Tswaing Local Municipality Section 139 intervention: Committee Report

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Meeting Summary


The Select Committee held a virtual meeting to consider information received earlier in the day from the MEC for Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements in the North West province on the decision made by the provincial government to undertake a Section 139(1)(c) intervention in the Tswaing Local Municipality.

The  Committee considered its report to the National Council of Provinces. The report provided the background to the situation and included the opinions of the internal and external stakeholders on the invocation of section 139(1)(c), and the opinions of each political party represented in the local council as well as the views of the Members of the Select Committee.

A Member of the Select Committee who resides in Tswaing provided a detailed account of the litany of problems in the municipality that had been developing over more than a decade without real support from the North West Department of Cooperative Governance and Traditional Affairs or the provincial government. Her main concern was the finances in the municipality and what had happened to the R68 million that had been in the municipal bank account when it was frozen on 21 July 2021. On 31 August 2021, the balance in the account was R1.2 million, although medical aid contributions, Eskom and the SA Revenue Service had not received payment. However, the Member did not believe that invoking section 139(1)(c) was the answer as it had not proved to be a successful strategy and it would not address the core problem of in-fighting amongst members of the ruling party in the municipality or the issue of the municipal manager who was considered wholly unsuitable for the position. Other Members stated that there was very little to discuss as it was obvious to everyone that the municipality was completely dysfunctional and was not serving the needs of the community.

With the support of the majority of Members, the Select Committee recommended that the NCOP approve the invocation of section 139(1)(c) of the Constitution in Tswaing Local Municipality. The objection of the DA to the invocation of section 139(1)(c) was noted. It was also noted the EFF queried the timing of the action as it was 21 days to the local government elections.

The Committee called on the MEC of the Department of Cooperative Governance and Traditional Affairs to ensure that a qualified and competent administrator was appointed and to provide the necessary support to the municipality.

Meeting report

Opening remarks
The Chairperson summarised the briefings from the earlier committee meeting that morning. He stated that the North West MEC for Cooperative Governance, Human Settlements and Traditional Affairs, Ms Lena Miga, had presented the reasons for the decision of the North West Provincial Government (NWPG) invoking section 139(1)(c) on the Tswaing Local Municipality. The Deputy Minister of Cooperative Governance and Traditional Affairs (CoGTA), Thembi Nkadimeng, had explained the decision of the COGTA Minister to support the NWPG decision. The Committee had also listened to the views of political parties with seats on the Tswaing Municipal Council and other stakeholders.

The Committee staff had prepared a report based on the presentations and discussions in the morning which the Committee had to consider and ultimately determine whether or not to recommend that the NCOP support the decision to impose section 139(1)(c) on the Tswaing Local Municipality. The Chairperson proposed a 20-minute discussion on what the Committee had heard in the morning so that Members could reflect on what they had heard before they went through the report.

Ms M Bartlett (ANC, Northern Cape) suggested that Members had been afforded an opportunity to discuss the briefing and inputs in the morning and that it would be more productive to go straight to the report and then to have a discussion.

Ms C Visser (DA, North West) supported the proposal.

Committee Report on Notice of Dissolution issued to Tswaing Local Municipality
The Chairperson read through the report. The report provided the background to the situation and included the opinions of the internal and external stakeholders on the invocation of section 139(1)(c), including the opinions of each political party represented in the municipal council and the views of the Select Committee. The report concluded with the Committee recommendation:
Having virtually consulted and engaged with the Department of Cooperative Governance and Traditional Affairs as well as the internal and external stakeholders of the Local Municipality, the Select Committee recommends to the NCOP in terms of Rule 101 as follows:
1. The NCOP approves the invocation of section 139(1)(c) of the Constitution in Tswaing Local Municipality.
2. The MEC of the Department of Cooperative Governance and Traditional Affairs should ensure the appointment of qualified and competent Administrator.
3. The appointed Administrator including the intervention team should deal with all problems and challenges of municipality including disciplinary action of any employee and where possible opening of criminal cases on matters related to corruption and financial mismanagement.
4. The North West MEC of the Department of Cooperative Governance and Traditional Affairs should play a leading role in providing support to the Local Municipality in terms of section 154 of the 1996 Constitution.

