Election of chairperson & Intervention in Stilfontein and Wedela

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LOCAL GOVERNMENT & ADMINISTRATION SELECT COMMITTEE

LOCAL GOVERNMENT & ADMINISTRATION SELECT COMMITTEE
23 August 1999
ELECTION OF CHAIRPERSON

Documents handed out:
Intervention : Stilfontein Municipality
Intervention : Wedela Municipality

MINUTES
The Committee Clerk asked for nominations for the position of Chairperson. An ANC member nominated Mr M Bhabha of the ANC and another ANC member seconded. As there were no further nominations, Mr Bhabha was duly elected as Chairperson.

Mr Bhabha thanked the committee for the confidence placed in him and welcomed all new members. The Chairperson said the issue on the table is that the Northern Province government requested approval of intervention in Stilfontein and Wedela municipalities. The Committee have to decide whether it is necessary to intervene and what form the intervention will take. The Chairperson introduced Adv D le Roux to present to the committee whether the intervention complies with the provisions of the constitution. Adv le Roux said that there has been full compliance with the constitution. On the 3rd August 1999 the North West government intervened in terms of S139 (1)(b) of the constitution and was approved by a Cabinet member within the 14 day period provided for by S139 (2)(a) of the constitution. Furthermore the committee will have until 23 September 1999, 30 days of the first sitting (which is today) after the intervention began in terms of S139 (2)(c).

The Chairperson requested those members who are interested in going to Stilfontein and Wedela to investigate the intervention to put there names forward. This trip is to take place on Thursday 2nd September 1999 and Friday 3rd September 1999.
The Local Government Municipal Systems Bill and Amendment Bill for Public Administration are legislation coming up for discussion. The Local Government Municipal Systems Bill will be discussed by the National Assembly during this session of parliament (planned to be tabled on the 4th of October 1999). The Chairperson requested members to send representatives to the meeting of the National Assembly to listen into issues.
Since there were no further issues to be discussed the meeting was closed.

Appendix 1

LOCAL GOVERNMENT, HOUSING, PLANNING & DEVELOPMENT

NORTH WEST PROVINCE

PROVINCIAL INTERVENTION IN TERMS OF SECTION 139 OF ACT 109 OF 1995 (WEDELA TLC)

I take this opportunity to inform your council that on numerous occasions the Provincial Government has intervened in your council to try and bring it to sound administrative and financial management which would guarantee the community of Wedela sustainable decent services and governance, to date the following problems have not been addressed adequately:

(i) Inability to service debts.

(ii) A despondent and non co-operative community in so far as payment of services are concerned.

(iii) Misuse of council's property.

(iv) Breach of code of conduct by councilors.

(v) Strained relationships amongst councillors and officials.

The community in Wedela have lost faith in the councillors and the administration and are demanding that the Provincial Government should intervene by disbanding or dissolving the council.

The Wedela TLC is an elected municipality established by and under the provisions of the Local Government Transition Act, 1993.

In terms of Section 139(1)A of the Constitution, 1996, the Provincial Executive has resolved to intervene due to the above mentioned failure of your council to fulfil its obligations and responsibilities. The Provincial Executive has therefore decided to intervene by issuing the following directive to your council:

(i) Submit a Business Plan which will indicate how much your council has raised and what activities is your council engaged in to service the debts and the progress made. This Business Plan should include details of cost recovery, debt repayment by councillors and officials.

(ii) Submit Progress Report regarding the negotiations with service providers and give a guarantee that there will be no further service interruptions. This should include full details of all your creditors and amounts owing to them.

(iii) Submit a clear communication strategy that will persuade residents to co-operate with the council and pay for the services rendered by the council.

(iv) An action plan that will be adhered to, to avoid misuse of council property and assets by councillors and officials.

(v) A clear mechanism to prevent breach of code of conduct by councillors.

(vi) A plan to improve councillor-official relationships.

(vii) A plan of action to improve all services rendered to the community of Wedela.

The officials from the Department of Developmental Local Government and Housing will meet your council at your offices on the 14 July 1999 at 11H00 to assist you in implementing measures to rectify the failure of your council to meet its obligations and responsibilities.

I will appreciate it if you could give the departmental officials the necessary co-operation in their effort to normalise and restore sustainable service delivery in Wedela and to assist your council in giving effect to the directives of the Provincial Executive Council.

MEMBER OF EXECUTIVE COUNCIL FOR DEVELOPMENTAL LOCAL GOVERNMENT AND HOUSING

Appendix 2

LOCAL GOVERNMENT, HOUSING, PLANNING & DEVELOPMENT

NORTH WEST PROVINCE

1. PURPOSE

(i) To notify the Provincial Legislature as prescribed in terms of section 139 2(b) of the constitution of 1996

(ii) To confirm the mandate of the legislature for the interventions in the two municipalities.

(iii) To get the legislature informed on the state of Governance in the two municipalities.

2. BACKGROUND

2.1 Various problems have been experienced with both councillors and officials in the Stilfontein and Wedela TLCs, which on occasion, has led to the flouting of legal precepts and allegations of maladministration.

