Workshop on Section 139 Interventions in Municipalities and general observations

NCOP Cooperative Governance & Traditional Affairs, Water and Sanitation and Human Settlements

05 November 2019
Chairperson: Mr T Dodovu (ANC, North West)
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Meeting Summary

The Chairperson gave an outline of Section 139 in the Constitution, and highlighted the difficulties which the Committee had faced due to their approach on Section 139. He invited the Members to discuss some of their observations and recommendations on the approach to interventions at municipalities.

One of the main observations raised was that Section 139 was often used as a political tool to settle scores among party members, and was a result of political infighting and instability within municipalities. There was agreement that the Committee needed to follow up on all the municipalities where Section 139 had been invoked.

A Member said a problem was that some administrators did worse than the municipal officials, so the Committee needed to identify unqualified administrators and other officials who were not qualified to lead the municipalities. The Committee should compile its own list of people who in the past had not been successful in intervening in municipalities so that they were not rehired in the future.

The Committee recommended that all poor performers in municipalities should be blacklisted in order to prevent the recycling of poor performing municipal officials. It also agreed that a conference should be convened at which local government experts and stakeholders could put forward proposals aimed at resolving the current challenges.

Meeting report

Section 139 interventions at muncipalities

The Chairperson started off by reminding the Committee about Section 139. The invocation of Section 139 of the Constitution happened when a provincial government intervened after assessing and concluding that a municipality did not fulfil an executive obligation in terms of both the Constitution and the executive obligation. The Constitution provided five methods of intervening, using Section 139. These were:

  • Section 139(1a), which requires that the provincial government issue a directive to the municipalities.
  • Section 139(1)(b), which requires the provincial government to assume responsibility because the municipality could not fulfil an obligation.
  • Section 139(1)(c), which requires relevant provincial executives to dissolve the municipality.
  • Section 139(4), which requires the relevant provincial executive to take appropriate steps to ensure that a municipality adopts the budget, or those revenue-raising measures as approved.
  • Section 139(5), which requires the provincial government to impose a recovery plan to secure the municipality’s ability to meet its obligation, which may also lead to the dissolution of a municipality.

The Chairperson explained that when the provincial government imposed a recovery plan in terms of Section 139(1)(b), the provincial executive council had to inform the Provincial Legislature, the Minister and the National Council of Provinces (NCOP), all within 14 days, after which within 28 days the Minister must approve or disapprove and within 180 days the NCOP must also approve or disapprove the intervention.

The Chairperson also highlighted that the legislation did not explicitly say what a provincial government must do, so the provincial government would often appoint an administrator to facilitate the process and the administrator would hold this position until a new council was deployed. In terms of 139(1c), when the municipality was dissolved, within 90 days there ought to be new elections and a new Council must be appointed.

Section 139(d) states that if a municipality fails to approve the budget or raise the necessary measures, the provincial executive council must inform the Minister who will then respond within seven days after Section 139 has been invoked. The same thing applies when a recovery plan has been invoked in a municipality in terms of Section 139 of the Constitution.

The Chairperson told the Members that the current Committee, as well as previous committees, had had their own experiences regarding Section 139. The Committee had experienced challenges and shortcomings regarding their approach to Section 139, and these needed to be discussed in order to establish the best approaches to follow in the future.

He asked the Members to voice their own observations on what had happened. and also to share what they believed the Committee should be doing to improve the situation.

Discussion

Mr G Michalakis (DA, Free State) acknowledged that the session was very necessary and therefore welcomed. Regarding Section 139, he had four points which he would like to contribute.
 
The Committee needs to receive feedback from administrators at least every three months, as well as hold question and answer sessions with municipalities which are under administration. These Q&A sessions should be conducted in such a way that every municipality was given a certain amount of time to engage with the Committee and for administrators to answer questions, in order for Members to be able to establish what was really happening within the different municipalities. However, another problem was that some administrators did worse than the municipal officials, so the Committee needed to identify unqualified administrators and other officials who were not qualified to lead the municipalities.  He suggested that the Committee compile its own list of people who in the past had not been successful in intervening in municipalities so that they were not rehired in the future.

Members needed to start reporting corruption and mismanagement, because they had a duty to act on every corruption case they became aware of when no action was being taken on the ground. He also proposed that the Committee develop certain guidelines for reasonably invoking Section 139. These guidelines would help to develop a uniform approach for invoking Section 139 and also prevent political interference and political bias at the municipal level.

