The Member of Executive Council for Cooperative Governance and Traditional Affairs in KwaZulu-Natal briefed the Committee on the Intervention in terms of section 139 (1) (c) of the Constitution in Nquthu Local Municipality; and on termination of interventions in Local Municipalities in KwaZulu-Natal (Indaka, Ingwe, Mbabazane). There was also a briefing on intervention in terms of section 139 (1) (b) (Emadlangeni).
The Committee was also briefed on the intervention in terms of section 139 (1) (b) at Emadlangeni Municipality. The purpose of this report was to apprise the Committee of the prevalent challenges at Emadlangeni municipality, which informed the decision of the KwaZulu-Natal Provincial Executive Council to intervene at the municipality in terms of section 139(1)(b) of the Constitution, which was taken on 18 January 2017.
Decisions were being taken by the council which were irregular and could financially prejudice the municipality. The Emadlangeni Municipal Council took and implemented illegal decisions relating to forcing the Municipal Manager to take special and the subsequent illegal suspension. Costs amounting to hundreds of thousands associated with the illegal suspension of the Municipal Manager by Emadlangeni Municipal Council were incurred despite advice to the contrary. The rejection by Emadlangeni Municipal Council of support and advisory from the Department of Cooperative Governance and Traditional Affairs resulted in the municipality being left without an accounting officer for a considerable period of time.
The Committee was also briefed on the termination of interventions at Indaka, Ingwe and Mbabazane Local Municipalities in KwaZulu-Natal. The purpose of the report was to remind the Select Committee of the reasons for the Constitutional interventions at Indaka, Mbabazane and Ingwe municipalities, and to apprise the Committee of reasons for the termination of the interventions.
The reality of governance collapse at Indaka Municipality played out in many and various manifestations such as: Illegal decisions by the Council, Irregular alteration/amendment of the 2015/16 budget to suit/cater for the personal interests of certain powerful councillors on the Council. The municipality ceased to exist on 10 August 2016 when it merged with Ladysmith/Emnambithi to form Alfred Duma Municipality.
The Intervention at Mbabazane Municipality was triggered by political instability at the municipality which had persisted since the inauguration of Council after May 2011 Local Government Elections. The municipality ceased to exist on 10 August 2016 when it merged with UMtshezi Municipality to form Inkosi Langalibalele Municipality.
The intervention at Ingwe municipality came as a result of political dissent. The Municipal Council was beset by political instability for more than a year. The instability came to a head when both the Mayor and Speaker resigned from their positions in March 2016, with the Mayor also resigning as a councillor of the Municipality. The municipality ceased to exist also on 10 August 2016 when it merged with KwaSani Municipality to form Dr Nkosazana Dlamini Zuma Municipality.
The MEC briefed the Committee on progress made at Nquthu Municipality because the Committee was made aware of the situation in its last visit to that municipality. The current status is that Nquthu Municipality remains without a duly constituted municipal council, thus the municipal council remains unable to exercise its executive and legislative powers. The Ministerial Representative who was posted at the municipality by the Provincial Executive Council in terms of the intervention of section 139 (1) (b) exercised these powers instead of the elected representatives. The municipal council had even failed to appoint an Acting Municipal Manager. There are still pending court cases which may prolong for years because councillors have brought cases against each other.
The Committee noted the report of the MEC on Emadlangeni Municipality with a proviso that they will visit the area very soon to hear the other side of the story from other stakeholders. It also noted the report of terminations of interventions at Indaka, Ingwe and Mbabazane local municipalities in KwaZulu-Natal.
The Committee will also visit Nquthu Municipality next Tuesday to try and engage with the municipal council in order to find a lasting solution to the municipality
The Chairperson welcomed everyone and Ms Nomusa Dube Ncube, MEC for Cooperate Governance and Traditional Affairs (COGTA) in the province of KwaZulu-Natal. She requested Ms Ncube to start with the Intervention in terms of section 139 (1) (b) Emadlangeni Municipality because the Committee was interested to know what is happening in that municipality, specifically zooming to the challenges and current status of the municipality.
Intervention in terms of section 139 (1) (b) Emadlangeni Municipality
Ms Ncube said in terms of the challenges the municipal council or a faction of the municipal council, took a decision to place the Municipal Manager on ‘special leave’ within three weeks of coming into office. The decision was taken on the basis of ‘anonymous’ allegations received by the Mayor. Forcing an employee to go on special leave is illegal in South African law. Thus, one of the first decisions that the Emadlangeni Council took was an illegal decision.
