The Committee convened virtually to consider and adopt its Oversight Report Inquiring into the Section 100 Intervention of the Constitution in the North West Province. In addition, the Committee had to adopt its outstanding minutes for its previous meetings.
The Constitution enjoins the National Council of Provinces (the NCOP) to regularly look at the intervention to monitor its impact and effectiveness. The Committee is compelled by the Constitution to make recommendations to Parliament on the outcome of the Section 100 Intervention in the North West Province. In terms of background on this matter, the Committee was appointed by the NCOP in December 2020 to inquire into the Section 100 Intervention in the North West Province, with each political party proportionally represented in the Committee. The intervention in the North West Province came as a result of the problems identified by the National Executive.
The Section 100 intervention in the North West Province report was adopted with the exception of the DA abstaining from the adoption process and the FF+ opposing the adoption of the report.
The minutes that had to be considered were those from the Committee’s meetings on 29 January, 08 February, 15 February, 22 February, 01 March, 05 March, 08 March, 15 March, 30 March, 24 May, 07 June and 11 June 2021. The Committee duly adopted all sets of minutes that were outstanding. Concerns were expressed regarding the late consideration of the minutes.
The Chairperson opened the virtual meeting and welcomed Members in attendance. He announced that the purpose of the meeting was for the Committee to consider and adopt its Oversight Report Inquiring into the Section 100 Intervention of the Constitution in the North West Province. He stated the importance of the Committee having to consider and adopt all of its outstanding minutes before the Committee’s Report can be tabled in Parliament. The Committee will first consider the Committee’s Report and then deal with the procedural matter of considering and adopting the outstanding minutes.
Consideration of the Committee’s Report
The first item on the agenda was for the Committee to consider and adopt its Oversight Report Inquiring into the Section 100 Intervention of the Constitution in the North West Province.
The Chairperson stated that the Committee’s Report is in terms of the Section 100 Intervention of the Constitution in the North West Province. The Constitution enjoins the National Council of Provinces (the NCOP) to regularly look at the intervention to monitor its impact and effectiveness. The Committee is compelled by the Constitution to make recommendations to Parliament on the outcome of the Section 100 Intervention in the North West Province. In terms of background on this matter, he stated that the Committee was appointed by the NCOP in December 2020 to inquire into the Section 100 Intervention in the North-West Province, with each political party proportionally represented in the Committee. The intervention in the North West Province came as a result of the problems identified by the National Executive. He subsequently took Members through each section of the Committee’s Report (see the attached document).
Overview and background to the Committee’s Report
Due to the collapse of governance systems and structures, which led to social and labour unrest as well as damage to properties that were observed in the North West Province in 2018, the Cabinet resolved, on 09 May 2018, to invoke section 100(1) of the Constitution in the Province. The Cabinet set up an Inter-Ministerial Task Team (the IMTT) to conduct performance assessments process. Of note is that it is for the first time in the history of interventions since 1994, where the National Executive were to intervene in such a large scale of about more than ten provincial departments. For instance, in other provinces intervention had only affected few departments, i.e., the Eastern Cape Department of Education, the Provincial Treasury and Police, Health, Roads and Transport in the Free State, and also the Department of Health in Gauteng, as well as only five Departments in Limpopo, were also placed under Section 100 interventions in the recent years. These cases demonstrate that, regardless of the size, nature or past history of the province, no province is immune from the Section 100 intervention of the Constitution.
Pursuant to the IMTT's assessment report on 23 May 2018, the Cabinet approved the invocation of Section 100(1)(a) and Section 100(1)(b) on the following departments, in the North West Province:
- Section 100 (1)(a): Department of Finance, Economy and Enterprise Development (FEED); Department of Local Government and Human Settlement; Department of Rural, Environment and Agricultural Development (READ); Department of Social Development and Department of Tourism.
- Section 100 (1)(b): Office of the Premier; Department of Community Safety and Transport Management; Department of Basic Education and Sports Development; Department of Health; and Department of Public Works and Roads.
After the IMTT consulted with the NCOP, as required by the Constitution together with the NCOP Rules, the Committee was established by the NCOP to facilitate inquiries and also to conduct oversight in terms of Section 100 of the Constitution since 2018, when this process was initiated. The Committee visited the North West Province in 2018 and adopted a report dated 30 October 2018, where it resolved that the intervention was indeed warranted and must be continuously monitored on a regular basis, and it further made several recommendations for the IMTT to implement. It is for this reason that the Committee decided to conduct a follow-up oversight visit between 15 to 18 March 2021 and produce its Committee Report, which provides an assessment of the progress made in relation to the implementation of the directives, memorandum of understanding, implementation protocols and 2018 recommendations. The Report assesses the different milestones achieved since the inception of the process and it highlights the issues that needed to be followed up based on the Committee Legacy Report and the 2018 Committee oversight visit report.
