Ditsobotla Local Municipality S139 intervention: Committee Report

Meeting report

The Chairperson noted that Parliament was in recess and the Members were supposed to be in their constituency offices, but the Committee could not do so because of the constitutional imperatives which required them to have this meeting to consider and adopt its report recommending an intervention in Ditsobotla Local Municipality in terms of section 139(1)(c) of the Constitution. He thanked Members who attended the oversight visit to the Ditsobotla Local Municipality.

The Committee visited the municipality on 29 September 2022 in compliance with the Constitution. It had received a notice from the North West Provincial Executive on the decision to invoke section 139(1)(c) of the Constitution, which meant that they would dissolve the Ditsobotla municipality.

The Select Committee, the Minister and the Provincial Legislature had to approve the dissolution. Constitutionally, the National Council of Provinces was expected to approve or disapprove the dissolution within 14 days, which meant the deadline would be 5 October 2022. The NCOP Chairperson and the Chief Whip had issued a notice inviting all NCOP Members to a 9:00 plenary session on the 5th to consider the Committee Report on its oversight visit to Ditsobotla Local Municipality.

The Chairperson summarised the report and its recommendation were:
Having solicited the opinions of internal and external stakeholders in line with constitutional requirements of public participation, the Select Committee recommends to the NCOP:
• The National Council of Provinces approves the invocation of section 139(1) (c) of the Constitution in Ditsobotla Local Municipality.
• The Administrator appointed in terms of section 139(1) (c) must conduct a skills audit to ascertain the skills available within the local municipality and the areas needing augmentation
• The Select Committee on Cooperative Governance and Traditional Affairs should, within a month, call the MEC of the Department of Cooperative Governance and Traditional Affairs and MEC on Finance to explain their section 139(5) interventions in all Municipalities in North West.
• The Committee is calling for law enforcement agencies such as the Special Investigating Unit (SIU) to investigate corruption allegations and appointment of unqualified staff.
• The Committee has learned with concern that the COGTA MEC has taken unprocedural step to appoint the Administrator for the municipality before Committee has deliberated, adopted and table the report to the National Council of approval or disapproval.
• The steps taken by the MEC to appoint the Administrator before the decision of the NCOP are not procedural and thus invalid, undermine the legal process and perpetuate the unfounded perception that the NCOP process is merely a rubber-stamp process. The Committee has resolved to invite the MEC within a month to appear before the committee to give reasons for this. 
• The COGTA MEC, through the Administrator, alert the Independent Electoral Commission on the dissolution of the Ditsobotla Municipal Council.

Mr E Mthethwa (ANC) supported the adoption of the dissolution of the municipality and said the MEC, who went to Ditsobotla and appointed a new administrator without an NCOP decision, was out of line. The MEC would have to appoint a new administrator after the parliamentary process had been properly followed as the one she had appointed would not be recognised as legal.

Ms C Visser (DA) said to evoke a section 139(1)(c) intervention in Ditsobotla or any of the 21 other municipalities in the North West would only be a political punitive action. It was used to discipline the ANC and other party councillors using political infighting to establish themselves through disruptive and destructive behaviour in local government must not be allowed. The PEC had already decided to invoke section 139(5) of the Constitution and then made the mistake of invoking section 139(1)(c) to dissolve the council instead of section 139(1)(b), and this must be corrected. Parliament must get a legal opinion on this because section 139(1) and section 139(5) could not be implemented at the same time.

Considering the hit list of eight or more North West municipalities identified as being in crisis and currently under the invocation of section 139(5)(a) and (c), it is deemed necessary to state that Ditsobotla had had seven section 139 interventions in total. Invoking another intervention now would regress the economy of Ditsobotla to a point where it would collapse and the destiny of the municipality and its people would be determined by the decision of the NCOP this week. Life in Ditsobotla was challenged due to the continuous regression despite seven failed interventions. It was important to identify the elephant in the room and deal with the fundamental deterioration that caused the municipality to collapse and cause inhumane conditions for all who lived within its jurisdiction.

When the first signs of financial mismanagement and maladministration are identified by the Auditor-General and the Provincial Government, steps must be taken to address and resolve unaccountability with stringent consequence management measures. Accounting Officers, Directors, Managers, the Mayor, and Speaker of the Municipality should be obliged to govern according to and with the discipline of the Constitution and applicable legislation. We cannot tolerate what became systemic fraud, corruption, and looting of local municipalities anymore by dissolving Councils and Accounting Officers while their top and middle management remain untouchable.

