Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10 (13 June 2008)

Introduction

[1] 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. The applicants ask this Court to declare that the Gauteng Provincial Legislature failed to comply with its constitutional obligation to facilitate public involvement in its processes leading up to the approval of the Twelfth Amendment Bill[1] (Bill) by the National Council of Provinces (NCOP). 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)[2] are therefore inconsistent with the Constitution[3] and invalid.

[2] 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.

[3] 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)[4] and the Electoral Commission.[5] The application is opposed by most of the respondents.[6]

[4] This judgment begins by dealing with a number of preliminary issues. 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.

[5] 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.

[6] 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.

[7] Ngcobo J and I agree on the issue of the facilitation of public involvement. On the question whether the Gauteng Provincial Legislature exercised its powers rationally we largely agree and differ only in approach and emphasis. I also associate myself with the views expressed in the judgment of Skweyiya J.

[8] Moseneke DCJ and I agree that the Gauteng Provincial Legislature fulfilled its duty to facilitate public involvement. Sachs J disagrees on this point. The disagreement between Moseneke DCJ and me relates to the inquiry into the rationality of the Legislature’s conduct. Moseneke DCJ (with whom Madala J agrees in his judgment) concludes that the conduct was irrational, because the Legislature misconceived its constitutional obligations and misconstrued the consequences of the exercise of its powers under the Constitution. I am unable to find that the conduct of the Legislature was irrational. The basis of our disagreement can for convenience be summarised as threefold. We disagree on the rationality standard to be applied in this matter. I recognise that legislative conduct must be rational, but, in my respectful view, the judgment of my esteemed colleague goes beyond a constitutionally appropriate application of the requirement of rationality. We furthermore disagree as to the Gauteng Provincial Legislature’s understanding and appreciation of its constitutional powers and obligations. I do not hold that the Legislature materially misunderstood its constitutional role.

[9] Lastly, but perhaps most importantly, we disagree on a fundamental aspect regarding the geographical area and the community at the core of this application, namely whether it deals with the location of the whole of Merafong (the Merafong City Local Municipality), or only with the part of Merafong that was located in Gauteng before the adoption of the Bill. The judgment of my colleague distinguishes between “Merafong-Gauteng” and “Merafong-North West”. His starting point is that the applicants seek an order that the part of the Twelfth Amendment that transferred “Merafong-Gauteng” to North West is inconsistent with the Constitution and thus invalid. After recounting the views put forward by the community and analysing the reasoning of the Portfolio Committee of the Gauteng Provincial Legislature as well as the deliberations in the Select Committee of the NCOP, he arrives at a conclusion which results in the division of Merafong into two parts.

[10] In my view, this division is not in accordance with what the applicants or the people of Merafong have been calling for, or with any decision of the Gauteng Provincial Legislature or its structures, or with any constitutional or legislative demand. This case is not about only one part of Merafong, or only those members of the Merafong community who happened to live on the Gauteng side of the boundary between Gauteng and North West immediately before the Twelfth Amendment. It is about the entire geographical area and all the people of what is in the papers referred to as the Merafong City Local Municipality, or Merafong City, or simply Merafong. The detail of these points of disagreement is addressed below, when specific issues are being dealt with.

Preliminary issues

[11] A number of preliminary issues must be dealt with before proceeding to the merits. These are the applicants’ direct approach to this Court, the applicants’ application to amend their notice of motion, the applications for condonation of the late filing of papers and the applicants’ delay in bringing this application.

[12] Only this Court may decide the constitutionality of an amendment to the Constitution.[7] The applicants therefore had to approach this Court directly. The relevant parts of the Repeal Act have to be considered together with the Twelfth Amendment. It is therefore in the interests of justice to allow the applicants direct access to this Court insofar as their attack on the constitutionality of the Repeal Act is concerned.

[13] The applicants apply for the amendment of their notice of motion.[8] The amendment is not likely to cause any prejudice. The application is not opposed and should be granted.

[14] The applicants and several respondents seek condonation for the late filing of papers.[9] The non-compliance with the relevant prescribed time periods is explained in affidavits and does not prejudice anyone. None of the applications is opposed. Condonation should be granted.

[15] It is desirable that a challenge to the constitutional validity of legislation – and constitutional amendments in particular – be brought timeously.[10] The respondents submitted that the applicants had unreasonably delayed bringing this application, especially in view of the fact that they approached this Court directly. Counsel for the respondents, however, did not insist during oral argument that the delay should bar the applicants from approaching this Court. The delay is troublesome. Considerable time lapsed after the passing of the Twelfth Amendment and the delivery of this Court’s judgments on which the applicants rely.[11] The location of Merafong has been hotly disputed. It calls for a speedy determination. Yet, the delay has been explained by the applicants’ legal representative, and though regrettable, it should not prevent the matter from being considered by this Court in the present instance. An unsuccessful attempt was also made in the Pretoria High Court to interdict the local government elections, before the applicants approached this Court. The applicants furthermore do not represent individual interests, or the interests of the organizations only, but views widely held in the community of Merafong.

Constitutional framework

[16] The nine provinces of South Africa and their boundaries are recognised in the Constitution.[12] Any change of a provincial boundary thus requires a constitutional amendment. The Bill was enacted for this purpose.[13] It also altered the basis for the determination of provincial boundaries from magisterial districts to municipal areas.[14]

[17] Like all other bills, a bill amending the Constitution must be passed by Parliament, which consists of the National Assembly and the NCOP.[15] The procedure for constitutional amendments is set out in section 74 of the Constitution. A bill that alters provincial boundaries must be passed by the National Assembly with a two-thirds majority. It must furthermore be passed by the NCOP with a supporting vote of at least six of the nine provinces.[16]

[18] Section 74(8) states that if a bill or any part of the bill concerns only a specific province or provinces, the NCOP may not pass the bill or the relevant part, unless it has been approved by the legislature or legislatures of the provinces concerned.[17] A province may therefore effectively veto the part of the bill related to the boundaries of that province. The meaning and implications of section 74(8) are more fully discussed below, where the question of the rationality of the Gauteng Provincial Legislature’s conduct is considered.

