Joint Workshop with National and Provincial Legislatures on the Application of Section 139 of the Constitution and the need for legislation in terms of Sections 139 (8)

Meeting report

Introduction
The Chairperson stated that this meeting was the first of its kind. It would lay the first footprint towards improved cooperative governance and inter-governmental relations. It would enhance the smooth working together of the three spheres of government in response to the challenges of service delivery.

House Chairperson for Cooperative Governance and Inter-Governmental Relations. Speech
The Hon. N Magadla, House Chairperson for Co-operative Governance and Inter-Governmental Relations, National Council of Provinces (NCOP), apologised on behalf of the Kwa-Zulu Natal delegation that it had been delayed due to problems with flights. She commended the Chairperson for having convened the very important workshop. She expressed confidence that the collective wisdom would enable all spheres of Government to rise to the occasion and confront honestly the challenges in processing interventions in terms of Section 139 of the Constitution. Her welcoming input would concentrate on interventions. The NCOP had a crucial role to play in ensuring effective cooperative governance in improving service delivery to the people. The concept of cooperative governance in the South African governmental system provided an excellent example of the development of democracy. The monitoring role of provinces over municipalities was outlined in Section 139 of the Constitution and further was complemented by various other acts and policy documents.

Intervention should not be seen as a form of punishment but rather as a meaningful form of assistance. Intervention was meant to restore the functions of a municipality to the minimum standards and such intervention should cease once such functionality had been reached. It was difficult to determine the success rate of national and provincial governments in their monitoring roles of public and municipal administration. Theses roles were impeded by a lack of clear processes for monitoring and intervention, insufficient budgetary allocations for these processes and the lack of proper consultations with stakeholders.

The role of the NCOP was to oversee the relationships amongst the spheres of Government. Both national and provincial departments should build capacity within municipalities to ensure they could manage their affairs and exercise their powers effectively. Section 139 of the Constitution was about provincial interventions and critical to the process was regular reporting by the executive to the NCOP. She concluded by expressing a wish that the deliberations would improve the collaboration necessary for improved service delivery.

The Chairperson thanked the Hon. Magadla and said that her speech had set the right tone for the proceedings. He had noted certain aspects from her speech which would receive attention during the deliberations.

Purpose and objective of the meeting
The Chairperson said that Section 139 of the Constitution was the basis of an intervention when a municipality failed to govern effectively. Section 139 was a necessary corrective measure and because it involved inter-governmental relations it required a spirit of cooperative governance as outlined in Chapter 3 of the Constitution. Intervention should be part of broad supervision. He regarded as very important the need to balance the institutional integrity of local government on the one hand and the efficacy of the intervention on the other. There was no homogenous approach in the interventions by provinces.

Many of the interventions, especially those that omitted Section 139(1) (a), seemed to be illegal and could be challenged constitutionally. He referred to the recent High Court decisions where interventions were overturned, as merely two examples of possibly more than half of the interventions that were unlawful. Section 139 stated that any intervention not based on a municipality’s failure to fulfil one or more of its executive obligations would be deemed unlawful. This implied that the obligations must be specifically defined. Section 139 referred to failure in “a relevant” obligation” and as such it meant that the obligation in which the municipality was deemed have failed should have been clearly identified. A general claim of failure in its executive obligations would simply not do.

The purpose of the meeting, therefore, was to discuss and deliberate on various interpretations in order to arrive at uniformity in the application of Section 139 interventions. The discussions would also inform the envisaged legislation in terms of Section 139 (8). This would provide municipalities with much more certainty with regard to interventions. A further aim was to improve coordination and an improved working relationship in intervention oversight. The Committee also hoped to clarify the principles for cooperative governance and inter-governmental relations. To substantiate this point, the Chairperson said that both the NCOP and the provincial legislature were required by law to receive notifications of all interventions within a certain timeframe. Notifications to provincial legislatures at times encountered complications. Because of the lack of uniformity it sometimes happened that the NCOP visited the municipality placed under Section 139 intervention without the executive of the provincial legislature being present. This created problems because the delegate from the province who would accompany the NCOP would not necessarily have the executive powers that were afforded the executive. This often meant that the NCOP and the provincial legislature were uncoordinated in its review of the intervention and were simply not “singing from the same hymn sheet”. The Select Committee had also established that certain provinces had intervened without directives as prescribed by Section 139 (1) (b). Some provinces even “relieved” councillors of all their functions whilst others took over the administration of the municipality. Clearly, no uniform procedure with the necessary checks and balances was used or even available. For these reasons, national guidelines on the process of intervention should be developed.

