Abaqulusi Local Municipality Section 139 Intervention: briefing

Meeting report

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
17 November 2005

Chairperson: Mr S Shiceka (ANC)

Documents handed out:
Kwazulu-Natal Provincial Government presentation

SUMMARY
The Kwazulu-Natal MEC for Local Government, Housing and Traditional Affairs briefed Members on the recent Section 139 intervention into the Abaqulusi Local Municipality. The Committee was told that the decision to dissolve the council had not been taken lightly but an investigative team had uncovered numerous examples of misconduct and misadministration that had been in existence for some time. Requests to the council to improve the situation had been ignored and no disciplinary action had been taken against councillors. Continued infighting and inappropriate behaviour had resulted in a decrease in service delivery and promoted a loss of confidence amongst the community towards local government. The Committee was assured that correct procedures had been followed in the decision to intervene.

Members asked numerous questions including whether the views of all stakeholders had been taken into consideration during the investigation, the impact of a recent High Court ruling in favour of the Inkatha Freedom Party, the level of communication between the MEC and the Committee throughout the process, what steps would be taken to recover monies erroneously paid to the councillors, whether the municipal manager was receiving adequate protection in the face of serious threats, the standard of service delivery provided by the council, when the new administrator had been appointed and the urgent need to visit the affected municipality as soon as possible. A meeting with stakeholders in KwaZulu-Natal was set for 21 November 2005.


MINUTES
The Chairperson outlined the successive pieces of correspondence received from the Kwazulu-Natal Member of the Executive Committee informing the Committee of attempts to rectify the situation within the Abaqulusi municipality. Limited intervention occurred on the 25 May 2005 to ensure the completion of the Budget vote. The MEC established a legal team to investigate certain allegations of irregularity within the municipality and, as a last resort, the council was dissolved on the 2 November. The Constitution provided for 14 days for any objections to the dissolution to be raised. The purpose of the meeting was for Members to hear the views of the MEC regarding the intervention and to consider the substance of crucial issues. The Committee had to evaluate whether fair procedures had been followed.

Mr Mabuyakhulu (KZN MEC) concurred that the municipality had been dissolved on the 2 November 2005. The decision had not been taken lightly. Various factors had been considered such as the failure of the council to meet executive obligations, the state of disarray that existed within the municipality and the ineffectiveness of previous attempts to rectify the situation. The Section 139 intervention was undertaken after less drastic measures had failed to restore order. The provincial department had been aware of a state of disarray for some time. A Mayor had used a council vehicle without authority and a number of councillors had failed to attend three consecutive meetings. Incidences of misconduct had been ignored by the council. The municipal code of conduct stipulated that councillors had to be removed from office after missing three consecutive meetings. The municipal manager reported in May 2005 that the council was dysfunctional and a total breakdown of governance prevailed. A limited intervention was arranged to assist the budget process and investigators were appointed to consider allegations of misadministration. The decision to dissolve the council was based on a lengthy period of evaluation. Fourteen councillors had been removed from office. Public confidence in the municipality had to be restored. The Minister of Provincial and Local Government and the Committee had been informed of all developments.

Discussion
Mr M Mzizi (IFP) asked whether information provided to the Minister and the Committee was of a continuous nature and what format it comprised. The views of all stakeholders had to be taken into consideration to reach objective conclusions. Reasons for the removal of the fourteen councillors had to be clarified. He asked whether walk-out protests were included in the definition of absenteeism from meetings. A recent court case ruling in favour of the IFP seemed to have settled the situation and he wondered whether this outcome had been included in the decision-making process to dissolve the council. Clarity was sought on the level of communication between the MEC and the Committee during the various attempts to resolve the matter.

The Chairperson acknowledged that constant communication had transpired between the MEC and the Committee during the entire process. The Committee had received confirmation of the dissolution of the council. The provincial government initially chose the limited route to resolve the matter such as assistance in passing the budget vote. Requirements of the Municipal Systems Act were adhered to.

Mr A Manyosi (ANC) asked who paid for the series of court cases regarding duplication of salaries and what attempts had been made to recover monies. He asked what practical steps the provincial government had taken to stabilise the situation. Clarity was sought on the types of submissions made by affected parties to the investigative process.

Mr A Moseki (ANC) ), referring to Point 19, asked whether a council policy had prevailed to justify the purchase of tracksuits and the reason for the expenditure. Threats directed at the municipal manager had to be treated seriously and charges laid against perpetrators. He proposed that Members visit the area as soon as possible to ascertain any progress made in addressing the crisis. The position of other stakeholders had to be taken into consideration.

