KwaZulu-Natal Legislature on Constitutional Court judgement on
Matatiele

19 October 2006

Madam Speaker, Mrs Lydia Johnson
Office bearers of the Legislature
Members of the Provincial Legislature (MPLs) present
Secretary to the Legislature, Ms Nerusha Naidoo
Ladies and gentlemen of the media
Good Morning to all of you

I wish to thank you for joining us so early in the morning. I am not sure
how much of your attendance is about our lovely breakfast waiting for us
downstairs or how much is about issues before us today. Nonetheless, today is
National Press Freedom Day for South Africa. It is therefore incumbent upon me
as Speaker of the KZN Legislature to say that we appreciate your presence and
your continued support.

A free society requires a free media. A free media will ensure a lasting
democracy. In fact some media analysts have gone to the extent of saying that a
free media "is a necessary condition for liberty." Your presence here today is
one part in a process of ensuring a healthy flow of information between the
elected representatives and the media. Without that flow of information, I am
afraid that the project of deepening democracy will be compromised.

We meet here to share information about a topic that most of you have
written a lot about, but so few of you have ever asked me any questions about
our way forward. Today, we are all here to have a chance to do exactly that;
asking each other questions and share information. Since the Constitutional
Court judgement, a lot has happened. However, for the purposes of understanding
the complexity of the matter at hand, allow me, Programme Director, to start
from the beginning.

The media will recall that the Constitution 12th Amendment Bill was
considered by the KZN Legislature late last year (2005). In the course of our
consideration of the bill public hearings were not held. Our explanation to the
Constitutional Court was that this was in part due to various factors.

Firstly, it was accepted that since the bill fell within the ambit of the
national legislative process, it was deemed that it was up to Parliament to
ensure that all the relevant procedural and other requirements were complied
with. The National Assembly had conducted public hearings and received written
and oral submissions from interested parties, including the residents of
Matatiele.

In addition to the above it was well known that the residents of Matatiele
and other interested parties had made oral and written submissions to the
Municipal Demarcation Board in August and December 2005. This was further
indication that affected communities had been consulted and that public
involvement had been facilitated.

The MEC for Traditional and Local Government Affairs, Honourable Mike
Mabuyakhulu, also submitted a report to the house wherein it was stated that in
terms of the Structures Act the MEC was bound to consult with all affected
communities and the general public before any amendment could be affected to
the establishment notice of any municipality. The proposed bill was well
publicised and it was stated in the MEC�s report that at least two public
demonstrations were held and that written submissions and petitions were
received by the MEC from various affected parties in the Matatiele area.

As a result of all of the above factors we were of a view that interested
parties were given reasonable opportunity to make submissions on the
Constitution Twelfth Amendment Bill and that the Section (S) 118 constitutional
requirement to facilitate public involvement had been adequately complied
with.

The judgement of the Constitutional Court

The Constitutional Court handed down judgment in the above matter on 18
August 2006. In the judgment it was held as follows:

S74(8) of the Constitution required the KZN Legislature to approve that part
of the 12th Amendment Bill that transferred the area that previously formed
Matatiele Municipality from KwaZulu-Natal to the Eastern Cape.

This approval is part of the process of law making and therefore compliance
with S118 of the Constitution is required (i.e. to facilitate public
involvement).

The KZN Legislature failed to comply with S118 and thus also S74 (8).

Due to the above, that part of the 12th amendment act that altered the
boundary of KwaZulu-Natal is invalid as it had not been adopted in a manner
that was consistent with the requirements of the Constitution.

This order of invalidity is suspended for eighteen months so that Parliament
can, if it so wishes, adopt a new amendment in a manner that complies with the
Constitution.

The Cross-boundary Municipalities Laws Repeal and related Matters Act, to
the extent that it relates to the boundary of KZN is also invalid.

With regard to costs it was held that the 1st, 2nd, 3rd and 14th respondents
[the President, the Minister of Provincial and Local Government., the Minister
of Justice and Constitutional Development and the Speaker of the National
Assembly (NA)], with the KZN Legislature must pay the costs of the
proceedings.

If the 18 months are too short then any interested party may apply to court
for an extension of the period of suspension.

If Parliament decides not to proceed with the new bill or if the KZN
Legislature vetoes the proposed amendment to its boundary then the Speaker of
the NA and the Chairman of the National Council of Provinces (NCOP) must
approach the court for further guidance.

What does the Constitutional Court judgment mean for the KZN
Legislature?

As the KZN Legislature the impact is as follows:

We need to await a new national bill that alters the boundary of KZN (if the
NA so wishes). The onus is thus on national at first. If the bill does come to
us the S74 (8) procedure will have to be followed and we will have to give our
approval to the bill. As part of this approval S118 must be complied with in
that public involvement will have to be facilitated.

As a guide to complying with S118 in future with regard to provincial and
S76 bills, many factors must be taken into account. The court has advised that
the legislature must act reasonably in deciding.

One of the factors is that regard must be had to the intensity of the impact
of the legislation on the public. If the affected section of the public is more
discreet and identifiable and the possible impact is more intense then
relevant, people must be given the chance to have their say.

In the intervening period, the people of Matatiele presented a petition to
the KwaZulu-Natal Legislature during the People's Assembly held in Kokstad (15
September 2006). I had the liberty to accept the petition on behalf of the
Legislature. Upon receipt, I immediately referred the matter to the
Legislature's Rules Committee. The Rules Committee is the most appropriate
committee to handle this matter.

