The Minister for Justice and Constitutional Development intends introducing the Constitution Thirteenth Amendment Bill of 2007, in the National Assembly.
Private Bag X 81, Pretoria, 0001, by not later than 25 June 2007. Electronic mail address: Jolabuschame@iustice.gov.
To amend the Constitution of the Republic of South Africa, 1996, so as to correct invalid provisions inserted into the Constitution; and to provide for matters connected therewith.
to the Constitution of the Republic of South Africa, 1996, as inserted by section 4 of the Constitution Twelfth Amendment Act of 2005 1.
No. 3 of Schedule 1to Notice 1998 of 2005 Map No. 6 of Schedule 2 to Notice 1998 of 2005 Map No.
Map No. 22 of Schedule 2 to Notice 1998 of 2005 Map No.
No. 27 of Schedule 2 to Notice 1998 of 2005 Map No.
Map No. 30 of Schedule 2 to Notice 1998 of 2005 Mal, No.
This Act is called the Constitution Thirteenth Amendment Act of 2007.
(now Act No. 23 of ZOOS), that provided for consequential matters as a result of the re-alignment of former cross-boundary municipalities and the re-determination of the geographical areas of provinces.
1.2 The constitutional validity of the Constitution Twelfth Amendment Act of 2005 (hereinafter referred to as the "Twelfth Amendment"), and the Cross-boundary Municipalities Laws Repeal and Related Matters Act, 2005 (hereinafter referred to as the "Repeal Act"), was challenged in the Constitutional Court in the case of Matatiele Municipality and Others v President of the Republic of South Africa and Others 2006 (5) BCLR 622 (CC). In terms of these Acts the provincial boundary between, amongst others, the provinces of the Eastern Cape and KwaZulu-Natal was altered so that the area that previously formed the local municipality of Matatiele (hereinafter referred to as the "Matatiele municipality") was transferred from the province of KwaZulu-Natal to the province of the Eastern Cape and new municipal boundaries were created as a consequence.
On 27 February 2006 the Court rejected the applicants' main argument that in passing the Twelfth Amendment Parliament unconstitutionally usurped the powers of the Municipal Demarcation Board to re-determine municipal boundaries. The Court further ruled that the local government elections scheduled for 1 March 2006 should be proceeded with. The Court, however, called for further argument on, amongst others, whether that part of the Twelfth Amendment that concerns the provinces of the Eastern Cape and KwaZulu-Natal was passed in accordance with the procedural provisions of the Constitution. This further hearing was to take place after the said local government elections had been held and the results had been declared.
Natal to the province of the Eastern Cape to be inconsistent with the constitution and therefore invalid.
of the Constitution, when it considered whether or not to approve that part of the Constitution Twelfth Amendment Bill of 2005 that transferred the Matatiele municipality from the province of KwaZulu-Natal to the province of the Eastem Cape. As a result of the interrelationship between the Twelfth Amendment and the Repeal Act, the Court also declared that part of the Repeal Act which relates to the Matatiele municipality to be inconsistent with the Constitution and therefore invalid. The orders of invalidity were suspended for a period of 18 months, during which period Parliament has the opportunity to correct the constitutional defect that led to the order of invalidity.
1.3 The Constitutional Court's order of invalidity was formulated with reference to the Matatiele municipality only.
Natal, It could, therefore, further he argued that because the order of invalidity was based on a procedural defect, the other provisions of the Twelfth Amendment that effected boundary changes to the province of KwaZulu-Natal will, if challenged in the Constitutional Court, also be found to be unconstitutional as a result of the failure of the KwaZulu-Natal provincial legislature to facilitate the required public involvement.
1.4 The view has been expressed that although the constitutional defect that gave rise to the order of invalidity only relates to the failure of the KwaZulu-Natal provincial legislature to facilitate the required public involvement by not consulting on the proposed changes to its provincial boundary, it appears not possible to attend to this defect in isolation. As a result of the "knock-on effect" on municipalities that are now located in the province of the Eastern Cape, the further view has been expressed that any proposed legislative amendments that are intended to rectify the constitutional defect that led to the Constitutional Court's order of invalidity must also include references to the province of the Eastern Cape.
2.1 From the judgment in the Mutatiele-case it is clear that new legislation, namely a Constitution Amendment Bill, must be processed afresh in a manner that complies with all constitutional and procedural requirements.
2.2 The Bill is premised on the principle that only those provisions of the Constitution that are affected by the failure of the KwaZulu-Natal provincial legislature to have facilitated the required public involvement (in other words all the provisions that refer directly to the provinces of the Eastern Cape and KwaZulu-Natal), are to be substituted and re-enacted.
2.3 The Bill therefore seeks to amend the Constitution so as to substitute and re-enact those provisions of the Constitution that have been declared to be inconsistent with the Constitution and therefore invalid by the Constitutional Court in the Matutiele-case.
STAATSKOERANT, 25 ME1 2007 No. 29910 7 only, it is, for the reasons set ant in paragraphs 1.3 and 1.4 necessary to substitute and re-enact all the provisions in the constitution that refer directly to the provinces of the Eastern Cape and KwaZulu-Natal and not only those that refer to the Matatiele municipality.
The Eastern Cape provincial legislature facilitated the required public involvement when it considered whether or not to approve that part of the Constitution Twelfth Amendment Bill of 2005 that concerned it. The Bill, however, also seeks to substitute and re-enact those provisions of the Constitution that refer directly to the province of the Eastern Cape and, therefore, the Eastern Cape provincial legislature must again facilitate the required public involvement when it considers whether or not to approve that part of the Bill that concerns it.