Khutsong battle reaches Constitutional Court

A string of senior advocates acting for state institutions opposed an application by Khutsong residents in the Constitutional Court on Thursday.

Outside, police fired rubber bullets at residents protesting against their municipality, Merafong, being included in North West province.

More than 1 000 protesters scattered into the streets of Braamfontein in Johannesburg but some later regrouped. Earlier, protesters burned tyres and there were also reports of stone throwing.

A large number of police officers were keeping the protesters well away from the courtroom where their legal team was arguing that parts of the Constitutional Twelfth Amendment Act—which transferred to the North West the Merafong municipality under which Khutsong falls—be declared invalid.

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Ismael Semenya, SC, acting for President Thabo Mbeki, the minister of provincial and local government, and the minister of justice and constitutional development, said the decision to move Merafong was based on the need to do away with cross-provincial municipalities in an attempt to improve service delivery.

Semenya said the decision was rational because if the Merafong municipality had been left in Gauteng, the equitable share of Gauteng would have greatly increased, and that of North West province would have been proportionately reduced, raising a question over North West’s viability.

Arguing on behalf of the Gauteng Provincial Legislature, advocate Vincent Maleka, SC, said a sufficient public participatory process had taken place since both written submissions were accepted and there had been a public hearing.

The residents argue that the government failed to fulfil its constitutional obligation to engage the public before taking the decision to incorporate Merafong. While they admit that written submissions were invited and a public hearing held, they said the decision to move Merafong was already taken when the submission were invited.

Maleka was bombarded with questions about this submission by the ten Constitutional Court judges.

Two other advocates appearing for the North West government and the premier of the province also addressed the court.

Earlier, legal counsel for the Merafong Demarcation Forum faced a string of queries.

The 10 judges of the court interrupted and questioned advocate Andre Louw, who represents the Merafong community and the residents of Khutsong.

He argued that the government failed to fulfil its constitutional obligation to engage the public before taking the decision to incorporate Merafong.
Louw contended that the decision to rezone the municipality was not rational.

At one stage, Chief Justice Pius Langa told Louw to “take charge” of his arguments.

At several times Louw also faced questions from more than one judge at a time. - Sapa

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