Matatiele Municipality and Others v President of the RSA and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Yacoob J, Van Der Westhuizen J and Nkabinde J
• Judgment Date: 27 February 2006
• Citation: 2006 (5) SA 47 (CC)
• Docket Number: CCT 73/05
• Hearing Date: 14 February 2006
• Counsel: A J Dickson SC (with A A Gabriel) for the applicants. I A M Semenya SC and V Maleka SC (with N Mayet and P Nkutha) for the first, second and third respondents. No appearances for the fourth to thirteenth respondents. K D Moroka SC (with K Pillay) for the fourteenth and fifteenth respondents.
• Court: Constitutional Court

Ngcobo J:

Introduction

[1] This case concerns the constitutional validity of the Constitution Twelfth Amendment Act 2005 ('the Twelfth Amendment') and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act E 23 of 2005 ('the Repeal Act'). In terms of these legislative enactments, the boundary between the province of KwaZulu-Natal and the province of the Eastern Cape was altered so that the area which was Matatiele Local Municipality ('Matatiele Municipality') was transferred from KwaZulu-Natal to the Eastern Cape; new municipal boundaries were created as a consequence. In view of the importance of the constitutional issues involved in this case, we would have F preferred to have had more time to consider these issues and formulate our view. Time does not permit this. The local government elections will be held on 1 March 2006. And our decision will have an impact on those elections. In view of the urgency of the matter, there is a pressing need to announce our conclusions and basic reasoning within G the shortest possible time.

[2] Although, on the papers, there is a substantial issue as to whether the Twelfth Amendment was passed in accordance with the procedure set out in the Constitution, this point was not taken in argument. For reasons that appear later on in this judgment, we have decided to call for further submissions on this issue. In this H judgment, we consider the main contention that was advanced in support of the constitutional challenge to the Twelfth Amendment, namely, that in passing the Twelfth Amendment, Parliament unconstitutionally usurped the powers of the Municipal Demarcation Board to re-determine municipal boundaries. This judgment does not decide the question whether the Twelfth Amendment was enacted in accordance with the procedure set out I in the Constitution. This issue will be considered when this Court finally decides the application.

[3] The applicants also challenged provisions of the Repeal Act. It is not appropriate to determine that challenge until the constitutionality of the J

Ngcobo J

Amendment Act has been finally determined. In the circumstances, we do not consider that challenge now. If the A applicants succeed on that challenge, in due course, just and equitable relief will have to be formulated at that stage. It is accordingly not necessary, at this stage, to decide whether the applicants are entitled to direct access in relation to the Repeal Act. We also do not decide the question of costs. This will be decided when the remaining issues B in this case are finally determined.

[4] The applicants, who include the Matatiele Municipality and a diverse group of business people, educators, associations and non-governmental entities residing in Matatiele, are challenging the constitutional validity of the Twelfth Amendment and the Repeal Act. The substantial relief sought by the applicants is an order that: C

'2.

The Constitution Twelfth Amendment Act is unconstitutional alternatively, ultra vires, in that it in effect:

2.1

re-demarcates the Matatiele Municipality;

2.2

changes the boundary and composition of the Matatiele Municipality; D

2.3

moved the provincial boundary with the effect that the Matatiele Municipality is moved from its present District Municipality and Province to another District Municipality and Province;

without complying with the process set down therefor in the Constitution. E

3.

3.1

Applicants be granted leave to bring the application for the relief in this paragraph by direct access.

3.2

The Cross-Boundary Municipalities Laws Repeal and Related Matters Act is unconstitutional, alternatively, ultra vires, in that it re-demarcates the Matatiele Municipality in a manner which G is inconsistent with the Constitution and ultra vires the Constitution or other national legislation.

4.

It is declared that, in passing and signing the said Acts, Parliament and the President, respectively, have failed to fulfil a constitutional obligation to Matatiele Municipality in that the constitutional process for re-demarcation thereof has been unconstitutionally circumvented, and that first, second and third respondents have not complied with the principles of co-operative H government in the management of this dispute over the re-demarcation of Matatiele Municipality.

5.

First, second and third respondents be ordered to pay the costs of this application.

6.

Applicants be granted such further and/or alternative relief as I to this Court seems meet.'

