MADLANGA J
were conducted separately from the rest of the negotiation process. Enough with the
paraphrase:
“Our history has produced a rigid pattern of racial division in society. Black residential
areas were, and still are, characterised by a lack of amenities, physical infrastructure
and services. Where these exist, they are of inferior quality compared to those enjoyed
in historically white residential areas. Local government was equally divided along
racial lines.
In recognition of this history, the negotiations relating to the
transformation of local government were conducted separately from the negotiations
regarding the transition of power at the national and provincial levels.”109
It makes sense that – for whatever reason – the framers of the Constitution
(which post-dates the mentioned negotiations) may have seen a need to introduce in the
Constitution a discrete, internal limit applicable only to the system of election of
members
of
Municipal
Councils.
The
problems
uniquely
attendant
to
municipalities – involving as they did – the intractable problem of racially based spatial
distribution of the South African population could not have ended overnight.
Viewed with this background in mind, section 157(2)(a) does not contradict
section 19(3)(b). In that context, section 19 which is the primary source of people’s
political rights continues to be the fundamental norm on them; not section 157(2)(a),
which is tailor-made for municipal elections. The normative force of section 19
continues to apply in every instance where the Constitution has not specified a system
of representation different to what section 19 requires. Therefore, in the election of
members of the National Assembly and Provincial Legislatures, the normative system
the Bill of Rights itself creates in section 19 must apply; it must not be derailed or
diverted by provisions specially created for municipalities under section 157(2)(a)
because of their unique setting.
109
Executive Council, Western Cape v Minister for Provincial Affairs and Constitutional Development; Executive
Council, KwaZulu-Natal v President of the Republic of South Africa [1999] ZACC 13; 2000 (1) SA 661 (CC);
1999 (12) BCLR 1360 (CC) at para 44.
43
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