Constitutional amendment to Section 139, 2011 Local Government Elections preparations, Operation Clean Audit in municipalities, Transformation of the institution of Traditional Leadership

Share this page:

Meeting Summary

The Department of Cooperative Governance reported on preparations for the 2011 local government elections, gave an update on the legislation envisaged in Section 139(8) of the Constitution, and reported on progress on Operation Clean Audit in Municipalities. The Department of Traditional Affairs briefed Members on the Transformation of the Institution of Traditional Leadership.

The term of office of the current municipal councils commenced on 01 March 2006 and expired on 02 March 2001. The elections should be held within 90 days after the expiry date. This 90-day period was to be calculated from 2 March 2011 ending on 30 May 2011. This implied that the first possible date for the next municipal election within the 90-day period was 02 March 2011. The Minister had established the Inter-Ministerial Committee, which consisted of the Department of Cooperative Governance and Traditional Affairs, Home Affairs, Police Services, Defence and Military Veterans, State Security, Police, Presidency, the Municipal Demarcation Board, South African Local Government Association and the Independent Electoral Commission. The Technical Committee had also been established to provide support to the Inter-Ministerial Committee. A total of 278 municipalities would contest the 2011 local government elections – a reduction of five from the current 283. The Local Government: Municipal Electoral Amendment Act 2010 introduced, amongst others, special votes in local government elections which enabled the disabled, elderly and sickly an opportunity to cast their vote two days before the actual date of the election. The Security Cluster reported readiness in all provinces to ensure that there was proper security before, during and after the elections.

Members asked whether those councillors up for election would be out of office on 02 March, whether service delivery protests posed a threat to the elections and what was being done to ensure the safety of voters, what impact these elections would have on budgets and integrated development plans and whether municipalities that were not doing anything in response to service delivery protests were being audited.

Section 139(1) of the Constitution provided that, when a municipality could not or did not fulfil an exclusive obligation in terms of the Constitution or legislation, the relevant provincial executive might intervene by taking any appropriate steps to ensure the fulfilment of that obligation. Section 100 had similar provisions but pertained to national Government intervening in a provincial government. Sections 100(3) and 139(8) provided that national legislation might be enacted to regulate the processes established by these sections. Legislation on Section 139 would ensure a consistent approach to interventions and would also complement the provisions in the Municipal Finance Management Act, which provided a detailed framework for financial interventions. A uniform intervention regime would provide certainty for municipalities around the legal workings of the intervention they could be subjected to. The total number of municipalities that were subjected to Section 139 since its advent stood at 53. Under the old section (pre-2003) seven municipalities were subjected to section 139. With the new section (post-2003) this figure stood at 46. The main categories of the nature of problems experienced were governance, finance and service delivery.

Members asked whether the Green and White Paper processes would be followed and what had resulted in the significant increase in the number of municipalities subjected to Section 139, post-2003.

With reference to Operation Clean Audit in Municipalities, the Auditor-General was still to publish the Consolidated General Report on the Local Government Audit Outcomes: 2009/10. Some of the areas for continued concentration during the 2011/12 financial year included supporting municipalities to establish or re-establish municipal public accounts committees after the local government elections and supporting municipalities to establish internal audit and risk management units. Additionally, municipal action plans needed to be supported and monitored in order to address previous audit outcomes.

Members proposed that, as this was a serious matter, the Committee be given more time to engage with the document.

The Department of Traditional Affairs, in briefing Members on the transformation of the institution of traditional leadership, said that, in preparation for the assessment process, it had engaged a number of relevant stakeholders, such as departments and Chapter 9 institutions. A partnership model would be developed with the stakeholders which would be the basis for an integrated strategy between the Department and other stakeholders.

The Chairperson said that the relationship between traditional leaders and ward councillors was an important one and needed to be prioritised.

