CONSTITUTION
THIRTEENTH AMENDMENT BILL 2007
and
CROSS BOUNDARY
MUNICIPALITIES LAWS REPEAL AND RELATED MATTERS AMENDMENT BILL 2007
________________________________________________________________
COMMENTS ON THE BILLS
SUBMITTED ON BEHALF OF MATATIELE/
MALUTI MASS ACTION
COMMITTEE
________________________________________________________________
1. These comments are directed to :
1.1 The
Minister of Justice and Constitutional
Development (Ref Mr J.J.
Labuschagne)
Private Bag X81
or
1.2 The
Director-General
(Attention : Mr M.
Peter)
Department of Provincial
and Local Government
Private Bag X804
or
Fax
: 012 – 3344828
or
2. These two Bills are inter-related and
both have as their primary objective the excision and removal of the local
3. These comments are submitted by the
Matatiele/Maluti Mass Action Committee which consists of the following
organizations :
Poverty Alleviation Network
Cedarville and District Farmers
Association
Matatiele Chamber of Commerce
Governing Body of the
George Moshesh Tribal Authority
Maluti Chamber of Business
Matatiele and Maluti Council of
Churches
Moharane Community Based
Organization
Zizaneke Preschool Training Project
which are representative of the
broad spectrum of the residents of the affected area.
4. The Committee opposes the excision and
removal of Matatiele to the Eastern Cape Province and supports its present
geographical position in the
5. The Committee conducted litigation
against the Government on this issue and the detail thereof is set out full in
the papers in Case No. CCT 73/05 and in summary in the following judgments :-
6. The Committee was successful in
obtaining an order that the legislative instruments facilitating the removal of
Matatiele to the province of the Eastern Cape were invalid by reason of the
failure of the KwaZulu-Natal Provincial legislature to facilitate public
involvement as required by section 118 (1)(a) of the Constitution. The
invalidity was suspended for a period of 18 months, during which period
Parliament was afforded the opportunity to correct the constitutional defect.
7. This memorandum and the submissions
address the merits of the objective of the two Bills which is to remove the
8. The Committee bona fide believes that they have the support of an overwhelming
majority of the citizens of the
9. The Committee intends to demand its
right to public involvement in terms of Section 118 (1)(a) of the Constitution
from the
9.1 public meetings conducted by independent
or multi-party groups in the area of Matatiele to engage and be responsive to
the wishes of the people of Matatiele.
9.2 An opportunity to address the
legislature on the occasion that the vote is taken on the issue of the exercise
of approval or a veto of the Bill amending the Constitution.
10. The Committee asserts to the National
Assembly and the National Council of Provinces that the majority of the
citizens of Matatiele do not wish to live in the
11. Whereas they have very good reasons for
wanting to remain in the
12. The Constitutional Court has affirmed
that the citizens of Matatiele have constitutional rights to have a preference
:-
“[79] In addition the legislation involved was a constitutional
amendment that would alter the boundary of
[80]
But there is more at stake here. The amendment affects one of the
fundamental rights of citizenship; the right “to enter, to remain in and to
reside anywhere in, the Republic.” Citizens of
[81] The
proposed boundary alteration threatened an important and not easily reversible
change to the provincial status of a clearly defined section of the population.
The consequences of the amendment are of considerable symbolic importance. They
affect the identity of the people to be transferred. They are of great
practical importance too, They change the structures and personnel responsible
for welfare payments, health services and education.”
Extract from Report No. 2 : paras 79 – 81
13. It follows, therefore, that it is not
for the Committee to prove that there are good reasons for Matatiele to stay in
14. The Constitutional Court has also
stressed the importance of the goal of establishment of a society based on
democratic values and social justice and that the Constitution lays down “the
foundations for a democratic and open society in which government is based on
the will of the people.” This means that what the government must ensure is
accountability, responsiveness, openness and transparency.
See Report No. 2 :
para 65
15. This is also based on the constitutional
commitment to human dignity and self-respect.
See Report No. 2 : para 66
16. The citizens of Matatiele have not been
dealt with in any of these required principles.
17. The Government, including The National
Assembly and the National Council of Provinces did not act in an accountable,
responsive, open or transparent manner. Nor did they afford the people of
Matatiele the basic rights of dignity and self-respect.
18. The Committee says this because :-
18.1 The National Assembly and the National
Council of Provinces did not in a material sense enlighten themselves as to the
merits of the removal of Matatiele from
18.2 The debate in the National Assembly is a
model of superficiality and lack of substance. The transcript of this debate
was put up as an exhibit in the Constitutional Court Case p 462-472. Certain
reasons were given to motivate the passing of the Bill. None of these reasons
were relied upon in the
18.3 The Bill passed by the casting vote of the
Speaker.
18.4 In assessing the performance of the
Government, the
“[84] The Court is unanimous in
holding that its work has not been facilitated by the lack of candour on the
part of government as to why it was regarded as appropriate to place
See Report No. 1 : para 84
18.5 The objective behind the two Bills must,
it has been held, be rational.
18.6 To date the National Government has given
conflicting and contradictory reasons for the removal of Matatiele to the
19. The people of Matatiele are a discrete
group whose views could easily be obtained.