Speech by the Chairperson of the National Council of Provinces (NCOP)
The Hon. M Mahlangu, Chairperson, NCOP, commended the Committee Chairperson for putting into practice what had been preached, namely cooperation in performing the work. He reminded members of the Deputy President’s call for coordination in oversight. In highlighting the role of the NCOP he said that it served as a vital link between national and provincial spheres of Government. It was thus important that delegations were in constant touch with the leadership of provincial governments. An important dimension of the NCOP was the space for participation by local government, making the NCOP a unique House that had, under one roof, all the different spheres of Government. The NCOP had the potential to promote coordinated oversight.

The Hon. Mahlangu proceeded to shed light on the role of the provincial legislature. He called for stronger alliances between provincial and local government. This could be enhanced by close working relationships with the provincial executive of the South African Local Government Association (SALGA). He said that the laws of the country provided for the working relationship amongst all spheres of Government as well as other stakeholders like SALGA. All that was needed was for things to happen.

He concluded by stating that the use of the courts to settle disputes was contrary to the spirit of cooperation and urged parties to ensure service delivery was not compromised. He invited all parties present, under the leadership of the Select Committee, to develop a critical analysis of the implementation of Section 139 interventions. These analyses, he said, would help define the way forward.

The Chairperson acknowledged the arrival of the Chairperson and Members of the Portfolio Committee on Cooperative Governance and Traditional Affairs.

Substantive and Procedural Requirements for Intervention. Presentation
Adv Modibedi Phindela, Secretary to the NCOP, said that he would try his best to make Section 139 look simpler because it appeared to him that many parties were interpreting it differently. He stated that, according to the Constitution of the Republic of South Africa, the three spheres of Government each had their own area of competence and that any interference by the one into the affairs of the other could happen only under severe constraints. In his view, Section 139 interventions were located within intergovernmental relations. Inter-governmental relations related to the manner in which the three spheres of Government exercised their powers. Section 139 prescribed the pre-conditions for the provincial legislature to intervene.

The question could be asked whether an intervention that did not comply with the Constitution rendered such intervention unconstitutional and whether the lack of proper reasons for the intervention was fatal to the intervention. Section 139 said that the provincial legislature may intervene if the municipality did not or could not fulfil its executive obligation. Later in the presentation it would become clear why the word ‘may’ was emphasised.

What constituted ‘executive obligations’? Executive obligations should not be confused with statutory obligations. Executive obligations might mean the provision of basic services to improve the lives of the people, the development of policy and the initiation of by-laws and the implementation and administration of legislation for local government.

The interventions according to Section 139 (1) (a) and (b) were at the discretion of the provincial legislature. In other words, an intervention was not necessarily compulsory. There must be a rational link between the intervention and the reasons proffered. The intervention could therefore not be arbitrary. Section 139 (1) (c) determined that there should be exceptional circumstances for the dissolution of a municipality. Whether such exceptional circumstances existed should be objectively determinable. The onus was therefore on the provincial executive to show evidence of exceptional circumstances. Under Section 139 (4) the intervention was compulsory but dissolution of the municipal council was not the only consideration. The dissolution of the Overberg Municipality by the Western Cape provincial legislature was a case in point. The courts had found that dissolution was not the only consideration.

It appeared that if a breach under Section 139 (5) was not persistent or material then an intervention might not be constitutionally sound. Section 139 (7) allowed for the National Executive to intervene, failing any steps from the provincial legislature.