[19] Section 118(1)(a) of the Constitution requires provincial legislatures to facilitate public involvement in the legislative and other processes of the legislatures and their committees.[18] This provision mirrors sections 59(1)(a) and 72(1)(a) of the Constitution regarding the National Assembly and NCOP respectively.[19]

[20] This Court held in Matatiele 2[20] that section 74(8) applies to the Twelfth Amendment.[21] Although the boundaries of all provinces are affected by it, section 74(8) is applicable because the wording of the section states that it applies if any part of the bill concerns only a specific province or provinces.

[21] The majority of this Court in that case also decided that provincial legislatures had to facilitate public involvement in accordance with section 118(1)(a), in the process of considering bills that alter provincial boundaries provided for in section 74(8). This Court found that the Legislature of the Eastern Cape complied with section 118(1)(a). The Legislature of KwaZulu-Natal, however, was declared to have failed to comply with its obligations to facilitate public involvement. Consequently, the part of the Twelfth Amendment transferring Matatiele from KwaZulu-Natal to the Eastern Cape was declared invalid, as was the relevant part of the Repeal Act.

[22] In Matatiele 2 the reasons for the veto provision in section 74(8) and for the need to facilitate public involvement were stated as including the following: when a constitutional amendment alters provincial boundaries, whole communities may, by the stroke of the proverbial pen, be relocated from one province to another, even though not physically.[22] They may involuntarily end up in another province. A proposed boundary alteration threatens an important and not easily reversible change to the provincial status of a clearly defined section of the Republic. The fundamental right of a citizen to enter, remain in and reside anywhere in the Republic is also at stake.[23] The attachment of people to provinces in which they live should not be underestimated. The very identity of people may be affected. Significant practical factors are also relevant, including the structures and personnel responsible for service delivery.

[23] It must be added that the history of South Africa is – sadly – one of the balkanisation of our country, as well as of the separation and the forcible removal and relocation of our people. This often happened in order to entrench and to further differentiate and discriminate between races, between urban and rural, between rich and poor and between classes of citizens. Therefore the struggle against colonialism and the apartheid regime’s Bantustan policy was also a struggle for one united country, as well as for the recognition of the dignity of individuals and communities.

[24] When democracy was about to dawn and a new constitutional dispensation was negotiated, the question of whether South Africa should be a unitary state, or a federation, or a variation of any of these, was hotly debated. The Constitution embodies a carefully crafted balance. South Africa is one, sovereign, democratic state[24] and South Africans enjoy a common citizenship. [25] This has been achieved at a great cost over generations. But our country has nine constitutionally entrenched provinces with inhabitants who may well strongly identify with the province in which they live. Thus the boundaries, powers, or functions of provinces may not easily be altered. In the event of a proposed alteration, any one province has the power to block that aspect of an amendment in the NCOP, as the body which specifically represents the provinces, to ensure that provincial interests are taken into account in the national sphere.[26]

[25] When provincial boundaries are at stake, national and regional needs and perceptions must often be balanced against each other. Government must be open and responsive to the wishes of communities, which may not necessarily be adequately represented in national elections and could therefore find expression in localised resistance. But it also must act in the national interest, be loyal to those who voted it into office and strive to realise the constitutional ideal of achieving the equitable distribution of resources across the country and between provinces.[27]

[26] The meaning of the concept of the facilitation of public involvement – as it appears in sections 59(1)(a), 72(1)(a) and 118(1)(a) – was explained in Doctors for Life[28] and Matatiele 2.[29] The requirement to facilitate public involvement is in line with the contemplation in the Constitution of elements of participatory democracy, in addition to representative democracy.[30] Participatory and representative democracy must be seen as mutually supportive. Public involvement also enhances responsible citizenship and legitimate government. It furthermore accords with the constitutional principle of co-operation and communication between national and provincial legislatures, as institutionalised in the NCOP.[31]

[27] The obligation to facilitate public involvement may be fulfilled in different ways.[32] It is open to innovation. Legislatures have discretion to determine how to fulfil the obligation. Citizens must however have a meaningful opportunity to be heard. The question for a court to determine is whether a legislature has done what is reasonable in all the circumstances. In determining whether the legislature acted reasonably, this Court will pay respect to what the legislature assessed as being the appropriate method. The method and degree of public participation that is reasonable in a given case depends on a number of factors, including the nature and importance of the legislation and the intensity of its impact on the public. In the process of considering and approving a proposed constitutional amendment regarding the alteration of provincial boundaries, a provincial legislature must at least provide the people who might be affected a reasonable opportunity to submit oral and written comments and representations.

Statutory framework

[28] In addition to the constitutional setting dealt with above, additional statutes form part of the legal framework regarding provincial boundaries and the situation of municipalities. In terms of the Local Government: Municipal Demarcation Act, the Municipal Demarcation Board determines (and may re-determine) boundaries for municipal areas for the whole of the country.[33] In terms of the Municipal Structures Act the Member of the Executive Council for Local Government in a province must establish a municipality in each municipal area which the Demarcation Board has demarcated in a province.[34] Furthermore, the Repeal Act was enacted to repeal laws providing for cross-boundary municipalities and to deal with the consequences of the Twelfth Amendment’s abolition of cross-boundary municipalities. However, this case revolves mainly around the relevant constitutional provisions and the procedures leading up to the passing of the Twelfth Amendment. The effect on other legislation is consequential.

Factual history

[29] A brief factual background to the dispute before this Court is provided, without detailed references to all relevant legislation, documentation and events. In 2000 the Merafong City Local Municipality was established within the West Rand District Municipality. The smaller part of Merafong, the southern part, fell in North West, whilst the larger part fell in Gauteng. Therefore both Merafong and the West Rand District Municipality were cross-boundary municipalities. The applicants allege that 74% of Merafong’s 308 237 inhabitants live in Gauteng. This is not denied by the respondents, with the exception of the sixth respondent which provides no alternative figure.

[30] According to an explanatory memorandum published with the Twelfth Amendment Bill on 26 August 2005, numerous problems have been experienced with the administration of cross-boundary municipalities since their establishment. Consequently, the Presidential Co-ordinating Council resolved on 1 November 2002 that the notion of cross-boundary municipalities should be done away with and that all municipalities fall within one province or the other. The Twelfth Amendment Bill gave effect to this resolution and, in doing so, located the total area of Merafong in North West.[35]

[31] On 16 November 2005 the Speaker of the Gauteng Provincial Legislature formally referred the matter to the Local Government Portfolio Committee (Portfolio Committee), a committee of the Legislature. On 17 November 2005 the Portfolio Committee resolved to engage in a joint public hearing session with the North West Provincial Legislature, in order to receive written and oral presentations from the affected communities. The Portfolio Committee decided on 18 November 2005 to adopt a plan of action in relation to a public hearing, to be held on 25 November 2007.