20. Parliament has a duty to be transparent
and responsive in its actions towards the people of Matatiele and it therefore
has a duty to inform itself fully on the pros and cons of the objectives behind
the Bills.
21. In the premises the Committee contends
that “public involvement” in the context of this special case as required by
Sections 59 and 72 of Constitution requires Parliament in both of its houses to
afford the people of Matatiele public participation in the legislative process
in order that Parliament may inform itself fully as to what it is doing and be
meaningfully responsive to the views of the people of Matatiele.
22. Already it seems that the Government has
made up its mind to press ahead with the Bills despite the opposition of the
people of Matatiele.
23. The considered decision of the Municipal
Demarcation Board, after a thorough process which involved the gathering of
information and views from all stakeholders, was that Matatiele should stay in
the Sisonke District (in KwaZulu-Natal) where it should be joined by the Maluti
area. A copy of this re-determination of municipal boundaries is annexed hereto
marked “A”.
24. It must be recognized that the Municipal
Demarcation Board took into account the Demarcation objectives and relevant
factors to be considered in terms of Sections 24 and 25 of the Local Government
: Municipal Demarcation Act No. 27 of 1998. The Committee submits that these
are the factors to be considered as rational factors. Other political or
“political deal” factors are ulterior and cannot be bona fide or rational.
25. On a consideration of all relevant
factors the Committee submits that the conclusion must be that Matatiele stays
in
26. A full case with reasons was presented
to the Board in the form of comments in September 2005. These submissions are
still valid and follow the factors referred to in Section 25 of the
abovementioned Act. A copy of these representations is annexed hereto marked
“B”. Similar representations were made to Parliament and Provincial and Local
Government Portfolio Committee.
27. Reference is also made to the extract
from the Municipal Demarcation Board’s press statement which deals with the
“
As was the case during the
investigations conducted and public hearing held by the Trengove Commission in
1995/1996, many diverse views on how these municipalities should be configured,
still exist. Some submissions suggested that services in KZN are much better
than in the
After having considered all requests
and submissions taking into account Sections 24 and 25 of the Demarcation Act,
the Board provisionally re-determined the boundaries of Sisonke District
Municipality (DC43), Matatiele Local Municipality (KZ5a3), Alfred Nzo District
Municipality (DC44), O.R. Tambo District Municipality and Umzimvubu Local
Municipality (EC05b2), as follows :-
. The Maluti area, is excluded from the
municipal area of
. The declaration of the district
management area (DCDMA44) is withdrawn and the DMA is excluded from the
municipal area of
.
. Umzimvubu, excluding the Maluti area,
is excluded from the municipal area of
(Despite these findings it was a matter
of public record that the Minister instructed the Municipal Demarcation Board
to make a final determination consistent with the Bills that were before
Parliament in December 2005).
28. The Committee believes and submits that
the Municipal Demarcation Board process and its decision was credible and
thorough and that it came to the correct decision after considering the
appropriate and relevant factors.
29. The reasons for the removal of Matatiele
from
30. In the
Report No. 1 : para 84
31. The Minister for Provincial and Local
Government in a further supplementary affidavit gave the following reasons for
the removal of Matatiele from
31.1 Maluti
and Matatiele are or should be one area;
31.2 This whole area is more culturally
connected with the
31.3 Poor towns in the
31.4 Matatiele was part of a wider area of the
31.5
31.6 The government had the objective of doing
away with cross-jurisdictional enclaves and cross-boundary municipalities.
32. It will be noted that nowhere in the
government reasoning is the preference of the citizens taken into account.
33. It is also submitted by the Committee
that the reasons given by the Minister are insubstantial and in most cases
fallacious.
34. These reasons are answered (as they were
in the case) as follows :-
34.1 Matatiele is not and never was a
cross-jurisdictional enclave or a cross-boundary municipality. The
jurisdictional fact on which the Government based its original motivation is
therefore false.
34.2 The Municipal Demarcation Board thoroughly
considered all the developmental and spatial factors and came to a considered
decision. The Board did not find any compelling economic or other reason why
Matatiele should move to the
34.3 If Maluti is to be added to Matatiele then
there is still every reason, as the Board found, that the combined area should
stay in
34.4 It is simply not true that the people in
the area are largely linked to the Xhosa culturally. The AmaHlubi people speak
isiZulu, Xhosa and Sotho because of their geographical position but they are
spiritually and culturally linked with the people of Estcourt in
34.5 The geography supposed by the Minister is
erroneous. The towns in the
34.6 The economic dependence assumed by the
Minister is geographically impossible.
34.7 The facts show that Matatiele is spatially
closer to
34.8 The citizens of Matatiele who are required
to travel to their capital must travel about 7 hours to Bisho (if they were in
the
35. The Minister has also referred to the
difference in the numbers of people in
In any event it is recognized that
the people of Umzimkulu are very happy to be moved into
36. It is therefore submitted that the
Government decision which is being placed before Parliament is a misdirection
on a huge scale and should be rejected by Parliament.
37. The
Committee humbly requests that the Bills be withdrawn.
DATED this 18th
day of JUNE 2007.
Austen Smith on behalf of the
Matatiele/Maluti Mass Action Committee
Walmsley House
Pietermaritzburg
2007/Matatiele/Matatiele
Representations Comments on Bills