07 CTAB 16

SUMMARY OF SUBMISSIONS ON THE CONSTITUTION THIRTEENTH AMENDMENT BILL OF 2007, SUBMITTED IN TERMS OF SECTION 74(5) OF THE CONSTITUTION TO THE MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT

 

 

NO.

STAKEHOLDER/NAME

COMMENTS / INPUT

1.

M Gcabo

(07 CTAB 5)

Ø       Opposes the Bill as it seeks to incorporate Matatiele into the Eastern Cape.

 

Ø       Sections 24 and 25 of the Local Government: Municipal Demarcation Act, 1998 (Act 27 of 1998), set out the factors that must be taken into account when boundary changes are considered.[1]  Those factors—

·       must therefore be taken into account when a decision to alter provincial boundaries is considered;  and

·       indicate that Matatiele belongs to KwaZulu-Natal.

 

Ø       By challenging the constitutional validity of the Constitution Twelfth Amendment Act of 2005, and the Cross-boundary Municipalities Laws Repeal and Related Matters Act, 2005, the communities of both the rural areas of Matatiele and the town have indicated that they want to be under KwaZulu-Natal.

 

Ø       Section 2 of the Constitution[2] militates against the incorporation of Matatiele into the Eastern Cape.

2.

South African Council of Churches

(07 CTAB 6)

Ø       The South African Council of Churches (SACC) represents 26 denominations of a variety of Christian backgrounds.

 

Ø       The SACC raises the following concerns:

  • It appears that the Constitution Thirteenth Amendment Bill and Cross-boundary Municipalities Laws Repeal and Related Matters Amendment Bill, 2007, merely deal with technicalities of redrawing municipal boundaries:

*           The judgment in the Matatiele case is a warning that democratic participation is no longer to be regarded as a triviality or technicality.

*           A developmental state is “predicated on the needs of people and enabling them to participate with transparent outcomes in the provision of their needs”.

 

  • The socio-economic costs of such cross-boundary arrangements:

*           Despite the increased budget for the Matatiele Local Municipality from R34,7 million to R104,2 million, the significant increased Municipal Infrastructure Grant (MIG) projects and the progress made on the drafting of Integrated Development Planning (IDP) and Local Economic Development (LED) strategies, it is unknown how the redrawing of the boundaries will affect the people economically and otherwise.

*           Bisho (new capital city) is 700 km from Matatiele whereas Pietermaritzburg (former capital city) is 200 km.

*           Raises questions regarding, amongst others, how the demarcation will affect the transferal of public service and officials, what concrete plans will be implemented to ensure access to free basic services by the poorest and how the roads will be maintained.

 

  • Cross-boundary municipalities are complex structures that may easily become the domain of bureaucratic and administrative manipulation and control:

*           The Municipal Demarcation Board noted that there are a number of areas in South Africa where large tracts of land, including a number of different communities and settlements, straddle provincial boundaries.  Further categorization of these communities may become “an academic and/or research terrain of a select group of people, possibly consulting with public officials and select political representatives”.

*           Churches urge Government to recognize “the inherent human value beyond the (complex) administrative structure”.

*           More time should be devoted to develop public participatory processes, including processes of deliberative democracy.

 

Ø       The SACC cautions that the matter of dealing with communities as people rather than organizational systems may be complex.

 

Ø       The SACC advises that a humanistic approach that relies on deliberative and participatory democracy, garnering consensus for direction, rather than administrative and political control, be taken.

See submission for more detail.

3.

Eastern Cape Provincial Legislature

(07 CTAB 7)

Ø       Supports the introduction of the Bill.

4.

Matatiele / Maluti Mass Action Committee

(07 CTAB 8)

Ø       The Matatiele / Maluti Mass Action Committee (the Committee) consists of various organizations that are representative of the broad spectrum of the residents of the affected area (par 3).

 

Ø       The Committee opposes the removal of Matatiele to the Eastern Cape (par 4).

 

Ø       The Committee bona fide believes that it has the support of an overwhelming majority of the citizens of Matatiele and that there is also a substantial majority support from the citizens of the Maluti area (par 8).

