Areas of challenge where municipalities straddle Provincial Boundaries
Prior to the 5 December 2000 municipal elections the Constitution of the Republic of South Africa, 1996 (“the Constitution”) was amended, and other legislation was enacted to provide for the demarcation and establishment of municipalities across provincial boundaries.
Following those municipal elections, 16 cross-boundary municipalities were established affecting five provinces; many problems were experienced in administering those municipalities.
During 2005 those cross-boundary municipalities were done away-with by incorporating them wholly into a single province. After the alteration of those provincial boundaries, the Department of Cooperative Governance (DCoG), Presidency and the Municipal Demarcation Board (MDB) received many requests from communities who requested to be incorporated into other neighbouring municipalities which are in neighbouring provinces.
Some of these areas included Moutse (from Limpopo into Mpumalanga), Matatiele (from Eastern Cape into KwaZulu-Natal), Ba-Ga-Mothibi (from North West into Northern Cape), Balfour (from Mpumalanga into Gauteng) and Kromkuil (from North West into Gauteng). On receipt of these requests, the MDB being aware that it does not have a role with regards to demarcation of provincial boundaries forwarded them to DCoG for consideration.
These communities cite, amongst other matters, geographical location, access, poor and/or lack of service delivery as reasons to be “relocated”. In the run-up to the 2016 local government elections, the DCoG advised stakeholders that their requests will be considered after the elections.
On 8 August 2017, the Cabinet Committee on Governance and Administration considered this matter and that the Minister of Cooperative Governance and Traditional Affairs (CoGTA) would be requesting the MDB to identify all areas where there are challenges and straddling of provincial boundaries, requiring redetermination.
The Committee further recommended that Cabinet approves that the Ministers of CoGTA and of Justice and Correctional Services collaborate on, amongst others, the following:
(i) developing an implementation plan dealing with the proposals that are anticipated from the MDB;
(ii) promoting an amendment to the Constitution with a view to dealing with the redetermination of provincial boundaries;
(iii) developing a comprehensive communication strategy; and
(iv) providing updates to the Committee on a quarterly basis.
In this regard, it is important to understand the Legislative Framework and Process to Amend Provincial Boundaries. The function of the MDB is to determine municipal boundaries, and that it has no jurisdiction over the determination of provincial boundaries. therefore, the Minister of CoGTA is to request the MDB to identify all those areas with challenges straddling provincial boundaries, and that need to be excluded from one Province and included into another Province.
Provincial boundaries are provided for in section 103 of the Constitution, which states that the geographical areas of provinces comprise the sum of the geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A (of the Constitution).
In terms of section 74(3) of the Constitution, a Bill amending provincial boundaries must be passed by the National Assembly, with a supporting vote of at least two-thirds of its members, and must also be passed by the National Council of Provinces, with a supporting vote of at least six provinces. The two houses of Parliament and the provincial legislatures will have to follow the normal public participation and consultation process before the bill is passed.
To this end, Department of Justice and Constitutional Development will develop a Constitution Amendment Bill to give effect to the alteration of the specific provincial boundaries.
The Constitution Amendment Bill will be submitted to all provincial legislatures for discussion and voting mandates, with a special request to the provincial legislatures in question to consider the Bill for approval, as required by section 74(8) of the Constitution. After approval of the Constitution Amendment Bill by the provincial legislatures in question, final voting mandates by all provincial legislatures must be obtained.
To give effect to the adoption of the Bill, it must be passed by the NCOP with a supporting vote of at least six provinces.
To give effect to the new provincial boundaries the MDB either on its own initiative or on request from the Minister in terms of section 22 of the Local Government: Municipal Demarcation Act, 1998 (MDA) will go through the municipal boundary re-determination process as provided for in terms of the MDA.
The MDB will publish the intention to consider the proposed boundary re-determination in newspapers circulating in affected areas and request for written representations from members of the public. Members of the public will be given not less than 21 days to submit their inputs. That is all done in terms of section 26 of the MDA.
The Board will consider all section 26 written representations from members of the public and resolve to either conduct public meetings, or conduct investigations or conduct both public meetings and investigations. Thereafter, the MDB will consider reports from either process and take a decision in terms of section 21 of the MDA.
In terms of this section the MDB has to publish its determination in a provincial gazette inviting anyone aggrieved by its determination to submit objections within a period of 30 days. The MDB will then consider all objections and make its final determination.
The final determination will have to be published in relevant provincial gazettes in terms of section 21(5). That will mark the end of the municipal boundary re-determination process by the MDB. The MDB will inform the IEC about its final decision.
The IEC has to publish its view in terms of section 23 of the MDA. The MECs responsible for local government in the affected provinces will have to determine the date of effect of the municipal boundary re-determination which can be either the beginning of the next municipal financial year or the next local government elections depending on the IECs section 23 views.
Notices in terms of Sections 12, 14, 16 and 17 of the Municipal Structures Act, 1998 to be published by affected provinces will provide for transitional and consequential matters relating to any re-alignment of the municipal boundaries, and by implication, in this instance, provincial boundaries.
These Notices will regulate, amongst others, any legal, practical or other consequences of the relocation of an area relocated in so far as such regulation is necessary to ensure the proper functioning of a municipality in whose area of jurisdiction such relocated area falls.
Noting that this is a highly complex and elaborate process, the DCoG will support all stakeholders as this matter is finalised.
Enquiries:
Legadima Leso
Cell: 083 378 9495