Mr C Ntuli (ANC), referring to Point 10.7, of the MEC's document asked why the office of the Speaker had been vacant and reasons for the lack of action on the part of the council to rectify the situation after requests from the MEC to do so. He asked what level of basic service delivery was provided by the municipality and whether the crisis had impacted negatively on this core responsibility. Further information was requested on the status of Integrated Development Plans within the municipality and whether ward committees were functioning.

Mr L Mokoena (ANC) asked whether all stipulated legal processes had been properly followed from the first intervention to the last. Clarity was sought on the willingness of the council to institute corrective measures. The council should not have ignored misbehaviour and misadministration within the municipality. He asked whether any reasons had been furnished by the affected parties for the lack of attendance at council meetings. The Committee should meet with various stakeholders within the municipality as soon as possible. The receipt of a qualified report from the Auditor-General indicated problems of poor governance within the council. He asked what action the council had taken in response to the independent findings reached by the investigative team.

Mr J Aulsebrook (IFP; Kwazulu-Natal special delegate) asked whether the MEC felt that the intervention had contributed to the subsequent loss of public confidence in the council and what year was referred to in the Auditor-General’s report. The crisis was of an administrative nature and clarity was sought on whether an investigation had been conducted into the conduct of the accounting officer.

Mr Moseki highlighted the importance of an indigent policy within Kwazulu-Natal and asked whether the council had one in place and the level of revenue collection.

The Chairperson sought detail on the size of the municipality and what steps were proposed to recover the monies owed by errant councillors. The municipal manager had to be protected from threats of any type.

Mr P Smith (IFP) asked whether the Executive-Committee had been provided with a comprehensive report outlining the problems when deciding to dissolve the municipality.

Mr B Ndwandwe (Municipal Manager) replied that the municipality consisted of 191 000 people and had an annual budget of R100 million. There were 500 staff members who served 36 000 households.

Mr Mabuyakhulu stated that a process had been instituted to recover the monies owed by councillors and a new administrator would assist with this task. Protection would be provided to the municipal manager. Adequate information had been provided to the provincial executive-committee and the process could be delayed to acquire additional material. Lawyers had been appointed after October 2005 to deal with new developments and councillors had received representation at the highest level. A fair process had been followed and the views of affected parties had been taken into consideration.

He continued that court rulings had not normalised the council and instability had remained due to infighting and power struggles. Service delivery had suffered as a result of the disruptions. The provincial department had incurred legal costs in obtaining a court order to prevent a by-election from occurring in the municipality until the matter had been resolved. The provincial government would request that all parties act within the confines of the law and the Constitution and avoid protest action that undermined efforts to provide basic services. All affected parties made submissions during the investigation and exceptional circumstances did exist that justified the decision to dissolve the council.

Mr Nwandwe stated that the tracksuits were purchased for participants to district games held in the municipality and some councillors had benefited from the expenditure. The council had an indigent policy in place and revenue collection had greatly improved and now stood at "one hundred and one per cent".

Mr Mabuyakhulu stated that the council's Speaker should have taken action against misconduct on the part of councillors. Disciplinary action should have been imposed on absent councillors. The erstwhile Mayor and Deputy-Mayor were included within the group of absentees thereby undermining the principle of leadership by example. The Speaker's office was vacant for a period of time.

Mr Nwandwe added that the Speaker had failed to report 22 cases of misconduct to the municipal manager. Improper procedures were followed in notifying the manager of the removal of the Speaker from office. The Independent Electoral Commission informed the municipal manager of the removal of the Speaker post facto.

Mr Smith claimed that the municipal manager was misleading the House and declared that the IFP had informed the manager of the decision to expel the Speaker from the party one month before he claimed to have been notified.

Mr Nwandwe admitted that a letter had been received from the IFP local office informing the municipality of the expulsion of the Speaker from its party. A letter was written to the IEC asking whether the IFP had the right to alter the list of councillors unilaterally. The vacancy had arisen as a direct result of the expulsion of the councillor from the IFP. A replacement had to be found during the remainder of the term of the municipality. The IEC stated that the IFP did not have the authority to change councillors and the manager sought to convene a meeting to elect a replacement Speaker. Political pressure was placed on the MEC to agree to the meeting or dissolve the council.