Mr A Gxoyiya (ANC, Northern Cape) said that perhaps the point of departure for the matter should be defining the role of the NCOP in implementing and monitoring Section 154 first. His reason for saying this was that the problem started when the Committee gets involved only when municipalities want to implement Section 139, without knowing what the provinces are doing to implement Section 154. Mr Members needed to consider what the Committee’s role should be in ensuring that all provinces were implementing Section 154 across municipalities, so that it could receive reports on which municipalities were performing well and which were not doing so well. When the Committee has reports of which municipalities were not doing well, it could follow up on the weaknesses of the underperforming municipalities and also intervene before invoking Section 139.
 
Mr Gxoyiya said that the role of the Committee should be preventing crises, more than responding to crises. He agreed with Mr Michalakis that in the event where the interventions of the Committee had failed to prevent a crisis situation, it needed to develop guidelines for using Section 139. He also suggested that maybe a session for developing guidelines should be held with the nine provinces’ Members of Executive Councils (MECs).

Mr I Sileku (DA, Western Cape) told the Committee that there were two things which happen when the Committee tries to intervene at local government, the first being political instability and the second being the relation between Section 56 and the political lag in municipal issues. He raised the question of whether or not the way councils were appointed assisted the Committee to not have to invoke Section 139. He suggested that the NCOP’s role in the appointment of administrators should be looked into. The problems in municipalities could not be solved without there being a proper study being done on local government. Within the Municipal Finance Management Act (MFMA) there ertr certain responsibilities delegated to the executive mayor of a particular municipality, but sometimes mayors were illiterate and therefore could not be expected to fulfill their designated roles, such as ensuring that municipalities were rendering sustainable service and producing integrated development plans for municipalities.

Mr Sileku also raised the issue of there being a lot of factionalism and political decisions being played out at municipal level, and individuals were being appointed to positions not to solve municipal problems, but rather to strengthen factions. In order to do justice to the public, the Committee needed to consider research and expert advice on the current model of government at the municipal level to see whether it was working or not. He raised the concern of there being no accountability for decisions, or lack thereof, taken at municipal level.
 
He referred to the case of VBS investments, and said that in that situation a mayor had signed off a technical report without reading its contents or being concerned enough to look into the banks which were being invested in, and this was an issue which the Committee needed to address. He concluded by saying that the Committee had to have a thorough study into how municipalities were governed, and also look into the role the NCOP in the appointment of administrators.

Mr S Zandamela (EFF, Mpumalanga) said the Committee needed to look at why some municipalities had been under administration more than once. One of the main problems plaguing municipalities was the political instability and infighting of political leaders, and this was an issue which needed to be taken seriously. The also needed to consider the recycling of administrators in municipalities, because this would not solve problems within the municipalities. The Committee had to come up with ways of monitoring Section 139 and conducting oversight within provinces. He suggested that perhaps the Committee should take a more hands-on role when provinces needed to intervene in municipal problems. He pointed out that administrators had never been arrested for failing to do their jobs properly. He also commented on the recycling of municipal officials and there being no accountability for officials who mess up, meaning that the problems of municipalities could not be solved.

Ms M Mmola (ANC, Mpumalanga) said she agreed with Mr Gxoyiya on what the role of the Committee should be in municipalities. She highlighted the problem around Committees placing municipalities under Section 139(1)(b) without conducting oversight to see whether they were improving or not, or whether or not the administrators were doing their jobs properly. She urged the Committee to put their interests aside and not to fight factional battles using Section 139(1)(b), as this was not helping municipalities. She suggested that in future the Committee should review municipalities placed under administration after every six months. She also agreed with Mr Michalakis that all municipalities placed under administration needed to hand over a report to the Committee every three months to allow it to track progress.

Ms Z Ncitha (ANC, Eastern Cape) acknowledged that the Committee was in agreement on the issue of administrators, and suggested that what the NCOP had to do when municipal managers were recruited, was to establish certain requirements that had to be fulfilled, and ensure those people placed in the position of municipal manager met these requirements. The issue of recycling persons who had previously failed to do their jobs also needed to be looked into.

The Committee needed to have a session with the South African Local Government Association (SALGA), since they also had a role to play in municipalities. It had to establish whether or not it was on the same wavelength with SALGA, either at the provincial or NCOP level.

She also raised the issue of the mayor and VBS, and said the Committee needed to establish if there was an investigation taking place around the role of the mayor in VBS and if not, the Committee needed to suggest that one be conducted.

