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94 Chapter 6
operating as a guide to the interpretation of statutes affecting
political rights. 26
In a decision handed down three days later, Matatiele Municipality
& Others v President of the Republic of South African &
Others, 27 we find even more conclusive evidence that a majority of
the Constitutional Court may yet endorse the deep principle of
democracy. In this case, an amendment to the Final Constitution
altering a provincial boundary was challenged under FC section
155(3)(b) for unconstitutionally limiting the authority of the Municipal
Demarcation Board. Although the Court ultimately decided against
the applicants on this point, it affirmed the importance of the
Demarcation Board ‘to our constitutional democracy’ and the role of
FC section 153(3)(b) read with FC section 1(d) in guarding against
political manipulation of the demarcation process. This dictum,
though not crucial to the outcome of the case and therefore not part
of the ratio, suggests a slightly less deferential approach to the
legislative regulation of the voting system than was evident in UDM.
Of course, the political stakes were not as high in Matatiele, and
therefore it is easy to downplay the importance of this dictum.
Nevertheless, it does suggest that the meta-principle in UDM — that
the principle of democracy must give way to the principle of
deference to legislative determinations of the content of the
electoral system — is not sacrosanct.
A second aspect of Matatiele provides even greater support for
the principle of democracy evident in the constitutional text as a
whole. Faced with a concession by applicants’ counsel that the
procedures for the amendment of the Final Constitution had been
duly followed, a majority of the Court refused to accept it. There was
enough on the papers, the Court held, to suggest that the people of
Matatiele had not been properly consulted about the decision to
transfer the area in which they lived to a different province. 28
Although a court should as a rule be cautious about deciding issues
that were not raised by the parties in their pleadings, this rule had to
‘yield to the interests of justice’. 29 FC section 118(1)(a) was open to
the interpretation that the people directly affected by a decision to
alter a provincial boundary should be consulted by the provincial
legislature concerned, either through public hearings or by giving
them an opportunity to make written submissions. These issues, the
26 African Christian Democratic Party does not, however, overturn the standard of
review applied in New National Party (n 9 above) since FC sec 19 was used in
African Christian Democratic Party as a basis for an enfranchisement-friendly
reading of the statute in question, rather than a direct challenge to it.
27 Matatiele (n 20 above).
28
Matatiele (n 20 above) para 69.
29 Matatiele (n 20 above) para 66.