Meeting report

2011 Local Government Elections Preparations Presentation
Mr Makgatle Jackals, Deputy Manager, Department of Cooperative Governance, said that in terms of S24 (1) of the Local Government: Municipal Structures Act, 1998, “the term of municipal councils is five years, calculated from the day following the date set for the previous elections of all municipal councils in terms of subsection 2” of the Act. The term of office of the current municipal councils commenced on 1 March 2006 and expired on 2 March 2001. The elections should be held within 90 days after the expiry date. This 90-day period was to be calculated from 2 March 2011 ending on 30 May 2011. This implied that the first possible date for the next municipal election within the 90-day period was 2 March 2011.

In relation to institutional support, the Minister of Cooperative Governance and Traditional Affairs had established the Inter-Ministerial Committee (IMC) in order to ensure coordination of support to the Independent Electoral Commission (IEC). In addition, the Technical Committee had also been established to provide support to the IMC, which consisted of the Departments of Cooperative Governance and Traditional Affairs, Home Affairs, Police Services, Defence and Military Veterans, State Security, Police, Presidency, the Municipal Demarcation Board, South African Local Government Association and the IEC.

In terms of progress registered to date, the minister had, in July 2009, published in the Government Gazette a formula on the determination of the number of councils. In August 2009, the Municipal Demarcation Board commenced with the process of ward delimitation and completed it in August 2010. According to this Board, all local and metropolitan municipalities would have wards ranging from four to a maximum of 130 after the 2011 Local Government elections. On 1 September 2010 the Board formally handed over 4 277 final municipal wards to the IEC. A total of 278 municipalities would contest the 2011 local government elections – a reduction of five from the current 283.

The Local Government: Municipal Electoral Amendment Act, 2010 introduced, amongst others, special votes in local government elections which enabled the disabled, elderly and sickly an opportunity to cast their vote two days before the actual date of the election.

The Security Cluster reported readiness in all provinces to ensure that there was proper security before, during and after the elections.

In terms of the implementation plan, the Minister intends to – after consultation with the IEC – proclaim in the Government Gazette the election date after the expiry date of the current term of office for municipal councillors.

The Minister would also soon be gazetting the regulations around the participation of municipal staff members in the elections. Provinces would be engaged and assisted to finalize Section 12 notices with respect to establishments and disestablishments of municipalities due to redeterminations and the incorporation of District Management Areas into adjacent local municipalities.

The Mangaung municipality court case on redetermination as a Metro had been withdrawn while the Matjhabeng municipality’s court case disputing the delimited wards was still pending. The Moutse court case was to be heard by the Constitutional Court on 10 March 2011.

Discussion
Mr L Nzimande (KwaZulu-Natal, ANC) asked whether those councillors up for election would be out of office on 2 March.

Mr Jackals answered that these councillors would remain in office. The status quo in relation to this would remain unchanged until the new councillors took up office.

Mr Elroy Afrika, Director-General, Department of Cooperative Governance, added that the new councillors would take up office in June 2011.

Mr D Bloem (Free State, COPE) asked whether service delivery protests posed a threat to the elections and what was being done to ensure the safety of voters.

Mr Afrika answered that the security cluster was part of the IMC. It was ensured that logistics were in place in this regard within the areas that were identified as high-risk.

The Department added that it met with people in areas where there were protests. It also had people ‘on the ground’ that were assisting in this regard.

The Chairperson asked what impact these elections would have on budgets and integrated development plans (IDPs). Were municipalities that were not doing anything in response to service delivery protests being audited?

Mr Afrika answered that the induction programme for councillors, which the Department was in the process of finalising, would include taking these councillors through the budget and IDP processes.

Mr A Matila (Gauteng, ANC) asked for more details around its preparations around security.

Mr Afrika answered that due to the sensitive nature of such information he could not reveal too much, save to say that the approach and systems which were in place for the 2010 World Cup would be in place in the lead up to - as well as during and after - the elections.

Envisaged Legislation on Sections 100 and 139 of the Constitution Presentation
The Department said that Section 139(1) of the Constitution provided that, when a municipality could not or did not fulfil an exclusive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure the fulfilment of that obligation. Section 100 had similar provisions but pertained to national government intervening in a provincial government. Sections 100(3) and 139(8) provided that national legislation may be enacted to regulate the processes established by these sections.