Mr Sileku raised a point of order, saying that he did not want Ms Ncitha to try and justify the mayor’s role, as the issue at VBS was the mayor failing to provide oversight.

The Chairperson reminded Mr Sileku that the point of the meeting was to have a sober discussion, and not to argue.

Ms Mmola clarified that she was not trying to protect anyone who had failed to do their work. Instead, she was simply applying the procedure.

Mr S Mfayela (IFP, KwaZulu-Natal) commended the Chairperson for being open on this issue. He referred to Section 154, and told the Committee that he felt they had not done justice to address the section. He supported the proposal to hold a meeting with all MECs to elaborate on Section 154. Section 154 was important as it had the potential of preventing the Committee from resorting to Section 139. He asked if it was possible to place all municipalities under Section 154 in order to establish how they were doing.

He also suggested that the Committee look at demarcation, because some municipalities had no income base, so the Committee needed to ask whether this was not one of the reasons why some of them were failing so badly. The corruption seen across provinces suggested that maybe the Committee’s demarcation was not correct and needed to be revisited. He expressed his conviction that Section 154 could solve the problems that would result from the invocation of Sections 139(a), (b) and (c).
 
Mr K Motsamai (EFF, Gauteng) said he did not see the importance of visiting municipalities when the Committee was already aware of what was happening in them. He also did not support the idea of visiting municipalities as a result of Section 139 due to the fact that the Committee was already aware of what is happening in the provinces, yet there had never been any prosecutions.

Ms C Visser (DA, North West) told the Committee that they had to look at what their mandate is. On 31 October 1996, the Profession of Town Clerks Act had been removed, which required that the top structure of a municipality registered in a certain body where they got monitored on their performance and their quality was controlled. Referring to the structure of the municipality, she explained that the municipal structure consisted of both political party members as well as administrators, and when a municipality was placed under administration, nothing happened to the administrative part of the municipality. Referring to North West municipalities which had been under administration since 2016, she said that interventions had not improved anything and had not added any institutional value. If they started looking at Section 152 and154 proactively, the Committee would realise that the provincial administration had the power to go in and see that municipalities complied.

Ms Visser said that many municipalities did not submit their reports, while others were allowed to submit unfunded budgets and never followed anything in the MFMA regarding compliance to deliver statements to provincial governments on time. Since she had been both a councillor and a member of the executive, she knew that some mayors and councillors simply did not take the matter seriously. The tradition of no consequences for councillors and mayors resulted in the public not receiving services. Their human rights were infringed upon on a daily basis and when they acted destructively, they were shot at with rubber bullets. The NCOP now had the power to make changes for the better, and using it to ask administrators to hand in reports every six months was simply not enough to turn things around, considering that administrators were in their allocated municipalities only once or twice a week. The government was wasting billions of rands while nothing was being done to effect change, and people were not receiving services. The legacy of the Committee in the 6th Parliament should be to try to turn things around.

The Chairperson said that since the beginning of the term, the Committee had met with only 13 municipalities, while the Minister had said that there were about 40 municipalities under Section 139 in total. The NCOP could not play any role in municipalities if the provinces had not been submitting their notices. The involvement of the Committee in municipalities was a result of provinces complying with the law and coming to the Committee. The imperatives of the Constitution required the Committee to attend to the matter of municipalities, since the provinces had complied. The problem started with the provinces not doing their work as stipulated by Section 154, which was to support municipalities so that they did not fail.

The Chairperson said that the second problem arose from provinces failing to capacitate weak municipalities and then monitoring them in order to establish whether or not they were delivering. When provinces failed to do their job, they resorted to Section 139 as a quick solution. If the provinces were doing their job correctly, they would be able to recognise early warning signs that municipalities were not performing well, and be able to take the necessary steps for intervention.

He also saw a gap where the Committee of the Provincial Legislature on Local Government was not doing its job to hold provincial governments accountable. If they had been doing their job well, they would be able to tell the Committee that they were dealing with municipalities and were aware of the problems taking place in certain municipalities. The issues around the invocation of Section 139 had arisen long before the 6th Parliament started. The issues the Committee was currently dealing with had taken place under the previous administration, and the required 180 days have passed and the Committee had to comply with what the legislature instructed it to do.