Ms Visser stated that as a citizen and former councillor of Tswaing Local Municipality, it was a very difficult decision for her to make. On the one hand, the mayor could not provide an answer for what had happened to the R68 million that was in the municipal bank account when it was frozen on 21 July 2021. On 31 August 2021, the balance in the account was R1.2m, although medical aid contributions, Eskom and SARS had not been paid. That information was in the public domain. The Business Chamber had informed the Committee how it had provided the finance and diesel necessary to keep the municipality going over the past few months. The largest part of the municipality was without electricity at the time following cable theft the night before and consequently citizens would be without electricity for two weeks.

She had to take account of those facts as well as the absence of some members of the ANC, such as the municipal manager who was in Pretoria building a new house, and the fact that the DA had on nine occasions formally requested a council meeting to discuss service delivery issues but had been ignored each time. The question was whether the Select Committee should rubber stamp the decision to dissolve the municipal council. The only real intervention from a national level had been by Thandi Modise in 2010 and the Minister of Finance at the time. Since then no one had been interested. Ms Visser had been a Tswaing Local Municipality Councillor and she had written several times to national departments, requesting assistance for the municipality. She had been invited to the office of former President Zuma to discuss the service delivery issues. He had promised to get rid of the sewage in the streets. Currently banks and shops could not allow people into their premises as they had to walk through sewage to enter the premises. Sewage ran into people’s houses and down the passages in the night.

Ms Visser informed Members that the municipality had on three previous occasions been under an administrator but on each occasion the administrator had left without achieving anything and without even leaving a final report. There had been no feedback from the provincial government. She had worked with the leadership in the provincial legislature and everyone knew about the situation. They had listened to her, but there was no intervention in Tswaing. It was well known that faction fights within the governing party were destroying municipalities across the country. The COGTA Minister had acknowledged that faction fights were destabilising municipalities across the country.

She believed that the NCOP had to put politics aside and re-instil integrity in its decision-making. How did the NCOP get out of the situation without impacting its integrity? She believed that the real need was for an administrator or National/Provincial Treasury to take over the finances of the municipality until a new municipal manager and CFO could take over. Then there was the matter of the court interdict that was keeping the entire country hostage. No one – not a single government department or minister – had appealed the court judgement and so the judge had confirmed that no one could go into the municipal premises.

Ms Visser believed that the answer lay in getting rid of Municipal Manager, Mr Isaac Moruti, as he controlled the money. The bank was also of the view that he had to be removed from the municipality. In 2011, Mr Moruti had been the Tswaing CFO and the council had paid to get rid of him because of the irregularities he had been involved in. Mr Moruti had moved to Ventersdorp as acting municipal manager there. In the last audit management report, the Auditor-General had said that a case had to be opened with SAPS and the Public Protector to investigate Mr Moruti's activities relating to tenders in Ventersdorp but the municipality had been amalgamated with Tlokwe and nothing had happened. Mr Moruti had then been re-cycled back to Tswaing as Municipal Manager. The ANC councillors had been obliged to agree to the appointment of Mr Moruti or be removed from the council. It was unfair that the NCOP should have to take responsibility at this late stage but the NCOP could not leave businesses to run the municipality.

Ms Visser noted that if section 139(1)(c) were implemented, there would be a vacuum. An administrator would not be subject to oversight and there would then be no control over how the money was spent and an administrator would not be able to handle the current 3 000 to 4 000 complaints. She spoke of the summer temperatures in a makuku when the temperature reached 50 degrees inside the structure but the inhabitants were without water for weeks while thirsty children cried. She had discovered that the water authority in the district municipality was pumping water into two salt pans and so the water did not reach Tswaing. Houses burnt down, doctors left the area, machines in the hospital and businesses burnt out because of the lack of water. She was particularly concerned that sewage was flowing into the only waterhole for animals in the local nature reserve.