The various timeframes had particular significance for the NCOP.  It appeared that the more serious the intervention was the more serious the timeframe became. In conclusion, Adv Phindela said that the intervention was remedial in nature and it was not intended for it to last forever. The NCOP had to consider a few questions before it considered approval of any intervention. Firstly it had to ask if there were sound reasons for the intervention. Secondly, it had to ask whether the provincial executive had complied with the timeframes as set out in the Constitution. The NCOP should use its discretion when a provincial executive had good reason to intervene whilst not complying with the timeframes. In his view, substantive aspects should trump over procedural matters.

South African Local Government Association (SALGA). Presentation
Mr Lance Joel, Chief Operations Officer, SALGA, concurred with the Chairperson’s call for uniformity. Mr Joel focused on the role of organised local government and the legislative framework within which it operated as well as the background to the establishment of SALGA, its mandate and functions. He highlighted some of the critical factors that were influencing municipalities and gave an overview of SALGA’s analysis of interventions with proposals on the way forward.

Department of Cooperative Governance and Traditional Affairs (CoGTA). Presentation
Mr Elroy Africa, Director-General, Department of Cooperative Governance and Traditional Affairs (CoGTA), said that many of the issues had been covered by previous speakers. He highlighted cooperative governance and inter-governmental relations because he felt that the practice of voluntarism had hamstrung effective cooperative governance in the past.

In the Department’s view one could not talk about section 139 and 100 without reference to Section 154, where the need for support was stressed. He emphasised the point that intervention was not merely attributable to failures within municipalities but also due to a lack of support from national and provincial government as well as SALGA.  As requested by the Hon Mahlangu, the Department had completed an analysis of interventions and had reflected its results in its presentation as well as pointing out the legislative adjustments needed to enhance the application of Section 139 interventions. He reminded Members of the lessons that emerged from the Amendments to the Constitution made in 2003. Lastly, although the Department had already developed certain pieces of legislation, it did not plan to submit any draft legislation at that time but would limit itself to highlighting some of the areas that needed tightening up.

Mr Tshepo Khasi, Senior Manager, CoGTA, welcomed discussion on the subject and said that it could not have come at a better time. Mr Khasi mentioned the different types of interventions allowed for by the Constitution. He outlined the rationale for legislation on section 139. A tabularised breakdown of the interventions undertaken in municipalities was provided. He reported that the Limpopo provincial legislature ascribed its impressive record to a strategy to support rather than invocation of the intervention.

Mr Khasi presented a categorised list of the problems that prevailed prior to interventions. The Department also provided Members with a very brief comparative study of Section 139 before and after the Amendments to the Constitution in 2003. Key findings of past interventions as well as critical success factors were shared with Members.

The Department concluded by providing ideas on a future framework for a monitoring and support structure. The Department invited Members to assist with the development of legislation pertaining to Sections 100, 139 and 154 of the Constitution.

Discussion
Mr A Watson (DA, Mpumalanga) felt that a weakness existed in Section 139 (5) where, unlike the other subsections, the NCOP was not allowed any option to impose sanctions of any kind. He called for this to be addressed in the review of the legislation.

Mr S Tsenoli (ANC), Chairperson of the Portfolio Committee on Cooperative Governance and Traditional Affairs, found Adv Phindela’s presentation useful as a reminder but would have welcomed more evaluations of other court decisions around the matter of interventions. He would have preferred more information about the nature of the interventions taken to court, for instance, whether they were found to be remedial or not. He referred to the SALGA and CoGTA presentations and said that these were more detailed and evaluative of the interventions in question. He asked why SALGA did not mention the interventions manual that was available. Part of the failure of the municipality should be blamed on the failure of both provincial and national Government. He asked what support, if any, the district municipalities provided to relevant municipalities and whether there was anything that perhaps prevented them from providing support in the first place. He questioned whether districts were adequately capacitated to perform their duties and whether they were perhaps not set up for failure from the very beginning. He said that it was important to reflect on the law and the policy but also to ask whether the districts were provided with the substance to play the appropriate role.

Mr Z Mandela (ANC), from the Portfolio Committee, asked if the Department could be more specific about the political infighting that it mentioned in its presentation. He wondered if the people guilty of the fraudulent actions as stated by the Department were arrested or prosecuted. He said that Members’ visits to municipalities had revealed that large amounts were owed to municipalities by governmental departments and wanted to know if the Department had done anything about the matter as non-payment impeded service delivery.

