South Africa: High Courts - Gauteng

NGOEPE JP, HARTZENBERG et SERITI JJ:

On 27 February 2006 after having indicated that the applicants’ papers do not show that the applicants have properly raised their concern about a free and fair election with the first respondent, that the papers do not indicate that there is a real fear that the security forces will be unable to enforce law and order and protect individuals from intimidation by unruly elements and that the first and the second respondents have powers to have the election postponed in terms of sections 8 and 9 of the Local

Government: Municipal Electoral Act, No. 27 of 2000 and may still do so, we dismissed the application, reserved costs and indicated that reasons would be given later. These are the reasons, and the decision on costs.

         This matter is a direct consequence of the Constitution Twelfth Amendment Bill (“the Twelfth Amendment”) but in an extremely peculiar way. It concerns the stated policy to do away with cross-border municipalities. It was brought as an urgent application to postpone the municipal elections which were scheduled for 1 March 2006 in the Merafong City Local Municipality (“the Merafong municipality”). The Merafong municipality was established as part of the West Rand District Municipality on the 1^st October 2000. It was amalgamated with the then Carletonville Transitional Local Council, portions of Gatsrand Rural Council, the then Fochville Transitional Council, Wedela Transitional Council and the surrounding farm portions situated in the North West Province.

         It was recommended that it together with Westonarea Local Municipality were to remain in the West Rand District municipality as part of Gauteng. There is a perception in th t community that the social services and infrastructure of Gauteng are better than those provided by the North West Province. Despite the recommendation the Minister of Provincial and Local Government, the second respondent, forwarded contrary proposals to the Municipal Demarcation Board, the third respondent. The import thereof was that the Merafong Municipality was to be excluded from the West Rand District Municipality and included in the Southern District Municipality, in the North West Province. Westonarea Municipality was to remain in Gauteng.

         The community of Merafong was upset about the proposal and took several steps to avoid the inclusion of Merafong in the North West Province. Petitions were submitted to the Speaker, who referred the matter to a Portfolio Committee. There was a public hearing. Presentations were made. The Portfolio Committee and Local Government supported the phasing-out of cross-border municipalities but recommended the inclusion of Merafong Municipality in Gauteng. Despite the recommendation the Twelfth Amendment was promulgated. Merafong now falls in the North West Province.

         The case for the applicants, according to the second applicant, who acts as a spokesman for an organization calling themselves the Merafong Community, and two other individuals was that there is unrest in the area, because of the high-handed manner in which the Twelfth Amendment came to be promulgated. In the founding affidavit the second applicant stated on behalf of the first applicant that its members were upset by the manner in which the Twelfth Amendment came to be promulgated and burnt down houses and resorted to violence . It was alleged that there were threats of violence if the election was to go on, on 1 March 2006. They expressed a fear that if the election was to go on the buildings that were to be used as voting stations would be burnt down, that people who would try to vote could be molested and that people would stay away out of fear of harm to themselves. The second applicant stated that he would have liked to make himself available for public office but that as a result of the unrest he was not able to do so. His affidavit is silent as to exactly what office he had in mind and why it was impossible for him to put himself forward as a candidate.
         Ms. Tlakula, on behalf of the first respondent, the Independent Electoral Commission, pointed out that there were 89 026 voters in the Merafong municipality, of whom 30 220 were in the Khutsong area. A voters’ roll had been prepared, certified and published. Eight political parties had submitted nominations for not only proportional representation seats but also for ward seats. Ballot papers had been printed. Voting districts and stations had been established. The first respondent had already appointed and trained 521 voting officers in the Merafong municipality and purchased things like ballot booths, ballot boxes, tables, chairs and stationary to be used at polling booths. She stated that at a committee meeting of 22 February 2006 the security in the Khutsong area was discussed. During the discussion representatives of two political parties tabled a request for a postponement of the elections in the area. The representatives did not pursue the request further. No one of the applicants approached the IEC with a formal request for a postponement. It was further indicated that the IEC had been assured by the security services that persons who wanted to vote would have been able to do so.