He questioned whether provincial departments had the capacity to support municipalities. He was relieved that the Constitution required provinces to report to the NCOP, because if this was not the case, the situation could have been worse. He shared his observation that when municipalities had a problem in a particular sector such as water, other sector departments did not support the intervention in that sector, which made the intervention the responsibility of local government alone, while provincial governments could call on the support of other departments as well.

The Chairperson also highlighted the lack of uniformity in how provinces invoked Section 139 as a result of the lack of legislation to govern it. The sooner legislation was put into place the better, and this would address the issue of guidelines as well.

The Chairperson raised the issue of the 28 days within which the Minister must respond to the invocation of Section 139. He said 28 days was not enough for the Minister to conduct a proper assessment of whether an intervention by the province was right or not, and asked whether the whole process was adequate for addressing issues in the municipalities.

He referred to resistance within municipalities when Section 139 had been invoked, and asked the Committee to consider the calibre of people deployed to municipalities, as well as the intention of their deployment. He also suggested that perhaps municipalities kept on failing -- because of the failure of provincial departments to support municipalities on a continual basis.

He touched on a point raised by Mr Michalakis regarding what the Committee should do about the forensic investigations and those people who had been involved in corruption and mismanagement of resources, and suggested that it had come to the point where they should take a position on this matter and make sure that they implemented that position. The law allowed the Committee to review intervention measures in municipalities to see whether they worked or not.

The Chairperson asked the Members to raise any other observations they might have before formulating recommendations.

Mr Gxoyiya commented that Members had common observations, and these were now exhausted. He suggested that the Committee come up with concrete measures and a way forward on the matter. They needed to convene a session with provinces, the executive committee of SALGA and independent experts in local government, in order to make an assessment on how the Committee should exercise its oversight powers as well as make recommendations for policy development. It should also have a roadshow to assess all municipalities in order to gain a sense of what the better performing municipalities were doing in comparison to the poor performing ones, and establish what the different municipalities could learn from each other. In all of this, the Committee’s focus should be on the implementation of Section 154 as an ongoing process. The session should also be an opportunity for the Committee to develop its own terms of reference for oversight and intervention.

He pointed out that the role of SALGA on the ground was not clear. Sometimes it came across as a representative of municipalities, instead of working with the Committee to provide oversight over municipalities. There had to be continuous assessment of the Committee’s own administration, especially for those municipalities which had better audit outcomes.

The Committee had to establish clear measures for consequence management.

Mr Zandamela said the underlying cause of all the problems in municipalities was political instability and infighting among people who wanted to loot state goods. Regarding Section 139, he recommended that a role for the Auditor General needed to be considered in municipalities which were not doing well, particularly when a municipality had been placed under administration. He recommended that the lifestyles of municipal managers should be audited, because once they came into those positions, they seemed to accumulate wealth while collapsing municipalities. He also recommended that the Committee consider the role of SALGA, because currently it only seemed to be serving the function of employing former executive mayors, and nothing more.
 
Mr Michalakis said the reason he had focused on Section 159 was that the involvement of the Committee in municipalities was more direct, and therefore the Committee had to ensure that this role was fulfilled. He was in support of having a workshop with experts in local government. He told the Chairperson that it would be difficult to try and extend the 28 days in which the Minister had to respond, as it was written in the Constitution. However, perhaps the Committee needed to have a discussion with the Minister around his having to respond within 28 days, even though the province had invoked Section 139.

Mr Michalakis suggested that Members be given the opportunity to send their recommendations through to the administration of the Committee by Friday, to be discussed and adopted at the following meeting.

The Chairperson proposed that the Committee meet to adopt the report based on the Members’ observations. He also proposed that the Committee hold a conference on Section 139, at which it would consider its applications, shortcomings and limitations. A report on the observations of Members would then be circulated among them for adoption.

The Members agreed.

Committee reports

The Chairperson asked the Members to consider two reports -- one on the Dr Ruth Segomotsi Mompati District Municipality in terms of section 139(1)(a), and the other on the Fetakgomo Tubatse Local Municipality in terms of section 139(1)(b). He explained that the latter municipality had sent its report to Committee on 25 June, while the invocation on the municipality had been on 21 December 2018. This meant that the municipality had failed to notify the NCOP within 14 days, and thus the recommendation was that the Committee reject this report. For the Dr Ruth Segomotsi Mompati District Municipality, the report had been sent to the Committee on 25 June, while the invocation on the municipality had been on 21 December 2018. Since the province had already invoked section 139 on the municipality, the recommendation was that the Committee note this.

The meeting was adjourned.

 

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