Notice of Intervention into Tweeling Local Council

Meeting report

INTERVENTION IN TWEELING TRANSITIONAL LOCAL COUNCIL AD HOC COMMITTEE
12 August 1999
APPROVAL FOR NOTICE OF INTERVENTION INTO TWEELING TLC

Documents handed out:
Letter from Free State MEC of Local Government and Housing to Chairperson of NCOP and Minister for Provincial and Local Government
Approval of appointments for Tweeling Municipal Council from MEC: Local Government and Housing (included below as an appendix)
Free State Executive Resolution to Department of Local Government and Housing
Letter of approval for intervention from Minister for Provincial and Local Government

SUMMARY
The Committee approved the notice of intervention into Tweeling Transitional Local Council as sections 139(1) and (2) of the Constitution had been complied with. Some of the delegates would go to Tweeling in the Free State Province to investigate the matter and give a report back to the committee the following week. The NCOP would have to vote on the intervention on 23^rd August in the plenary session.

MINUTES
According to Rule 91 of the NCOP Rules, the Committee Secretary, Mr de Koker, opened the first meeting and asked for nominations for the Chairperson. Mr Bhabha (Mpumalanga, ANC) was the only nomination. This was accepted by the committee.

The Chairperson, Mr Bhabha, reported that the Free State MEC of Local Government and Housing, Mr Tsenoli, had given notice to the Minister of Provincial and Local Government for intervention into Tweeling TLC in terms of section 139(1)(b) of the Constitution. Approval had been granted by the Minister for the intervention. The committee would have to decide whether they approved or disapproved of the intervention, based on sections 139(1) and (2). The investigation into the notice for intervention has to occur within 30 days after it's tabling in the Provincial Legislature. Voting on the intervention would then take place in the NCOP plenary session.

As it was the committee's task to see whether the intervention was in compliance with the Constitution, Adv. Le Roux, Legal Advisor to the NCOP, read out sections 139(1) and (2). She said that the Free State MEC for Local Government and Housing had intervened into Tweeling TLC on 19^th July, according to Section 139(1)(b). The Free State Provincial Legislature had adhered to Section 139(2)(b) by tabling the notice of intervention on 23^rd July and the NCOP had been notified on 5^th August. She said that the Minister for Provincial and Local Government had approved the intervention in terms of section 139(2)(a) on 28^th July. As all time frames laid down by the Constitution had been met, Adv. Le Roux recommended that the committee approve the notice of intervention into Tweeling TLC. The committee agreed that the notice of intervention had complied with the Constitution and approved it.

The Committee then discussed who would represent the NCOP in the investigation. It was decided that the members who wanted to go to Tweeling could go, as well as the Chairperson of the committee, the Committee Secretary, the Chairperson of the NCOP and two legal advisors. The Committee Secretary said that they would depart on Monday evening, meet the Tweeling Council on Tuesday and return to Cape Town that evening. The committee would be briefed on the investigation on Thursday, 19^th August.

Annexure 1:
Department Local Government and Housing
Directorate Local Government Administration

The MEC: Local Government and Housing

INTERVENTION IN TERMS OF SECTION 139 OF THE CONSTITUTION:
TWEELING TRANSITIONAL LOCAL COUNCIL: APPOINTMENT OF
ADMINISTRATOR AND ASSISTANTS

1. PURPOSE
To obtain approval for the appointment of Mr PS du Plessis as administrator and Mr SM Nhlapo and Mr DCFB Cloete as his assistants at the Tweeling Municipality to take over to functions. powers, duties and obligations of the Tweeling Municipal Council (with the exception of the legislative function of to council) as the council fails to fulfil executive obligations.

2. BACKGROUND
2.1 The Tweeling Council failed to meet and conduct monthly council meetings since October 1997 due to internal problems in the council. As a result of this failure,

(a) a preliminary budget was not compiled for the 1999/2000 financial year;
(b) a credit control policy and practice has not been determined in the prescribed time limit:
(c) no proof was provided that a cost effective tariff has been introduced for the municipality within the prescribed time limit: and
(d) no proof was submitted that all the creditors of the Council have been paid within the prescribed time limit.

2.1 Due to the failure to have regular meetings of the council, it failed to adhere to section 58 of the Local Government Ordinance, 1962 (Ordinance 8 of 1962) and the basic values and principles governing public administration is set out in section 195 6f the Constitution,

2.2 It is dear that the Council cannot or does not fulfil executive obligations in terms of legislation and it is necessary that the MEC for Local Government and Housing intervene by taking appropriate steps to ensure the fulfillment of these obligations.