[32] Prior to the public hearing written memoranda were received from a number of stakeholders, including political parties and community organisations. The submissions were directed to the Gauteng Provincial Legislature, as well as to the NCOP and other governmental role-players. The Speaker of the Gauteng Provincial Legislature referred the submissions to the Portfolio Committee. Further written submissions were handed over by individuals, community organisations, political parties and trade unions in the course of the public hearing. As pointed out in the detailed account in the judgment of Moseneke DCJ, vehement opposition to the incorporation of Merafong into North West emerged in various forms over a period of time.

[33] The joint public hearing was indeed held on 25 November 2005 and was well attended. The Merafong community agreed in principle with the phasing out of cross-boundary municipalities. However, the overwhelming majority of people was opposed to the incorporation of Merafong into North West. They regarded themselves as inseparably part of Gauteng. A minority, amongst them the African National Congress Youth League, supported the inclusion of Merafong in North West.

[34] On 29 November 2005 the Portfolio Committee considered the Bill together with a report on the views expressed by the public. It adopted a “negotiating mandate”. According to the minutes, Gauteng would support the Bill, “on condition that the municipal area of Merafong is included in the municipal area of the West Rand District Municipality of the Gauteng Province.” Before this conclusion, the following is also stated:

“The Portfolio Committee on Local Government—

· in principle, supports the phasing-out of cross-boundary municipalities as envisaged by the Constitution Twelfth Amendment Bill [B33B-2005];

· in light of the outcome, impact assessment and analysis of the public hearing submissions, agrees with the inclusion of the geographical area of Merafong municipality into the West Rand District municipality in the Gauteng Province;

· recommends to the House, amendment to Schedule 1A of the Constitution Twelfth Amendment Bill [B33B-2005], to provide for the inclusion of the municipal area of Merafong into the municipal area of the West Rand District Municipality of the Gauteng Province.”

[35] The Portfolio Committee thus appeared to agree with the view expressed by the majority of the Merafong community at the public hearing that the phasing-out of cross-boundary municipalities had to be supported, but that the entire municipality of Merafong had to be located in Gauteng. An amendment to the Bill would be required to locate Merafong in Gauteng. This negotiating mandate was never considered by the full Gauteng Provincial Legislature.[36]

[36] Following the negotiating mandate, the Portfolio Committee sent a delegate, Mr Shiceka, to the NCOP to negotiate the suggested amendment. On 30 November 2005, at a meeting of the Select Committee on Security and Constitutional Affairs,[37] he proposed that the NCOP amend the Bill by incorporating Merafong into Gauteng rather than North West. He was informed that the NCOP could not amend the Bill. The legal advisor of the Department of Provincial and Local Government, Dr Bouwer, stated that in terms of the law the provinces cannot affect amendments on the Bill and could only veto the whole or part of the Bill. Advocate Razaard, the State Law Advisor, said that there were no provisions in the Constitution for effecting amendments in a section 74(8) bill after being passed by the National Assembly, and that a provincial legislature can either adopt or reject the part that directly affects it.

[37] Following the meeting with the NCOP Select Committee, the Portfolio Committee of the Gauteng Provincial Legislature met to reconsider its mandate and to formulate a final voting mandate. The Portfolio Committee produced a report, entitled “Final Voting Mandate on Constitution Twelfth Amendment Bill [B33B-2005]” (final voting mandate). In this document it is stated that, after deliberation, the Portfolio Committee had reviewed its position, notwithstanding the views of the public. The document then sets out the Committee’s reasons for the change in position. With these considerations in mind, the Portfolio Committee adopted the final voting mandate, which provided that Gauteng would vote in support of the Bill in the NCOP. The contents of and reasoning behind the final voting mandate are discussed more fully below, where the rationality of the Legislature’s conduct is dealt with.

[38] The Portfolio Committee’s report on the final voting mandate was forwarded to the Gauteng Provincial Legislature and debated by the Legislature on 6 December 2005. The final voting mandate subsequently was adopted and a letter from the Speaker, reflecting the adoption of the report and the report itself, were forwarded to the Chairperson of the NCOP on 6 December 2005.

[39] In the NCOP Gauteng voted in support of the Bill and it was passed. It came into force on the President’s order on 1 March 2006.[38] Thereafter the Demarcation Board demarcated the whole of Merafong into the Southern District Municipality in North West. The Repeal Act regulated the process and consequences of the relocation.

Issues

[40] The applicants contend that the Gauteng Provincial Legislature failed to comply with the requirement to facilitate public involvement and, in the alternative, that it acted irrationally. These complaints are to some extent separate from one another, but are also overlapping and inter-related. For the purposes of this analysis, the two attacks are dealt with separately. They are however also considered cumulatively in reaching a conclusion.

[41] The two main issues therefore are whether the Gauteng Provincial Legislature―

(a) complied with its obligation to facilitate public involvement when it considered and approved that part of the Twelfth Amendment which concerned Merafong; and

(b) exercised its legislative powers rationally.

These two main issues raise a number of further questions which are defined and addressed below.

Was public involvement facilitated?

[42] The applicants state in their founding papers that they seek relief similar to that ordered in Matatiele 2.[39] It must be said at the outset that the conduct of the Gauteng Provincial Legislature in this case differs vastly from the conduct of the KwaZulu-Natal Provincial Legislature in Matatiele 2. The KwaZulu-Natal Provincial Legislature considered public hearings to be required, but none took place and written representations were never invited. In contrast, the conduct of the Gauteng Provincial Legislature in this case was indeed similar to that of the Eastern Cape Provincial Legislature, which was found in Matatiele 2 to have complied with section 118(1)(a).