The Department of Developmental Local Government and Housing

established Investigation Teams which reported evidence of the

following irregularities.

2.2 Stilfontein Transitional Local Council

- The shortfall in income for 1998/99 for the period 01/07/1999 - 31/05/1999 (11 months is already R7,746,252,00 and will increase to +-R8,5 Million for the financial year. With only a possible amount of +-R1,2 Million at present available to pay its creditors, more than R7 Million will be needed to pay other outstanding debts, which also includes contributions to employees' pension and medical funds.

- Lack of financial and administrative skills to run the Council.

- Water and Electricity supply has been interrupted due to the failure of the council to meet its obligations to the service providers.

- Inability of the council to properly maintain the infrastructure.

    • Breach of code of conduct by councillors.
    1. Wedela Transitional Local Council

- Misuse of council property.

- Corruption in Housing Project.

- Breach of Code of Conduct by councillors.

    • Inability of the council to pay service providers which has led

to cut off of water and electricity on numerous occasion since

1997.

- A despondent and non-co-operative community in so far as payment of services are concerned.

- Strain relationship amongst councillors and officials.

    • The municipality has failed to meet its obligations to pay for

services with the outstanding debts which are as follows:

Eskom = R1, 852 415-24

Rand Water = R 555 124-87

Cartonville TLC= R 200 252-97

ASFA = R 157 713-39

The community of Wedela and Stilfontein have seemingly lost faith in the councillors and the administration and are demanding that the Provincial Government should intervene and disband or dissolve the two councils.

This was clearly demonstrated by the protest marches against the councils, memorandum, submitted to the department, in Wedela TLC offices were burnt down.

On numerous occasions, the Premier and the MEC have made political interventions to stabilise the two councils and restore governance. The officials engaged in capacity building exercise to rehabilitate these two councils and very little has been achieved due to lack of the necessary commitment and co-operation from the two councils. Whilst we cannot dispute the fact that Local Government in the country is faced with the enormous challenge of providing housing, infrustructure and municipal services to the poorest of the poor characterised by unemployment and poverty therefore inability to pay for services rendered, it is an obligation for these municipalities to provide services in a sustainable manner and collect debts from communities as provided for in Section 10 G of the Local Government Transition Act of 1993.

2.3 The most appropriate legally authorised option, seems to invoke the provisions of section 139 of the constitution, 1996, dealing with the provincial supervision of local government. This section is, however, limited in its application and merely sanctions intervention by the provincial executive in the affairs of a municipality for a limited time after notification of the provincial legislature and the NCOP. The full text of section 139 of the Constitution is reproduced below for the sake of completeness:

"13. Provincial supervision of local government. (1) When a

municipality cannot or does not fulfil an executive obligation in terms of legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfillment 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; and

(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary-

(i) to maintain essential national standards or meet established minimum standards for the rendering of a services;

(ii) to 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) to maintain economic unity.

If a provincial executive intervenes in a municipality in terms of subsection (1)(b)-

(a) the intervention must end unless it is approved by the Cabinet Member responsible for local government affairs within 14 days of their intervention;

(b) notice of the intervention must be tabled in the provincial legislature and in the National Council of Provinces within 14 days of their respective first sittings after the intervention began;

(c) the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began, and

(d) the Council must review the intervention regularly and make any appropriate recommendations to the provincial executive.

National legislation may regulate the process established by this section".

It is apparent that this section of the Constitution contemplates that any intervention must be limited in scope and duration. The provincial executive may only intervene where a municipality does not fulfill "an executive obligation" by issuing a directive to the municipality to take appropriate remedial steps or the provincial executive may itself assume responsibility but only to the extent necessary to maintain essential standards or to meet established minimum standards of service delivery.

There are also stiff procedural requirements. The intervention must end unless the national Minister responsible for local government approves the intervention within 14 days of its inception. Notice of the proposed intervention must also be tabled in both the provincial legislature and the NCOP within 14 days of their respective first sittings after the commencement of the intervention.

The NCOP must approve the intervention or the intervention must end. Where the NCOP approves the intervention, the intervention must be regularly reviewed by the NCOP.

There is no legal authorisation to direct an 'extraordinary request:

to the NCOP to go beyond the prescripts or limitations of the provision concerned in order to enable the Provincial Government to intervene on the basis of dissolving the council and appointing an administrator to run the affairs of council until the next local government elections. Any such request to the NCOP would be unauthorised and unlawful and repugnant to the Constitutional principle that all spheres of government, including local government, be democratically elected.

In the light of the above, it is apparent that the Constitution envisages that intervention is an option to be carefully considered in exceptional and extremely serous cases of non-performance by a municipality in fulfilling its executive obligations. It is also apparent that much debate and publicity will be generate by any intervention.

2.4 This constitutional provisions for intervention are not punitive measures against Municipalities and will not remedy these councils but an opportunity for the Provincial Government to address capacity problems. This intervention will not dissolve these councils but will encourage co-operative governance.