Ms Visser said cases must be opened and prosecuted through the courts when fraud, corruption and illegal conduct happen within the administration in the Ditsobotla municipality, and disciplinary action must be taken if the cases happen internally. Provincial COGTA must intervene when municipalities show the first signs of fundamental deterioration and non-compliance to delivering basic essential services. Ditsobotla regressed to a state of complete dysfunction for more than ten years while Provincial COGTA failed to support and strengthen the capability of the municipality to exercise its powers and perform its functions according to section 154: "(1) The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions."

She said section 154 assistance must be enforced with the required discipline as and when red flags in governance become visible. Accounting officers and political leadership should be held accountable for incapacity from cadre deployment incompetency. Municipalities collapse due to appointed officials not qualified to deliver the outcomes needed for successful service delivery. The Committee should deliberate and recommend the destiny of Ditsobotla and its people based on its findings. The NCOP must resolve what is justified for the municipality according to its mandate, integrity, and responsibility.

She thanked the Committee Secretariat for the report as it was full proof of the fact that if the Committee decided to dissolve the municipality, it would only solve 40% of its problems.

Mr I Sileku (DA) said what the Chairperson had shared with the Committee on the correspondence that had been sent to the Committee about Ditsobotla Municipality and the appointment of an administrator before a NCOP decision confirmed what he had always said – that the Committee was a rubberstamp and was a tool used by the ANC to fight its factional battles, and he refused to be a part of it.

The 28 September 2022 correspondence invited the Committee to a meeting on 3 October at the same time this current meeting was happening. The Committee’s inspection was done on 29 September, a day before the HOD decided to invite the municipality for an introduction to the administrator. On the same day that the Committee had its inspection, National COGTA had agreed with the province. The correct process that needed to be followed was that the NCOP would make the final decision on 5 October. When the institutions having the authority to intervene do not understand the law, one understands why these municipalities are in disarray in the North West province.

Mr Sileku wanted to know if there was a section 139(5)(a) and (c) intervention in Ditsobotla before continuing with deliberations.

The Chairperson said he did not know if a section 139(5) intervention was implemented in the municipality because the Constitution, in respect of that section, says once a decision has been taken to invoke section 139(5), the NCOP must be informed accordingly. He had checked the records of the NCOP Chairperson and there was no record of the implementation of a section 139(5) intervention in Ditsobotla.

He asked Members not to refer to a section 139(5) intervention because they did not have information about it. He proposed that the Committee must invite the North West MEC for COGTA and the Provincial Treasury in the fourth term to clarify this.

Mr Sileku said on 21 November 2021, a section 139(5) was started in Ditsobotla and it was placed in the ATC of 18 March 2022 after it was received on 7 March 2022, and he had the information in his records. He was unsure if the NCOP Chairperson failed to relay the information to the Select Committee but was concerned about the matter. On 26 October 2021, five days before the 1 November 2021 local elections, the Ministry of Finance wrote to the North West Premier Bushy Maape, sharing with him that it had identified 43 municipalities in the country that were in financial distress, of which ten were in the North West, as per the directive of President Cyril Ramaphosa. As a result, one of the reasons they decided to invoke section 139(5) instead of section 139(1) of the Constitution, was because they identified a matrix with four pillars – governance, service delivery, institutional capacity, and financial management. Looking at those pillars, they noticed that there was an incorrect interpretation of section 139 of the Constitution which led to the invocation of section 139(5)(a) and (c) in those municipalities.

The Chairperson asked Mr Sileku not to venture into section 139(5) but rather deal with section 139(1)(c) which was the purpose of this meeting. Even if the information provided by Mr Sileku were true, section 139(6) of the Constitution says if section 139(5) is invoked, the NCOP must be informed within seven days after the beginning of the invocation. Therefore, if section 139(5) was invoked in November 2021, and the NCOP was only informed in March 2022, it was well outside the seven-day requirement in the Constitution. He asked Mr Sileku to speak on the current section 139(1)(c) intervention.

Mr Sileku said he was trying to highlight the failure of the North West provincial government to fulfil its oversight in the Ditsobotla local municipality.

