Ai, julle wil net kole h hierso! [You just want to go for it here!]
Chairperson, hon members, ladies and gentlemen, comrades and friends, during December 2005, Parliament passed the Constitution Twelfth Amendment Bill of 2005 and the Cross-Boundary Municipalities Laws Repeal and Related Matters Bill, 2005.
Members would recall that the Constitution Twelfth Amendment Act 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 also to resolve challenges that were experienced relating to the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal.
This resulted in the provincial boundary between, amongst others, the provinces of the Eastern Cape and KwaZulu-Natal being altered, with effect from 1 March 2006, with the Matatiele Municipality being transferred from the province of KwaZulu-Natal to the province of the Eastern Cape and new municipal boundaries being created as a consequence. Before the Twelfth Amendment Act and the Repeal Act came into operation, the constitutional validity of those two Acts was challenged in the Constitutional Court in the case of Matatiele Municipality and Others versus the President - which I call the first Matatiele case.
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 demarcation board to redetermine municipal boundaries. The court further ruled that the local government elections scheduled for 1 March 2006 should proceed on the basis of the constitutional amendment. However, the court also called for further argument on the constitutional procedural requirements in respect of the passing of the constitutional amendment. Such an argument was to take place after the elections.
On 18 August 2006, the Constitutional Court, in the Matatiele Municipality and Others versus the President, the second Matatiele case, ruled on the procedural defects, after having heard further argument on the procedural issues raised by the court itself and declared that part of the Constitution Twelfth Amendment Act of 2005, which transferred the area that previously formed the local municipality of Matatiele from the province of KwaZulu-Natal to the Eastern Cape, to be procedurally inconsistent with the Constitution and therefore invalid.
It should be emphasised that the court's order of invalidity was not based on the contents of the Constitution Twelfth Amendment Bill but on a procedural defect, namely, the KwaZulu-Natal provincial legislature's failure to facilitate public involvement when it considered whether to approve that part of the Constitution Twelfth Amendment Bill that transferred the Matatiele Municipality from the province of KwaZulu-Natal to the Eastern Cape.
In this regard section 118(1)(a) of the Constitution clearly provides that, and I quote:
A provincial legislature must
(a) facilitate public involvement in the legislative and other processes of the legislature and its committees.
As a consequence, the Court also declared that part of the related Cross- boundary Municipalities Laws Repeal and Related Matters Act of 2005 that relates to the Matatiele Municipality to be inconsistent with the Constitution and therefore invalid. By suspending both orders of invalidity for a period of 18 months, the Constitutional Court gave Parliament the opportunity to correct the procedural constitutional defect during the period of suspension.
The suspension runs out in February next year. It will be on 18 or 21 February. So we have a bit of time, but not much. It is important to note that the Constitutional Court's judgment in the Matatiele case was handed down after the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal was altered and the Matatiele Municipality was transferred to the province of the Eastern Cape since 1 March 2006.
The Constitution Thirteenth Amendment Bill before the House today has been introduced into Parliament in order to make use of the opportunity that the Constitutional Court has given Parliament to process afresh new legislation, ie a Constitution Amendment Bill, in a manner that complies with all constitutional and procedural requirements.
The Bill is therefore intended to amend the Constitution so as to substitute and re-enact not only those provisions of the Constitution that have been declared to be inconsistent with the Constitution, in other words, those that refer to the Matatiele Municipality, but all the provisions in the Constitution that refer directly to the provinces of the Eastern Cape and KwaZulu-Natal. The reasons therefore are explained in the memorandum on the objects of the Bill.
In the case of Doctors for Life International the Speaker of the National Assembly and the second Matatiele case, the Constitutional Court considered the nature and scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in the law-making process. It is necessary for this House to note the following general findings by the Constitutional Court, particularly as far as the NCOP and the provincial legislatures are concerned:
Firstly, the provisions of sections 72(1)(a) and 118(1)(a) of the Constitution, and I quote:
... impose a duty on the NCOP and the provincial legislatures to facilitate public involvement in their respective legislative processes.
