LHR: Lack of consultation to blame for Sasolburg violence

South Africa has again been gripped by images of violence, anger and looting in the wake of a decision by Cooperative Governance and Traditional Affairs Minister Richard Baloyi and the Municipal Demarcation Board to merge two municipalities near Sasolburg in the Free State. By Thursday, four people had been reportedly killed and many more displaced after a week of violent protest against the planned merger.

Unfortunately, these images are nothing new and neither are the decisions which ignite them.  Violence erupted in towns like Khutsong and Moutse when similar decisions were made to move those municipalities between provinces. The common complaint between both communities was a lack of consultation by political leaders regarding drastic changes to local government. It is easy to criticise local residents for turning to violence over something which seems so administrative but it is far more than that. Local government is extremely close to the people. Local counsellors are members of the public and live, or have lived, among them. Daily stories about corruption, a lack of basic services and the difficulties in overcoming systemic poverty has left people sullen, frustrated and feeling as if they don’t matter. As if they are pawns to be traded between provinces and municipalities without due regard. 

This is why public consultation in such decisions is so important. Living in poverty is bad but being ignored is worse. It is not enough to only be heard once every five years. Our democracy demands more. Unfortunately, we have seen the results of being ignored on television. Not just in Sasolburg but in Khutsong and Moutse as well. Those communities tried to find an alternative voice and brought their disputes to the Constitutional Court. Both cases dealt with the public’s right to be consulted in the legislative process that relocates entire communities from one province to another. While the court did not necessarily agree with them, they listened. They did engage, albeit through their lawyers. 

In the longest running Constitutional Court case, the Moutse community argued that their relocation from Mpumalanga to Limpopo in 2005 was invalid on the grounds that the decision to adopt the pre-existing apartheid-era boundary was irrational and that there was insufficient public participation in the decision to remove the community from Mpumalanga. Interestingly, the Moutse community has had a long history before the country’s courts, dating back to the 1970s when the Supreme Court of Appeal found that their forced relocation from the Lebowa homeland to KwaNdebele was unlawful. Much like the recent examples of Sasolburg and Khutsong, the forced incorporation of Moutse in the 1980s led to widespread political violence in the area. After 1994, when the new government decided to increase the country’s provinces from four to nine, Moutse originally wanted to be incorporated into Gauteng. After negotiations with ANC officials, however, they were incorporated into Mpumalanga when the Constitution was adopted. After a restructuring process in the early 2000s they were moved again, this time to Limpopo. This was done in terms of the Constitution’s 12th Amendment Act of 2005 which the people of Moutse unsuccessfully sought to declare constitutionally invalid.

The government often makes the argument that courts have no place in dictating policy to the state.  The separation of powers is an important constitutional principle that must be respected and, more often than they are given credit for, courts agree. It is a principle of our democratic regime that courts will only interfere in government decisions when such decisions are unlawful. Unfortunately, whether correctly or not, governments (at national, provincial and local levels) have taken this as a green light to water down what it means to consult the public. A meeting at a local beer hall regarding a decision that was taken hundreds of kilometres away in a government head office is insufficient.  Now the people are demanding more - they are demanding to be heard. 

When such views are neglected or ignored, violence may break out. This is not because poor people are inherently violent but because some still feel they have no voice. In Khutsong, the government’s attitude towards consultation with local residents meant children were unable to go to school for an entire year. We don’t know yet what the outcome will be in Sasolburg. What we do know is that shops have been looted, foreign nationals again targeted and families grieving over members killed in the violence. 

The minister has announced that the merger of the municipalities will be halted for further investigations. Had proper consultation and appreciation of the residents’ views been taken from the beginning, we would not be in the position we are today. We can only hope that governments at all levels, and controlled by whichever political party, will finally get the message that the people’s opinions matter and they must - and will - be heard. 

Written by David Cote, Lawyers for Human Rights

• Lawyers for Human Rights represented both the Khutsong and Moutse communities before the Constitutional Court.