Constitutional challenge to Moutse demarcation process postponed
20 November 2008
Lawyers for Human Rights welcomes the decision of theConstitutional Court today to postpone the hearing of the Moutse demarcationdispute in order to allow the Minister of Provincial and Local Government anopportunity to address the concerns of the Moutse community regarding theirtransfer from Mpumalanga and to Limpopo.
The Minister's request to court follows his recent statementthat government is now willing to reconsider its decision to transfer theMoutse community. This development vindicates the Moutse community's oppositionagainst the deeply flawed legislative process that preceded Moutse's incorporationinto Limpopo Province.
In terms ofthe order the Minister must file an affidavit with the Court within four weeks.In this affidavit the Minister will clarify his recent statements to the mediaand set out the steps that government will take to accommodate the concerns ofthis historic community.
Background to this case
This case concerns a direct application by the people ofMoutse to the Constitutional Court in order to challenge the validity of theConstitution Twelfth Amendment Act of 2005 which transferred Moutse fromMpumalanga to Limpopo. Moutse is a semi-rural community situated approximately150 km north east of Pretoria on the border between Limpopo and Mpumalangaprovinces.
The applicants contend that the constitutional amendment wasinvalid for two reasons, namely -
1.1. the Amendment was irrational and not capable of achieving the underlying government purpose forwhich it was enacted, namely to improve service delivery in areas that wereformerly cross-border municipalities; and
1.2. the Mpumalanga Provincial Legislature failed to comply with its constitutionalobligation to facilitate public participation, in that -
1.2.1. itrefused or failed to consult properly with the Moutse community; and
1.2.2. thatsubmissions made by the Moutse community were not properly placed before theMpumalanga Legislature; and the Mpumalanga Legislature did not validly confer amandate on its NCOP representatives to vote in favour of the
In light of serious implications of the change in provincialboundaries and severe impact it has on the Moutse community this applicationseeks to have the provincial boundaries re-drawn to reincorporate Moutse intothe Mpumalanga province.
2. Moutse's history
2. Moutse'shistory - and its current geographical boundary - is intimately tied up withthe Apartheid government's policy of separate development and the creation of"homelands" for different ethnic groups. This application is based on theassumption that:
2.1. thenew provincial boundary is drawn on the basis of the apartheid delineations;
2.2. thisperpetuates the apartheid injustice; and
2.3. addsto the irrationality of the provincial boundary.
3. TheMoutse area has been inhabited since at least 1780, by a predominantlyNorth-Sotho population. As wasacknowledged in the TRC Report section on Moutse, the community is one of thelongest-established in the region and they "have resided in the area longenough to claim, albeit without proof, that their boundaries were personallylaid down by Paul Kruger."
4. In1879, and following a period of resistance to colonial rule, Moutse wasincorporated into the Republic of South Africa. The Moutse community continued to live there, buying farmsin the development trust areas and slowly increasing their presence in the area. However, approximately nine farms inthe Moutse area were bought and occupied by an Ndebele community. This area was later to becomeSiyabuswa.
5. In1971, pursuant to the provisions of the Black Authorities Act 68 of 1951 andthe Self-Governing Territories Constitution Act 21 of 1971, the LebowaLegislative Assembly was created, purportedly to govern and protect the affairsof North-Sotho people. By Proclamation R224 of 1972, the territory of Lebowawas increased to include Moutse. However, the nine farms occupied by theNdebele community were officially excised from the area and remained in SouthAfrica, precisely because the population of the farms was predominantly Ndebelerather than North-Sotho. Significantly, by 1972, a decision had been taken to create a homelandfor the Ndebele people.
6. InSeptember 1973, it was determined that the KwaNdebele homeland would stretchfrom Dennilton - which is in Moutse - westwards. The 1975 select committee for Bantu Affairsspecifically recommended that Moutse be incorporated into KwaNdebele.
7. KwaNdebelehomeland was established and the KwaNdebele Legislative Assembly was created byProclamation 205 of 1979. Siyabuswa became the capital of KwaNdebele. Initially, however, the remainder of Moutse remained inLebowa and was not part of KwaNdebele.
8. However,in 1980 and pursuant to several proposals made by the Commission ofCo-operation and Development, the Government of South Africa issuedProclamation R210 of 1980, which excised Moutse from Lebowa and placed it underthe control of the Central Government. The intention was to transfer Moutse, in time, to KwaNdebele.