The Chairperson said Mr Sileku was allowed to talk about that and the failure of the North West provincial government in terms of section 154 of the Constitution. However, he asked him to avoid talking about section 139(5) because it would not help the course of this meeting.

Mr Sileku said he had several unanswered questions in the last meeting with the municipality. At the time, the Chairperson had asked North West COGTA MEC Lenah Miga to provide written information to the Committee on everything the provincial department had done to support the municipality. However, the Committee had still not received that information. He was unsure of how the Committee would make a decision without that.

The Chairperson replied that even if MEC Miga did not provide the information to the Committee, that would not prevent this meeting from continuing. It would not prevent the NCOP from doing its job and the decision would be taken regardless.

Mr Sileku said the problems in Ditsobotla did not start when the new council was inaugurated. It had been building up for a very long time. There had been almost eight interventions in the municipality and it was questionable to decide that an intervention had failed without any proof of tangible information on what was done by the provincial department. Unfortunately, the Committee had not received that information from the provincial department. All the Committee heard were accusations from members of the same political organisation and it was difficult for him to make an informed decision when the information or answers that were given were not sufficient.

The Chairperson said a national intervention could only be effected by section 139(7) of the Constitution, and the provincial intervention would be in terms of section 139(1)(a), (b), (c), and section 139(4) and (5) of the Constitution. In all those instances, there were processes that would need to be followed. If the national or provincial government did not follow that process, the NCOP would not be held accountable for that. They must insist that the NCOP stick to the procedure and the Constitution.

Mr S Du Toit (FF+) requested that in filling the crucial and vacant positions, a skills audit must be conducted as a matter of urgency to see that the people that would be employed would have the necessary skills.

Mr N Hadebe (IFP) said the visit to Ditsobotla municipality, the current meeting, as well as the decision that would be taken on 5 October in the NCOP plenary session would be informed by the procedural and constitutional steps that the North West Provincial Government would have to have taken. The point of departure for the Select Committee on the 29 September stakeholder meeting was that the North West COGTA MEC could not make any advances before the Select Committee had sat and made a decision to recommend an intervention to the NCOP. It was unfortunate that the MEC did not help the rescue efforts. It would be unprocedural for the Select Committee to allow itself to be forced into making hasty and unconstitutional decisions due to the unprocedural decisions made by the MEC. The mandate of government, including the MEC, should be to ensure that the Constitution is followed.

Mr Hadebe said the IFP would support any constitutional intervention, including the invocation of section 139(1)(c) of the Constitution initiated to rescue the Ditsobotla municipality, provided that all the steps were followed according to the prescription of the Constitution.

Mr K Motsamai (EFF) said the NCOP was not corrupt and that their intention was to protect the people of Ditsobotla because they were in the middle of a crisis and were suffering at the hands of their governance structures. He supported the section 139(1)(c) intervention to protect the people of Ditsobotla.

Ms M Bartlett (ANC) was also in support of the intervention.

The Chairperson said the Committee supported the dissolution of the Ditsobotla Local Municipality with the exception of the members of the DA.

Mr N Hadebe (IFP) said that the IFP would support the dissolution provided that all the steps and processes were followed. He proposed that the report must include the invitation to the North West COGTA and Treasury MECs to explain the invocation of section 139(5) of the Constitution in Ditsobotla and the other municipalities in the province. Secondly, one of the major tasks of the new administrator would be to conduct a skills audit as proposed by Mr Du Toit. All those officials who were not properly appointed should be dealt with accordingly. Thirdly, the Select Committee must call the North West COGTA MEC to order and reprimand her in the strongest terms and demand that she appear before the Select Committee within a month to explain the circumstances for trying to usurp and undermine the NCOP role in the constitutional process.

Committee Report: adoption
Mr Hadebe of the IFP asked for the adoption of the Committee Report.

Ms Bartlett moved for the adoption of the report seconded by Mr Mthethwa.

The DA objected to the report. There were no abstentions.

The Chairperson said the Committee Report was adopted and the views from the Committee members would be incorporated into the report that was submitted to the NCOP for the 5 October NCOP session.

The Chairperson thanked Members and said this was not an easy matter to deal with as a dissolution of a municipality was tough in nature. The NCOP must inform the Independent Electoral Commission (IEC) of its decision to dissolve the municipality and that an election must be held within 90 days.

