A court challenge to the incorporation of the Merafong municipality into the North West will be welcomed by Provincial and Local Government Minister Sydney Mufamadi.
”We haven’t received any letters, but we generally know that the Khutsong community wants to approach the Constitutional Court — and the minister welcomes that,” Mufamadi’s spokesperson Zandi Ratshitanga said this week. ”We live in a democracy that gives protest and court as an option, but it doesn’t allow for violence.”
Recent anti-demarcation protests in Khutsong resulted in barricaded roads, petrol bombs and stones thrown at police and passing vehicles, as well as the petrol-bombing of two houses.
Papers to overturn the demarcation will be filed in the Constitutional Court ”hopefully” within the next four weeks, said advocate Rudolph Jansen, national director of Lawyers for Human Rights.
The case will argue that insufficient consultation with residents had taken place and question whether the demarcation had been a rational exercise, he said. ”This case is one with very narrow issues legally — of course, socially and politically there are a lot of ramifications.”
Demarcation
Merafong formally became part of the North West in December last year, said municipal spokesperson Seabo Gaeganelwe. The municipality was one of 17 affected when the final green light was given to legislation doing away with cross-boundary municipalities by the National Council of Provinces.
Gaeganelwe said the issue was demarcation, not incorporation. ”Part of our area fell within North West and parts fell within Gauteng — we were actively controlled by two provinces.”
A court challenge is a constitutional option for those not satisfied with the decision, but it will come from outside the municipality, he said.
”We’ve accepted the decision. For us it will not make any difference if we fall within Gauteng or North West because we will still have access to the same services that we have now and that we had before.”
The South African Communist Party chairperson in Khutsong Jack Mathige, whose house was one of those petrol-bombed in the recent protests, said the anti-demarcation application is supported by ”98%” of people in Khutsong.
”We must challenge it — the only solution is to challenge the demarcation through the Constitutional Court. Our case is clear.”
Similar matter
The Constitutional Court ruled on a similar matter for the Matatiele municipality last year. The demarcation was found to be unconstitutional and the state given 18 months to ”cure the procedural problems”, said Jansen.
He said a letter of demand was written to the state following the judgement, asking whether the government would concede to a similar order for Khutsong. Lawyers for Human Rights then agreed to give the state attorney until January 15 to indicate its client’s attitude.
No formal reply was received and the matter was referred to counsel to prepare papers, he said.
This week, Mufamadi said he was satisfied that sufficient consultation was undertaken before integrating the area into the North West, South African Broadcasting Corporation news reported.
Ebrahim Fakir, researcher at the Centre for Policy Studies, said a ”reasonable precedent” had been set with the Matatiele case but that the government could probably show that it had fulfilled minimum consultative processes in Khutsong.
”The crucial question is: What do we conceive of as consultation and participation? Consultation can’t just be about fulfilling procedural requirements.”
Fakir said there is ”a legitimacy and credibility crisis on hand” in Khutsong. ”Which doesn’t mean that government is not legitimate or credible — it’s just that the process of consultation and participation was not seen to be legitimate and credible.”
The protests point to a gap in the ”responsiveness and depth of representation” of elected representatives to the residents, he said.
Protesters in court
Meanwhile, the trial of 13 people, including a Merafong councillor, arrested during the most recent anti-demarcation protests in Khutsong was postponed in the Khutsong District Court on Friday.
Councillor Kenneth Foteng appeared on charges of assault and pointing a firearm. He will reappear in the Carletonville Regional Court on April 16. More stringent bail conditions were set down for him on Friday. These included that he should not interfere with witnesses or participate in meetings that could have a bearing on the case.
The 12 others will reappear in the Khutsong Distict Court next Tuesday.
Nine of the 13 were arrested for public violence and three people, caught looting during the protests, were arrested for house-breaking. — Sapa