Secondly, to facilitate public involvement in the legislative process means, and I quote: "Taking steps to ensure that the public participates in the legislative process." Thirdly, there are at least two aspects of the duty to facilitate public involvement, namely, the duty to, and I quote:
... provide meaningful opportunities for public participation in the law-making process and to take measures to ensure that people have the ability to take advantage of the opportunities provided.
Fourthly, Parliament and provincial legislatures have, and I quote:
... broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a given case, so long as they act reasonably.
Fifthly, the obligation to facilitate public involvement, and I quote:
... may be fulfilled in different ways and is open to innovation on the part of the legislatures. That obligation will often require Parliament and the provincial legislatures, and I quote:
... to provide citizens with a meaningful opportunity to be heard in the making of the laws that will govern them.
Sixthly, and I quote: 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.
Seventhly, the provincial legislatures have broad discretion to choose the mechanisms that, in their view, would best facilitate public involvement in their processes. They may include providing transportation to and from hearings or hosting radio programmes in multiple languages on an important Bill.
Eighthly, the nature of the legislation and its effect on the provinces play a role in determining the degree of facilitation that is reasonable and the mechanisms that are most appropriate to achieve public involvement.
Lastly, the nature and the degree of public involvement that is reasonable in a given case will depend on a number of factors, which include the nature and the importance of the legislation and the intensity of its impact on the public.
The Bill is intended to redetermine the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal. The NCOP may not, in terms of section 74(8) of the Constitution, pass the Bill unless it has been approved by the provincial legislatures of the provinces concerned, namely, the Eastern Cape and KwaZulu-Natal. In terms of section 118(1)(a) of the Constitution, the affected two provinces had to facilitate public involvement when they considered whether to approve that part of the Bill that concerned them. I have been informed that both legislatures, for that purpose, held extensive public hearings in the affected areas of Umzimkhulu, Matatiele and Maluti, and not only in Pietermaritzburg.
As already mentioned, the Constitutional Court's order of invalidity was not based on the contents of the Twelfth Amendment Act but on a procedural defect. In view of the public involvement which the two affected provinces facilitated in respect of the Bill, I am satisfied that the constitutional requirements relating to the facilitation of public involvement have now been complied with. I have noted that certain groups in the Matatiele area are still unhappy with the decision of the KwaZulu-Natal legislature to approve the Bill because they feel that by making that decision, the legislature did not take the residents' wishes into account. I do not wish to comment on the validity of these views except that they do seem to me, in whole or part, to be based on a complete misunderstanding of the legal requirements that are applicable in a matter like this.
I understand the rule of law and our new constitutional dispensation to be that when the power to make a decision has been granted to an authority or an institution, such authority or institution is solely responsible for taking such a decision. Before taking a decision, they must listen to and carefully consider the views of the affected people. Furthermore, there is not, as far as I am aware of it, a principle of our constitutional jurisprudence which permits the invalidation of legislation on the grounds only that it is inconsistent with public opinion or the views of a particular individual or a group of individuals.
On the contrary, I understand the principle to provide that public opinion, while relevant, not to be decisive of constitutional validity of legislation. It is a principle which permeated virtually all judgments of the Constitutional Court since the Makwanyane judgment. This principle is firmly entrenched as part of our constitutional jurisprudence.
Lastly, I would like to thank the Chairperson of the Select Committee on Security and Constitutional Affairs - the hardworking Kgoshi Mokoena and the members of that committee for the time and effort that they have put into considering and finalising the Bill. I wish to congratulate them on a job well done. I now in turn would like to really say that I will fully support any salary increase of the members of that committee! [Applause.]
I recommend the passing of this Constitution Thirteenth Amendment Bill to the House. Seeing that we probably won't see each other again, I also wish those that are Christians a Merry Christmas and all others a very happy New Year. I thank you. [Applause.]