[5] The President of the Republic of South Africa, the Minister of Provincial and Local Government ('the Minister') and the Minister of Justice and Constitutional Development, who are first, second and third respondents, respectively, are resisting this challenge. The remaining respondents have decided to abide the decision of the Court. They are the Premier of the Eastern Cape; the Member of the Executive J

Ngcobo J

Council of the Province of the Eastern Cape for Local Government; the Premier of KwaZulu-Natal; the Member of the Executive A Council of the Province of KwaZulu-Natal for Local Government; the Municipal Demarcation Board; Sisonke District Municipality; Alfred Nzo District Municipality; O R Tambo District Municipality; Umzimkulu Municipality; Umzimvubu Municipality; the fourth to thirteenth respondents, respectively. The Speaker of the National Assembly and B the Chairperson of the National Council of Provinces ('NCOP') subsequently sought, and were granted, leave to intervene on the side of the respondents.

[6] The constitutional challenge was lodged two days before Christmas, with a request that it be dealt with as a matter of urgency. It was said that the matter was one of extreme urgency and national C interest which called for an expedited hearing. It was also said that the Executive had moved with great haste to complete the objects of the impugned legislation before the municipal elections, which the Matatiele Municipality had been advised were due to be held on 1 March 2006. This date had not yet been formally proclaimed at the time. D It has since been proclaimed. [1]

[7] In order to set the scene for this legal drama, it will be convenient to set out first, how Matatiele Municipality came to be established as a local municipality; second, to say a word on the cross-boundary municipalities which triggered the legislation now under challenge; and finally, to sketch the history of the re-determination E of the boundaries of Matatiele Municipality which eventually led to the present constitutional challenge. This background provides the context in which the constitutional challenge must be considered.

Background F

A The establishment of Matatiele Municipality

[8] The boundary between KwaZulu-Natal and the Eastern Cape had been an issue of some concern to the government for many years. The present-day Matatiele Municipality and the Maluti area originally constituted a single area. Matatiele was an urban development while G Maluti was a rural area. In 1978, the Steyn Commission recommended that Matatiele and Maluti be separated, and that Maluti become part of the Transkei while Matatiele remain in KwaZulu-Natal. This was in line with the apartheid policy of separate development and relocating Africans into rural areas which formed homelands, such as the Transkei, while H ensuring that whites remained in the urban areas.

[9] When the interim Constitution commenced on 27 April 1994, it established the nine provinces in the Republic and determined their provincial boundaries by reference to magisterial districts established in terms of the Magistrates' Courts Act 32 of 1944, as I amended. [2] The present-day local municipality of Matatiele was designated the magisterial

Ngcobo J

district of Mount Currie, in KwaZulu-Natal. The present-day area of Maluti was included as part A of the magisterial district of Matatiele, in the Eastern Cape. These provincial boundaries were adopted by the Constitution. [3] Thus, the magisterial district of Matatiele as described in the interim Constitution represents the area currently referred to as 'Maluti', while the magisterial district of Mount Currie as described in the interim Constitution represents the B area currently referred to as Matatiele Municipality. [4]

[10] During 1995, the Government appointed the Trengove Commission to inquire into and make recommendations concerning, in part, the feasibility of: first, excluding portions of the magisterial district of Matatiele (present-day Maluti) and surrounding areas from C the Eastern Cape and including them in KwaZulu-Natal; and second, excluding the magisterial district of Mount Currie from KwaZulu-Natal and including it in the Eastern Cape. A majority of the Trengove Commission recommended that the district of Mount Currie be excised from the Province of KwaZulu-Natal and incorporated into the Province D of the Eastern Cape. A minority recommended that Mount Currie remain in KwaZulu-Natal. Neither option was adopted.

[11] During 2000, the Board established the Matatiele Municipality in the area that was described as Mount Currie in the interim Constitution. This municipality was incorporated into Sisonke E District Municipality in KwaZulu-Natal. [5] A small portion of Sisonke District Municipality was surrounded by Umzimvubu Local Municipality which formed part of Alfred Nzo District Municipality in the Eastern Cape. [6] In this manner, the present-day Matatiele Municipality came to be established in KwaZulu-Natal. The magisterial district of Matatiele (the Maluti F area) was demarcated by the Board to form part of a local municipality known as Umzimvubu and placed within Alfred Nzo District Municipality, which fell within the Eastern Cape.

B Cross-boundary municipalities G

[12] The determination...