REPORT OF THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE CONSTITUTION THIRTEENTH AMENDMENT BILL [B 24

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 September 2007
CONSTITUTION THIRTEENTH AMENDMENT BILL [B 24—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:

Background
The Constitution Twelfth Amendment Act of 2005 (the Twelfth Amendment), amended the Constitution of the Republic of South Africa, 1996 (the Constitution), by re-determining the geographical areas of the nine provinces of the Republic of South Africa.

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.

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 relocated to the province of the Eastern Cape and new municipal boundaries were created as a consequence.

The constitutional validity of the Twelfth Amendment and the Repeal Act was challenged in the Constitutional Court. On 18 August 2006 the Constitutional Court, in Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (1) BCLR 47 (CC) (the Matatiele case), declared that part of the Twelfth Amendment which effectively relocated the Matatiele municipality to the province of the Eastern Cape to be inconsistent with the Constitution and therefore invalid. The order of invalidity was based on a procedural defect, namely the failure of the KwaZulu-Natal provincial legislature to facilitate public involvement, as required by section 118(1)(a) of the Constitution, when it considered whether or not to approve that part of the Constitution Twelfth Amendment Bill of 2005 that effectively relocated the Matatiele municipality from the province of KwaZulu-Natal to the province of the Eastern Cape. As a result of the interrelationship between the Twelfth Amendment and the Repeal Act, the Court also declared that part of the Repeal Act which relates to the Matatiele municipality to be inconsistent with the Constitution and therefore invalid. The orders of invalidity were suspended for a period of 18 months, during which period Parliament has the opportunity to correct the constitutional defect that led to the orders of invalidity.

It is apparent from the above dates 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 relocated to the province of the Eastern Cape.

In the Matatiele case the Constitutional Court dealt with the question whether the Twelfth Amendment was adopted in a manner that is consistent with the provisions of the Constitution. This question was raised by the Court itself and not by any of the applicants in the case. The judgment specifically dealt with the procedural defect by the provincial legislature of KwaZulu-Natal, namely its failure to hold oral hearings or to invite written representations to facilitate public involvement as required by section 118(1)(a) of the Constitution. In this context the Committee noted that the Constitutional Court did not find any defect in the procedures adopted by the National Assembly (the Assembly) in the processing and passing of the Twelfth Amendment and the Repeal Act.

Objects of the Constitution Thirteenth Amendment Bill [B 24—2007] and the Cross-boundary Municipalities Laws Repeal and Related Matters Amendment Bill [B 25—2007]
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 Eastern Cape and KwaZulu-Natal in respect of the Matatiele municipality is equally fatal to the alteration of the other, less contested, areas of the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal.

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 Eastern Cape and KwaZulu-Natal and to provide for consequential matters arising from that re-determination, in accordance with the directions given by the Constitutional Court to Parliament.

Constitutional requirements for the passing of the Thirteenth Amendment Bill
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.

As mentioned in the above paragraph, the objects of the Thirteenth Amendment 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 Eastern Cape and KwaZulu-Natal.

In 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 Eastern Cape and KwaZulu-Natal.

Obligation to facilitate public involvement in legislative processes
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, namely 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.

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.

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.

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 broadly be categorized into three distinct themes:
(a) The majority of the submissions contained no matters of substance, but merely stipulated personal preferences, either for the retention of Matatiele in the province of the Eastern Cape or the inclusion thereof in the province of KwaZulu-Natal.
(b) Some submissions substantiated their call for incorporation of Matatiele into the province of KwaZulu-Natal based on ethnic and cultural links with that province.
(c) In a few submissions concerns were raised relating to the possible future lack of service delivery by the province of the Eastern Cape, in particular in respect of health and education.
From the submissions received from the relevant provincial legislatures, the Committee further noted that the provincial legislatures of the Eastern Cape and KwaZulu-Natal do not oppose the introduction of the Bill.

After having considered all the written submissions referred to in the paragraph above the Committee was not persuaded that those submissions contained adequately 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.

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 Eastern Cape. Information presented to the Committees by the Department of Provincial and Local Government indicated no material breakdown in respect of service delivery levels in that area and that there is a significant committal by the newly constituted Matatiele municipality to the development of infrastructure up to 2009. The Committee noted that there is no material under-expenditure in respect of, inter alia, services relating to health and education by the province of the Eastern Cape in relation to expenditure by the province of KwaZulu-Natal, or indeed other provinces.

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.

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, the Committee submits that it has taken all the steps that, in its view, are necessary and reasonable to comply with that obligation.

Consideration of the Thirteenth Amendment Bill by the provincial legislatures
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.

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 obligation 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 Constitutional Court's orders of invalidity of the Twelfth Amendment and the Repeal Act is that the provincial boundary between the provinces of the Eastern Cape and KwaZulu-Natal was changed with effect from 1 March 2006 when those two Acts came into operation. This means that the provincial legislature of KwaZulu-Natal would not on its own be able to hold hearings in the Eastern Cape where, for instance, Matatiele is now situated.
(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 Eastern Cape and KwaZulu-Natal should individually consider the question whether or not to approve the Thirteenth Amendment Bill.
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.

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 or support the Thirteenth Amendment Bill, as the case may be.

Report to be considered.