2.3 A directive in terms of section 139(1) (a) was issued to the council to convene and hold monthly meetings. The Town Clerk, however, informed this department that it was impossible to convene such meetings and that a quorum was not possible.

2.4 Intervention in terms of section 139(1) (b) of the Constitution cannot be postponed any further in order to give the council a chance to get it's house in order.

2.5 The failure of the council to have council meetings is in violation of to provisions of sections 58 of the Local Government Ordinance, 1962 (Ordinance 8 of 1962) and 195(1) of the Constitution by failing to exercise its executive authority and fulfil its executive obligations as to:
Strive to further the objects of local government;
Fulfill the developmental duties of municipalities; and
Adhere to the basic values and principles governing public administration.

2.6 The only alternative to address the situation is to appoint three persons in terms of section 139(1)(b) of the Constitution to take over the powers, functions, duties and obligations of the council until such time the MEC is satisfied that the council is able to perform its functions again

2.7 These three persons were selected as follows:
the administrator is an impartial person, an expert on local government from outside the community, and
two persons from the community, one representing the residents of Tweeling and the other the residents of Mafahaneng.

2.8 The following persons are being proposed as suitable candidates for these positions:
As administrator Mr. Pieter Jan du Plessis, ID No. 3807075014089 of Bethlehem. Mr. Du Plessis is a retired town clerk and for many years was the CEO of the Eastern Free State District Council. He has extensive knowledge of municipal matters and will be in a position to immediately deal with both administrative problems as well as council problems of the municipality.
As first assistant to the administrator, Mr. Sam Mavovo Nhlapo, of Mafahlaneng. Mr. Nhlapo is a teacher and knows the residents of Mafahaneng. He will be able to identify the needs of his community.
As second assistant to the administrator. Mr. Daniel Christiaan Frans Breitenbach Cloete. Mr Cloete, a resident of Tweeling for many years and a retired police man, will be able to identify the needs of the Tweeling community.

Both assistants have been nominated by their respective communities and are willing to act in this capacity with an administrator from outside Tweeling/ Mafahlaneng.

2.9 As the council with the assistance of these three people should be able to sort out its problems within three to four months, the intervention by the appointment of these administrators should also cease within that period.

2.10 In order for these persons to be in a position to effectively take over the responsibilities of the council, all the powers, functions, duties and obligations of the present councillors with the exception of the authority to pass by-laws should be revoked and assigned to these persons.

2.11 These persons in their own discretion may take resolutions on behalf of the council.

2.12 As these persons will perform the duties of councillors and also the mayor of the council, they should receive a monthly allowance equal to that of the mayor in the case of the administrator and that of a councillor in the case of each assistant as well as a reasonable subsistence and travel allowance.

2.13 As the council still has to pay councillor allowances to the remaining councilors, it will not have sufficient funds to pay these persons' allowances as well as subsistence and travel allowances. The MEC for Local Government and Housing therefore should be authorised to make available funds from the budget of his department to cover these expenses.

2.14 Officials from the Department of Local Government and Housing will regularly be made available to advise these persons on municipal matters if needed.

2.15 This intervention should be on the following conditions:

1. Provision of Services
The Administrator must ensure that:
1.1 the water supply is maintained:
1.2 water purification standards are met:
1.3 the electricity supply is maintained;
1.4 refuse removal services are rendered on a regular and sustainable basis:
and
1.5 all other services are maintained.

2. Financial Management
The Administrator must ensure that:
2.1 rates, fees, levies and other outstanding monies due to the Municipality are collected;
2.2 the financial obligations of the Municipality are met; and
2.3 the Municipality is placed in a position to comply with the provisions relating to financial management as outlined in section 10(0) of the Local Government Transition Act, (Act No.209 of 1993).

3. Administrative Procedures
The Administrator must ensure that:
3.1 policies and procedures for the use of assets and services of the Municipality are adhered to;
3.2 municipal services and assets are used solely for the purposes for which it was intended; and
3.3 the affairs of the Municipality are conducted in an open, transparent, accountable and responsible manner.

4. Co-operation of the Town Clerk
The Town Clerk must co-operate fully with the Administrator and must render all reasonable assistance to the Administrator in the carrying out of his functions.

5. Report back to the Council and MEC
The Administrator must make a full written report on his activities to the Council and the MEC: Local Government and Housing for the Free State and the readiness of the council to resume it's functions at least once per month.

6. Competency of Councillors
Councillors remain competent to carry out their legislative functions.

3 CONSULTATION
The Town Clerk of Tweeling, the Director Local Government, Finance, the two communities of Tweeling and Mafahlaneng as well as the proposed administrator and his two assistants.