In her view the best solution was a section 139(1)(b) intervention and not section 139(1)(c). The Provincial Treasury should monitor or withhold the equitable share so that the money could be protected. Even the Municipal Infrastructure Grant had been spent with no evidence of improvements.

The Chairperson said that he had allowed Ms Visser an extensive amount of time to speak as he was aware of the work that she had done in that municipality and how passionate she was about the issue.

Ms Bartlett said that the only conclusion was to dissolve the municipality because people were suffering and the municipality had collapsed. She acknowledged the poor timing but she supported the dissolution of the municipality. There was no point in discussing the same things that had been discussed in the morning.

Mr E Mthethwa (ANC, KZN) said that there was no point in going around in circles. He agreed the municipality should be dissolved. He noted that the action was long overdue. Section 139(1)(b) had been tried and now it was time to move onto section 139(1)(c). He moved that the Committee support the implementation of section 139(1)(c) in the Tswaing Municipality.

Ms N Nkosi (ANC, Mpumalanga) acknowledged that not all stakeholders were in agreement with the dissolution, although much of that was a result of the in-fighting in the municipality. However, it was important to focus on the running of the municipality. Everyone agreed that the municipality was non-functional. There was no alternative but to dissolve it. There was no reason for keeping the municipality as it was not providing services to the community. She supported the motion to dissolve the council.

Mr I Sileku (DA, Western Cape) reflected on the report and the Chairperson’s closing remarks at the conclusion of the morning meeting that the national Department together with the former MEC of COGHTA in the North West recommended the dissolution of the municipality and so was not surprised that, despite all the inputs, Members wanted to shut down the municipality. A similar situation had occurred in Tshwane. The Committee Members did not listen to SALGA. The NCOP would simply rubber-stamp the decision of the North West legislature. It did not make sense to dissolve a municipality 14 days before an election. Committee Members represented the provinces and he urged them to consider the interests of the community and not play a party role. The arguments had no substance because the decision had already been taken to dissolve the municipality. This was despite the fact that many leaders who understood the situation – including SALGA, the former MEC and the portfolio committee chairperson – explained that the timing was wrong. When the ANC leadership did not have the guts to deal with its deployees in municipalities and councils, it used mechanisms, such as the NCOP, to deal with them. The ANC wanted to use the NCOP to discipline its members.

He said that logic told one that if nothing had been done in five years, nothing could be done in 21 days. The ANC was in the majority in the Tswaing Council but the ANC was riven by factions. The municipality was in a mess because the ANC could not deal with its people. Letters written to the North West MEC and the Premier were not responded to. The MEC had not even checked if letters had been received because she was simply following instructions and dissolving the municipality. It was the second time that the ANC majority had bulldozed a matter through the NCOP.

The Chairperson admonished Mr Sileku, requesting him not to attack fellow Committee Member colleagues. Each person and party was entitled to have their views. Speakers had to focus on the issue at hand.

Mr K Motsamai (EFF, Gauteng) asked a question in Sepedi: Why do you want to dissolve the municipality when there are only 21 days left before the elections?

Ms S Shaik (ANC, Limpopo) thanked the Chairperson for calling Mr Sileku to order. Irrespective of the timing, the NCOP had an obligation to dissolve the municipality. It was a fact that service delivery was not happening and the municipality was in dire financial straits. It would not be able to perform any service delivery because of its financial constraints. Despite the court order, there were problems in the council, but the problems in the Administration were critical and needed serious attention. Even a new council would not be able to resolve the situation because there was serious tension in the municipality. She supported the recommendation that the municipality be dissolved.

The Chairperson addressed two key issues. In his view, the councillors of Tswaing had disappointed those who had voted them into office because they had failed to ensure accountable governance and service delivery. They had not promoted accountable, participatory government since 2016. A series of interventions had been made but the councillors had been unable to work together towards the common good. It was disgraceful that the councillors had failed the people.