[43] The applicants accept that the public hearing was publicised, oral and written submissions were made before the hearing took place and the community’s views were stated at the hearing. People were given an opportunity to be heard. Their public involvement complaint revolves, in the first place, around the allegation that the process of public involvement was not meaningful, because the final outcome was always a done deal. They argue that the National Executive Committee (NEC) of the African National Congress (ANC) had decided earlier that Merafong would go to North West. Secondly, they submit that the Portfolio Committee’s change of position between the negotiating mandate and the final voting mandate, without further consultation with the community, was unreasonable.

[44] In support of the first submission, the applicants refer to passages from the majority judgment of Ngcobo J in Doctors for Life, emphasising the need for citizens to be involved in public affairs, to identify with institutions of government and to become familiar with laws.[40] Public participation strengthens the legitimacy of legislation in the eyes of the people. It is an important counterweight to secret lobbying and influence-peddling.

[45] They also rely on the concurring judgment of Sachs J in that case, which highlights the assurance that people or groups who have been victims of historical silencing will be listened to, and the need for people to feel that they have been given a real opportunity to have their say and that they are taken seriously.[41] Whereas here the people were given an opportunity to say what they wished to, they were not taken seriously, the argument goes, and the opportunity to be heard was not meaningful.

[46] The applicants, furthermore, rely on a passage from my minority judgment in the same case warning against the mechanical holding of cosmetic public hearings in situations where the will of the majority party will in any event necessarily prevail.[42] This statement, however, must be understood within the context of the minority’s disagreement with the majority of this Court in Doctors for Life. The minority held that whereas section 118(1)(a) created an obligation for the legislature to facilitate public participation in its processes, it was not intended to result in the possible constitutional invalidity of specific legislation. It expressed scepticism about the practical meaning of requiring public involvement with regard to every piece of legislation and about the workability of the yardstick of reasonableness.[43] The applicants of course based their case on the majority judgments in Doctors for Life and Matatiele 2. The respondents did not argue that these judgments were incorrectly decided and that they should not be followed. This matter must therefore be dealt with according to the standards and guidelines set out in the majority judgments.

[47] According to the applicants, the NEC of the ANC decided at the end of 2004 to incorporate Merafong into North West. They rely on a document from the ANC’s website to prove this allegation, in the face of the denial by the Minister of Provincial and Local Government (the second respondent) in his answering affidavit. The applicants submit that the government was consequently never open to be persuaded by the views of the people of Merafong. Political pressure might have forced the Gauteng Provincial Legislature to change its position between the negotiating mandate and the final voting mandate. This, according to the applicants, is borne out by the respondents’ reluctance to provide reasons for the change that occurred, in spite of the strong arguments against incorporation into North West presented by members of the community.

[48] On this point counsel for the Premier of North West (the seventh respondent) argued that, assuming that it is factually correct that the NEC of the ANC and the Government were not open to persuasion, this was irrelevant for the question of whether the Gauteng Provincial Legislature complied with its obligation to facilitate public involvement. If it were indeed a political reality that the leadership of the ANC caused the Twelfth Amendment to be passed in the NCOP, this reality did not mean that the Legislature did not meet its obligation to facilitate public involvement.

[49] On the facts of this case it cannot be said that the Gauteng Provincial Legislature was not open to be persuaded by the views expressed by the community. These views were recorded and discussed in considerable detail, for example in the above-mentioned final voting mandate. Furthermore, the negotiating mandate embodied the views expressed by the majority, namely that the phasing out of cross-boundary municipalities must be supported, but that Merafong must be located in Gauteng. The public meeting was not a cynical charade, but held in good faith. After the public hearing the Portfolio Committee actually appeared to agree with the majority of the community. However, the reality of the future proceedings in the NCOP was also accepted; hence the mandate was to negotiate, rather than to take a final position on how to vote. This necessarily implied the possibility of a change.

[50] On the available evidence, it is not possible to determine whether and to what extent the final voting mandate and the debate in the NCOP Select Committee were directly or indirectly influenced by previously formulated policies of the ruling party. One would also not know how the party leadership came to adopt its policy position and to what extent it might have resulted from a consideration of public interests or of the views of the majority. The passages from the Doctors for Life majority judgment,[44] referred to by the applicants, state reasons for constitutionally obliging legislatures to facilitate public involvement. But being involved does not mean that one’s views must necessarily prevail. There is no authority for the proposition that the views expressed by the public are binding on the legislature if they are in direct conflict with the policies of Government. Government certainly can be expected to be responsive to the needs and wishes of minorities or interest groups, but our constitutional system of government would not be able to function if the legislature were bound by these views. The public participation in the legislative process, which the Constitution envisages, is supposed to supplement and enhance the democratic nature of general elections and majority rule, not to conflict with or even overrule or veto them.

[51] To say that the views expressed during a process of public participation are not binding when they conflict with Government’s mandate from the national electorate, is not the same as cynically stating that the legislature is not required to keep an open mind when engaging in a process of that kind. Public involvement cannot be meaningful in the absence of a willingness to consider all views expressed by the public.

[52] If it is correct that the submissions of the community were indeed taken into account, as I conclude, the focus has to shift to the change in the Portfolio Committee’s position between the negotiating mandate and the final voting mandate. The adoption of the negotiating mandate in the language quoted above[45] creates the impression that the Portfolio Committee agreed with the community and formulated the negotiating mandate on the assumption that the Bill could be substantively amended in the NCOP to include Merafong in Gauteng. As is shown below, this was not possible. Did this misconception render the consultation process unreasonable? Furthermore, were the members of the Committee obliged to report back to the community of Merafong during the few days between the deliberations in the NCOP and the formulation of the final voting mandate? Did they fail to act reasonably in not doing so?

[53] It was not submitted on behalf of the applicants that the consultation was unreasonable because the Gauteng Provincial Legislature or its Portfolio Committee did not fully appreciate the legal position as to amendments to the Bill in the NCOP at the time of the consultation. Nor could it be so argued persuasively. The facilitation of public involvement is aimed at the legislature being informed of the public’s views on the main issues addressed in a bill, not at the accurate formulation of a legally binding mandate. Consultation requires the free expression of views and the willingness to take those views into account. This did happen.