4. DETAILED DESCRIPTION OF PROPOSAL
That approval be granted for intervention by the department to administer the affairs of the Tweeling Transitional Local Council as it cannot fulfil executive obligations by failing to convene monthly meetings of the council by authorising:
(a) The appointment of Mr. P J du Plessis as administrator together with Messrs. SM Nhlapo and DCFB Cloete as assistants to the administrator with all the powers, functions, duties and obligations of the council by the MEC of Local Government and Housing to take charge of the affairs of the council until such time the MEC for Local Government and Housing is satisfied that the council again is in a position to manage it's own affairs;
(b) the revoking of all the powers, functions, duties and obligations of the remaining councillors to deal with council matters for the duration of the term of office of these three persons:
(c) a monthly allowance payable to these three persons payable (equal to the allowance payable to the mayor [R 2776.00] for the administrator and equal to the allowance payable to a councillor [R694.00] for each of the two assistants) from funds made available by the Department of Local Government and Housing as well as the payment of reasonable travelling and subsistence expenses incurred by any of these three persons on government tariff and
(d) the seeking of the approval of the Cabinet Member responsible for local government affairs in terms of section 139(2) (a) of the Constitution, 1996 within 14 days of this intervention, the tabling of the issue in terms of section 139(2)(b) of the Constitution, 1996 at the provincial legislator and the National Council of Provinces within 14 days of their respective first sittings after the intervention began, and seeking the approval of the National Council of Provinces as it is evident that the intervention will last longer than 30 days.

5. POLICY ANALYSIS
It is in the interest of the provincial government to ensure clean administration on local government level.

6. FINANCIAL IMPLICATIONS
This department did not budget for this purpose. The administrator will receive a monthly allowance of R2776.00. Each assistant will receive a monthly allowance of R 694.00. All reasonable travelling and subsistence expenses incurred by any of these persons must also be paid by this Department.

7. ALTERNATIVES OR OPTIONS
None

8. POLITICAL IMPLICATIONS
Should the MEC for Local Government and Housing not intervene in terms of section 139 of the Constitution, it will send a negative message to all communities in the province.

9. TIME FRAME
The appointment of an administrator and two assistants cannot be delayed any longer and these appointments must be made as a matter of urgency.

10. COMMUNICATION STRATEGY
10.1 The concurrence of the Executive Council has been obtained per EXCO Resolution No.36 dated 31 March 1999.

10.2 Notice of the intervention must be tabled at the provincial legislature and the National Council of Provinces within 14 days of their respective first sittings after the intervention began.

10.3 The Cabinet Member responsible for local government affairs must approve of the intervention within 14 days, otherwise it will end.

10.4 The approval of the National Council of Provinces must be obtained if the intervention lasts longer than 30 days.

10.5 The town clerk of the Tweeling Transitional Local Council and the remaining members of the council must be informed about the intervention and the effect thereof.

10.6 The people to be appointed must be appointed by letter with particulars of their duties, functions and obligations as well as their allowances.

10.7 The Director of Local Government Finance must be requested to make available funds for the remuneration of the three people to be appointed.

11. RECOMMENDATION
That approval be granted for intervention by the department to administer the affairs of the Tweeling Transitional Local Council as it cannot fulfil executive obligations by failing to convene monthly meetings of the council by authorising:
(a) The appointment of three persons with all the powers, functions, duties and obligations of the council by the MEC of Local Government and Housing to take charge of the affairs of the council until such time the MEC for Local Government and Housing is satisfied that the council again is in a position to manage it's own affairs:
(b) the revoking all the powers. functions, duties and obligations of the remaining councillors to deal with council matters for the duration of the term of office of these three persons;
(c) a monthly allowance payable to these three persons payable (equal to the allowance payable to the mayor (R 2776.00) for the administrator and equal to the allowance payable to a councillor (R 694.00 for each of the two assistants) from funds made available by the Department of Local Government and Housing as well as the payment of reasonable travelling and subsistence expenses incurred by any of these three persons on government tariff and
(d) the seeking of the approval of the Cabinet Member responsible for local government affairs in terms of section 139(2) (a) of the Constitution. 1996 within 14 days of this intervention, the tabling of the issue in terms of section 139(2)(b) of the Constitution, 1996 at the provincial legislature and the National Council of Provinces within 14 days of their respective first sittings after the intervention began, and seeking the approval of the National Council of Provinces as it is evident that the intervention will last longer than 30 days.