The meeting was adjourned.

Provincial intervention in local government
139. (1) When a municipality cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation, the relevant provincial executive may intervene by taking
any appropriate steps to ensure fulfilment of that obligation, including—
(a) issuing a directive to the Municipal Council, describing the extent of the failure
to fulfil its obligations and stating any steps required to meet its obligations;
(b) assuming responsibility for the relevant obligation in that municipality to the
extent necessary to —
(i) maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii) prevent that Municipal Council from taking unreasonable action that is
prejudicial to the interests of another municipality or to the province as a
whole; or
(iii) maintain economic unity; or
(c) dissolving the Municipal Council and appointing an administrator until a
newly elected Municipal Council has been declared elected, if exceptional
circumstances warrant such a step.
(2) If a provincial executive intervenes in a municipality in terms of subsection (1)(b)—
(a) it must submit a written notice of the intervention to—
(i) the Cabinet member responsible for local government affairs; and
(ii) the relevant provincial legislature and the National Council of Provinces,
within 14 days after the intervention began;
(b) the intervention must end if—
(i) the Cabinet member responsible for local government affairs disapproves
the intervention within 28 days after the intervention began or by the
end of that period has not approved the intervention; or
(ii) the Council disapproves the intervention within 180 days after the
intervention began or by the end of that period has not approved the
intervention; and
(c) the Council must, while the intervention continues, review the intervention
regularly and may make any appropriate recommendations to the provincial
executive.
(3) If a Municipal Council is dissolved in terms of subsection (1)(c)—
(a) the provincial executive must immediately submit a written notice of the
dissolution to—
(i) the Cabinet member responsible for local government affairs; and
(ii) the relevant provincial legislature and the National Council of Provinces;
and
(b) the dissolution takes effect 14 days from the date of receipt of the notice by
the Council unless set aside by that Cabinet member or the Council before the
expiry of those 14 days.
(4) If a municipality cannot or does not fulfil an obligation in terms of the Constitution
or legislation to approve a budget or any revenue-raising measures necessary to
give effect to the budget, the relevant provincial executive must intervene by taking
any appropriate steps to ensure that the budget or those revenue-raising measures
are approved, including dissolving the Municipal Council and—
(a) appointing an administrator until a newly elected Municipal Council has been
declared elected; and
(b) approving a temporary budget or revenue-raising measures to provide for the
continued functioning of the municipality.
(5) If a municipality, as a result of a crisis in its financial affairs, is in serious or persistent
material breach of its obligations to provide basic services or to meet its financial
commitments, or admits that it is unable to meet its obligations or financial
commitments, the relevant provincial executive must—
(a) impose a recovery plan aimed at securing the municipality’s ability to meet its
obligations to provide basic services or its financial commitments, which—
(i) is to be prepared in accordance with national legislation; and
(ii) binds the municipality in the exercise of its legislative and executive
authority, but only to the extent necessary to solve the crisis in its
financial affairs; and
(b) dissolve the Municipal Council, if the municipality cannot or does not approve
legislative measures, including a budget or any revenue-raising measures,
necessary to give effect to the recovery plan, and—
(i) appoint an administrator until a newly elected Municipal Council has
been declared elected; and
(ii) approve a temporary budget or revenue-raising measures or any other
measures giving effect to the recovery plan to provide for the continued
functioning of the municipality; or
(c) if the Municipal Council is not dissolved in terms of paragraph (b), assume
responsibility for the implementation of the recovery plan to the extent that
the municipality cannot or does not otherwise implement the recovery plan.
(6) If a provincial executive intervenes in a municipality in terms of subsection (4) or
(5), it must submit a written notice of the intervention to—
(a) the Cabinet member responsible for local government affairs; and
(b) the relevant provincial legislature and the National Council of Provinces, within
seven days after the intervention began.
(7) If a provincial executive cannot or does not or does not adequately exercise the
powers or perform the functions referred to in subsection (4) or (5), the national
executive must intervene in terms of subsection (4) or (5) in the stead of the
relevant provincial executive.
(8) National legislation may regulate the implementation of this section, including the
processes established by this section.
[S. 139substituted by s. 4 of the Constitution Eleventh Amendment Act of 2003