Normally the mayor would have had to satisfy herself of the veracity of these allegations, particularly because she was new in office and for that matter in council. The allegations were tabled in council the same day they were received. On the basis of those allegations the council resolved, albeit irregularly, to put the municipal manager on special leave. Both the Municipal Manager and COGTA advised the municipality about the illegality of their decisions to no avail. The mayor was advised that the allegations in the anonymous letter had been investigated on at least two occasions by the municipality and COGTA and were finalised. The Municipal Manager had been cleared by those investigations. Again, the council or at least some in council refused to take heed of such advice.
In their haste to get rid of the Municipal Manager the councillors appointed one of the senior managers as Acting Municipal Manager who did not meet the requirements for that position. After conducting a preliminary assessment, the MEC established that the acting municipal manager did not meet the minimum requirements for being a municipal manager. The council was advised accordingly and the end result was that the municipality was left without a municipal manager from that point in time.
The MEC said the prevailing situation at the municipality has negatively impacted on the oversight structures of the council. The structures are failing to operate optimally. Thus, they are failing to fulfil their oversight role such as ensuring that council resources are spent according to the Service Delivery and Budget Plan (SDBIP) of the municipality. For instance, reports submitted by management have claimed to have completed projects that do not exist. Committees of council have not considered monthly, quarterly and mid-year reports as required by legislation.
The intransigence on the part of the council led to the MEC personally meeting with the council on 04 November 2016. After much deliberation, the MEC had directed the municipal council to review the resolutions taken on 13 and 21 September 2016. The council agreed to this course of action but later failed to give COGTA officials the co-operation necessary to give effect to the decisions agreed to with the MEC. The MEC did warn the council that failure to govern in terms of the law could result in the Provincial Council invoking section 139 at the municipality. In December 2016, the MEC brought an application to the High Court against the municipality which the municipality opposed. The matter was deemed not urgent by the court and will thus be heard by the court at a later stage. In the meantime, the municipality is going off on a tangent and if not contained now things will be worse by the time the courts hear the matter.
Ms Ncube concluded that unless the question of political will is dealt with by the political parties represented in Council, the Emadlangeni Municipal Council will remain dysfunctional no matter how much money and other resources are invested by the government in an attempt to assist the municipality. There is a sense in which the Emadlangeni Municipality sees itself as having powers to operate outside of the rule of law. A Ministerial Representative has been appointed to develop and implement a recovery plan, which will be monitored closely by COGTA. Quarterly progress reports will be submitted to the Select Committee for noting.
Mr M Chetty (KwaZulu-Natal, DA) appreciated the MEC for availing herself to the meeting. He noted that on page 22, slide 44 of the presentation on conclusions, that it was mentioned that unless the question of political will is dealt with by the political parties represented in the Council, the Emadlangeni Municipal Council will remain dysfunctional. This is a big concern because in that Council there are 6 ANC councillors and a combined 5 councillors from opposition parties represented. The ANC is the majority in that Council and is not committed to a political will to do the right thing. It would been understandable if the Council was ruled by a collusion.
Mr Chetty asked, with regard to slide 41, on page 21 of the report where it is stated that in December 2016 the MEC brought an application to the High Court against the municipality, what is the status or the legal standing of the court case?
Mr M Khawula (KZN, IFP) asked the MEC to clarify which decisions were irregular because slide 35, page 17 of the report stated that decisions taken by the Council were irregular and could financially prejudice the municipality.
Ms T Wana (Eastern Cape, ANC) asked what the timeframe is for the placement of an administrator. Secondly, if the is no improvement in the municipality what the other plan is.
The MEC responded that the issue about political will is not an issue of a political will in terms of politics but rather political will because people didn’t want to take correct decisions. It is a kind of political leadership where they engage with the Council and everybody agrees but later they revert back to their old ways and do wrong things, which is the political will they were talking about.
She emphasised that other councillors, for example, IFP councillors, were threatening to go to court and it was bad when sitting in a room and councillors are at loggerheads with each other. And yes, the ANC is the majority at Emadlangeni Municipality.
Ms Ncube, on to the status of the court decision, said the matter was brought to court on 16 December 2016, but of course the court was closed and nothing could be done on that day. What they were seeking in court was to force the municipality to take correct decisions on some matters like irregular suspension of the Municipal Manager (MM), irregular appointment of the new MM, irregular decisions that have been taken by the municipality.
The municipality continued to take irregular decisions and did not follow proper procedures in all those decisions which had financial implications because some of the people that were appointed did not qualify for those positions. And that had huge implications in terms of good governance in the municipality.
