The Constitutional Court on Friday refused the Khutsong community’s bid to be reincorporated into Gauteng from North West.
”It is not ours to decide where Merafong should be located. That is a political decision that must be made elsewhere,” said Justice Thembile Skweyiya.
His judgement was one of six separate judgements on the matter.
The majority of the court’s judges found the Gauteng legislature was correct when it decided to approve the movement of the Merafong municipal council to North West.
Members of the Merofong community asked the Constitutional Court to declare that the Gauteng provincial legislature failed to comply with its constitutional obligation to facilitate public involvement during the process of changing provincial boundaries, which saw Merofong become part of the North West.
In the alternative, they sought a declaration that the legislature failed to exercise its powers rationally when it voted to support the Bill that allowed the provincial amendment in the National Council of Provinces (NCOP).
Applicants from the Merofong community said the laws used to create the demarcation were inconsistent with the Constitution and invalid.
In a majority judgement, Justice Johann van der Westhuizen said there had been a valid public participation process preceding the provincial amendment.
”The public meeting [held with the community to find out their perspective on the proposed shift into North West] was not a cynical charade, but held in good faith.”
He said that after the public hearing, the portfolio committee actually appeared to agree with the majority of the community. But later, the Bill allowing the amendment was passed in the NCOP and the community was not informed of this switch around.
”In this case possibly discourteous conduct does not equal unconstitutional conduct, which has to result in the invalidity of the legislation.
”Politicians, who are perceived to disrespect their voters or fail to fulfil promises without explanation, should be held accountable,” said Van der Westhuizen.
”A democratic system provides possibilities for this, one of which is regular elections.”
‘Voters must deal with bad politics’
Justice Skweyiya said the applicants were convinced that their service delivery would be better if their municipality was situated in Gauteng rather than North West.
”It is not the function of this court to decide whether it is more appropriate for the Merafong city local municipality to be in Gauteng or in North West,” said Skweyiya.
”Courts deal with bad law; voters must deal with bad politics,” he said.
In a minority judgement, Justice Tholie Madala called the state of affairs in Merafong a ”debacle”.
”The flames of discontent raging in the community require a serious effort in dousing those flames, and should not be dismissed lightly on technicalities.
”I lay the cause of the debacle at Merafong squarely at the foot of the Gauteng provincial legislature, and for that reason cannot go along with the decision … that the present application should be dismissed without further ado, as it were.”
Madala said he blamed the Gauteng legislature’s ”about-turn” from the mandate it had got from the people during public participation processes for the chaos that then ensued.
”The legislature deviated from that mandate and took a different position in the final voting mandate, which reduces their conduct to irrational.
”It appears as though the legislature misunderstood its role in the legislative process. It did not bother to go back to the community,” said Madala.
”In my view, the turnaround by the legislature was the precipitate cause of the debacle that has influenced the feelings of the community.”
Justice Albie Sachs also said that while the public participation process was a ”good start” by the legislature, it ”stumbled badly at the last hurdle”.
”It ended up failing to exercise its responsibilities in a reasonable manner, with the result that it seriously violated the integrity of the process of participatory democracy.”
Sachs said: ”In choosing not to face the music [which, incidentally, it had itself composed], it breached the constitutional compact requiring mutuality of open and good-faith dealing between citizenry and government, and thereby rendered the legislative process invalid.”
Earlier, members of the Merafong Demarcation Forum said they would march through the Johannesburg CBD to the African national Congress headquarters at Luthuli House if the judgement did not go their way.
The community has been engaged in sometimes violent and often disruptive protests since the area was officially incorporated into North West after 2006 local government elections. — Sapa