Yonatan Fessha, Dullah Omar Institute, University of the Western Cape
Relevance of the Practice
The act of demarcating boundaries does not have a pleasant history in South Africa. Boundary making was part of the series of instruments that the apartheid government used to disadvantage the black majority while advantaging the white minority. The reasons for boundary changes have evolved over time in South Africa: ‘For much of the period between 1948 and 1994, South Africa’s experimentation with decentralisation focused on demarcating jurisdictions and organising governance on the basis of race, rather than on the basis of functional linkages or similar criteria’.[1] Probably it is that history of abusing boundary making for partisan purposes that convinced the negotiator of the current Constitution to agree on the establishment of an independent institution that is responsible for demarcating municipal boundaries. That saw the establishment of the Municipal Demarcation Board (MDB). The Municipal Demarcation Act of 1998 gives the board the power to determine or re-determine municipal boundaries in South Africa. The act provides not only the criteria that the MDB must use when demarcating municipal boundaries, as mentioned in the preceding entry, but also the procedure that must be followed when demarcating boundaries. At the centre of that is the duty to facilitate public involvement.
Description of the Practice
The Constitution of South Africa provides for both representative and participatory forms of democracy, making the involvement of the local community in key decision-making processes mandatory.[2] Based on this constitutional imperative, the Municipal Demarcation Act requires the process of demarcation to be both participatory and inclusive. There is one board only which is responsible for all municipal demarcations, that is both urban and rural municipalities, and it applies the same rules across both types of municipalities as determined by the act. According to the act, the MDB begins the process of determining a municipal boundary by notifying stakeholders and the public in general of the board’s intention to consider the matter, and inviting members of the public to submit their views on the matter (Section 26 of the Municipal Demarcation Act). The board can also hold a public hearing. It can also conduct ‘a formal investigation’. The board must also make sure that its engagement with the public is ‘as inclusive as possible’. This often takes the form of ad hoc meetings with relevant interested parties (i.e. business organizations, residents’ associations, traditional leaders in rural areas, etc.), including the organisation of stakeholders’ workshops.
Although the board has the obligation to consider all submissions and views expressed during public hearing, it is not bound by those submissions and views. The consent of the affected municipality is not required. In fact, the board is not specifically required to obtain the view of the relevant municipality. Neither is the approval of the residents of the affected municipality necessary for alteration of local boundaries. The final power of making determinations rests with the board. That is why the board, on a number of occasions, made decisions that went against the clearly expressed wishes of communities demanding or opposing local boundary changes. There are, however, cases where persistent community protests forced the MDB to look further into the demand and conduct further feasibility studies though those did not always result in changing the decisions of the board.
Sometimes, local boundary changes happen as a result of a change in provincial boundaries. According to the Constitution, a constitutional amendment that affects a particular province cannot pass ‘unless it has been approved by the legislature or the legislatures of the province or provinces concerned’ (Section 74(8)). The validity of provincial support to pass the amendment, in turn, depends on the provincial legislature effectively discharging its duty of facilitating public involvement (Section 118 of the Constitution). From this, it is clear that, first, the consent of the affected municipality is not a requirement even if the proposed changes may result in a municipality or part of a municipality moving from one province to another. Second, the public must be consulted. Again, although the provincial legislature has the duty to facilitate public involvement, the public does not have the power to veto the proposed changes.
In 2006, the Constitutional Court invalidated the constitutional amendment that enabled the transfer of the Matatiele Municipality (predominantly rural) from the KwaZulu-Natal province to the Eastern Cape province on the ground that the KwaZulu-Natal legislature had not consulted with the people of Matatiele. The Court suspended the declaration of invalidity for a period of 18 months to give the government time to rectify the procedural irregularities. In 2007, the Government and Parliament invited the public to make written submissions in relation to the proposed amendment. In that same year, the KwaZulu-Natal legislature held a number of town-hall meetings and hearings. Once the government was convinced that it had addressed the procedural defects, it enacted the Thirteenth Amendment transferring again Matatiele to the Eastern Cape. Members of the Matatiele community objected to the decision and brought a case again before the Constitutional Court. Although they admit that both national and provincial legislatures had facilitated public involvement this time, they argued that the submissions of the residents of the Matatiele Municipality and their representatives were not properly considered. They argued that the national and provincial authorities ‘merely went through the motions in inviting submissions and arranging public meetings so as to secure constitutional compliance of the outcome of the process’.[3]
In its ruling, the Constitutional Court cautioned against conflating the duty to engage the public and duly consider their views with the duty to be bound by the views of the public. Compliance of the legislature with the duty to consult the public does not depend on the extent to which the views of the public are reflected in the final decision. Although the Court acknowledges that the views of the public must be taken into account, it insisted that public opinion does not have a binding impact on Parliament and the decisions it takes. In the words of the Court, ‘public involvement and what it advocates do not necessarily have to determine the ultimate legislation itself’.[4]
In another case on local boundary changes, involving the City of Merafong in Gauteng, discussed below, the Court has emphasised the non-binding nature of public views.