Observations and recommendations of the Committee in its Report
The Committee’s observations regarding the intervention in the North West Province included that:
- One of the observations from previous Section 100 and 139 interventions was that quick fixes do not always work. Quick fixes only scratch the surfaces and, in most cases, fail to achieve sustainable results. An intervention of this nature and magnitude in North West needed more time to sustain the corrective measures that would be employed by the Administrators.
- The Committee was concerned about the lack of early warning system to detect provincial challenges prior to being put under Section 100 intervention, which could assist the Province to take corrective actions immediately and avoid being put under Section 100 intervention.
- The Committee is very much concerned about the slow progress made in fast tracking the process of finalising enabling legislation to guide Section 100 and 139 interventions of the Constitution, since the last reporting on 15 February 2021 by the IMTT. The Constitution is silent and vague on the role of administrators who are sent to a province or municipality, rather memorandum of understanding and implementation protocols are used instead, and these have no legal standing to be enforced.
- The intervention approach and outcomes must give effect to the spirit of cooperative governance and intergovernmental and interdepartmental relations, as well as sustainability measures beyond the intervention and should not be viewed as a tick box exercise.
- The Committee has vehemently expressed its concerns with regards to the slow progress made by the law enforcement agencies in investigating, prosecuting and arresting individuals who have allegedly been involved in corruption and maladministration in the Province. The Committee is of the view that there is a need to pick up speed and pace in which these cases are being dealt with and where capacity remains a challenge it must be addressed urgently.
- The Committee expressed concerns around the lack of cooperation, teamwork, coordination and interdepartmental relations amongst all structures and role players to ensure effective implementation of Section 100 intervention in the Province; this includes both political and administrative structures that are given a responsibility to ensure accountability and those that are required to account.
- The Committee remains concerned about the budgetary constraints, accruals, and baselines, particularly in the North West Department of Health, which remains a risk to service delivery, and it notes the discussions that are ongoing between the National and Provincial Treasury.
- The Committee observed that the Provincial Department of Tourism has been discontinued and all tourism functions are transferred to the Department of Economic Development, Environment, Conservation and Tourism (the DEDET).
- The Committee notes the instability in North West Department of Human Settlements, and it is of the view that this might have a severe negative consequence on service delivery. The Committee also welcomes and supports the efforts by the National Department to appoint a grant fund manager in order to address this. The Committee was also concerned about the fact that the North West Department of Human Settlement does not conduct vetting process to service providers before a tender is awarded. For instance, a huge amount was paid to a contractor, whose project remained incomplete, citing the inability to hire certain machines and equipment locally; it was further indicated that the Department intends putting the contractor on terms, failing which, his contract could be terminated.
- Whilst noting some audit improvements, the Committee expressed concerns around the cost escalations, including irregular expenditure in certain areas, particularly in the infrastructure projects that are implemented by the Provincial Department of Public Works and Infrastructure, the Committee believes that this opens up an opportunity for corruption and looting of state resources.
- Whilst noting the progress made by the law enforcement agencies, the Committee remains concerned about the capacity to expedite and finalise cases of Departments affected by Section 100 intervention. An observation was made about a possibility of huge number of the high-profile cases, which might be handed over to the law enforcement agencies once the State Capture Commission has concluded its work, and yet there are still questions around capacity.
- The prior provision of support to a province is not a precondition for intervention. The national government is under a constitutional duty to assist provinces, by legislative and other means, “to develop the administrative capacity required for the effective exercise” of their executive authority of implementing, inter alia, provincial legislation and all national legislation within the functional areas listed in Schedules four and five of the Constitution (Section 125(3)).
- Powers and implementation of Section 100 intervention should be seen as a measure of last resort, where the problem cannot be resolved through ordinary intergovernmental and cooperative government processes. There is broad agreement that the national government is committed to ensuring the stabilisation of the North West Province, to such an extent that interventions are exceptional and not regular occurrences.
- The Committee notes that the instability of municipalities in the North West continues to undermine service delivery and social cohesion in the Province and that the National COGTA has developed a package of measures, including dissolution of municipal councils, administrative interventions, as well as diversion of municipal infrastructure grant funding to implementing agents.
- The Committee observed that the National Prosecuting Authority (NPA) was dealing with 51 cases regarding the North West Section 100 intervention, where 13 are already in courts, six waiting for NPA decision, 17 still under investigation, 15 has been finalised and only two being enrolled.
