South African Council of Churches

Comment on the Constitution Thirteenth Amendment Bill of 2007

And the Cross-boundary Municipalities Laws Repeal and

Related Matters Amendment Bill, 2007

25^th June 2007

Introduction

The South African Council of Churches (SACC) welcomes this opportunity to comment on the Constitution Thirteenth Amendment Bill and the Cross-boundary Municipalities Laws Repeal and Related Matters Bill. The SACC represents 26 denominations of a variety of Christian backgrounds and is committed to enable its member churches to speak effectively and prophetically on matters of national importance, especially as they relate to issues of social, political and economic justice. We believe that strengthening democracy in this tradition means upholding the principles of justice as well as ensuring participatory and consensus driven outcomes through civil and political engagement.

Background summary to the Amendment Bills

We note that an urgent application in December 2005 was brought to the Constitutional Court by the Matatiele Municipality and others, challenging the constitutional validity of the Twelfth Amendment and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act. The Matatiele Local Municipality was transferred from KwaZulu-Natal to the Eastern Cape subsequently creating new municipal boundaries. The applicants argued that Parliament changed the boundaries of Matatiele Municipality, transferred it to the Eastern Cape but did so without compliance with procedures set out in the Constitution. At court proceedings heard in February of 2006 – as well as a further in August 2006 because of the elections held in the interim – communities from Matatiele Municipality argued that Parliament took over the function of the Municipal Demarcation Board, a task reserved for it – as an independent body by the Constitution.

Judge Ngcobo held that in entrusting this power upon an independent authority, the Constitution seeks to guard against political interference in the process of creating municipal boundaries. Furthermore, Judge Ngcobo, found that the evidence before the Court raised doubts whether the legislature of KwaZulu-Natal had followed the correct procedures in considering and approving the Twelfth Amendment. He further found that, unlike other provinces that were affected, the legislature of KwaZulu-Natal did not hold public hearings with the people of Matatiele. This, the Judge found, raised questions about the applicability, meaning and scope of sections 74(8) and 118(1)(a) of the Constitution, and that these provisions are crucial to a decision whether the Twelfth Amendment was passed in accordance with the procedures set out in the Constitution. He said that the Court is not bound by a concession made by a legal representative if it considers the concession to be wrong in law. Accordingly he directed that provincial legislature of KwaZulu-Natal should be joined as a party to the proceedings and be afforded the opportunity to submit evidence and submissions on whether it was required to comply with the provisions of section 118(1)(a) of the Constitution and if so, whether it complied with these provisions and if not, what is the effect of non-compliance with these provisions on the validity of the Twelfth Amendment. In saying this, Judge Ngcobo said that the Court was not unmindful of the legitimate concerns of the people of Matatiele. The people of Matatiele wanted to know whether they will remain in KwaZulu-Natal or they go to the Eastern Cape. He made it clear though, that the Court was not deciding the validity of the Twelfth Amendment, nor was it deciding whether the people of Matatiele should relocate to the Eastern Cape.

On 18 August 2006, the Constitutional Court in the same case ruled that the Twelfth Amendment that transferred Matatiele Municipality from the province of KwaZulu-Natal to the province of the Eastern Cape was inconsistent with the Constitution and therefore invalid. While the Constitutional Court order of invalidity applies to Matatiele only, the failure of the KwaZulu-Natal Provincial Legislature to consult on proposed changes to its boundary and to facilitate public participation, the order of invalidity based on procedural defect will necessitate that boundary changes to the province of KwaZulu-Natal as well. The subject matter of such remedy is addressed in the Constitution Thirteenth Amendment Bill 2007.

Our concerns with regard to the two Amendment Bills

· On the face of matters it appears as though the two Amendment Bills deal with mere technicalities of (re)drawing municipal boundary lines. The summary above of the Constitutional Court challenge on government, however, indicates various levels of social discontent, upheaval and un-ease of social relationships all round. The challenge by the Matatiele community is more than lack of communication between people and public officials – though this is not discounted. Everyone involved in policy prescription and processes needs to realize how seriously the Constitutional Court views the public participatory process. This judgment against the KwaZulu-Natal provincial government’s failure to include the Matatiele community in a participatory process should warn us that democratic participation is no longer to be regarded as a triviality or technicality. In his concurring judgment on the Matatiele community challenge, Judge Sachs expressed his concern at the lack of candour shown by the government … stating that the legitimacy of legislation came not from awe but from openness. A developmental state, indeed, is predicated on the needs of people, enabling them to participate with transparent outcomes in the provision of their needs. Such democratic and social participation leads to justice which, in the words of developmental activists in the Indian State of Kerala, is the only source of sustainable development.

· The socio-economic costs of such cross-boundary arrangements, according to Minister Sydney Mufamadi, are predicated on a budget for Matatiele Municipality that has increased from R34, 7 million to R 104, 2 million. Likewise we are assured that MIG projects have increased, significantly, the drafting of IDP’s are progressing well as are also the Local Economic Development (LED) strategies. Just what the statistics of persons affected by the redrawing of these boundaries are is hard to say and how such shifts will affect them economically is hard to explain. Relations with the capital city, Bisho, which is now 700 kilometres from Matatiele whereas Pietermaritzburg was 200 kilometres, makes considerable difference when needing to travel to the capital city on any necessary business. How, for instance, will the demarcation affect transferal of public service and officials, for example? What concrete plans will be implemented to ensure access to free basic services such as water and electricity by the poorest and how will road maintenance and travel costs be impacted by these changes?

· Cross-boundary municipalities are complex structures that may easily become the domain of bureaucratic and administrative manipulation and control. The Constitution and the Municipal Structures Act made provision for an Act of Parliament to authorize the establishment of a Cross-boundary Municipality. The Municipal Demarcation Board, after initial research, noted that there are a number of areas in South Africa where large tracts of land, including a number of different communities and settlements that straddle provincial boundaries. A danger resides in the possibility that further categorization of these communities becomes an academic and/or research terrain of a select group of people, possibly consulting with public officials and select political representatives. The Churches urge government to recognize the inherent human value of democratic participation and consensus building, beyond the need for bureaucratic (complex) adoption of administrative structures. We further advocate that more time be given to develop public participatory processes – processes that include deliberative democracy, listening within the zones of complex human community. A process of deliberative democracy takes seriously the complexity of human need and organization and would prioritise these communities’ ability to find consensus – rather than bureaucratic control - for themselves on matters such as geographical affiliation, access to services and markets, amongst many other variables for life.

Conclusion

The SA Council of Churches is grateful for this opportunity to comment on and participate in the policy process of a Constitutional Amendment Bill as well as in the Cross-boundary Municipalities Laws Repeal and Related Matters Amendment Bill. We caution that the matter of dealing with communities as people rather than organizational systems is a complex matter. Rather than opt for bureaucratic control, we would advise the adoption of an approach that recognises the complexity of the human condition. Such an approach would ideally build on deliberative and participatory democracy that garners consensus for direction rather than rely overtly on administrative and bureaucratic control