Mr J Gunda (ID, Northern Cape) questioned whether SALGA was fulfilling its mandate when it did not show up when the Committee visited municipalities. He asked what advice and support SALGA was providing municipalities for them to avoid interventions. He asked SALGA to clarify what it meant when it referred to political conflicts. SALGA had referred to lack of capacity as part of the problem but it had to be asked what role it played in transferring the necessary skills to municipalities where such capacity problems were evident. He asked SALGA to clarify its role in improving inter-governmental relations.

Mr P Smith (IFP), from the Portfolio Committee, was surprised with the statistics that reflected Limpopo as having had zero interventions since the introduction of Section 139. He wondered how it could be interpreted and asked if it meant that Limpopo was providing adequate support to its municipalities or whether it in fact meant that the province was simply not doing anything about poor performing municipalities. He asked the Department if it could provide details about the reasons behind the statistics per province. The number of interventions reported by provinces meant little if the law was not consistently applied in each province. For instance, in the absence of consistent application of the law, a lower number of interventions did not automatically point to fewer underperforming municipalities and vice versa. He complained that the lack of provincial support for municipalities had been a recurring theme since 1994. In fact, the Minister had called the general lack of support for municipalities a disaster. Mr Smith asked whether new legislation would actually bring about the desired provincial support. Mr Smith asked whether the provinces had the resources or the commitment to provide the support. Section 100 of the Constitution provided for sanctions to be imposed on defaulting provinces and he felt that Section 100 was simply not being applied. Yet, when municipalities were at fault, then Section 139 was quickly applied.

Mr A Matila (ANC, Gauteng) said that a visit by the Committee had found one municipality in Limpopo that was close to total collapse yet the province did not intervene or report the matter. He wondered if the province was not perhaps trying to hide something. He felt that the practice of contracting forensic experts should be avoided because Government had its own capacity to undertake forensic investigations. He urged the Department to draft the necessary regulations which would assist the legislature to hold the executive accountable.

Ms M Segale-Diswai (ANC), from the Portfolio Committee, asked how the Department proposed to deal with interventions that were imposed because of political infighting. She asked what happened to the municipal manager whilst the intervention was underway.

Mr Watson complained that the Committee “packed no punches” when it attempted to address the problems that caused the intervention or even failure to impose an intervention. Despite the Committee’s having had successes in this regard he still felt that it lacked the necessary muscle to assert its oversight role effectively. He mentioned two examples of municipalities in Limpopo that consistently failed in their executive obligations whilst the province appeared to have done nothing about it. He called for more details on the powers of the NCOP in dealing with matters like Section 139 and 100.

Adv Phindela responded that the court judgments on the interventions in Mquma Local Municipality and the Overberg District Municipality were the only authoritative interpretations of Section 139. He said that the intention with any intervention should be to remedy the situation rather than take over the municipality forever.

Mr Joel said that SALGA could provide the Committee with a report, including the key findings, of all the court cases on Section 139 interventions. He mentioned that SALGA was not involved in any of the cases that ended up with interventions, either before or after the imposition of such interventions. This was a system weakness and work was needed to ensure SALGA enjoyed the space to exercise its intended role. This should be included in whatever legislative framework was put in place. The perception that SALGA was not playing any role was possible because SALGA did not “bleat out its achievements like a hen who had laid an egg”. He compared SALGA to “the fish that laid a thousand eggs without making so much of a noise”. He used the Overberg Municipality court case as an example. He said that the judge, in expressing his judgment, made direct reference to three letters. These letters were drafted by SALGA on behalf of the municipality. The details of the political conflicts that caused problems were well documented in the court papers. On skills transfers Mr Joel stated that intervention was a provincial competency and that SALGA had no involvement in any skills transfers during the term of the intervention. This did not mean that SALGA would not like to get involved.