[54] The applicants’ contention that the Gauteng Provincial Legislature or the Portfolio Committee was at fault for not reporting back to the community emerged mainly during oral argument. In response to a suggestion from the bench, counsel for the applicants argued that when the Gauteng delegates realised that they were not able to fulfil their mandate and amend the Bill in the NCOP, they should have returned to the Merafong community to explain and again to consult them, before finally mandating their delegation to the NCOP. He submitted that the failure to do so was not reasonable – and thus fell short of the requirements set out in Doctors for Life and Matatiele 2 – and also not rational.[46]

[55] From the perspective of respectful dialogue and the accountability of political representatives it might well have been desirable to report to the people of Merafong that it was impossible adhere to the position taken by the Portfolio Committee in the negotiating mandate. To the extent that the community was given the impression that the Committee agreed with them and that an understandable expectation was created that their views would prevail, it was possibly disrespectful not to return to inform them of subsequent events. The question, though, is whether the omission to consult again after the alteration of the Portfolio Committee’s negotiating mandate amounts to a failure to facilitate public involvement in the processes of the Gauteng Provincial Legislature.

[56] In my view the failure to report back to the Merafong community does not rise to the level of unreasonableness which would result in the invalidity of the Twelfth Amendment which was otherwise properly passed by Parliament. It cannot result in a finding that Gauteng failed to take reasonable measures to facilitate public involvement, as required by sections 72(1)(a) and 118(1)(a) of the Constitution.

[57] This Court has invoked reasonableness as a standard by which a court ought to determine whether the measures taken or methods followed by a legislature comply with the obligation to facilitate public involvement. In this case no one argues that the calling for submissions and the public hearing were not reasonable measures. The question raised is whether the further measures taken or not taken by the Gauteng Provincial Legislature in the continuation of its relationship with the community were reasonable.

[58] The Portfolio Committee was well aware of the strong views of the majority of the Merafong community. There was agreement on the need to do away with cross-boundary municipalities. On the issue of whether Merafong should be located in Gauteng or North West, the conflict between the contents of the Bill and the majority view was stark. The Portfolio Committee decided to change its position as a result of the deliberations in the Select Committee of the NCOP, where Gauteng’s representative learned that an amendment to the Bill, to include Merafong in Gauteng, was not possible.

[59] If they had gone back to Merafong to explain the situation to the people, a better understanding might have been fostered, but it is unlikely that the majority would have been sufficiently impressed by the explanation to change their strongly held views. If they agreed to the incorporation into North West, the Bill would in any event have been passed. If they persisted in their original position, the Gauteng Provincial Legislature still would not have been bound by their view and would in all likelihood have proceeded to vote in favour of the passing of the Bill. The possibility of the Portfolio Committee being persuaded anew by views of which it was already fully aware, is indeed small. In all probability little would have been achieved by another round of exchanging views, other than to inform and perhaps educate the community. Whereas speculation about the likely outcome of further consultation is not ultimately decisive, the fact is that the community had a proper opportunity to air their views. The previous decisions of this Court, on which the applicants rely, do not require an ongoing dialogue. In fact, continuing discussion which does not result in a changed outcome, could strengthen possible perceptions that the consultation was not meaningful.

[60] In this case possibly discourteous conduct does not equal unconstitutional conduct which has to result in the invalidity of the legislation. Politicians, who are perceived to disrespect their voters or fail to fulfil promises without explanation, should be held accountable. A democratic system provides possibilities for this, one of which is regular elections.

[61] I am unable to conclude that the Gauteng Provincial Legislature failed to facilitate public involvement in its procedures leading to its support for the Twelfth Amendment in the NCOP.

Did the Gauteng Provincial Legislature exercise its legislative powers rationally?

The rationality standard

[62] The exercise of public power has to be rational. In a constitutional state arbitrariness or the exercise of public power on the basis of naked preferences cannot pass muster. Judgments of this Court suggest that, objectively viewed, a link is required between the means adopted by the legislature and the end sought to be achieved.[47]

[63] The fact that rationality is an important requirement for the exercise of power in a constitutional state does not mean that a court may take over the function of government to formulate and implement policy. If more ways than one are available to deal with a problem or achieve an objective through legislation, any preference which a court has is immaterial. There must merely be a rationally objective basis justifying the conduct of the legislature. Provided a legitimate public purpose is served, the political merits or demerits of disputed legislation are of no concern to a court. In Pharmaceutical Manufacturers Chaskalson P made it clear that the rationality standard does not mean that courts can or should substitute their opinions for the opinions of those in whom the power has been vested.[48] A court cannot interfere with a decision simply because it disagrees with it, or considers that the power was exercised inappropriately.

[64] The question of the rationality of the Twelfth Amendment was left undecided in Matatiele 2.[49] In UDM 2 it was held that rationality is a minimum requirement for the exercise of public power and that the Pharmaceutical Manufacturers qualification “applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution”.[50] In view of the finding below on rationality in the light of the facts of this case, it is not necessary to take this specific point any further.

[65] The respondents argue that it is eminently rational to do away with cross-boundary municipalities. The applicants agree with the idea of abolishing cross-boundary municipalities and do not attack the rationality of the Twelfth Amendment as a whole, but only the part of it that locates Merafong in North West. Furthermore, the fact that it is rational for the whole municipality to be located in a single province, does not necessarily mean that the province should be in North West, rather than Gauteng, counsel for the applicants specifically contended.

[66] The applicants raise two different issues in their rationality attack. Their counsel argued that the abandoning of its mandate by the Gauteng delegation to the NCOP was the first leg of their rationality argument. Gauteng’s change of mind was irrational, because no proper reason was shown for this change of position. The second leg relates to the merits of the decision to locate Merafong in North West, embodied in the Twelfth Amendment, including issues of service delivery, Merafong’s closeness to Gauteng’s economic hub and especially the issue of a province’s equitable share of revenue from the National Revenue Fund.

Did the Gauteng Provincial Legislature appreciate its constitutional powers and did it misconstrue the consequences of its decision?

[67] As to the first leg of the rationality attack, the applicants argue that the reasons provided for the change of stance on the amendment do not make sense and are, in fact, not reasons at all. According to the applicants, they did not know what happened when the Gauteng Provincial Legislature decided on its final voting mandate. They called for the verbatim record of the Legislature’s debate when the final voting mandate was decided, but this was not supplied. According to the applicants, the debate resulting in the decision is as important as the decision itself and the failure to make it available shows a lack of forthrightness on the part of the Legislature. The documents filed in response to the December directions calling for records and documentation should go some way in addressing the applicants’ need.

