was born in Dennilton, Moutse, in 1974 and has lived there ever since. 26. The fourteenth applicant is TEFO PETER MATHIBEDI, who was born in 1963 and lives at 272 Tambo Village, Moutse. He is currently employed as 9 Chief Administration