Mr Mabuyakhulu asserted that all proper legal processes had been followed and the provincial department had taken all reasonable steps to persuade the council to rectify the situation prior to further drastic measures. Continued infighting within the council created a negative impression amongst the community and the provincial government had to act decisively in the interests of the wider community. All decisions taken had been properly investigated and considered. The lack of attendance had contravened the code of conduct. An extraordinary situation had prevailed that justified a Section 139 intervention. The Auditor-General’s report was for the previous financial year.

The Chairperson asked whether the municipality had a current account. He said that the municipal manager had the right to appoint staff and he asked whether councillors had interfered in this process.

Mr Nwandwe responded that a council committee oversaw the appointment of staff and the process was not owned by the management. Appointed staff members had capacity weaknesses and training programmes were recommended to improve the situation. The lack of capacity had contributed to financial irregularities. An audit investigation of the municipality was in place and certain shortcomings reflected in the Auditor-General’s report had been pointed out by the municipal manager. Significant management efforts had contributed to the increased level of rates payment.

Mr Mzizi proposed that other stakeholders should have been present at the meeting and interaction with affected parties was urgently needed.

The Chairperson referred to the Constitution and noted that the intervention took effect from the date of receipt of the letter of dissolution and remained in force unless set aside within 14 days. The dissolution was therefore currently in force. He asked whether the new administrator had been appointed prior to the dissolution. Weekends were not included in the 14 day period to set aside. The period for objection would therefore lapse on the 22 November 2005.

Mr Mabuyakhulu added that the new administrator had been appointed after the dissolution on 11 November 2005.

The Chairperson stated that the Committee needed to engage with stakeholders on the ground to determine the state of local government in all provinces. A monitoring tool would be created to facilitate oversight over municipalities. The municipal manager would assist the Committee in arranging meaningful interaction with stakeholders.

Mr Smith declared that the IFP was interested in procedural matters related to the intervention and wholeheartedly supported Section 139 of the Constitution. The IFP was of the opinion that the Kwazulu-Natal provincial executive-committee had acted erroneously in intervening within the municipality. Evidence did not support the claim that the municipality remained in a state of disarray at the time of the intervention. Turmoil had arisen from the legal contestation and subsequent dispute around the removal of councillors. The issue had been resolved after the High Court had ruled in the IFP’s favour on 30 September 2005. No disarray continued after this.

He continued that the replacement of the dismissed councillors could have allowed the municipality to continue functioning and maintain adequate levels of service delivery. The firing of the councillors was not a reasonable pretext for dissolution. The decision to dissolve the council ran counter to the recommendations of the commission of inquiry that advocated the replacement of the councillors and the continuation of operations. The MEC was entitled to act contrary to the recommendations but adequate explanations for the deviation would have to be proffered. No written report appeared to have been provided to the provincial executive-committee to support calls for dissolution.

Mr Smith said that the IFP was of the opinion that the High Court case settled the dispute and the contest. The executive-committee appeared to be unaware of the positive changes after the resolution of the court case. No evidence of escalating interventions as required by the Constitution existed and no evidence of exceptional circumstances immediately prior to the Section 139 intervention was in the public domain. The issues needed to be further interrogated and interaction with all stakeholders was recommended.

The Chairperson stated that the comments assisted Members in understanding the crisis and formulating an appropriate response. The Committee needed to hear firsthand the issues on the ground in order to reach an informed decision.

Mr Manyosi asked whether submissions of other stakeholders were available other than those put forward by the legal investigators. He asked what corrective measures the council took after the findings of the court in October.

Mr Mokoena asserted that the high turnover of mayors and the problems identified within the Auditor-General's report clearly indicated substantial problems within the municipality.

Mr Mzizi stated that the Committee had the responsibility to investigate the matter and exercise oversight. Interaction should occur with all stakeholders and he asked when such discussions should take place.

Mr Mabuyakhulu declared that the provincial government would wholeheartedly support the Committee meeting with stakeholders on the ground. The decision to intervene had been taken in accordance with all prescribed requirements. A pattern of dysfunction had been in place since October 2004. The IFP had been unable to rein in the errant Mayor and councillors. The executive-committee had been well informed of developments on the ground and the investigating team had gathered extensive information from all affected parties. The intervention was not in conflict with the Constitution or other relevant legislation.

Mr Smith reiterated the IFP's concern that no written document containing evidence to support intervention, was in the public domain.

The Chairperson stated that a comprehensive summary of events had been submitted to Members and it was imperative that the Committee visit the municipality in question as soon as possible. Arrangements would be made to meet with stakeholders on 21 November 2005.

The meeting was adjourned.