‘[B]eing 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.[5]
In Merafong, the Court had to deal with another issue pertaining to the extent of public consultation that has to take place. Unlike KwaZulu-Natal that initially failed to involve the public in the decision-making process affecting Matatiele, the Gauteng provincial legislature ensured that the public was consulted regarding the decision to transfer part of the Merafong City Local Municipality from Gauteng to North West, where the other part of the same municipality was located before the passing of the Twelfth Amendment. This public consultation included an opportunity to submit both oral and written submissions. The general observation from the public consultation was that the public was opposed to the transfer. Based on this, the Gauteng delegation to the National Council of Provinces, South Africa’s second chamber of Parliament, was instructed by the provincial legislature to oppose the transfer of Merafong to North West. When it was told that the bill, which included the proposal to place not only Merafong but also a number of other cross-border municipalities within a single province, had to either be supported or opposed in its entirety, the Gauteng delegation made a U-turn and, without further engagement with the residents of the municipality, withdrew its objection to the transfer of Merafong. The decision of Gauteng raised the procedural issue of whether the provincial legislature was ‘required to engage in a second consultation’. The Court held that the omission to consult again does not amount to a failure to facilitate public involvement in the processes of the Gauteng Provincial Legislature.
It goes without saying that residents of urban and rural areas do not have equal access to public hearings. However, the rural areas, which are often under-serviced and under-resourced, are home to a population that is characterised by low levels of literacy and poor education. They are also far from the urban centres where most hearings are often held. This means that any effort to engage the public, including in processes of demarcation of boundaries, must take into account the particular challenges that a rural population faces. This may require preparing the rural population in advance to make sure that they engage meaningfully. It may also involve providing transport to members of rural communities to ensure that they attend hearings.
Assessment of the Practice
From the foregoing, it is clear that public consultation is an indispensable element of the process of local boundary changes. The views of the affected communities must be taken seriously. Failure to comply with the duty of facilitating public involvement has the effect of invalidating the decision. At the same time, the views and sentiments of the public are not binding. This clearly shows that the process of local boundary changes in South Africa is not only top-down (in so far as the initiation does not come from the local level) but also coercive. Neither the local government nor the local population has the final say on local boundary changes. Finally, although there are encouraging developments that aim at improving the participation of rural communities in key decision-making processes, they are not implemented consistently. More needs to be done to facilitate the involvement of rural communities in the processes of the MDB.
References to Scientific and Non-Scientific Publications
Legal Documents:
Constitution of the Republic of South Africa, 1996
Local Government: The Municipal Demarcation Act 27 of 1998
Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC)
Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC)
Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5
Scientific and Non-Scientific Publications:
Van Ryneveld P, ‘The Making of a New Structure of Fiscal Decentralization’ in Bert Helmsing, Thomas Mogale and Roland Hunter (eds), Restructuring the State and Intergovernmental Fiscal Relations in South Africa (Friedrich-Ebert-Stiftung and Graduate School of Public and Development Management, University of Witwatersrand 1996)
[1] Philip Van Ryneveld, ‘The Making of a New Structure of Fiscal Decentralization’ in Bert Helmsing, Thomas Mogale and Roland Hunter (eds), Restructuring the State and Intergovernmental Fiscal Relations in South Africa (Friedrich-Ebert-Stiftung and Graduate School of Public and Development Management, University of Witwatersrand 1996).
[2] For more, see the Introduction to People’s Participation in Local Decision-Making in South Africa, report section 6.2.
[3] Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC).
[4] Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5, para 62.
[5] Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC), para 50.