The MEC said in terms of the timeframe for the person placed as an administrator they would not know the extent of the damage until they sit down with the person who is there and assess the damage. Their role is to get a Ministerial representative who will devise a turnaround strategy so as to correct all these things. And that turnaround strategy will inform how much damage and work that had to be corrected. Of course, it is a problem because there are councillors who are disillusioned and there were others that are running the show.
The Chairperson asked if the is no improvement, then what?
Ms Ncube said there will be improvement once they go in there because whatever correct measures they put in place they should ensure that they are implemented. And since they had decided to intervene they already sent a team there last week to look into the books and try find out the extent of the damage. But since the municipality is behind in terms of issues of compliance, like the Auditor General of SA (AG)’s and annual reports they were assisting in that regard otherwise the municipality will be in trouble.
Mr Khawula asked how a senior manager did not qualify for the MM position.
Ms Ncube said on the issue of qualification, a person may qualify as a senior manager but may not as MM because there is a different criterion for both positions.
Ms B Engelbrecht (DA, Gauteng) noted that in the report the COGTA delegation was ignored by the municipality, and it seems there is a direct confrontation between the councillors and the MEC. She asked why the MEC was considering section 139 (1) (b) and not section 139 (1) (c) to dissolve the municipality. Can they save the municipality with this attitude from the Council?
Ms Ncube responded that it is true that they are in direct conflict with the municipality and the community is witnessing all the non-compliance issues, wrong things that are happening there, the irregular decisions that were taken. Therefore, it would not be proper for them to dissolve the municipality but rather go there and assess the amount of damage.
The Chairperson said, based on what had been said by Members, the Committee would have to monitor closely and engage with the Council in order to assist, because they can not be kept in Parliament when their work is out there. When the Committee concretise its resolutions they could also fine tune their visit to the Council. Most of the time they should not get their reports from the desk top and will conclude this matter when they meet with the Council.
Termination of interventions in Local Municipalities in KwaZulu-Natal (Indaka, Ingwe, Mbabazane)
Ms Ncube said in terms of Indaka Municipality, the municipality ceased to exist on 10 August 2016 when it merged with Ladysmith/Emnambithi to form Alfred Duma Municipality. At this point the intervention terminated automatically by operation of the law, that is, the entity at which the intervention had been instituted no longer existed.
In terms of the Mbabazane Municipality the municipality ceased to exist on 10 August 2016 when it merged with UMtshezi Municipality to form Inkosi Langalibalele Municipality. At this point the intervention also terminated automatically by operation of the law, that is, the entity at which the intervention had been instituted no longer existed.
In terms of Ingwe the municipality ceased to exist on 10 August 2016 when it merged with KwaSani Municipality to form Dr Nkosazana Dlamini Zuma Municipality. At this point the intervention terminated automatically by operation of the law, that is, the entity at which the intervention had been instituted no longer existed.
Close up reports were prepared by three administrators and presented to the Intervention Steering Committees at each of the three municipalities. Based on the exit reports, the Executive Council noted progress and that by operation of law, all interventions terminated when the municipalities were disestablished on 10 August 2016.
A post-merger meeting was held where Municipal Managers were requested to table progress reports regarding the amalgamation process and identify any challenges that may be persisting. Solutions were agreed to. Support on an on-going basis is currently provided to the municipalities by COGTA.
Ms Engelbrecht said it seems as if Indaka Municipality is totally dysfunctional because there is no financial report of the municipality in this report.
Ms Ncube said the financial report was submitted last year in September.
Intervention in terms of section 139 (1) (c) of the Constitution in Nquthu Local Municipality
Ms Ncube said in terms of the current status Nquthu Municipality remains without a duly constituted municipal council, thus the municipal council remains unable to exercise its executive and legislative powers. The Ministerial Representative who was posted at the municipality by the Provincial Executive Council in terms of the intervention of section 139 (1) (b) exercised these powers instead of the elected representatives. The municipal council had even failed to appoint an Acting Municipal Manager.