[68] In order to clarify questions around the Portfolio Committee’s apparent change of mind, and especially on the Legislature’s understanding of its constitutional role, the Chief Justice issued further directions to call for written submissions.[51] The parties responded to these directions.

[69] According to the applicants, the Gauteng Provincial Legislature accepted that it could only mandate its representatives in the NCOP to vote either yes or no in respect of the Bill. Gauteng was therefore of the opinion that it was open to them either to support or to veto the Bill as a whole, and that it was not an option to propose any amendments to the Bill. This view possibly resulted from the legal advice given to the Select Committee, as well as from the fact that the legislation was rushed or “fast-tracked” through Parliament. According to the applicants, the Legislature was mistaken in law and the mistake vitiated its decision to support the Bill in the NCOP.

[70] The Gauteng Provincial Legislature argued that it was not its contention that it was constitutionally impermissible to mandate its representatives in the NCOP to vote only against the incorporation of Merafong into North West. It was not mistaken in law. The Premier of North West (the seventh respondent) and the North West Provincial Legislature (the ninth respondent) also submitted that the Gauteng Provincial Legislature did not accept that the only constitutionally permissible course would be to mandate its representatives to vote on the Twelfth Amendment Bill in its entirety.

[71] The first question requiring attention is whether the rationality test thus far recognised by this Court allows for an investigation of the Gauteng Provincial Legislature’s possibly mistaken understanding of the law. After addressing this, I deal with the constitutional position regarding amendments and voting in the NCOP in the case of a bill that amends the Constitution by changing provincial boundaries. Thereafter the alleged misconception of the law on the part of the Gauteng Provincial Legislature is investigated by reference to the available evidence.

[72] In terms of this Court’s existing jurisprudence on rationality, as well as in view of the nature and functions of a legislature, an investigation into the correctness or otherwise of the Gauteng Provincial Legislature’s understanding of the law and of all the consequences of its decisions is not unproblematic. It will be recalled that this Court has on a number of occasions required that public power be exercised rationally, rather than arbitrarily or based on mere preference. This Court has also emphasised though that a court cannot interfere with a decision simply because it disagrees with it or because the power was exercised inappropriately.[52]

[73] A legislature is a deliberative body with a large number of members and often relies on recommendations of sub-structures like committees. It is not obliged to accept them. Each member makes up his or her own mind. It decides by way of a majority vote and does not normally furnish reasons for its decisions, as would be the case with administrative bodies. Many different levels of understanding and appreciation of the law and of the perceived consequences of its decisions may occur amongst its members. The exact understanding of every member of all relevant factors may not only be difficult to ascertain, but may indeed be irrelevant. An incomplete or even incorrect understanding of the law or of the consequences of a decision does not necessarily amount to arbitrariness or naked preference, the evils identified in this Court’s above-quoted previous decisions on rationality.[53]

[74] For the purposes of this judgment I assume – in view of the contents of the documents reflecting the negotiating and final voting mandates and particularly the change that occurred between the two mandates – that an enquiry into the question of the Gauteng Provincial Legislature’s appreciation of its constitutional role may be legitimate and useful. This is not to say that any mistake or inaccurate formulation that can be detected in the documentation of its proceedings and deliberations would point to the absence of rationality as required by this Court. I therefore limit my assumption to the question whether the Legislature materially misunderstood its powers and obligations under the Constitution.

[75] Before turning to the Legislature’s understanding of its constitutional role in the constitutional amendment process, we must clarify the constitutional position regarding the powers of a provincial legislature to propose amendments or to vote against a bill of the kind of the Twelfth Amendment, or a part of it, in the NCOP. This is necessary especially in view of the conflation of concepts and the confusion that appear in the submissions of some of the parties. A close look at the relevant parts of sections 74, 75 and 76 of the Constitution is required.

[76] Section 75 deals with ordinary bills not affecting provinces. After being passed by the National Assembly, the bill must be referred to the NCOP. The NCOP must then pass the bill, pass the bill subject to amendments by it, or reject the bill. In the case of an amendment, the bill must be reconsidered by the National Assembly.[54]

[77] Section 76 deals with ordinary bills affecting provinces and provides for the referral of a bill to the NCOP, where the bill can be passed, amended or rejected. In the event of an amendment, the amended bill must be referred back to the National Assembly. If the Assembly refuses to pass the amended bill, it must be referred to the Mediation Committee.[55]

[78] Section 74, on the other hand, deals with bills amending the Constitution. Section 74(3) specifically requires that a bill altering provincial boundaries be supported by six provinces.[56] Section 74(8) requires approval by the legislature of a province affected by a bill that alters provincial boundaries for the bill or the relevant part of it to be passed by the NCOP.[57]

[79] Rule 174(3) of the Joint Rules of Parliament states that if only a part of a bill requires the approval of a specific provincial legislature and the province refuses to grant the approval, that part of the bill lapses, but the rest of the bill may be proceeded with subject to amendments needed to remove the affected part of the bill.[58] In terms of Rule 174(4) the bill must be referred back to the National Assembly for reconsideration and amendment, in the event of this happening.[59]

[80] Therefore, if a provincial legislature does not approve a bill altering its boundaries in the NCOP, the part related to the boundaries of that province must be severed from the bill and lapses. The rest of the bill may be proceeded with. However, the severance requires an amendment and the bill must be referred back to the National Assembly for that amendment to be made. The amendment referred to here is the formal amendment that is required for the severance.

[81] Unlike sections 75 and 76, section 74 does not provide for substantive amendments in the NCOP and for referral back to the National Assembly to consider these amendments. Although the NCOP fulfils an important function in the protection of provincial interests, there is no scope for debate and for substantive amendments as far as bills altering provincial boundaries are concerned. The reason is of course the mandated nature of the process.[60] Delegates to the NCOP vote on the basis of provincial mandates. They cannot agree to support an amendment which they have not been mandated by their provincial legislatures to support.