 

Ø       The Committee intends to demand its right to public involvement from the KwaZulu-Natal provincial legislature and requires as an absolute minimum—

·       public meetings conducted by independent or multi-party groups in the area of Matatiele;  and

·       an opportunity to address the provincial legislature when it votes on the question whether or not to approve or to veto the Bill (par 9).

 

Ø       The Committee asserts to the National Assembly and the NCOP that the majority of the citizens of Matatiele want to live in KwaZulu-Natal (par 10).

 

Ø       The Committee submits that the citizens of Matatiele have good reasons to remain in KwaZulu-Natal.  However, they have not been given any good or convincing reasons for the removal of Matatiele to the Eastern Cape (par 11).

 

Ø       The Committee points out that the Constitutional Court, in the Matatiele case, has affirmed that the citizens of Matatiele have the constitutional right to live in the province of their choice.  This means that the Government must prove that there are compelling reasons to move Matatiele to the Eastern Cape (paras 12 and 13).

 

Ø       The Committee indicates that Government, including the National Assembly and the NCOP, 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.  This statement is based on the fact that, amongst others—

  • the National Assembly and the NCOP did not in a material sense enlighten themselves as to the merits of the removal of Matatiele from KwaZulu-Natal;
  • the debate on the Constitution Twelfth Amendment Bill in the National Assembly is a model of superficiality and lack of substance;
  • that Bill was passed by the casting vote of the Speaker;  and
  • the National Government has, to date, given conflicting and contradictory reasons for the removal of Matatiele to the Eastern Cape (paras 17 and 18).

 

Ø       The Committee points out that—

  • the people of Matatiele are a discrete group whose views could easily be obtained;  and
  • Parliament has a duty to be transparent and responsive in its actions towards the people of Matatiele and therefore it has a duty to inform itself fully on the pros and cons of the objectives of the two Bills (paras 19 and 20).

 

Ø       The Committee contends that “public involvement” in this case requires both Houses of Parliament to afford the people of Matatiele public participation in the legislative process in order to enable Parliament to, amongst others, be meaningfully responsive to the views of the people of Matatiele (par 21).

 

Ø       The Committee points out that it seems that Government has made up its mind to proceed with the promotion of the two Bills despite the opposition of the people of Matatiele (par 22).

 

Ø       The Committee points out that the considered decision of the Municipal Demarcation Board (MDB) was that Matatiele should stay in the Sisonke District (in KwaZulu-Natal) where it should be joined by the Maluti area (see Annexure “A” to the submission).  The Committee submits that the demarcation objectives and factors that were taken into account by the MDB are the factors to be considered as rational factors and that other political or “political deal” factors are ulterior and cannot be bona fide or rational (paras 23 and 24).

 

Ø       The Committee submits that, on a consideration of all the relevant factors, the conclusion must be that Matatiele must stay in KwaZulu-Natal.  The Committee further submits that the reasons previously submitted to the MDB, Parliament and the Portfolio Committee on Provincial and Local Government (see Annexure “B” to the submission) are still valid (paras 25 and 26).

 

Ø       The Committee alleges that despite the findings of the MDB, as set out in the MDB’s press statement of 20 October 2005, the Minister for Provincial and Local Government instructed the MDB to make a final determination consistent with the two Bills that were before Parliament in December 2005 (par 27).

 

Ø       The Committee submits that the process followed by the MDB and its decision were credible and thorough and that the MDB came to the correct decision after considering the relevant factors.  The Committee is of the view that Government’s reasons for the removal of Matatiele from KwaZulu-Natal are not satisfactory (paras 28 and 29).

 

Ø       The Committee points out that the Respondents in the Matatiele case initially gave no reasons for the removal of Matatiele from KwaZulu-Natal.  The Committee further submits that the reasons given by the Minister for Provincial and Local Government in a supplementary affidavit (see paragraph 31 of the submission) are insubstantial and in most cases fallacious (paras 30 to 33).