The Committee’s recommendations (after having done a proper assessment of the work of the IMTT, engagements with various stakeholders and site visits in respect to the review of the intervention by the National Executive) regarding the intervention in the North West Province included that:
- The Committee has noted the progress made by the IMTT in the North West intervention such as audit report improvement, capacity building for service delivery by filling key management posts, investment in infrastructure and improved systems. However, given some outstanding challenges on the ground, the intervention in terms of Section 100 of the Constitution in North West Province should continue, until the National Executive undertakes a review process;
- The IMTT should continue to closely monitor the implementation of directives to ensure achievement of outstanding priorities in the section 100(1)(b) departments and that the challenges in the Departments of Human Settlements are addressed urgently;
- Whilst noting that most functions, which were previously centralised in the Premier’s Office have been transferred back to their departments, irregular project management units and outsourcing has been terminated. It is the Committee’s view that there is still a need for monitoring mechanisms and early warning information systems for provinces to indicate potential problems before they become endemic, so that the National Executive can take corrective measures before problems are deeper;
- The IMTT should ensure full capacitation of departments at senior levels to ensure that the administration leaves a stable senior management leadership in place is expedited and transfer of skills takes place as soon as possible, including the urgent appointment of qualified and experienced heads of departments (HODs) where contracts have expired;
- The IMTT should make sure that the Minister of Department of Social Development fast track the appointment of the HODs and other key management positions, including hospital CEOs and particularly for the North West Department of Social Development, where the HOD position has been vacant since the intervention started;
- The IMTT ensures that issues around the inability to promptly respond to property and office accommodation needs by Provincial Public Works, including lease agreement for office accommodation for Social Development are addressed by the Department together with Public Works and Roads. This remains a challenge that has led to the Provincial Department of Social Development experiencing delays in its infrastructure expenditure and irregular expenditure due to the failure to properly manage lease agreements by Provincial Department of Public Works and Roads. Alternatively, the IMTT should look into dissolution of function of property management from Public Works back to other departments as a long-term solution to the current problem;
- The IMTT should ensure that the Minister of Transport, together with the Provincial Department of Community Safety and Transport Management, resolve the issues around inability to promptly respond to provincial Health transport needs, including the procurement and maintenance of EMS fleet for the Provincial Department of Health as soon as possible. During its oversight visit the Committee noted that most of the EMS vehicles were not maintained, had high mileage and some have exhausted their lifespan. Alternatively, the IMTT should look into dissolution of EMS vehicle function from the provincial Department of Safety and Transport back to the provincial Department of Health as a long-term solution;
- Law enforcement agencies must address issues of capacity, integrity, and allegations of corruption in their own ranks, where some cases are being withdrawn without valid reasons and whistle blowers and witnesses not being protected and interviewed, so as to avoid unnecessary delays to finalise all cases related to the North West Section 100 intervention. The progress and challenges in all the cases open with SAPS, Hawks and considered by the NPA, particularly those that are subject to Section 100 intervention, must be quarterly reported to the NCOP for close monitoring, including case numbers, and these cases must be processed and finalised expeditiously;
- The Committee urges all role players of the North West intervention to engage one another in good faith and work together with a common view to restore good governance and accountability culture to improved service delivery in the province. IMTT, together with the provincial executive, must urgently address all systemic and structural challenges around the interface between the Administrators, Provincial Legislators and Provincial Executive and the proposed enabling legislation should also address some of these issues for future interventions. The Provincial Legislature, together with other provincial oversight bodies, must continue to assist the IMTT to implement a successful intervention to improve service delivery on the ground;
- The IMTT, together with the provincial government, ensure proper and sustainable internal control measures, fraud prevention systems, monitoring and evaluation, audit units and independent audit committees must be put in place and consequence management should be enforced in all incidents of unauthorised, irregular and fruitless and wasteful expenditure, possible abuse of the supply chain management (SCM) system (including fraud, corruption and improper conduct), and allegations of financial misconduct and financial offence, and ensure that these incidents are appropriately dealt with; ensure that all infrastructure projects, especially those implemented by Provincial Department of Public Works and Roads, proper planning and interdepartmental planning is done, and projects are implemented according to the approved scope, and deviations are kept at minimum levels to avoid cost escalations;
- The IMTT, together with the provincial government, ensure that any outstanding or pending disciplinary cases of officials alleged to be involved in the financial misconduct and maladministration are expedited and be properly finalised to minimise the state’s financial implications;
- The IMTT must expedite the process of the legislative framework, present it to the State Law Advisors and let DPME urgently conduct socioeconomic impact assessment for the enabling legislation to guide the Section 100 intervention given the lessons learned from the challenges posed by the interventions in the past and now in the North West Province;
