Madam Speaker, hon members, the Constitution Thirteenth Amendment Bill, as the Minister has said, is essentially a re- enactment of certain provisions in the Constitution Twelfth Amendment Act, which were found to be procedurally defective by the Constitutional Court.
It deals with all the provincial boundaries pertaining to the province of KwaZulu-Natal, as a natural consequence of the Constitutional Court's finding that the provincial legislature of that province failed to facilitate public involvement in its processes pertaining to the consideration and approval of certain portions of the Constitution Twelfth Amendment Bill that concerned it.
This failure being considered to be fatal in respect of the Matatiele Municipality, it is presumably equally fatal to the alteration of the other less contested areas of the boundary between the provinces of the Eastern Cape and KwaZulu-Natal, as it is trite that the KwaZulu-Natal legislature did not equally hold hearings in these areas either.
It is important, as the Minister has done, to briefly sketch the background to this Bill. This House, in November 2005, passed the twelfth amendment to the Constitution of the Republic of South Africa in order to bring about a redetermination of the geographic areas of the nine provinces of the Republic. This was done in essence to effect the necessary realignment of the provincial boundaries to remove enclaves and the concept of cross- boundary municipalities.
The difficulties pertaining to the existence of enclaves and cross-boundary municipalities were that they could not be efficiently governed. It was the intention of this House that the new provincial boundaries, together with the subsequently redetermined municipalities, would form the basis of the local government elections that were held in March 2006. The NCOP passed the Constitution Twelfth Amendment Bill in December 2005, and shortly thereafter, as the Minister has already indicated, the Matatiele Municipality and others challenged the law on an urgent basis before the Constitutional Court. In essence, they argued that this House had usurped the role and function of the Municipal Demarcation Board in requiring that provincial boundaries be redetermined on the basis of municipal boundaries. In the course of the proceedings, the applicants had conceded the legality of the procedure in terms of which the Constitution Twelfth Amendment Bill was passed.
The court, in delivering its judgment on 27 February 2006, literally on the eve of the elections, unanimously held that Parliament had not usurped the authority of the Municipal Demarcation Board. The court found that the power of the Municipal Demarcation Board was limited by the authority of Parliament to redetermine provincial boundaries. Parliament, it found, had the authority to interfere with municipal boundaries if that became necessary in performing its duty to redraw provincial boundaries.
However, the majority of the court went further, and notwithstanding the concession of the applicants in regard to the procedural issue, called for the legislature of KwaZulu-Natal to argue before it the matter of the applicability and meaning of section 118(1)(a) of the Constitution. Such argument was to be held on 30 March 2006. The court did not declare the elections that were meant to happen on 1 March 2006 invalid, nor was it in a position to declare the twelfth amendment invalid pending the hearing of further argument.
It is significant in this regard for the House to note the dissenting judgments of Justices Yacoob and Skweyiya, who both argued that the court was putting form above substance in pursuing the argument relating to adherence to section 118(1)(a), and noted that the road travelled by this House and the Minister for Provincial and Local Government in particular, when pursuing the redesign of provincial boundaries, was on all fours with the principles of good governance.
On 1 March 2006, the provincial boundary between, amongst other things, the provinces of the Eastern Cape and KwaZulu-Natal was altered so that the area that previously formed the local municipality of Matatiele was now located in the province of the Eastern Cape, and new municipal boundaries were created as a consequence. The old Matatiele, consisting of approximately 16 000 citizens, ceased to exist, only to be replaced by a newly designated municipality that now boasts approximately 170 000 citizens - a much better basis, I think you will agree, on which to build a viable municipality in the future.
Five months later, on 18 August, the Constitutional Court declared that part of the twelfth amendment which effectively relocated the old Matatiele into the province of the Eastern Cape to be inconsistent with the Constitution, and therefore invalid. The order of invalidity was based, as I said, on a procedural defect, but was suspended for a period of 18 months, during which period Parliament has been given the opportunity to correct that defect.
Again, the dissenting judgments of, this time, three judges - Yacoob, Skweyiya and Van der Westhuizen - pertaining to their finding that reasonable public involvement is not a prerequisite for the passing of ...