The Premier of Gauteng gave a brief resum of how the Twelfth Amendment came to be promulgated, setting out all the procedural steps. The representative of the second respondent challenged the second applicant to prove his allegation that he was acting on behalf of the community by requiring of him to supply a list with the names and particulars of the other members of the community who supported the application

         What is of interest about the applicants’ application was that no case had been made out, that apart from the dissatisfaction with the Twelfth Amendment, there was any other reason why the election could not be held. The applicants said that the promulgation of the Twelfth Amendment was unconstitutional and that it would be challenged in the Constitutional Court. They felt confident that the Constitutional Court would declare the Bill unconstitutional. As a matter of fact the constitutionality of the Bill then had already been challenged, by an interested municipality, the Matatiele Municipality, in the Constitutional Court and the parties were awaiting the judgment which had been reserved. Just before we made the order in this matter the Constitutional Court judgment in the Matatiele matter was handed down. The order was that the matter is postponed to 31 March 2006 for the joining of further parties and placing of further evidence before the Constitutional Court. There is yet no finality. It must, however, be borne in mind that the applicants’ case is that they will abide the decision of the Constitutional Court either way.

         On an analysis of the situation it is clear that there is no nexus between the Twelfth Amendment and the elections. The community of Merafong has remedies, in terms of the Constitution, to test the correctness of their inclusion in North West Province. In the first place the Constitutional Court will deal with the matter authoritatively. All they have to do is to wait for the decision of that court. Their second remedy is a democratic one which lies therein that by their vote they can elect those people who will enhance their interests and avoid that people who do not do so get elected.

         They maintain that because of the unrest their democratic right to free and fair elections will be impaired and that for that reason the election must be postponed. According to the papers before us they are the authors of whatever unnatural conditions exist in their area. It has already been stated that the founding affidavit indicates that the members of the applicant resorted to violence because they were unhappy with the Twelfth Amendment. The deponent was challenged in the second respondent’s answering affidavit to give the names of members of the community who support the application. In the replying affidavit the approach was completely different. It was stated that the deponent can only organize lawful action. All of a sudden all the residents of Khutsong became law-abiding citizens who only wanted to vote but whose Constitutional right to vote was impaired by a number of ruffians who were responsible for the violence and who are unknown to the law-abiding citizens. The inference is inevitable that it is the members of the applicant, who, instead of going along the proper democratic way to have their complaint tested and, if applicable, rectified, are following an undemocratic and anarchist way of compelling not only the Government but all the other citizens of the country to give in to their demands.

If their rights have not been entrenched in the Constitution one could possibly understand their actions. Their rights have been entrenched, what they are doing is unlawful, immature and a threat to our democracy. A resort to violent demonstrations like the burning down of the houses of individuals or of the public library is not to be countenanced in a democratic society. Its only purpose is blackmail. It is usually done by people who would not restore what they have destroyed. It only leaves the country poorer.

         The applicants alleged that they had a clear right to vote and that the election had to be postponed in order that they could exercise that right. They have a clear right to vote but they have decided to use the election as a political lever to have their wish. Insofar as there is a state of unrest the applicants themselves have created it. It is in the interest of the country that elections take place in a peaceful atmosphere. Insofar as the applicants succeed with their threats to disrupt the election we can only hope that the perpetrators will be arrested and prosecuted relentlessly.

         We reserved the question of costs because it often happens, when matters pertaining to the Bill of Rights are tested in a bona fide manner in the courts, and are of public interest, that the court will not mulct a bona fide but unsuccessful applicant with costs. As has been stated hereinbefore the applicants are far from bona fide. The application was not brought to safeguard the right to vote. It was brought with the ulterior purpose of using the election to force Parliament to amend the Twelfth Amendment. The applicants must therefore
pay the costs of the application.

         The applicants are ordered to pay the costs, which costs include, where applicable, the costs of two counsel.

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B M NGOEPE
JUDGE PRESIDENT OF THE HIGH COURT

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W J HARTZENBERG
JUDGE OF THE HIGH COURT

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W.L. SERITI
JUDGE OF THE HIGH COURT.