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court declares Matatiele demarcation invalid
Posted 18 August 2006
On 18 August 2006 the Constitutional Court delivered judgment in an application, challenging the constitutional validity of the Constitution Twelfth Amendment Act and the Cross-boundary Municipalities Laws Repeal and Related Matters Act.
Ngcobo J held that a provincial legislature whose provincial boundary is being altered is required by the Constitution to approve such alteration. When a provincial legislature makes a decision of this nature, it involves a law-making process and must therefore in terms of the Constitution, facilitate public participation in making its decision.
Ngcobo J found that the proposed constitutional amendment would have had the effect of relocating a whole community from one province to another province and it had a direct impact on the people of Matatiele.The consequences of the amendment are of considerable symbolic and practical importance, affecting the identity of the people to be transferred and changing the structures and personnel responsible for welfare payments, health services and education.
The Eastern Cape had complied with its duty to facilitate public involvement by holding public hearings in the affected areas, but KwaZulu-Natal acted unreasonable in not holding any public hearings or inviting any written submissions.
Ngcobo J therefore concluded that that part of the Twelfth Amendment that alters the boundary of KwaZulu-Natal is invalid as it had not been adopted in a manner that is consistent with the Constitution. He accordingly declared invalid that part of the amendment that transferred the area of Matatiele Local Municipality. However, he suspended the order of invalidity for 18 months so that Parliament can, if it so wishes, adopt a new amendment in a manner that is consistent with the requirements of the Constitution.
In addition, Ngcobo J found that the Repeal Act, to the extent that it relates to the boundary of KwaZulu-Natal, is unconstitutional, for substantially the same reasons as those rendering the Twelfth Amendment unconstitutional.
To download the full judgment click here.
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