Twelfth Amendment of the Constitution of South Africa
Encyclopedia
The Twelfth Amendment of the Constitution of South Africa
(formally the Constitution Twelfth Amendment Act of 2005) altered the boundaries of seven of South Africa's nine provinces
. It also redefined all of the province's geographical areas in terms of the areas of district and metropolitan municipalities
, and repealed the provisions introduced by the Third Amendment
that allowed municipal areas to cross provincial boundaries. A number of the boundary changes were highly controversial and led to popular protest and court challenges.
that crossed provincial boundaries, permitted since the introduction of the Third Amendment
, which led to complications in budgeting and service delivery. The second was the boundary between the Eastern Cape
and KwaZulu-Natal
, where there was the large Umzimkhulu
exclave of the Eastern Cape surrounded by KwaZulu-Natal, and the smaller Mount Currie exclave of KwaZulu-Natal surrounded by the Eastern Cape.
The Twelfth Amendment added to the constitution Schedule 1A, entitled "Geographical Areas of Provinces", which listed for each province a series of maps depicting the boundaries of the district municipalities
that made up the territory of the province. These maps were published by the Municipal Demarcation Board
in Notice 1998 of 2005. The amendment also replaced section 103 of the constitution; the original text of this section defined the provincial boundaries by reference to the 1993 constitution, while the substituted text defined them by reference to Schedule 1A.
The boundary changes which resulted from the amendment were:
These changes had the result of eliminating all cross-border municipalities and all exclaves or enclaves. The only provinces not affected were the Western Cape
and the Free State.
The amendment also removed the provisions, inserted by the Third Amendment, that permitted cross-boundary municipalities to exist.
The Matatiele Municipality
, along with local community and business organisations, challenged the validity of the Twelfth Amendment before the Constitutional Court
, on the grounds that Parliament had usurped the powers of the Municipal Demarcation Board
to alter municipal boundaries, and that the KwaZulu-Natal Legislature
had not carried out the necessary public participation before approving the amendment. (Constitutional amendments affecting a specific province must be approved by that province's legislature, and all legislative bodies are required to facilitate public participation in their decisions.) The court disagreed with the first claim but agreed with the second, ruling that the part of the amendment that transferred Matatiele to the Eastern Cape was invalid. The court, however, suspended the ruling of invalidity for eighteen months to allow Parliament to re-enact the changes with the necessary public participation. The changes were later re-enacted as the Thirteenth Amendment
, which survived a similar court challenge.
The people of Khutsong
resorted to marches, protests (in some cases violent) and boycotts and stayaways. In the 2006 municipal elections, only 220 valid votes were cast in Khutsong despite there being nearly 30 000 registered voters. In 2009 the Merafong City Municipality
, which contains Khutsong, was transferred back to Gauteng by the Sixteenth Amendment
.
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
(formally the Constitution Twelfth Amendment Act of 2005) altered the boundaries of seven of South Africa's nine provinces
Provinces of South Africa
South Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
. It also redefined all of the province's geographical areas in terms of the areas of district and metropolitan municipalities
Districts of South Africa
South Africa is divided into 52 districts . The 12th amendment to the Constitution reduced this number from 53. Another effect of this amendment is that each district is now completely contained within a province, thus eliminating cross-border districts. The districts also cover the entire area of...
, and repealed the provisions introduced by the Third Amendment
Third Amendment of the Constitution of South Africa
The Third Amendment of the Constitution of South Africa made changes to allow the creation of municipalities that cross provincial boundaries. It was enacted by the Parliament of South Africa, signed by President Mandela on 20 October 1998, and came into force on the 30th of the same month...
that allowed municipal areas to cross provincial boundaries. A number of the boundary changes were highly controversial and led to popular protest and court challenges.
Provisions
Before the Twelfth Amendment, the Constitution defined the provinincial boundaries by reference to the previous Interim Constitution, which defined them in terms of magistrates' court districts and the areas of the former bantustans. The government identified two issues with the existing boundaries: the first was the existence of municipalitiesMunicipalities of South Africa
Municipalities in South Africa are a division of local government that lie one level down from provincial government, forming the lowest level of democratically elected government structures in the country. The foundation for this layer of government is set out in Chapter 7 of the Constitution of...
that crossed provincial boundaries, permitted since the introduction of the Third Amendment
Third Amendment of the Constitution of South Africa
The Third Amendment of the Constitution of South Africa made changes to allow the creation of municipalities that cross provincial boundaries. It was enacted by the Parliament of South Africa, signed by President Mandela on 20 October 1998, and came into force on the 30th of the same month...