 

Ø       The Committee gives the following answers in response to the Minister’s reasons for removing Matatiele from KwaZulu-Natal:

  • 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.
  • The MDB thoroughly considered all the developmental and spatial factors and came to a considered decision. The MDB did not find any compelling economic or other reason why Matatiele should move to the Eastern Cape.
  • If Maluti is to be added to Matatiele then there is still every reason, as the MDB has found, that the combined area should stay in KwaZulu-Natal.
  • It is not true that the people in the area are largely linked to the Xhosa culturally.
  • The geography supposed by the Minister is erroneous.
  • The economic dependence assumed by the Minister is geographically impossible.
  • Matatiele is spatially closer to KwaZulu-Natal in every respect.  Economically and culturally it looks to KwaZulu-Natal and not towards the Eastern Cape.
  • The citizens of Matatiele must travel about 7 hours to Bisho or two hours to Pietermaritzburg (par 34).

 

Ø       The Committee points out that it is ludicrous to suggest that the people of Matatiele (16 226) must be used to address the imbalance between the numbers of people in KwaZulu-Natal (9 761 032) and in the Eastern Cape (6 503 201) (par 35).

 

Ø       The Committee submits that Government’s decision before Parliament is a misdirection and should therefore be rejected by Parliament (par 36).

 

Ø       The Committee requests that the two Bills be withdrawn (par 37).

5.

KwaZulu-Natal Provincial Legislature

(07 CTAB 15)

Ø       The Local Government Portfolio Committee noted the Bill, but decided that it is, due to time constraints, not in the position to hold public hearings on the Bill at that stage.

 

Ø       The Portfolio Committee has agreed that it will consider the necessary public involvement once the Bill has entered the NCOP cycle.

 

Ø       For the above reasons the Portfolio Committee could not express any view on the Bill.

 

SUMMARY OF SUBMISSIONS ON THE CONSTITUTION THIRTEENTH AMENDMENT BILL OF 2007, SUBMITTED AS A RESULT OF THE PRESS STATEMENT ISSUED BY THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT

 

NO.

STAKEHOLDER/NAME

COMMENTS / INPUT

1.

R M Longden-Thurgood

(07 CTAB 2)

Ø       Raises the question whether the manner in which the decisions have been made arbitrarily is not a situation “fraught with the problems to be associated with authoritarian rulings, and lacking true democratic public involvement”.

 

Ø       Proposes that the Constitution be amended to insert a clause “that requires the fullest democratic involvement of the affected residents, with all the pros and cons given to them, and that the final outcome shall be decided by a local referendum”.

 

Ø       Expresses the view that the cost of a referendum should not be an excessive burden on the budgets of the municipalities concerned.

2.

M Horn

(07 CTAB 3)

Ø       Expresses the view that constitutional amendments should be kept to the minimum and should be reserved for the most desperate need only.

3.

P R J Dewes

(07 CTAB 4)

Ø       Same as comments submitted by the Matatiele / Maluti Mass Action Committee (see 07 CTAB 8).

 

 

SUMMARY OF SUBMISSIONS ON THE CROSS-BOUNDARY MUNICIPALITIES LAWS REPEAL AND RELATED MATTERS AMENDMENT BILL, 2007, SUBMITTED IN TERMS OF SECTION 154(2) OF THE CONSTITUTION TO THE DEPARTMENT OF PROVINCIAL AND LOCAL GOVERNMENT

 

NO.

STAKEHOLDER/NAME

COMMENTS / INPUT

 

1.

Matatiele Local Municipal Council

Ø       The Council has taken a decision that the Matatiele Local Municipality and all its wards and villages should remain in the Eastern Cape.

2.

K J Moeti on behalf of the Community of Matatiele

Ø       The community perceives that municipal boundaries are conducted based on ethnicity and customs.

 

Ø       The community rejects the claim that a so-called "hearing" was held by the Government of the Eastern Cape.

 

Ø       The community indicates that the people of Matatiele are still receiving services from KwaZulu-Natal and will never receive services from the Eastern Cape.

 

Ø       The community rejects claims by the Eastern Cape Provincial Government that it provides services and infrastructure in the area and indicates that the National Government does not follow up to confirm the non-delivery of services.

 

Ø       The community indicates that the traveling distance to KwaZulu-Natal Government offices is a 2 hours drive while to the Eastern Cape it is a 7 hours drive.

 

Ø       The community pleads to be released to KwaZulu-Natal.

3.

Manguzela Traditional Council

Ø       The Council, together with its rural communities, maintains that the Matatiele Municipality must form a progressive municipality together with its surrounding rural areas (Maluti).

4.