- The IMTT must ensure that the Minister of Basic Education, together with the Provincial Department of Education, National Treasury and Provincial Treasury, find resources within the allocated budgets to address the much-needed school infrastructure maintenance backlogs and security issues in the North West schools to avoid the high level of government assets vandalism and drug abuse. Security will bring order in some drug dominated areas, which affect schooling and it will also reduce the high demand on infrastructure repairs and maintenance as a result of vandalism. Accelerated Schools Infrastructure Delivery Initiative Programme (ASIDI), which is funded through schools’ backlog infrastructure grant, can be modified to cater for such much maintenance and school repairs;
- The IMTT must ensure that the Minister of Health, together with the Provincial Department of Health, National Treasury and Provincial Treasury, find resources within the allocated budgets to address the much-needed hospital infrastructure maintenance backlogs – including kitchen equipment, mortuary equipment, laundry services and other general hospital infrastructure in the North West Province. The Minister must make sure that proper systems are put in place to achieve value for money on such expenditure;
- Notwithstanding the fact that some labour unions expressed unhappiness with the Section 100 intervention in the North-West and alleged that most forums that were established for government and labour to engage had since collapsed, the Committee notes the ongoing engagements between the IMTT, labour and communities with a view to maintain labour peace. The Committee urges the IMTT and Provincial Government of North West, together with Unions, to revive forums and structures where engagement between parties take place with a view to create stability and improved service delivery in the Province;
- The IMTT, together with the Provincial Government, must ensure that the ultimate exit strategy in the North West Province addresses the change management imperatives, such as skills transfer, address capacity challenges and capability of the Provincial Government to function effectively, strong performance monitoring, establishment of independent governance as well as accountability structures and institutionalising new standard operating procedures. The exit strategy should consider that a successful intervention provides for adequate period of transition to ensure stability post the intervention. The IMTT should submit the exit strategy to the Committee prior the implementation to withdraw the intervention. This will allow the Committee to make its own assessment on whether the strategy addresses all the systemic issues raised in the Committee Reports;
- The NCOP, government, civil servants and other state structures can play their roles in helping the North West Province, but it is vitally important that political parties there are stable and function effectively to play their roles too. The participation of civil society also needs to be strengthened and contribute more to ensuring that the Province is brought back to its normality and functions effectively;
- The NCOP, through the Select Committee on CoGTA, needs to develop a framework, based on the Committee’s experience and understanding of the North West intervention and other Section 100 interventions, on how provinces can be more effectively monitored, so that early warning signs are better picked up before the Section 100 intervention is considered for any province faltering in governance and internal control systems. The aims of such a framework would include trying to prevent a province deteriorating to the extent that a Section 100 intervention becomes necessary. The lessons learnt from these interventions, including the type of measures that work effectively and need to be identified and form part of this framework;
- There needs to be more effective cooperation between the NCOP committees and other counterparts in the provincial legislatures so that both the NCOP and the legislatures are far more effective in our oversight of the provincial executives, thereby reducing the prospects of Section 100 interventions.
The Committee noted some progress made in the North West Province, but given the magnitude of outstanding challenges, the Committee is of the view that at continuous and regular monitoring of the intervention as required by Section 100(2)(c) of the Constitution, which includes visiting government facilities and vigorous engagements with various organisations, IMTT, Provincial Executive and Communities in the North West until the situation has improved and the review process has been undertaken will be vital. The NCOP should ensure that Parliamentary sector committees obtain this report so that they can follow up on the set of recommendations made by the Committee.
Consideration and adoption of the Committee’s Report
The Chairperson stated that Members had more than a week to study the contents of the Committee’s Report. He then continued to facilitate the process for the adoption thereof.
The Committee adopted its oversight on the Section 100 intervention in North West Province, with the exception of the DA abstaining from the adoption process and the FF+ opposing the adoption of the report.
Consideration and adoption of the outstanding minutes
The Chairperson reminded Members that the Committee needed to adopt the minutes of its previous meetings that are still outstanding. He expressed his concern regarding the issue that the minutes have not been adopted sooner, as minutes were still outstanding from February 2021.
The minutes that had to be considered were those from the Committee’s meetings on 29 January, 08 February, 15 February, 22 February, 01 March, 05 March, 08 March, 15 March, 30 March, 24 May, 07 June and 11 June 2021. The Committee duly adopted all sets of minutes that were outstanding.
The Chairperson thanked the Committee for the hard work that was put in during the lifespan of the Committee in enquiring into the Section 100 Intervention of the Constitution in the North West Province.
The meeting was adjourned.
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