, which led to complications in budgeting and service delivery. The second was the boundary between the Eastern Cape
Eastern Cape
The Eastern Cape is a province of South Africa. Its capital is Bhisho, but its two largest cities are Port Elizabeth and East London. It was formed in 1994 out of the "independent" Xhosa homelands of Transkei and Ciskei, together with the eastern portion of the Cape Province...
and KwaZulu-Natal
KwaZulu-Natal
KwaZulu-Natal is a province of South Africa. Prior to 1994, the territory now known as KwaZulu-Natal was made up of the province of Natal and the homeland of KwaZulu....
, where there was the large Umzimkhulu
Umzimkhulu Local Municipality
Umzimkhulu Local Municipality is an administrative area in the Sisonke District of KwaZulu-Natal in South Africa. Umzimkhulu is an Xhosa language and an isiZulu name meaning “Big/Great house”....
exclave of the Eastern Cape surrounded by KwaZulu-Natal, and the smaller Mount Currie exclave of KwaZulu-Natal surrounded by the Eastern Cape.
The Twelfth Amendment added to the constitution Schedule 1A, entitled "Geographical Areas of Provinces", which listed for each province a series of maps depicting the boundaries of the district municipalities
Districts of South Africa
South Africa is divided into 52 districts . The 12th amendment to the Constitution reduced this number from 53. Another effect of this amendment is that each district is now completely contained within a province, thus eliminating cross-border districts. The districts also cover the entire area of...
that made up the territory of the province. These maps were published by the Municipal Demarcation Board
Municipal Demarcation Board
The Municipal Demarcation Board is an independent authority responsible for delimiting the boundaries of South African districts and municipalities and the boundaries of the electoral wards within those municipalities.- General :...
in Notice 1998 of 2005. The amendment also replaced section 103 of the constitution; the original text of this section defined the provincial boundaries by reference to the 1993 constitution, while the substituted text defined them by reference to Schedule 1A.
The boundary changes which resulted from the amendment were:
- the transfer of Carletonville and KhutsongKhutsongKhutsong is a township on the West Rand of South Africa, and scene of widespread unrest since February 2006. It is situated close to the town of Carletonville , in the Merafong City Local Municipality of the Gauteng province.-Riots:...
from GautengGautengGauteng is one of the nine provinces of South Africa. It was formed from part of the old Transvaal Province after South Africa's first all-race elections on 27 April 1994...
to the North WestNorth West (South African province)North West is a province of South Africa. Its capital is Mafikeng. The province is located to the west of the major population centre of Gauteng.-History:...
. - the transfer of GroblersdalGroblersdalGroblersdal is a farming town situated 32 km North of the 178 million m³ Loskop Dam in the Sekhukhune District of Limpopo.The town is South Africa's second largest irrigation settlement...
and parts of SekhukhunelandSekhukhune District MunicipalitySekhukhune is one of the 6 districts of Limpopo province of South Africa. The seat of Sekhukhune is Groblersdal. The majority of its 967 126 people speak Northern Sotho...
from MpumalangaMpumalangaMpumalanga , is a province of South Africa. The name means east or literally "the place where the sun rises" in Swazi, Xhosa, Ndebele and Zulu. Mpumalanga lies in eastern South Africa, north of KwaZulu-Natal and bordering Swaziland and Mozambique. It constitutes 6.5% of South Africa's land area...
to LimpopoLimpopoLimpopo is the northernmost province of South Africa. The capital is Polokwane, formerly named Pietersburg. The province was formed from the northern region of Transvaal Province in 1994, and initially named Northern Transvaal...
