07
CTAB
REPORT OF
THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
ON THE CONSTITUTION
THIRTEENTH AMENDMENT
BILL [B 24—2007]
1. Report of the Portfolio Committee on
Justice and Constitutional Development on the Constitution Thirteenth Amendment Bill
[B 24—2007]
(National Assembly - sec 74),
dated 13 September
2007:
The
Portfolio Committee on Justice and Constitutional Development, having
considered the subject of the Constitution Thirteenth Amendment Bill [B 24—2007]
(National Assembly - sec 74),
referred to it and classified by the Joint Tagging Mechanism as a section 74
Bill, endorses the classification of the Bill and reports the Bill without
amendments.
The
Committee wishes to report further, as follows:
1. Background
1.1 The
Constitution Twelfth Amendment Act of 2005
(the Twelfth Amendment), amended the
Constitution
of the
1.2 The
Cross-boundary Municipalities Laws Repeal and Related Matters
Act, 2005 (Act No. 23 of 2005)
(the Repeal Act), provided for
consequential
matters arising from
the re-alignment of former cross-boundary
municipalities and the re-determination of the geographical
areas
of provinces.
1.3 In
terms of the Twelfth Amendment and the Repeal
Act,
which
came into operation on 1 March 2006, the
provincial boundary between, amongst others, the provinces of the Eastern Cape
and KwaZulu-Natal was altered so that the area that previously formed the local
municipality of Matatiele (the Matatiele municipality) was transferred from the
province of KwaZulu-Natal to the province of the Eastern Cape and new municipal
boundaries were created as a consequence.
1.4 The constitutional validity of the
Twelfth Amendment and the
Repeal Act was
challenged
in the
1.5 It
is apparent from the above dates that the
1.6 In the Matatiele case the
2. Objects of the Constitution Thirteenth
Amendment Bill
of 2007 and the Cross-boundary
Municipalities Laws Repeal and Related Matters Amendment Bill, 2007
2.1 The
Constitution Thirteenth Amendment Bill [B 24—2007] (the Thirteenth Amendment Bill) 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 KwaZulu-Natal
failed to facilitate public involvement in its processes pertaining to the
consideration and approval of certain portions of the Constitution Twelfth Amendment Bill
of 2005,
that concerned it and
consequently the related Cross-boundary
Municipalities Laws Repeal and Related Matters Bill, 2005. This
failure being considered to be fatal in respect of that provincial legislature's
approval of the boundary change between the provinces of the
2.2 In the light of the above,
the objects
of—
(a) the Thirteenth Amendment
Bill
are
to amend the Constitution so as to substitute and re-enact the provisions of
the Constitution; and
(b) the Cross-boundary
Municipalities Laws Repeal and Related Matters Amendment Bill [B 25—2007] (the Repeal
Amendment Bill)
are
to amend the Repeal Act so as to substitute and re-enact the provisions of the
said Act,
that
are necessary to re-determine the provincial boundary between the provinces
of the
3. Constitutional requirements for the passing of the Thirteenth
Amendment
Bill
3.1 In terms of section 74(3) of the
Constitution, a Bill amending the Constitution must also be passed by the National
Council of Provinces (the NCOP),
with a supporting vote of at least six provinces, if the amendment, amongst
others, alters provincial boundaries, powers, functions or institutions. Provision is further made in section 74(8) of
the Constitution that if such a Bill, or any part of such a Bill, concerns only
a specific province or provinces, the NCOP may not pass the Bill or the
relevant part unless it has been approved by the legislature or legislatures of
the province or provinces concerned.
These constitutional provisions effectively give provincial legislatures
a veto right in respect of proposed constitutional amendments that affect them
directly.
3.2 As
mentioned in paragraph 2.2 above, the
objects of the Bill are 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 and therefore invalid by the Constitutional
Court in the Matatiele case. The Thirteenth Amendment
Bill
is therefore intended to re-determine the provincial boundary between the provinces
of the
3.3 In the light of the above constitutional
provisions and the objects of the Thirteenth Amendment
Bill,
it is clear that the Thirteenth
Amendment Bill
falls within the ambit of section 74(3)(b) of the Constitution, and therefore
requires the approval of both the Assembly and the NCOP. However, in terms of section 74(8)
of the Constitution, the NCOP may not pass the Thirteenth Amendment Bill unless it has been approved by
the provincial
legislatures of the
4. Obligation to facilitate public involvement in legislative
processes
4.1 The Committee, during its consideration
of the Constitution Twelfth Amendment Bill of 2005, engaged the public through
a process of calling for written submissions.
The Committee considered the written submissions so received, as well as
written submissions
received from the public and provincial legislatures on that Bill that were
submitted to the Speaker of the Assembly and the Chairperson of the NCOP by
the Minister for Justice and Constitutional Development in
terms of the public involvement procedure
contained in the Constitution itself, as contemplated in section
74(5)
and (6)(a)
and (b). The
content of those submissions remains relevant
for purposes of re-enacting, by means of the Thirteenth Amendment
Bill,
those
provisions of the Constitution that have been declared to be inconsistent with
the Constitution and therefore invalid by the Constitutional
Court
in the Matatiele case.
