IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. 40/08
In the matter between:
MOUTSE DEMARCATION FORUM AND 15 OTHERS
Applicants
And
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND 17 OTHERS
Respondents
APPLICANTS’ PRACTICE NOTE
This is an application for direct access to the Constitutional Court. The applicants seek to challenge the Constitution Twelfth Amendment of 2005 (“the Amendment”) and the Cross-Boundary Municipal Laws Repeal and Related Matters Act 23 of 2005, to the extent that they serve to transfer the areas of Moutse 1 and 3 from Mpumalanga to Limpopo province.
NATURE OF THE PROCEEDINGS
ISSUES THAT WILL BE ARGUED
1. Whether the provincial boundary adopted by the Amendment serves to perpetuate the Apartheid-era border, cuts through a continuous human settlement and is accordingly irrational.
2. Whether the Mpumalanga Provincial Legislature failed properly to consult with the public in respect of the Amendment and accordingly breached its obligations under section 118(1)(a) and 74(8) of the Constitution in respect those parts of the Amendment that applied to Moutse.
3. The appropriate remedy if the application succeeds.
While the entire record is relevant to these proceedings, the following sections are of particular relevance:
RELEVANT PORTIONS OF THE RECORD
- Founding affidavit (vol 1 p 1-65) and the annexures thereto
- Sixth Respondent’s answering affidavit (vol 4 p 263-298) and the annexures thereto
- Second Respondent’s answering affidavit (vol 7 p 542-580) and the annexures thereto
- Seventh to Ninth Respondents’ answering affidavit (vol 9 p 887-971) and the annexures thereto
- Replying affidavit (vol 10 p 972-1098) and the annexures thereto - Supplementary affidavit (vol 12 p 1186-1200)
One day
ESTIMATED DURATION OF ORAL ARGUMENT
1. The Amendment and the Repeal Act serve to transfer the areas of Moutse 1 and Moutse 3 from Mpumalanga to Limpopo. The applicants challenge the on two main grounds.
SUMMARY OF THE APPLICANTS’ ARGUMENTS
2. First, they contend that the decision to adopt the pre-existing Apartheid boundary as the new provincial boundary was irrational:
2.1. The boundary derives from the Apartheid policy of separate development and serves to split a single, continuous human settlement.
2.2. Compelling reasons were needed to justify the maintenance of that boundary. None has been advanced.
3. Second, the applicants contend that insufficient steps were taken properly to facilitate public involvement with the people of Moutse because:
3.1. Given the history of the area and past interactions with government, it was essential that the people of Moutse were specifically consulted
prior to being removed from Mpumalanga’s jurisdiction. Such consultations were not properly held.
3.2. Those meetings that were held with the Moutse community were held at the eleventh hour and did not facilitate meaningful or proper participation.
3.3. In any event, the Mpumalanga Legislature was not properly apprised of, and did not have proper regard to, Moutse’s concerns about being transferred to Limpopo.
4. The applicants accordingly seek declaratory relief to the effect that the boundary adopted is irrational and/or that they were not properly consulted in respect of the Amendment. A declaratory order would serve to vindicate their constitutional rights and would guide the National and Provincial Legislature on the proper conduct of future provincial demarcations. The applicants submit that they are entitled, in terms of section 172(1)(a) of the Constitution, to an order declaring the Amendment and the Repeal Act invalid to the extent that they affect Moutse.
5. The applicants accept that any declaration of invalidity should be suspended, but submit that such an order should be appropriately tailored to ensure that
Moutse’s provincial incorporation is determined before the local government elections this year.
6. The applicants have suffered considerable prejudice as a result of the delays in finalising this matter, which are largely attributable to the second respondent’s failure to ensure that the consultation processes that he instituted were timeously placed before Cabinet for consideration. The applicants accordingly seek to recover the wasted costs associated with the postponement of the October 2009 hearing on an attorney-client scale.
Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC)
MAIN AUTHORITIES ON WHICH THE APPELLANTS WILL RELY
Law Society of South Africa and Others v Minister of Transport and Others [2010] JOL 26483 (CC) at para 32
Matatiele Municipality and Others v President of the Republic of South Africa (2) 2007 (6) SA 477 (CC); 2007 (1) BCLR 47 (CC)
Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (5) SA 171 (CC)
New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC)
Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC)
Van Der Merwe v Road Accident Fund 2006 (4) SA 320 (CC)