Matatiele Municipality and Others v President of the Republic of South Africa and Others

Matatiele Local Municipality was located in the Sisonke District Municipality in KwaZulu-Natal. The Constitution Twelfth Amendment Act 2005 altered the provincial boundary between KwaZulu-Natal and the Eastern Cape, transferring Matatiele Municipality from KwaZulu-Natal to the Eastern Cape's Alfred Nzo District Municipality. The Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 was enacted to address cross-boundary municipality issues. The applicants (Matatiele Municipality and various community organizations, businesses, educators, and associations) challenged both Acts as unconstitutional, arguing they circumvented the constitutional process for municipal boundary re-demarcation. The Municipal Demarcation Board had previously recommended that Matatiele remain in KwaZulu-Natal, contrary to the Minister's proposal. The matter was urgent as local government elections were scheduled for 1 March 2006. While the applicants initially conceded that proper constitutional procedures under section 74 were followed, the Court identified potential issues regarding compliance with section 74(8) (provincial legislature approval) and section 118(1)(a) (public involvement in provincial legislative processes).

• Whether the Constitution Twelfth Amendment Act unconstitutionally usurped the powers of the Municipal Demarcation Board under section 155(3)(b) of the Constitution
• Whether Parliament's power to alter provincial boundaries under section 74(3)(b) includes the incidental power to affect municipal boundaries
• Whether the Twelfth Amendment was passed in accordance with the procedural requirements of section 74(8) of the Constitution
• Whether section 74(8) requires compliance with section 118(1)(a) regarding public involvement in provincial legislative processes
• Whether the KwaZulu-Natal Provincial Legislature complied with section 118(1)(a) in approving the boundary amendment
• Whether non-compliance with section 41 (co-operative government) invalidated the legislative process
• Whether the Cross-Boundary Municipalities Laws Repeal and Related Matters Act is constitutional
• Whether it is in the interests of justice to grant direct access to the Constitutional Court
• Whether the Court should raise and determine constitutional issues not advanced by the applicants

The Court did not make a final order on the constitutional validity of the Twelfth Amendment Act or the Repeal Act. The elections scheduled for 1 March 2006 were allowed to proceed. The matter was postponed to 30 March 2006 for further hearing on: (1) whether section 74(8) requires compliance with section 118(1)(a); (2) what section 118(1)(a) requires and whether KwaZulu-Natal and Eastern Cape provincial legislatures complied; (3) the effect of non-compliance on the validity of provincial approval; (4) the effect on the Twelfth Amendment; (5) the implications for affected municipal areas and elections if the Amendment is invalid; and (6) whether a constitutional amendment must comply with rationality and whether the Twelfth Amendment did so. The Speakers of KwaZulu-Natal and Eastern Cape Provincial Legislatures and the Electoral Commission were joined as parties. The Second and Third Respondents were given an opportunity to provide further information about the objectives of relocating Matatiele to the Eastern Cape. Directions were given for filing of affidavits and written submissions. Costs were reserved for final determination.

Parliament's constitutional power under section 74(3)(b) to alter provincial boundaries necessarily includes the incidental power to affect municipal boundaries to the extent reasonably necessary to give effect to the power to alter provincial boundaries. The powers of the Municipal Demarcation Board under section 155(3)(b) to determine municipal boundaries are subject to and limited by Parliament's power to redefine provincial boundaries. Section 155(3)(b) and section 74(3)(b) can be harmonized by understanding that once provincial boundaries have been redefined by Parliament, it is the task of the Board to demarcate municipal boundaries within those provincial boundaries in accordance with the Demarcation Act. A Constitutional amendment that alters provincial boundaries by reference to municipal areas does not, on that basis alone, unconstitutionally usurp the powers of the Municipal Demarcation Board.

The Court made several important obiter observations: (1) Courts are not bound by incorrect legal concessions, particularly where important constitutional issues are involved (following AZAPO). (2) Section 74(8) appears to give provinces a veto power over boundary changes affecting them to protect their territorial integrity and the section 21(3) rights of their residents to remain in their province. (3) It is arguable that section 74(8) requires compliance with section 118(1)(a), meaning provincial legislatures must afford affected communities a fair opportunity to make representations when approving boundary changes. (4) The meaning of "facilitate public involvement" in section 118(1)(a) requires careful consideration - mere information may not be sufficient; active participation through submissions may be required. (5) Government has a constitutional duty to provide courts with reasons for legislative choices to promote transparency, accountability and enable proper judicial review, particularly regarding rationality. (6) Constitutional amendments, like other legislation, must be rationally related to legitimate government purposes. (7) The Intergovernmental Relations Framework Act 13 of 2005 excludes Parliament and provincial legislatures from its ambit, though the Court expressed no view on whether this exclusion is constitutional. (8) Sachs J emphasized that openness, accountability and rationality are interconnected constitutional values, and that "the legitimacy of laws made by Parliament comes not from awe, but from openness." (9) The minority observed that even if there was non-compliance with section 118(1)(a), setting aside the Amendment might put form over substance given approval by two-thirds of the National Assembly and provincial legislatures including KwaZulu-Natal's elected representatives.

This case is significant for several reasons: (1) It clarifies the relationship between Parliament's power to alter provincial boundaries and the Municipal Demarcation Board's power to determine municipal boundaries, establishing that the Board's powers are subject to Parliament's boundary alteration powers. (2) It raises fundamental questions about the procedural requirements for constitutional amendments affecting provincial boundaries, particularly the interplay between section 74(8) and section 118(1)(a) regarding public participation. (3) It addresses whether courts are bound by legal concessions and when it is appropriate for courts to raise constitutional issues not advanced by applicants. (4) It emphasizes constitutional values of accountability, responsiveness, openness and rationality in government action. (5) It highlights the tension between judicial restraint and the court's constitutional duty to uphold the Constitution. (6) It demonstrates the practical and constitutional complexities that arise when provincial boundaries are altered shortly before elections. (7) The minority judgment raises important questions about when it is in the interests of justice for courts to investigate issues not pursued by applicants, particularly in urgent matters. (8) The case underscores the importance of public participation in democratic processes, particularly where communities are being transferred between provinces. (9) It illustrates the protection of the right to remain in one's province under section 21(3) of the Constitution through the provincial veto mechanism in section 74(8).