[82] It is therefore clear that the Gauteng Provincial Legislature could not propose an amendment to the Twelfth Amendment Bill in the NCOP to provide for the inclusion of Merafong in Gauteng instead of in North West. What was apparently envisaged when the negotiating mandate was agreed to was not possible, namely to support the Bill, but to ensure that Merafong would be in Gauteng. Gauteng could indeed effectively veto the part of the Bill that altered its boundaries, which would then have to be severed and would lapse, while the rest of the Bill might have been proceeded with. Furthermore, if more than three provinces voted against the Bill, the entire Bill could not have been passed, in terms of section 74(3)(b)(ii).[61] The legal advice given to the Legislature’s delegate to the NCOP does not seem to be at odds with this position.[62]

Was the Gauteng Provincial Legislature’s final decision to support the Twelfth Amendment Bill based on a materially correct appreciation of its constitutional role? Did it materially misunderstand its constitutional powers and obligations?

[83] One could refer to a number of sources to find the answer to this question, including statements by different office-bearers of the Gauteng Provincial Legislature. The language used is not necessarily precise and the contents of the statements are not always consistent. This underlines the above-mentioned difficulties in trying to establish the motivation or legal knowledge of a legislature. The final voting mandate is, however, specifically put forward in the Legislature’s answering affidavit as demonstrating the factors that informed the Portfolio Committee’s final recommendation. It differed from the negotiating mandate. I take the two mandates as the basis for the enquiry.

[84] One disagreement between the judgment of Moseneke DCJ and mine relates to the Portfolio Committee’s position in the negotiating mandate. My colleague’s judgment interprets the negotiating mandate to mean that the Portfolio Committee conditioned its approval of the Bill on the inclusion of only “Merafong-Gauteng” in Gauteng. In my view, the Portfolio Committee sought an amendment to the Bill to include all of the Merafong City Local Municipality in Gauteng. My understanding is based on the contents of the document, the public submissions preceding it, the presentation of the applicants’ case and the debate in the Select Committee of the NCOP.

[85] In the negotiating mandate, the Portfolio Committee concluded that the effect of the Bill would “be the exclusion of the Merafong Municipality from the Gauteng Province and its inclusion into the North West Province”. The effect of the Bill would of course have been that the part of Merafong in Gauteng would become part of North West. But the Portfolio Committee clearly did not intend its reference to “Merafong Municipality” to be confined solely to “Merafong-Gauteng”. As stated earlier, the Merafong City Local Municipality has been, since its inception, a cross-boundary municipality straddling both Gauteng and North West. A distinction is not made between the two parts of Merafong. The Portfolio Committee’s attention is addressed to the entire municipality. The negotiating mandate concludes that the Gauteng Provincial Legislature should support the Bill “on condition that the municipal area of Merafong is included in the municipal area of the West Rand District municipality of the Gauteng Province.”

[86] The community’s written submissions, which culminated in the negotiating mandate, in large part also advocated that the entire municipality be located in Gauteng. For example, the community made the following recommendation:

“The Merafong City Local Municipality, taking all relevant factors into account, and after consultation with the community, herewith submit a fully motivated request that, should action be taken to do away with cross-boundary municipalities, the total area of jurisdiction be included in the Gauteng Province.”

[87] The Khutsong/Carletonville community[63] believed that “Merafong should form part of Gauteng on both Municipal and Provincial Boundary.” Included within the submission is an additional recommendation to allow Khutsong/Carletonville to remain in Gauteng. Taken together, these two recommendations appear to suggest that the citizens of Khutsong were concerned that the entire municipality be located in Gauteng, with special concern for their own community, Khutsong. This interpretation is supported by a further submission from the Khutsong/Carletonville community, which recommended that—

“it is evident that Merafong City Local Municipality forms an integral and integrated part of the West Rand and therefore Gauteng Province and a separation of [these] areas will have a substantial negative impact on the economic, social and institutional stability and development of the area as a whole.”

[88] Many community submissions recounted the creation of the cross-boundary municipality, Merafong Local City Municipality. The Wedela community, in North West,[64] submitted in writing:

“[T]he movement of people and goods between Wedela [located in North West] and Carletonville [located in Gauteng] is such that Wedela could by right be viewed as a suburb of Greater Carletonville and hence the integration of the two municipalities into Merafong City in 2000.”

The submission concluded with an identical recommendation that “Merafong should form part of Gauteng on both Municipal and Provincial Boundary.”

[89] Terminology such as that Merafong must “remain” in Gauteng of course appears in the papers. This does not mean that only “Merafong-Gauteng” is referred to. In fact, the “inclusion” of Merafong in Gauteng is also referred to in the papers and “Merafong-Gauteng” was of course already in Gauteng, before the Twelfth Amendment. It is understandable that the expression of the community’s wishes would be focused more on the larger part of Merafong and the majority of its population, situated in Gauteng before the Twelfth Amendment, than on the smaller part and the minority in North West. This does not mean, though, that the community of Merafong wanted its minority to be cut off from the rest and left in a province which they regard as unacceptable.

[90] My understanding of the case presented on behalf of the applicants is also not that they were seeking a division of Merafong through an order declaring the part of the Twelfth Amendment that transferred only “Merafong-Gauteng” to North West inconsistent with the Constitution and invalid. In Prayer 1 of their amended notice of motion,[65] a declaration is after all sought that the Gauteng Provincial Legislature failed to comply with its constitutional obligation to facilitate public involvement. This is the main relief claimed. Prayer 2 seeks a declaration that the relevant part of the Twelfth Amendment is therefore unconstitutional and invalid. The process of consultation, which the applicants submit amounts to insufficient facilitation of public involvement, never dealt with the Gauteng part of Merafong only. The public hearing was in fact a joint venture between Gauteng and North West and submissions were made by and on behalf of those Merafong residents who were at that stage residing in North West. If the consultation process fell short of meeting constitutional requirements, I cannot understand how it could render only the part of the Twelfth Amendment that relocates “Merafong-Gauteng” invalid, without affecting the part relating to Merafong in North West. It is the boundary between Gauteng and North West which is at stake.

[91] The wording of the applicants’ amended notice of motion is somewhat confusing. Prayer 1 refers to the part of the Twelfth Amendment “which concerns the Merafong City Local Municipality in the province of Gauteng”, whereas it is well-known that this municipality was a cross-boundary municipality in both Gauteng and North West. Prayer 2 mentions “that part of the area of Merafong City Local Municipality (CBLC8) from the province of Gauteng to the province of North West”, but, as stated above, it is difficult to see how only that part could be unconstitutional, within the context of the applicants’ case as a whole.