CONTRALESA Maluti / Matatiele Branch

Ø       The Branch submits that Matatiele with its surrounding rural areas must form one community and one municipality under the Eastern Cape.

5.

Elrita and Councilor Dolly, Ward 21

Matatiele Local Municipality

Ø       Communities in the ward were consulted on the Bill and they support Parliament and Government on the decision that the Matatiele Local Municipality should remain in the Eastern Cape.

 

Ø       The communities confirm that service delivery and public participation improved significantly on issues of governance since Act 23 of 2005 came into operation.

6.

Eastern Cape NGO Coalition Alfred Nzo Region

Ø       The NGO supports the Bill.

 

Ø       The NGO points out that before Matatiele was incorporated into the Eastern Cape it was difficult for the Government to bring services to the villages surrounding the town and to NGOs.

 

Ø       The NGO mentions that socio-economic, economic, developmental and political factors had an impact on poor service delivery.

7.

ANC Youth League, Matatiele Sub-region, Alfred Nzo District

Ø       The ANCYL supports the Cross-boundary Municipalities Laws Repeal and Related Matters Act, 2005, in so far as it relates to the incorporation of Matatiele into the Eastern Cape for the following reasons:

·         The separation of the Matatiele town from its surrounding villages represented the apartheid legacy.

  • Before the Act came into operation Matatiele town received revenue from the poor communities in the villages which it could not return in the form of service delivery.
  • Consultations relating to governance have taken place in Matatiele.

8.

 Matatiele Youth Council in the Matatiele Local Municipality, Alfred Nzo District

Ø       The Youth Council supports the incorporation of Matatiele Local Municipality into the Eastern Cape.

 

Ø       The Youth Council points out that the Eastern Cape Provincial Government has been visible in the area and that there are changes in terms of development and public participation.

9.

M Gcabo

Ø       Same as comments submitted on the Constitution Thirteenth Amendment Bill (see 07 CTAB 5).

 


[1]           Sections 24 and 25 provide as follows:

                        Demarcation objectives

                                    24.        When the Board determines a municipal boundary its objective must be to establish an area that would-

                        (a)        enable the municipality for that area to fulfil its constitutional obligations, including-

                                    (i)         the provision of democratic and accountable government for the local communities;

                                    (ii)         the provision of services to the communities in an equitable and sustainable manner;

                                    (iii)        the promotion of social and economic development; and

                                    (iv)        the promotion of a safe and healthy environment;

                        (b)        enable effective local governance;

                        (c)        enable integrated development; and

                        (d)        have a tax base as inclusive as possible of users of municipal services in the municipality.

                        Factors to be taken into account

                                    25.        In order to attain the objectives set out in section 24, the Board must, when determining a municipal boundary, take into account-

                        (a)        the interdependence of people, communities and economies as indicated by-

                                    (i)         existing and expected patterns of human settlement and migration;

                                    (ii)         employment;

                                    (iii)        commuting and dominant transport movements;

                                    (iv)        spending;

                                    (v)         the use of amenities, recreational facilities and infrastructure; and

                                    (vi)        commercial and industrial linkages;

                                    (b)        the need for cohesive, integrated and unfragmented areas, including metropolitan areas;

                        (c)        the financial viability and administrative capacity of the municipality to perform municipal functions efficiently and effectively;

                        (d)        the need to share and redistribute financial and administrative resources;

                        (e)        provincial and municipal boundaries;

                        (f)         areas of traditional rural communities;

                        (g)        existing and proposed functional boundaries, including magisterial districts, voting districts, health, transport, police and census enumerator boundaries;

                        (h)        existing and expected land use, social, economic and transport planning;

                        (i)         the need for co-ordinated municipal, provincial and national programmes and services, including the needs for the administration of justice and health care;

                        (j)         topographical, environmental and physical characteristics of the area;

                        (k)        the administrative consequences of its boundary determination on-

                                    (i)         municipal creditworthiness;

                                    (ii)         existing municipalities, their council members and staff; and

                                    (iii)        any other relevant matter; and

(l)         the need to rationalise the total number of municipalities within different categories and of different types to achieve the objectives of effective and sustainable service delivery, financial viability and macro-economic stability.

[2]           Section 2 provides as follows:

Supremacy of Constitution

2.         This Constitution is the supreme law of the Republic:  law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.