4.2 In
terms of section 74(5) of the Constitution the Thirteenth Amendment Bill was—
(a) published
in the national Gazette for
public comment; and
(b) submitted
to the provincial legislatures for their views.
On 29 June 2007 written
submissions
received from the public and provincial legislatures on the Thirteenth Amendment
Bill
were submitted to the Speaker of the
Assembly and the Chairperson of the NCOP by
the Minister for Justice and Constitutional Development in terms of section
74(6)(a) and (b) of the Constitution, for
tabling in the Assembly and the NCOP,
respectively. Those written submissions
were referred to the Committee by
the Speaker of the Assembly and to
the
Select Committee on Security and Constitutional
Affairs
by the Chairperson of the NCOP.
4.3 The Committee,
in
terms of the Rules of the National Assembly,
conferred with the Portfolio
Committee on Provincial and Local Government (the PLG
Committee)
in its deliberations on the Thirteenth
Amendment Bill. Both
Committees received
a briefing on the written submissions
that were referred to the Committee by the Speaker, as well as the
written
submissions received from members of the public in response to an
invitation by the Committee
to
make written submissions on
the Thirteenth Amendment
Bill,
together
with written submissions relating to
the Repeal Amendment Bill.
4.4 The
Committee,
sitting with the PLG Committee (the Committees)
considered
and deliberated extensively upon
those
submissions. The
Committees noted that the
content of those submissions
may be categorized into three distinct
themes:
(a) The majority of
the submissions contained no matter of
substance, but stipulated personal preference, either
for the retention of
Matatiele in the province of
the
(b) Some
submissions
substantiated
their call for incorporation of Matatiele into the
(c) In a few submissions concerns were
raised relating to the possible future
lack
of service delivery by the province of the
From
the submissions received from the relevant provincial legislatures, the
Committee further noted
that the
provincial legislatures of the
4.5 After
having considered all the written submissions referred to in paragraph 4.3 above, the Committee was not persuaded that those
submissions contained adequate substantive reasons for the Committee to amend the Thirteenth Amendment Bill, given that many of the
submissions were head-count exercises, whilst in other submissions emphasis was placed on ethnic and cultural differences
which are contrary to the basic principles espoused in the Constitution.
4.6 During
the consideration of, and deliberations on, the written submissions, the
Committee called
for a briefing
on the status of service delivery in the area of the Matatiele municipality, as well as on the trends of expenditure of the province of the
4.7 The
Committees also received a briefing and deliberated on the implications of the Constitutional Court's judgments in Doctors
for Life International v Speaker of the National Assembly and Others 2006 (12) BCLR 1399 (CC) (the Doctors
for
Life
case)
and the Matatiele case, where the Constitutional Court considered the nature and scope of the constitutional obligation of a
legislative organ of state to facilitate public involvement in legislative
processes.
4.8 Having
noted the Constitutional Court's findings in the Doctors
for Life
case and the Matatiele case, and understanding what is
required of Parliament to comply with its constitutional obligation to
"facilitate public involvement" in the promotion of the Thirteenth Amendment Bill and the Repeal Amendment Bill,
the Committee has taken all the steps that, in its view, are necessary and reasonable
to comply with that obligation.
5. Consideration of the
Thirteenth
Amendment Bill
by the provincial
legislatures
5.1 Having noted the specific findings by the
Constitutional Court in the Doctors for Life case and the Matatiele case that relate to the obligation of provincial legislatures to facilitate public involvement in their legislative processes,
it is clear to the Committee that
the provincial legislatures of the Eastern Cape and KwaZulu-Natal must, in
considering whether or not to approve that part of the Thirteenth Amendment
Bill
that concerns them, facilitate public involvement as required by section
118(1)(a) of the Constitution.
5.2 The
Committees were informed that officials of the relevant Departments held
meetings with the Speakers of the provincial legislatures of the Eastern Cape
and KwaZulu-Natal to discuss what is required of those provincial legislatures
to comply with their constitutional duty to "facilitate public
involvement" when they consider the question whether or not to approve the
Thirteenth Amendment Bill, as required by section 74(8)
of the Constitution. The Committees were
further informed that it was suggested to those provincial legislatures that
they should consider the possibility of holding joint public hearings in the
affected areas. The Committees were also
informed that the following motivation for that suggestion was given to those
provincial legislatures:
(a) The
effect of the suspension of the
(b) From
the Constitutional Court’s judgment in the Matatiele case it is clear that the
provincial legislatures of the Eastern Cape and KwaZulu-Natal are required to
facilitate public involvement in all the affected areas, in other words in the
affected areas that they release, as well as the affected areas that
they receive.
(c) It
would, from a financial and practical point of view, be more feasible to hold
joint public hearings.
(d) Once
the joint public hearings have been held, the provincial legislatures of the
It was indicated to the Committees
that after the above-mentioned meetings with the Speakers of the provincial
legislatures concerned, there is an indication that
those provincial legislatures may opt for holding joint public hearings in the
affected areas, although the
Committee noted that there are other options available to those provincial legislatures.
5.3 Accordingly, the Committee calls 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 that
part of the Thirteenth
Amendment Bill
that concerns them,
in terms of section 74(8) of the Constitution.
Report
to be considered.
[1] Consider possibility of deleting sentence from this Report and include it in the Report of the Portfolio Committee on Provincial and Local Government.