Justice Ngcobo’s rich legacy at the intersection of federalism and democracy

• Pages: 1-22
• Published date: 01 August 2017
• DOI: 10.10520/EJC-1033ac4737
• Date: 01 August 2017
• Record Number: sapr1_v32_n1_2_a7
• Author: Victoria Bronstein

1

ARTICLE

Justice Ngcobo’s Rich Legacy at the Intersection of

Federalism and Democracy

Victoria Bronstein

University of the Witwatersrand

Email: victoria.bronstein@wits.ac.za

ABSTRACT

This article aims to make a connection between the Tongoane judgment, which deals with

‘tagging’ legislation, and Justice Ngcobo’s innovative thinking in the Matatiele Municipality

cases, which are about the demarcation of provincial boundaries. These cases are bound

together by Justice Ngcobo’s powerful commitment to democracy at the sub-national level.

The judgments build accountability at grassroots level and constrain authoritarian impulses.

This article examines the political issues behind provincial demarcation disputes, including

ethnic impulses. It argues that current democratic concepts in South African Constitutional

law can never meet the popular sovereignty, self-determinative type claims of communities

who wish to determine their own futures in boundary disputes. These disputes raise specic

democratic problems that need to be named, seen for what they are and theorised on their

own terms.

Keywords: federalism; Tongoane; Matatiele; democracy; tagging; public participation; provin-

cial boundaries

Introduction

Justice Ngcobo stands out as one of the architects of our federalism jurisprudence.1 I

have previously argued that his most important federalism judgment was Tongoane &

Others v National Minister for Agriculture and Land Aairs & Others2 (hereinafter

1 See the discussion of DVB Behuising (Pty) Limited v North West Provincial Government 2001 (1) SA

500 (CC) (‘DVB Behuising’) in Victoria Bronstein, ‘Competence’ in Stu Woolman and others (eds),

Constitutional Law of South Africa (2 edn, Juta 2006) Chapter 15 at 8–10 and 14–20 and Victoria

Bronstein, ‘Envisaging Provincial Powers: A Curious Journey with the Constitutional Court’ 2014

(30) SA Journal on Human Rights 24.

2 2010 (6) SA 214 (CC).

https://doi.org/10.25159/2522-6800/3561

ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–22

2

Bronstein Justice Ngcobo’s Rich Legacy

Tongoane). Tongoane illustrates a deep appreciation of the constitutional design

at the national and provincial levels. The case also shows the retired Chief Justice’s

preoccupation with facilitating democratic accountability at the appropriate level. In

this article I aim to make a connection between the Tongoane judgment and Justice

Ngcobo’s truly innovative thinking in the Matatiele Municipality cases.3 The latter are

about provincial demarcation. Tongoane and the Matatiele cases are bound together

by Justice Ngcobo’s powerful commitment to democracy at the sub-national level. A

disinterested observer would probably see the Matatiele cases as having unconventional

or unexpected results, but the cases illustrate the capacity of Justice Ngcobo to integrate

unanticipated outcomes into the deep texture of South African law. All these cases build

democracy and accountability at the grassroots level and serve to constrain authoritarian

impulses.

Tongoane and the Matatiele cases continue to have very interesting and far-reaching

implications. That is the nature of Constitutional Court precedent. The Tongoane

judgment puts a procedural break on hasty government action. For instance, when

President Zuma wished to respond to the demands of traditional leaders by extending

the land claims deadline in the Restitution of Land Rights Act4 urgently before elections,

the Tongoane precedent prevented him from doing so.5 At that point there was a risk

that the interests of up to 30 000 existing land claimants would be adversely aected.

In Land Access Movement of South Africa & Others v Chairperson of the National

Council of Provinces6 the new deadline was invalidated on the ground that the public

consultation processes were woefully inadequate in the provinces.7

The enclave of Matatiele became part of the Eastern Cape despite the wishes of the vast

majority of local residents, who wanted to remain in KwaZulu-Natal. The Matatiele

Court required national and provincial legislatures to engage in proper consultation with

communities when making alterations to provincial boundaries. The Court’s approach

did not turn out to be a panacea. Although the Matatiele judgments support the voices

of communities faced with adverse demarcation decisions, they stop short of rescuing

3 Matatiele Municipality & Others v President of the Republic of South Africa & Others 2006 (5) SA

47 (CC); 2006 (5) BCLR 622 (CC) (‘Matatiele I’) and Matatiele Municipality & Others v President

of the Republic of South Africa & Others (‘Matatiele II’) [2006] ZACC 12; 2007 (1) BCLR 47 (CC)

(18 August 2006).

4 Act 22 of 1994.

5 Brendan Boyle, ‘Land Rights Bill Must Go Back to Parliament’ (Legal Resources Centre) <http://

lrc.org.za/lrcarchive/lrc-in-the-news/3098-land-rights-amendment-bill-must-go-back-to-parliament>

accessed 16 November 2017.

6 2016 (5) SA 635 (CC) (‘Land Access Movement’).

7 Boyle (n 5). The Traditional Courts Bill was also profoundly aected by public participation in the

provinces. Despite ANC control of eight provinces in 2013, it was not possible for the government

to achieve an outright majority in the National Council of Provinces in support of the Bill. For a full

discussion of the process see Thuto Thipe, Monica De Souza and Nolundi Luwaya, ‘The Advert Was

Put Up Yesterday: Public Participation in the Traditional Courts Bill Legislative Process’ (2015–2016)

60 New York Law School LR 519.