In relation to the rationale for Section 139(8) legislation, legislation on Section 139 would ensure a consistent approach to interventions. Section 139(8) would complement the provisions in the Municipal Finance Management Act, which provided a detailed framework for financial interventions. It would also supersede all other legislation on this question. A uniform intervention regime would provide certainty for municipalities around the legal workings of the intervention they could be subjected to.

The total number of municipalities that were subjected to Section 139 since its advent stood at 53. Under the old section (pre-2003) seven municipalities were subjected to section 139. With the new section (post-2003) this figure stood at 46. The main categories of the nature of problems experienced were governance, finance and service delivery.

Discussion
Mr A Watson (Mpumalanga, DA) asked whether the Green and White Paper processes would be followed as this would ensure that all relevant stakeholders were consulted around this.

The Department answered that the 1998 White Paper dealt with many issues around Local Government. The Department had not thought it needed to deal with this legislation in terms of a Green Paper. There was a discussion document around how this section had been implemented.

Mr Afrika added that this was a discretionary process as it was not a legislative process that there needed to be White and Green Paper.

Mr Bloem asked what had resulted in the significant increase in the number of municipalities subjected to Section 139, post-2003.

The Department answered that the post-2003 section consisted of eight subsections, whereas the pre-2003 section only consisted of four. Issues around financial matters were also brought into the new section.

Mr Matila asked why none of the Committee’s previous recommendations had been implemented, especially in relation to officials engaged in illegal activities.

Mr Afrika answered that the Department would follow up on the Committee’s recommendations. The Department was developing legislation around regulating issues related to these officials.

Operation Clean Audit in Municipalities Presentation
Mr Mizilikazi Mduyike, Operation Clean Audit: Local Government, Department of Cooperative Governance, said that Operation Clean Audit was launched in 2009 and had set the target that all municipalities achieved unqualified audit opinions by 2014. The Auditor-General was still to publish the Consolidated General Report on the Local Government Audit Outcomes: 2009/10. Sixty-two municipalities had improved upon their 2008/09 audit outcomes, 15 had regressed and 159 had remained unchanged. Some of the areas to continue concentrating upon during the 2011/12 financial year included supporting municipalities to establish or re-establish Municipal Public Accounts Committees after the Local Government elections and supporting municipalities to establish internal audit and risk management units. Additionally, municipal action plans needed to be supported and monitored in order to address previous audit outcomes. Key partners in providing such assistance included provincial Departments responsible for Local Government, the South African Local Government Association (SALGA), the Auditor-General and the Association of Public Accounts Committees of South Africa (APAC).

Discussion
Members proposed that, as this was a serious matter, the Committee be given more time to engage with the document.

Transformation of the Institution of Traditional Leadership Presentation
Ms Tumi Mketi, Deputy Director-General, Department of Traditional Affairs, said that reasons for the establishment of the Department included the expanded mandate and a motion of no confidence taken against some of the leadership leading to their being unseated. In preparation for the assessment process, the Department had engaged a number of relevant stakeholders, such as Departments and Chapter 9 institutions. This engagement process started in October 2010 and looked at their roles and functions. It had visited all nine provinces and was aware that provinces such the Western Cape were not necessarily affected as there were no traditional leaders there. It had agreed with the National Heritage Council that commemoration of National Heritage Day should be lead by the Department and by the Department of Arts and Culture, supported by the National Heritage Council. Though this was unlikely to happen in this financial year, plans were afoot to ensure that this happened in the next financial year. A partnership model would be developed with the stakeholders which would be the basis for an integrated strategy between the Department and other stakeholders.

Discussion
The Chairperson said that the relationship between traditional leaders and ward councillors was an important one and needed to be prioritised.

Ms Mketi replied that that there was a specific commission which dealt with the relationship between local government and traditional leaders.

The meeting was adjourned.


Share this page: