Madam Speaker, hon Ministers and members, ladies and gentlemen, the reason I am standing before this House today is because the Constitutional Court has given Parliament the opportunity to rectify the procedural defect that led to that court's order of invalidity of certain provisions of the Constitution Twelfth Amendment Act of 2005.
The Constitution Twelfth Amendment Act of 2005 amended the Constitution to redetermine the geographical areas of the nine provinces of the Republic of South Africa to, amongst other things, avoid municipal boundaries stretching over provincial boundaries, and to resolve the challenges that were experienced relating to the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal.
In terms of the Constitution Twelfth Amendment Act and the related Cross- Boundary Municipalities Laws Repeal and Related Matters Act of 2005, the provincial boundary between, amongst other things, the provinces of the Eastern Cape and KwaZulu-Natal was altered with effect from 1 March 2006 so that the area that previously formed the local municipality of Matatiele, was transferred from the province of KwaZulu-Natal to the province of the Eastern Cape, and new municipal boundaries were created as a consequence.
What is important in respect of the passing of the Constitution Twelfth Amendment Act, an Act of 2005, is that because it redetermined provincial boundaries, it fell within the ambit of section 74 of the Constitution and consequently required the approval of both the National Assembly and the National Council of Provinces. The National Council of Provinces could, in terms of section 74(8) of the Constitution, only pass the Constitution Twelfth Amendment Bill if it was approved by the legislatures of the provinces concerned. All the legislatures of the affected provinces approved the Constitution Twelfth Amendment Bill as required and, consequently, that Bill was also passed by the National Council of Provinces.
Before the Constitution Twelfth Amendment Act and the Cross-Boundary Municipalities Repeal Act came into operation, the Matatiele Municipality and various other applicants challenged the constitutional validity of those two Acts in the Constitutional Court. In the case of Matatiele Municipality and others v the President of the Republic of South Africa and others, 2006, the applicants argued that those two Acts changed the boundary of the Matatiele Municipality and its composition and transferred it to the province of the Eastern Cape without complying with the procedures set out in the Constitution.
They further argued that in doing so, Parliament took over the functions which the Constitution had reserved for the Municipal Demarcation Board. The court, on 27 February 2006, rejected the applicants' main argument that Parliament, in passing the Constitution Twelfth Amendment Bill, unconstitutionally usurped the powers of the Municipal Demarcation Board to redetermine municipal boundaries. The court, however, did not decide on the question of whether the Constitution Twelfth Amendment Act was enacted in accordance with the procedures set out in the Constitution, but, of its own volition, called for further argument on certain related issues.
After the Constitutional Court heard further argument on the issues raised by it, the Court, on 18 August 2006, in the case of Matatiele Municipality and others v the President of the Republic of South Africa and others, 2007, declared that part of the Constitutional Twelfth Amendment Act that transferred the Matatiele Municipality from the province of KwaZulu-Natal to the province of the Eastern Cape to be inconsistent with the Constitution and therefore invalid.
From the judgment in the Matatiele case, it is clear that a new piece of legislation, namely a Constitution Amendment Bill, must be processed afresh in a manner that complies with all constitutional and procedural requirements. That has led to the introduction of the Constitution Thirteenth Amendment Bill before the House today.
The Bill seeks to amend the Constitution so as to substitute and re-enact those provisions of the Constitution that have been declared to be inconsistent with the Constitution. Although the Constitutional Court's order of invalidity was formulated with reference to the Matatiele Municipality only, the memorandum on the objects of the Bill explains why it is necessary to substitute and re-enact all the provisions of the Constitution that refer directly to the provinces of the Eastern Cape and KwaZulu-Natal and not only those that refer to the Matatiele Municipality.
As far as the constitutional obligation of a legislative organ of the state to facilitate public involvement in the law-making process is concerned, it is, in my view, necessary for this House to note the following general findings by the Constitutional Court in the case of Doctors for Life International v the Speaker of the National Assembly and others, in 2006, and the Matatiele case, in which it considered the nature and scope of that obligation.
Here I cite the relevant points. The Constitution calls for open and transparent government, and requires legislative organs to facilitate public participation in the making of laws by all legislative organs of the state. The other issue is that the provisions of sections 72(1)(a) and 118(1)(a) of the Constitution impose a duty on the NCOP and the provincial legislatures to facilitate public involvement in their respective legislative processes.
Further, to facilitate public involvement in the legislative process means taking steps to ensure that the public participates in the legislative process. Also, Parliament and provincial legislatures have a broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a case, so long as they act reasonably. Whether Parliament or a provincial legislature has acted reasonably in discharging its duty to facilitate public involvement will depend on a number of factors, for example the nature and importance of the legislation under consideration, whether the legislation needs to be enacted urgently, and the intensity of its impact on the public.
The obligation to facilitate public involvement may be fulfilled in different ways and is open to innovation on the part of the legislatures. The conventional method of public participation in the law-making process is through the submission of written or oral representations on the Bill under consideration by Parliament, or through a combination of both written and oral submissions.
I have noted that the Portfolio Committee on Justice and Constitutional Development conferred with the Portfolio Committee on Provincial and Local Government in its deliberations on the Bill. I would like to thank the chairpersons and members of those two committees for the time and effort that they have put into finalising the Bill. I have also noted the content of the report that the Justice portfolio committee has adopted in respect of the Bill.
Without going into the detail of that report, it is clear to me that the Justice portfolio committee has taken various steps relating to the National Assembly's constitutional obligation to facilitate public involvement in the legislative process relating to the passing of the Bill. Because the Bill is intended to redetermine the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal, the National Council of Provinces may not, in terms of section 74(8) of the Constitution, pass the Bill, unless it has been approved by the legislatures of the provinces concerned.
I would therefore like to echo the Justice portfolio committee's call on all the provincial legislatures and, more particularly, those of the Eastern Cape and KwaZulu-Natal to take all the steps that, in their view, are necessary and reasonable to comply fully with the spirit and direction of the Constitutional Court's judgment when considering whether to approve or support the Constitution Thirteenth Amendment Bill, as the case may be. I recommend the passing of this Constitution Thirteenth Amendment Bill to the House. I thank you. [Time expired.] [Applause.]