. - the transfer of BushbuckridgeBushbuckridgeBushbuckridge is a city and municipality in the Mpumalanga province of South Africa. The name was given because of the large herds of antelope that were found there in the 1880s. The town grew around a trading store which opened in 1884...
from Limpopo to Mpumalanga. - the transfer of UmzimkhuluUmzimkhulu Local MunicipalityUmzimkhulu Local Municipality is an administrative area in the Sisonke District of KwaZulu-Natal in South Africa. Umzimkhulu is an Xhosa language and an isiZulu name meaning “Big/Great house”....
from the Eastern CapeEastern CapeThe Eastern Cape is a province of South Africa. Its capital is Bhisho, but its two largest cities are Port Elizabeth and East London. It was formed in 1994 out of the "independent" Xhosa homelands of Transkei and Ciskei, together with the eastern portion of the Cape Province...
to KwaZulu-NatalKwaZulu-NatalKwaZulu-Natal is a province of South Africa. Prior to 1994, the territory now known as KwaZulu-Natal was made up of the province of Natal and the homeland of KwaZulu....
. - the transfer of Matatiele from KwaZulu-Natal to the Eastern Cape.
- the transfer of Moshaweng from the North West to the Northern CapeNorthern CapeThe Northern Cape is the largest and most sparsely populated province of South Africa. It was created in 1994 when the Cape Province was split up. Its capital is Kimberley. It includes the Kalahari Gemsbok National Park, part of an international park shared with Botswana...
. - minor expansions of Gauteng's boundaries at the expense of Mpumalanga and the North West.
These changes had the result of eliminating all cross-border municipalities and all exclaves or enclaves. The only provinces not affected were the Western Cape
Western Cape
The Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...
and the Free State.
The amendment also removed the provisions, inserted by the Third Amendment, that permitted cross-boundary municipalities to exist.
Opposition
Some communities were unhappy about being transferred from one province to another; in particular the people of Matatiele and Khutsong were dissatisfied at being included in the Eastern Cape and the North West, respectively. In both cases the "new" province was seen as being less well-resourced than the "old" province.The Matatiele Municipality
Matatiele Local Municipality
Matatiele Local Municipality is an administrative area in the Alfred Nzo District of Eastern Cape in South Africa.The name is derived from the Sesotho language and it means "the ducks have flown", in an apparent reference to the abundance of waterflow that even today inhabit the surrounding pools...
, along with local community and business organisations, challenged the validity of the Twelfth Amendment before the Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
, on the grounds that Parliament had usurped the powers of the Municipal Demarcation Board
Municipal Demarcation Board
The Municipal Demarcation Board is an independent authority responsible for delimiting the boundaries of South African districts and municipalities and the boundaries of the electoral wards within those municipalities.- General :...
to alter municipal boundaries, and that the KwaZulu-Natal Legislature
KwaZulu-Natal Legislature
The KwaZulu-Natal Legislature is the primary legislative body of the South African province of KwaZulu-Natal. It is unicameral in its composition, and elects the premier and the provincial cabinet from among the members of the leading party or coalition in the parliament.-Officers:* Speaker - N.P...
had not carried out the necessary public participation before approving the amendment. (Constitutional amendments affecting a specific province must be approved by that province's legislature, and all legislative bodies are required to facilitate public participation in their decisions.) The court disagreed with the first claim but agreed with the second, ruling that the part of the amendment that transferred Matatiele to the Eastern Cape was invalid. The court, however, suspended the ruling of invalidity for eighteen months to allow Parliament to re-enact the changes with the necessary public participation. The changes were later re-enacted as the Thirteenth Amendment
Thirteenth Amendment of the Constitution of South Africa
The Thirteenth Amendment of the Constitution of South Africa re-enacted provisions of the Twelfth Amendment which the Constitutional Court ruled had not been validly enacted...
, which survived a similar court challenge.
The people of Khutsong
Khutsong
Khutsong is a township on the West Rand of South Africa, and scene of widespread unrest since February 2006. It is situated close to the town of Carletonville , in the Merafong City Local Municipality of the Gauteng province.-Riots:...
resorted to marches, protests (in some cases violent) and boycotts and stayaways. In the 2006 municipal elections, only 220 valid votes were cast in Khutsong despite there being nearly 30 000 registered voters. In 2009 the Merafong City Municipality
Merafong City Local Municipality
Merafong City Local Municipality is a local municipality in West Rand District Municipality, Gauteng, South Africa. Its boundaries enclose some of the richest gold mines in the world...
, which contains Khutsong, was transferred back to Gauteng by the Sixteenth Amendment
Sixteenth Amendment of the Constitution of South Africa
The Sixteenth Amendment of the Constitution of South Africa transferred Merafong City Local Municipality from North West to Gauteng, altering the boundary between the two provinces...
.
External links
- Official text (PDF)