Johannesburg — THE dismissal of an application by residents of Khutsong opposed to their municipality being part of North West has raised questions about the legislature's duty to facilitate public involvement.

The Constitutional Court on Friday dismissed the application by residents who wanted the court to declare that the Gauteng legislature failed to comply with its constitutional obligation to facilitate public involvement before the approval of the Constitution Twelfth Amendment Bill by the National Council of Provinces.

The court produced six judgments , four of them against the residents' application.

In 2000 the Merafong City Local Municipality was established within the West Rand District Municipality. The smaller part of Merafong fell in North West, while the larger part, including Khutsong, fell in Gauteng.

According to an explanatory memorandum published with the Twelfth Amendment Bill in August 2005, numerous problems had been experienced in administering cross-border municipalities.

The Presidential Co-ordinating Council had resolved in 2002 that all municipalities should fall be incorporated into a single province. The Twelfth Amendment Bill gave effect to this resolution and located all of Merafong in North West.

In November 2005 the Gauteng local government portfolio committee held public hearings with affected communities. The Merafong community agreed in principle with the phasing out of cross-boundary municipalities but the majority were opposed to the incorporation of Merafong into North West.

On December 5 2005, the portfolio committee changed its mind and recommended that Merafong be part of North West.

In a majority judgment, Judge Johann van der Westhuizen said the legislature had fulfilled its duty to facilitate public involvement. He found the legislature took reasonable measures to solicit public comment, and said the submissions by the public were taken into account. Although the portfolio committee failed to report to the community when it changed its position, this did not equate to unconstitutional conduct.

However, in a dissenting judgment, Deputy Chief Justice Dikgang Moseneke said the legislature failed to exercise its power rationally.

" When the p rovincial l egislature abandoned its decision not to approve the b ill and resolved to support the bill, it acted without a proper appreciation of its powers and duties and therefore irrationally. Its decision does not meet the rationality standard imposed by our c onstitution. In my view, the decision of the p rovincial l egislature to approve the b ill is therefore invalid," Moseneke said.

Van der Westhuizen said it might have been desirable to tell the people of Merafong that it was impossible to adhere to the position first taken by the portfolio committee.

"To the extent that the community was given the impression that the c ommittee agreed with them and that an understandable expectation was created that their views would prevail, it was possibly disrespectful not to return to inform them of subsequent events," he said.

Moseneke said the province could have supported the b ill but declined to support that part of it relating to the incorporation of Merafong into North West.

"This is so because the power and duty of a province in relation to ... a constitutional amendment that redraws its boundary must be distinguished from the power and duty it bears in relation to any other constitutional amendment."

Judge Tholakele Madala, who supported Moseneke, wrote a judgment in which he laid the cause of the "debacle" at Merafong squarely at the door of the Gauteng legislature.

"Having sounded the views of the community which were overwhelmingly against the proposed transfer of Merafong ... the next development was the formulation of the negotiating mandate ... the Gauteng legislature, armed with a mandate from the people, did an about-turn. Having formulated a negotiating mandate, the legislature deviated from that mandate and took a different position in the final voting ... which reduces their conduct to irrational," Madala said.

Judge Sandile Skweyiya said the determination of provincial boundaries and the demarcation of municipal boundaries were complex issues requiring expertise in town planning, provincial planning, sociology, political science and geography.

"I must say frankly to the community that it is not (for us) to decide where Merafong should be located. That is a political decision which must be made elsewhere," Skweyiya said.