The applicants challenge the validity of a constitutional amendment, brought about by the Constitution Twelfth Amendment Act of 2005 (Twelfth Amendment).The Twelfth Amendment changed provincial boundaries, including the boundary between the provinces of Gauteng and North West.One part of the Merafong City Local Municipality (Merafong) was thus relocated from Gauteng to North West, where the other part of the same municipality was located before the passing of the Twelfth Amendment.
Next, it sets out the applicable constitutional and statutory framework, after which the facts are briefly summarised.
The questions of whether the Gauteng Provincial Legislature fulfilled its duty to facilitate public involvement and whether the Legislature acted rationally in mandating its delegates to support the Bill in the NCOP are then addressed.
In the course of carefully considering the complex questions raised by this application, further evidence and submissions were considered to be necessary, and were called for on two occasions in directions from the Chief Justice and furnished by the parties.
The steps (referred to below in context) necessarily caused some delay in the finalisation of this matter.
In the alternative, they seek a declaration that the Legislature failed to exercise its legislative powers rationally when it voted in support of the relevant parts of the Twelfth Amendment Bill in the NCOP.
According to the applicants, the relevant parts of the Twelfth Amendment and the Cross-boundary Municipalities Laws and Repeal Related Matters Act (Repeal Act)The first applicant is an organisation which, according to its founding document, campaigns “for democracy to prevail in Merafong.” It consists of members of the community drawn from political organisations, taxi associations, the women’s movement, students, trade unions, churches, businesses and professionals, including teachers, nurses and lawyers.Its primary purpose is “to fight and defeat the undemocratic move by government to transfer Merafong from Gauteng to North West.” The second applicant is the spokesperson for the first applicant and the third to eleventh applicants are members of the community.The respondents are the President of the Republic of South Africa, the relevant national and provincial cabinet members, the two houses of Parliament, the premiers and legislatures of the two provinces involved, the three affected municipalities, the Municipal Demarcation Board (Demarcation Board)This judgment begins by dealing with a number of preliminary issues.Several judgments have also been written in this matter by my colleagues.I have had the privilege of reading these and briefly set out the essential points of agreement and the differences between the judgments.Ngcobo J and I agree on the issue of the facilitation of public involvement.