The councils will continue with its legislative obligation and the administrators will carry out the executive functions to ensure cost effective and sustainable service delivery in the two councils.

PROCESSES OF THE INTERVENTION IN TERMS OF SECTION 139 OF THE CONSTITUTION OF 1996 BY THE DEPARTMENT

- The Department has negotiated with the stakeholders not to cut the

bulk supply of services.

- The Provincial Government has paid large sums of money to avoid

service interruption. In Stilfontein the Provincial Executive Council has

approved R3 Million for payment of water and electricity.

- The MEC has issued directives to the two municipalities in terms of

Section 139 1(a) of the Constitution to request them to submit plans to

rectify the mistakes and unfortunately the councils could not satisfy the

directives.

This clearly demonstrate the incapability of these councils to rehabilitate themselves and inevitably require the Provincial Intervention as the constitution clearly defines the role of Provincial Government as being to capacitate, support and monitor local government.

- The MEC for Developmental Local Government and Housing has no choice but to invoke section 139 1(b) to the two councils with the intention of taking corrective measures to stabilise financial management and restore sustainable service deliver and governance.

- Three Administrators have been appointed to run the Executive functions of the councils.

- A formal Provincial Executive Council Resolution has been taken for the intervention.

- The Minister for Provincial and Local Government Affairs has been notified about the Provincial Intervention.

- The legislature convened to confirm the mandate from the Executive

Council.

- A submission will be made to the National Council of Province to get approval within thirty days in terms of Section 139 2(b).

- This intervention will be monitored by the MEC, Provincial Executive

Council and the National Council of Provinces on monthly basis to review progress.

- Should the MEC be satisfied that the Municipalities are capable to run

on their own the intervention will be withdrawn.

RECOMMENDATIONS

- The legislature should support the provincial intervention.

- The Local Government Standing Committee should give Political Support to the process.

MEMBER OF EXECUTIVE COUNCIL FOR DEVELOPMENTAL LOCAL GOVERNMENT AND HOUSING

Appendix 3

LOCAL GOVERNMENT, HOUSING, PLANNING & DEVELOPMENT

NORTH WEST PROVINCE

PROVINCIAL INTERVENTION IN TERMS OF SECTION 139(1)(b) OF THE

CONSTITUTION:WEDELA LOCAL COUNCIL

I. Kindly be informed that the Provincial Executive Council has resolved to

intervene in terms of section 139(1)(b) of the Constitution with effect

from the 3rd August 1999.

I have appointed an Administrator consisting of a team of three members

whose names are the following:

Mr Matshidisho David Dikoko (Team Leader)

Mr Mohamad Iqbal Motala

Mr Eusebius Abram Fourie

2. The Administrator, who will be having the Executive Authority, will ensure implementation of the Terms of Reference which are as follows:

TERMS OF REFERENCE : WEDELA

  1. To ensure that rates, fees and other outstanding monies due to the
  2. Council are collected and secondly that the Credit control and indigent

    policies are reviewed in consultation with the community to ensure

    successful implementation thereof.

  3. To ensure that financial obligations of the Wedela Council including

servicing of debts are met. This will a[so require engaging and negotiating

with Council's creditors is settling the debts.

(3) To ensure that all essential services such as water, electricity etc. are rendered in a cost effective and sustainable manner.

(4) To ensure that directives as contained in various regulations, Ordinances and Acts pertaining finance and administrative control systems are complied with and implemented.

(5) To ensure collection of monies owed to Council by Councillors and officials through the loans.

(6) To develop and implement a strategy to prevent illegal electricity connections by residents.

(7) To implement cost saving measures in all the Council departments

(8) To put mechanisms that will ensure that Council properties and assets are not misused.

(9) To take corrective measures on the Housing Projects irregularities.

3. During the term of intervention your Council will only exercise its legislative authority.

Furthermore, it is expected that yourself, officials and councillors will provide the Team appointed as Administrator, their fill support and co-operation to ensure the success of the intervention process. The provincial department of Developmental Local Government and Housing together with the Southern District Council shall also provide the necessary assistance to the Team appointed.

4. There shall be one meeting per month between the Administrator and your council, including the department of Developmental Local Government and Housing together with the Southern District council to review progress on the intervention.

5. The provincial department of Developmental Local Government will take responsibility towards the cost of the intervention.

6. The intervention will be ended by the Member of the Executive Council responsible for Developmental Local Government and Housing, upon a satisfactory assessment report by the Administrator and other stakeholders involved that your Council is able to resume its responsibilities.

7. The Team appointed as Administrator shall provide the Member of the Executive Council responsible for Developmental Local Government and Housing with a monthly report on the intervention and the readiness of the Council to resume its normal functions.

8. Kindly take note that the Provincial Government is fully responsible for the intervention until such time that your Council is fully compliant with the provision of Section 10 G(2)(m) of LGTA.

Your co-operation in this regard will be highly appreciated.

MEMBER OF THE EXECUTWE COUNCIL FOR DEVELOPMENTAL

LOCAL GOVERNMENT AND HOUSING

 

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