Mr Africa commented that his Department recognized the need for more clarity on the capacities needed by all spheres of Government, including SALGA, in exercising their respective roles in this matter. He said that the Department was already beginning to address that gap but not in the way it had manifested in the meeting. Going forward it would incorporate the ideas expressed earlier.

On the role that district municipalities played Mr Africa stated that their research found that not much support was provided to local municipalities by districts. He acknowledged that the support provided to districts by national and provincial government could be more targeted and said that it would be factored into the debate going forward. He reminded members that the Constitution clearly mandated municipalities to build their own capacity but that it did not detract from the support required from national and provincial government as mandated by Section 154.

On the question of political infighting, Mr Africa said that the Department had records of the conflicts that played themselves out in the failures of some municipalities. He promised that the Department would take up the issues on the Sundays River Municipality. The Limpopo issues were definitely influenced at a political level in the province and the Department would agree that there were problems with municipalities in that province. That the province had zero interventions did not imply that there were no problems there. At least once a month an official from the Department would visit that province to attend to a reported grievance at municipal level. What was needed was a more detailed discussion on why that province had not invoked Section 139 interventions. Inconsistencies in the application of Section 139 were linked to the lack of clear and explicit guidelines in the legislation.

In response to why the Department did not invoke Section 100 to assert pressure on the provinces, Mr Africa said that the Department applied a range of measures not mentioned in Section 100. Letters were sent to MECs who were interacting with the heads of department (HODs). However, a thorough study had confirmed the Minister's statement that support from provinces was a disaster. Again, the Department had undertaken a range of steps including setting up provincial offices of CoGTA. He also promised the House that he would take up the Bela Bela matter with National Treasury.

Mr Khasi said that there were various prescripts from the Constitution that needed review. The Department could provide the Committee with a more detailed report on the municipal failures in terms of governance, and service delivery. Often the nature of the political conflicts paralysed municipalities and, as such, Section 139 had to be invoked. He could not report whether any directives were issued in Limpopo because the law did not compel provinces to table such directives to the Minister.    

The Chairperson asked the Department to conduct further research into Section 139 (7) that prescribed how the national Department could intervene when a province was failing in its duties. He felt that the leeway provided to the Minister was not fully exploited.

Mr N Nonkonyana (ANC), from the Portfolio Committee, said that he had no doubt that all role-players were doing their level best to ensure that the problems within municipalities were addressed. Despite all these efforts, the problems seemed to persist, which suggested that perhaps the problems were due to fundamental flaws in the system of governance. He said that he was adopting a subjective position and that what he was saying could be politically incorrect. He felt that certain flaws in the system were prevalent since the colonial times and that some municipalities even had monuments of persons who had maimed and murdered the oppressed people. He said it was the flawed system that allowed the white collar criminals to continue to plunder the resources of the people. In some cases local municipalities were at the mercy of these criminals. He hoped that all present would begin to mull over the actual systems that were in place.

The Chairperson noted that it was the political parties that had to take responsibility for the political conflicts. The practice had always been to take any such conflicts to the relevant political party to sort out. He mentioned that the Committee often encountered very junior officials from SALGA when they visited provinces. These officials did not have the executive powers required to make key decisions and it hampered the process of oversight. He encouraged SALGA to address the matter in the future. He also urged the Department to speed up its processes for drafting explicit guidelines for Section 139 applications. He said that the Committee’s experiences on the ground suggested that there was a great need for uniform approaches to these matters. Whilst awaiting the further capacitating of provincial legislatures there was no need to avoid communication between the various stakeholders. It was not illegal to communicate. Recommendations crafted at the meeting should be forwarded to provinces that were not present. He requested the Department to convene a meeting with all the role-players including MECs and the Portfolio Committee where the reported lack of provincial support could be addressed. He said that Section 139 (1) (a) should always be exhausted before contemplation of further subsections.

Generally he felt that there were problems in each province and that a follow-up meeting should be more inclusive so that a more common approach is thrashed out. The Portfolio Committee should not be excluded simply because it was not part of the NCOP. Nothing stopped it from sending a delegation to these deliberations since the goal was to improve cooperation and inter-governmental relations.

The meeting was adjourned.