The following are the substantive reasons for the decision of the Provincial Executive Council to intervene in terms of Section 139(1)(c) of Constitution at Nquthu Municipality: The failure by the Nquthu Municipal Council to constitute itself and to elect its chairperson as provided for in sections 29 and 36 of the Structures Act; the failure by the Nquthu Municipal Council to elect its Executive Committee as provided for in section 43 of the Structures Act; the failure by the Nquthu Municipal Council to elect its Mayor and Deputy Mayor as provided for in section 48 of the Structures Act; the failure by the Nquthu Municipal Council to elect its representatives to the uMzinyathi District Municipality, as provided for in section 23, read with Part 1 of Schedule 2 to, the Structures Act, which is prejudicial to the interests of the uMzinyathi Municipality, as it is prevented from constituting its own council and thereby negatively affecting governance and service delivery within the uMzinyathi Municipality’s area of jurisdiction; and the decision to intervene in terms of section 139 (1) (c) under these circumstances is justified. Once the intervention is approved, an Administrator will be appointed and a by election held within 90 days from the date of the dissolution which will be facilitated by relevant authorities.
Ms Ncube said there are still pending court cases which may prolong for years because councillors have brought cases against each other. The Provincial Executive Council and COGTA have done everything possible to assist the municipality to overcome its political and legal challenges.
Mr G Michalakis (Free State, DA) asked whether there were any steps taken against councillors and senior managers that break the rules and in terms of maladministration, because it seems councillors do not respect the rule of the law in this municipality.
Mr Chetty asked whether there was any consideration on the recovery of monies paid to the councillors because clearly these councillors were not interested in service delivery to the communities, and how they determined who the legitimate councillor was when they were still at loggerheads with each other.
Mr Khawula asked how many meetings the Ministerial Representative held with the municipal council, and why the meeting of 13 December did not sit.
Ms Ncube responded that anybody found doing something wrong in terms of maladministration or any wrong doing he/she will be charged and dealt with accordingly in terms of the procedure.
With regard to the payment of councillors, only legitimate councillors were paid. Councillors who have been expelled by their political parties are not paid by the municipality.
On the issue of meetings, it should be noted that when the Provincial Council decided to intervene in terms of section 139 (1) (b) the municipal council had already failed five times to hold a successful meeting. Further attempts on 13 December and 7 February 2017 failed because there was a bomb scare and some of the councillors received death threats.
The Chairperson thanked the MEC for her presentation and how she is dealing with these affected municipalities. The Committee will deliberate on the issue of Nquthu Municipality which is an urgent matter and needed to be prioritised. The Committee will come up with a resolution and visit the province next week to meet with the municipal council in order to quickly resolve this issue.
Ingwe, Indaka and Mbabazane Municipalities
The Chairperson said that with regard to the three municipalities Ingwe, Indaka and Mbabazane it was more of a briefing instead of an exit, and asked for Members to move for a noting in this regard.
Mr D Ximbi (Western Cape, ANC) moved for the noting.
Mr M Mhlanga (Mpumalanga, ANC) seconded the move.
The Chairperson said with regard to the termination report the Committee is satisfied with it but will just take note that there was an exit report because there has been amalgamation of these three municipalities.
The Chairperson said in terms of the report of Emadlangeni Municipality, it was traditional to say they had the presentation from the MEC and would do an in loco inspection. But because of recorded times it could be approved with the proviso that the Committee will make a follow up because already when they embark on section 139 in most instances it starts before it is even pronounced. They still have the power to reverse it regardless whether they had started or not. The Committee should know whether it was really necessary to go there before making a pronouncement.
Mr Chetty said that they should first go and satisfies themselves so as to hear their side of the story.
Mr Mhlanga seconded Mr Chetty that they should go to that municipality and hear the other side of the story in order for the Committee to satisfy itself on these matters
The Chairperson said therefore also on this municipality they should take note of the report of the MEC but they should go there and hear the side of other stakeholders in Emadlangeni municipality.
The Chairperson said with regard to Nquthu Municipality, it should be recalled that it was also the same challenges they were informed of as and when they were there sometime last year. Therefore, it is important to say they are back and are committed, this is the determination and this is their finding. It should be noted that they are on a fact-finding mission so that the Committee get their side of the story and there will be issues that will be raised as and when they will verify them or find the opposite, it is not true. But the Committee should try to make a more informed determination so that tomorrow anyone can come and say the Committee has taken a decision and can stand by the decision taken.
Mr Khawula agreed with the Chairperson because that issue is very intense in nature and it is important that they hear all sides of the story and make an informed decision.
Mr Khawula moved for noting of the report.
Ms G Manopole (Northern Cape, ANC) seconded the move with the proviso that they should go there as early as next week.
The Chairperson agreed that it is important to expedite that process because it is a very crucial issue.
The Committee agreed to go to KZN next week Tuesday to meet with the Nquthu Municipality.
The Chairperson thanked Members for their inputs.
The meeting was adjourned.