The Rules Committee has met and discussed the matter at length. At the end
it resolved to unanimously respond to the Petition as follows:

Response to the points raised in the petition by the people of Matatiele

General

We must bear in mind that the invalidity of the relevant parts of the
Constitution 12th Amendment Act and the Cross Boundary Municipalities Laws
Repeal and Related Matters Act has been suspended for a period of 18 months so
that Parliament can remedy the situation by means of new pieces of legislation.
These acts are therefore in existence and are in operation in their entirety
for the moment until they are amended or after the expiry of 18 months,
whichever happens first.

The above being as it is, new bills will have to be enacted by Parliament
remedying the offending parts of the above acts. These bills will probably take
the form of a Constitution 15th or 16th amendment bill and a Cross Boundary
Municipal Laws Repeal and Related Matters amendment bill. These bills will
eventually come to the provinces to consider. Once they do come then we will
have to ensure compliance with S118 of the Constitution and with the judgments
of the Constitutional Court.

With the above in mind each of the requests in the petition will now be
dealt with in turn.

Point 1

The first item requests that the people of Matatiele be given a reasonable
opportunity to engage with the KwaZulu-Natal Legislature on this issue. In
essence this means that we should give the public the chance to make
submissions to the legislature on the content of the S76 bill that may be
coming to the province from national Parliament. This will have to be complied
with by means of the legislature making copies of the bill available to the
public, advertising the request for submissions and the holding of public
hearings.

However the above process can only commence once we have received the
abovementioned amendment bills from Parliament. At the moment we do not know
what will be the precise content of these bills or in fact whether these bills
will come at all. We can therefore only engage with the people of Matatiele on
these new bills once they have been properly submitted to the Legislature by
Parliament. This request can therefore only be complied with when the new bills
are properly before the Legislature.

Point 2

It is requested that the legislature properly consider the petition and the
views of Matatiele as per clause 97 of the judgement. Clause 97 states the
legislature should consider the views of the people in shaping their decisions
and thus make informed decisions. This request is linked to point 1 above and
can only be complied with once we have received the bills and received the
submissions of the people. It is however agreed to by the legislature.

Point 3

It is requested that S18 of the Constitution be complied with. As we know
S118 requires the legislature to facilitate public involvement in the
legislative and other processes of the Legislature and its committees. This
request relates to requests 1 and 2 above and has been addressed. S118 will be
complied with in our processes of addressing this matter.

Point 4

It is requested that in accordance with the wishes of the people of
Matatiele, the legislature should veto any proposed constitutional amendment to
the Constitution which will have the effect of moving Matatiele into the
Eastern Cape province.

The legislature can only consider this request when the new bills are before
the Legislature and we have been requested to give our approval or otherwise in
terms of S74 (8) of the Constitution. The views of the people of Matatiele will
then be one of the factors which the Legislature will take into account when
voting.

Point 5

The request is that the bill be placed before the legislature at the
earliest possible opportunity for voting. The preamble to the petition states
that certain requests are directed to Parliament. This is one of those requests
that are obviously in the hands of Parliament as it is up to Parliament to have
new legislation drafted and to submit these to provinces for consideration. The
Legislature has established from the MEC that the Minister has yet to introduce
the amendment bill in Parliament, but is planning to do so.

Point 6

It is requested that the decision of the legislature be communicated to
parliament as soon as the decision is taken. The "decision" that is referred to
probably relates to the approval or otherwise of the legislature and the
mandates which will have to be submitted once the legislation enters the NCOP
cycle. This matter has been discussed under point 4 above. The relevant
decision will be taken and the mandates will be drafted and submitted once the
bills are submitted to the legislature.

Point 7

It is requested that the assets of the Matatiele municipality that have been
transferred to the Eastern Cape or to any of its municipalities must
immediately be transferred back to Matatiele. The legislature has no authority
over the assets that are raised in this matter. We can however comment as
follows:

The above transfer of assets to the Eastern Cape if any would have been done
as a consequence of the coming into operation of the Constitution 12th
Amendment Act and the Cross Boundary Municipal Laws Repeal and Related Matters
Act. As pointed out under "General" above, the whole of these acts are still in
operation due to the declaration of invalidity of the relevant parts having
been suspended for 18 months.

It would therefore be contrary to the provisions of these acts and thus
illegal for any of the assets of Matatiele to be transferred away from the
Eastern Cape and back to KwaZulu-Natal. The legislative process must be allowed
to take its course before any action is taken in anticipation of the change in
legislation.

In conclusion, the KwaZulu-Natal Legislature represented by myself and
having the mandate to do so has already approached the National Assembly
Speaker with a view to ascertain the progress in terms of the introduction of
new bills. At a political level, we have also asked the MEC for Local
Government and Traditional Affairs, Mike Mabuyakhulu, to interact with the
Minister for Provincial and Local Government, Honourable Mr Sydney
Mufamadi.

Way Forward

We are happy to say that the legal wrangle in respect of the Constitutional
Court will be solved as the new bills to address issues at hand are to be
re-introduced and due process complied as per the judgement.

I thank you.

Issued by: KwaZulu-Natal Legislature
19 October 2006