[92] In the applicants’ founding affidavit the following statement appears:

“The Applicants support the well motivated conclusion therein (par4 thereof) that Merafong City Local Municipality forms an integral and integrated part of the West Rand and therefore Gauteng Province and a separation of these areas will have a substantial negative impact on the economic, social and institutional stability and development of the area as a whole.”

[93] The Minister believed that the applicants intended this paragraph to state the following:

“The applicants appear to accept that there was no logical basis to re-draw the boundaries of North West and Gauteng Provinces in a way which would have divided Merafong into two or more separate areas that were located into different provinces. The applicants expressly accept that a separation of Merafong into different areas would have a substantially negative impact on the economic, social and institutional stability, as well as the development of Merafong as a whole. This is significant, because Merafong would have had to be located, in its entirety, either in Gauteng or North West Provinces. It was logically necessary to re-draw the boundaries of Gauteng and North West Provinces in a way which located Merafong, in its entirety in one or other province.”

This statement was not denied by the applicants in the replying affidavit, even though the prior and subsequent paragraphs were expressly disavowed.

[94] The final voting mandate, under the heading “Committee Position after Consideration of the Negotiating Mandates by the NCOP Select Committee”,[66] describes the position taken at the time of the negotiating mandate as the Portfolio Committee’s “qualified support” for the Bill. According to the Committee, the negotiating mandate indicated that Gauteng would support the Bill on condition that the municipal area of Merafong be included in the municipal area of the West Rand District Municipality in Gauteng. The final voting mandate then states that the Portfolio Committee – subsequent to deliberations and negotiations in the Select Committee and after hearing diverse positions that were advanced – reviewed their initial position, notwithstanding the views of the public. The Portfolio Committee thus recognised that they changed their view, and that their newly adopted position did not correspond with the views expressed by the majority of the community before the formulation of the negotiating mandate.

[95] The statement in the final voting mandate that provinces can only adopt or reject the Bill in terms of section 74(8) and “say (aye or nay)” has been criticised as an indication of a misconception on the part of the Portfolio Committee. However, the next sentence in the same paragraph provides the context. It states that amendments in the NCOP are not permissible. This is of course correct, as illustrated above.[67] Gauteng had to vote for or against the Twelfth Amendment Bill. As explained above,[68] the part altering its boundaries would have been severed and lapsed, if it voted against it. It could not vote conditionally.

[96] The document then refers to the deliberations and negotiations in the NCOP Select Committee and to the Portfolio Committee’s consideration of the substance of the issues raised. The change of position was based on a number of reasons. The first two are nothing new, namely that the Committee supports the phasing-out of cross-boundary municipalities and that Gauteng supports the creation of viable and sustainable municipalities with a proper revenue base.

[97] The document then deals with a third reason, namely the implications of Gauteng not supporting the Twelfth Amendment Bill. It then makes three points.

[98] The first of the three points is that if Gauteng’s “veto” applies to the whole Bill as it relates to cross-boundary municipalities, the Cross-boundary Municipalities Laws Repeal Bill would have to be withdrawn from Parliament and the local government elections would be conducted within the existing municipal configuration with cross-boundary municipalities. This statement is heavily criticised by Moseneke DCJ, but I do not agree with the criticism. The wording in the final voting mandate may be less than accurate. Of course, Gauteng on its own could not “veto” the Bill as a whole. However, if three or more other provinces also opposed the Bill, it could not be passed. Furthermore, the Portfolio Committee recognised that opposition to the Bill may have consequences. Read within the context of a proper understanding of section 74(8), and the rest of the final voting mandate, this statement cannot be said to indicate a materially wrong understanding on the part of the Committee of its constitutional powers.

[99] The document secondly deals with “a narrow interpretation” and talks of a “veto” or rejection of the part of the proposed Schedule 1A that defines Gauteng’s territory. It recognises its power to veto or cause the severance of the part of the Twelfth Amendment affecting its boundaries. It states that the result would be that the basis for cross-boundary municipalities would be revoked, but the current boundary of Gauteng would remain the same. The consequences are then described.

[100] Thirdly, the document notes that municipal boundaries in Gauteng would still be determined with reference to magisterial districts and elections would be conducted “within the current municipal configuration”, which was actually changed for the rest of the country by the Twelfth Amendment.

[101] With these considerations in mind, the Portfolio Committee adopted the final voting mandate, which provided:

“In terms of Section 65 of the Constitution, the Local Government Portfolio Committee recommends that the House confer authority on the head of its delegation to the NCOP, to Vote in Support of the Constitution Twelfth Amendment.”

[102] It cannot be said that the Portfolio Committee laboured under a material misconception of its constitutional powers and obligations. In substance it was clearly aware of its power to cause the severance of the part of the Twelfth Amendment Bill that affected its boundaries, or effectively to veto that part. It considered this option and decided against it. The view of the applicants that the Committee was mistaken results from a conflation of the concepts of a substantive amendment in the NCOP (which was impossible), the power to vote for or against the Bill (which the Gauteng Provincial Legislature had), and the power of effectively vetoing a part of the Bill (which the Portfolio Committee realised was possible and indeed considered).

[103] In his judgment, Moseneke DCJ goes further than the applicants in questioning the rationality of the Gauteng Provincial Legislature’s conduct. He expresses the view that Gauteng could have supported the Bill, but declined to support that part of the Bill relating to the incorporation of “Merafong-Gauteng” into North West. The twin objectives of terminating cross-boundary municipalities and defeating the redrawing of its boundaries could have been achieved simply by voting in favour of the Bill, while declining to support that part of the Bill which affected its boundary. It was not necessary to turn away from the negotiating mandate. The judgment states that a veto related to the municipal area of Merafong is localised and discrete and cannot possibly affect the municipal boundaries of the rest of Gauteng. The effect of the veto would be no more than that the part of the area of Merafong City Local Municipality that fell within the municipal area of the West Rand District Municipality would remain in Gauteng, which is what the amendment sought to achieve. The judgment criticises the Portfolio Committee’s exposition of the possible consequences of a veto. It finds aspects of the Committee’s reasoning startling and evident of a baseless grandiose notion of the legal consequences of the veto.[69]

[104] For a number of reasons I am respectfully unable to

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South Africa: Constitutional Court

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10 (13 June 2008)