9. TheMoutse community was vehemently opposed to incorporation into KwaNdebele, andnotified the South African Government of this fact at the time. The Governmentof Lebowa challenged the validity of the proclamation removing Moutse from itsterritory on the basis, inter alia, that there had been insufficient consultation with theCabinet of Lebowa on the issue.
10. Inresponse, the South African government passed the Laws on Co-operation andDevelopment Act 102 of 1983, which was enacted to "remove any possible doubtconcerning the area of the self-governing territory of Lebowa" and confirmed the excision ofMoutse from Lebowa.
11. On 31December 1985, the Government of South Africa issued Proclamation R227 of 1985,which incorporated Moutse into the territory of KwaNdebele. On that night, vigilante groups invadedthree areas in Moutse to force its compliance with incorporation. The groups were accompanied by theKwaNdebele police force. Thestrife over Moutse's incorporation led to such widespread violence andrepression that the TRC held a special three-day inquiry in Moutse, whichgenerated over 250 statements, reporting almost 700 gross human rightsviolations. Moutse's excision fromthe territory of Lebowa and its incorporation into KwaNdebele were eachchallenged as unlawful in Government of Lebowa v Government of theRepublic of South Africa and Mathebe v Regering van die Republiek vanSuid-Afrikarespectively.
12. TheCourt upheld the excision of Moutse from Lebowa. However, in Mathebe, the Appellate Division found thatMoutse had been incorporated into KwaNdebele for administrative reasons, ratherthan in pursuance of the policy of separate development. The incorporation was accordinglyinvalid and Moutse remained in South Africa. Siyabuswa continued to be part of KwaNdebele.
13. This history reveals that -
13.1. Siyabuswaand Moutse are effectively a single geographical unit. The only basis for creating a boundarybetween them arises from the policy of separate development and the belief thatdifferent ethnic groups should be administered separately.
13.2. Theinfrastructure of Siyabuswa and Moutse were inextricably linked even at thattime, and it was recognized that it would be considerably easier to provideresources to Moutse from KwaNdebele - the current area of Mpumalanga. This continues to be the case to thisday, as will become clear below.
13.3. TheMoutse community has historically been disenfranchised and disregarded in mattersconcerning its citizenship and status - to its own detriment and despite itprotest. The need to ensure properconsultation with the Moutse community to rectify this was particularly acute.
14. As a result of thisanti-incorporation history, Moutse developed a specific identity and remainedvery political. At 1994, there were some problems about which province toincorporate Moutse into - and whether to re-unify Moutse with Siyabuswa. As aresult, the decision was delayed and Moutse remained outside the usualprovincial structure.
15. In 1999, Moutse was included inMpumalanga, but as a cross-border municipality - meaning that part of it lay inthe province of Mpumalanga and part of it lay in the (much poorer) province ofLimpopo. Its services were to be provided by Mpumalanga.
16. In 2005, the SA Government decidedthat cross-border municipalities should be done away with, because they werenot being properly provided with services - each province would pass the buckto the other.
17. To abolish cross-border municipalities,the Legislature passed a constitutional amendment re-drawing the provincialboundaries. The Moutse community made several unsuccessful attempts tomake verbal and written submissions to government. The government also refusedto conduct any meaningful public hearings in the Moutse area before thedeadline. Despite vociferous opposition, Moutse was included in Limpopo, ratherthan in Mpumalanga. The incorporation of the Moutse community intoLimpopo has had enormous impact on the community, in that -
- where Moutse previously had free water and was part of a project to get piped water from the Mpumalanga provincial government, they are now provided only with "watercan" water by the Limpopo province, and must buy water.
- since hospitals are run by the provinces and one must attend the hospital within one's province, the Moutse people are not allowed to go to their closest hospital. The allocated hospital within Limpopo is significantly further away and many people cannot afford the ambulance fees.
- whereas Mpumalanga provided transport to school to learners who lived a certain distance away, this service is not provided by Limpopo. The nearest college has remained in Mpumalanga, meaning that Moutse students potentially cannot attend there.
- whereas Mpumalanga has various agricultural projects that provide seeds and support to farmers, Limpopo has no equivalent schemes available to the people of Moutse. Moutse 1 is a predominantly rural area.
For more information, please contactJacob van Garderen on 082 820 3960 or Jacob [at] lhr [dot] org [dot] za