Secondly, he was not satisfied that the North West Provincial Government had supported the municipality and strengthened its performance in the past five years. The North West Department of Cooperative Governance had not monitored the performance of the Tswaing councillors because if it had, it would have long ago realised that there were serious problems and addressed it. But, the fact of the matter was that the municipality was in crisis. No one, not one of the internal or external stakeholders, could point to service delivery or anything positive. The councillors fought amongst themselves and took each other to court and did not meet their mandate. There were divisions, especially in the governing party. Meetings were not taking place or they were ad hoc and the council was not performing appropriately. Councillors kept taking irresponsible decisions that were not in line with the requirements of a municipal council or performed oversight. The council had not dealt with the municipal manager despite his involvement in irregularities. There was no public participation. There was no consequence management for poor performance. The situation was disastrous.

The Chairperson stated that the municipality had adopted an unfunded budget. The municipality did not have the money it allocated in the budget. The municipality had not paid third parties and it did not collect revenue. The Business Forum had suggested it collect the rates and taxes for the municipality, but why had the provincial government not played its role? The NCOP saw the crisis in the municipality sky rocketing, especially irregular,  fruitless and wasteful expenditure. There was no service delivery, there had been a total collapse of infrastructure and a complete lack of maintenance. How were the council employees earning overtime when nothing was happening in the municipality? There was impunity as there was no consequence management. It was his view that the North West government had not assisted the municipality as it should. The MEC was being blamed but she had been in the position for only a month while the problems were historical.

The Chairperson said that the COGTA Minister had presented a report to Cabinet on the status of the municipalities. The report had shown that 64 municipalities were totally dysfunctional and Tswaing was of those dysfunctional municipalities. Cabinet had determined that Tswaing was one of those municipalities that had to be dissolved. He was aware that there were only 21 days to the local government elections. However, he was of the view that the NCOP should not refuse to punish the municipality because there were only 21 days left before elections? People were looting and stealing and that would continue for the next 21 days. Regardless of the time left for the current council, he would support dissolution as the best resolution. The council had failed to call the municipal manager it appointed and the senior managers to order and had failed to implement consequence management. The councillors were a disgrace, but the report also had to reflect the fact that the Provincial Government had failed in its obligations.

The Chairperson stated that the Select Committee should determine whether to recommend approval of the dissolution of the municipality to the NCOP. Ms Visser and Mr Sileku had said that they did not approve the dissolution of Tswaing. Mr Motsamai had asked a question about the timing of the dissolution. The rest of the Committee Members had indicated that they approved the dissolution of Tswaing.

Ms Visser said that the DA would vote against the implementation of section 139(1)(c) as section 139(1)(c) had never resolved a dysfunctional municipality. She reiterated that it was the ANC councillors who did not attend meetings and were involved in in-fighting, but not all the ANC councillors.

Ms Bartlett said that Ms Visser had her view but the ANC was voting in favour of supporting the dissolution of the municipality.

Mr Sileku stated that he did not approve. His advice to the ANC was that, if the ANC was as serious about caring for the people as it said it was, it should send competent people to the municipality. It should not run away instead of fixing its problems.

The Chairperson asked him to speak to the issue and not to cast aspersions on a political party. Every party had the right to present its members to the voters.

Ms Nkosi said that Members should act as a Committee and not politicise the matter. She supported Ms Bartlett on the dissolution of Tswaing.

The Chairperson concluded that the Committee supported the dissolution of Tswaing Municipality and called on NWPG to do its work according to section 154 of the Constitution and support the municipality. The administrator to be appointed was called upon to ensure the municipality became functional, including the administration, and that criminal cases were opened against those who had engaged in criminal activities, including senior managers. The NWPG had to act decisively to resolve all the issues, including the court actions that had taken place.

He noted that the COGTA Minister had supported the dissolution of Tswaing Municipality, and that it was a position supported by Cabinet.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      He noted that the DA objected to the dissolution and that Ms Visser had stated that some, but not all, ANC councillors were involved in the dysfunctionality and that she believed the problem lay with ANC.

Closing remarks
The Chairperson appreciated the engagement of Members, especially as they were in the throes of electioneering. He hoped that the elections would be free and fair.

The meeting was adjourned


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