Oudtshoorn Municipality: Invocation of Section 139 of Constitution

Meeting report

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
19 June 2007
OUDTSHOORN MUNICIPALITY: INVOCATION OF SECTION 139 OF CONSTITUTION

Chairperson: Mr S Shiceka

Documents handed out:
Oudtshoorn Municipality Path to Recovery: presentation
Draft Recovery Program for the Oudtshoorn Municipality: by its Administrator

Audio Recording of the meeting

SUMMARY
The Committee was briefed on the invocation of Section 139 of the Constitution in the Oudtshoorn Municipality by Western Cape MEC for Local Government and Housing. The Committee was given a breakdown of the process from the investigation of the problems present in the municipality up until the provincial government taking over the administration of the municipality by way of appointing an Administrator. The Committee was impressed by the progress made from the inception of the intervention up until present given the political contestation that prevailed in the municipality.
  
MINUTES
The delegation comprised of Mr Richard Dyantyi, Western Cape MEC for Local Government and Housing, Mr Louis Scheepers (Appointed Administrator of Oudtshoorn Municipality), Mr Faiz Jacobs (Chief Director: Local Government and Housing), Mr Michael Brevis Director Local Government and Housing, Mr Zamayedwa Sogayise (Chief of Staff) as well as consultants Mr J Van Niekerk and Mr Graham McCullough from Ilima Trust (a non-profit development initiative of Old Mutual).

Mr Dyantyi remarked that his department was faced with challenges such as Oudtshoorn on a continual basis. For example mayors that had been elected during 2006 were no longer in office. Mayors often changed every three to six months. The lack of continuity had an adverse effect on service delivery. However, the department was committed to ensure that municipalities complied with legislation and performed as was required. The intervention undertaken in Oudtshoorn was giving effect to this commitment. The briefing was aimed at providing background, reporting on what had been done and describing the situation at present.

Mr Scheepers undertook the briefing. He said that the MEC had instituted an investigation into the Oudtshoorn Municipality in terms of section 106 of the Municipal Systems Act. A commission had been appointed to undertake the investigation and the issues to be looked at were allegations of instances of mal-administration, non-compliance with statutory obligations and serious malpractice. The outcome of the investigation was detailed in a report released on 2 March 2007.

The alleged offences were ascribed to political instability and inexperienced political leadership. There were also instances of dereliction of duty, breaches of statutory prescriptions and administrative deficiencies. The general findings of the commission were that there was internal strife and conflict in the Municipal Council and within the administration. There was also an acute and destructive sense of distrust permeating the political and administrative structures of the Oudtshoorn Municipality. 

The commission concluded that the situation was serious and that the municipality was in crisis. It was therefore suggested that sections 105 and 106 of the Municipal Systems Act, 2000 read with section 139 of the Constitution provided the legislative framework to address the crisis situation.

Based on the findings of the commission the provincial cabinet intervened in terms of section 139 of the Constitution. Section 139 provides for provincial supervision of local government. The result was that the executive powers of the Oudtshoorn Council and all the powers of the Municipal Manager were revoked and that such powers were vested with an Administrator under the supervision of the Provincial Executive. The Council was however not dissolved, but councillors were retained as ordinary members in an advisory capacity to the Administrator.

The purpose of section 139 was to assist municipalities to become sustainable and self-sufficient. The intervention was to last for six months and commenced on the 19 March 2007. At the commencement of the intervention there was an initial threat of legal action against the department but it did not materialise. Due to the enormous administrative challenges facing the municipality it was necessary to perform a thorough diagnostic exercise by way of a management audit. It pointed the way for a well thought through and credible recovery program to be devised.

Even though the intervention was only to last for six months, the recovery program would have to go beyond this timeframe in order to be sustainable. The municipality was unable to fund the recovery process on its own. Funding was sourced from the municipality itself, Eden District Municipality, Provincial Government, the Development Bank of SA and Ilima Trust.   

Discussion
Mr N Mack (WC, ANC) was concerned whether the six-month period for the intervention was long enough given the major challenges faced by the municipality. Did the councillors own the recovery program as their own and was there commitment? He also asked whether councillors were trained in the recovery program. What assistance had been received after the implementation of the recovery program from national and provincial governments? How would the floor crossing period in September 2007 affect the process?

Mr Mack also asked what was being done about housing in Oudtshoorn. He referred to the filling of vacant posts in the municipality and asked if the packages on offer were attractive enough. 

Mr Dyantyi noted that municipalities had been assessed to determine whether they were able to deliver on housing. Some were expected to do well. In Oudtshoorn however the department was behind the drive on housing delivery. He stated that given the problems in Oudtshoorn even twelve months would not be enough time. The department was of the view that six months would suffice to stabilise the situation. Budgetary issues etc were expected to go well beyond the six-month period.

Mr Dyantyi said that the department could draft regulations in line with the Municipal Structures Act which would set guidelines with regard to collusion between political parties during the floor crossing period i.e. that it must be in line with what the electorate wants.

Mr Scheepers stated that housing was not an easy issue. It remained a challenge.

Mr A Manyosi (Eastern Cape, ANC) asked whether the 2006 municipal elections had brought in new councillors and whether the operations of the municipality had differed after their appointment. He also asked what steps had been taken to solve the problem of political contestation in the municipality. Would the training of councillors assist in solving the problem?

Mr Dyantyi replied that after the 2006 municipal elections there had been 60% new leadership in the Western Cape. Continuity was therefore lacking and it affected service delivery. Oudtshoorn had completely new leadership. The trend in municipalities was that they either had a strong municipal manager and a weak mayor or a strong mayor and a weak municipal manager. In Oudtshoorn it was the former case. 

Mr Scheepers felt that training of councillors was essential, as many were inexperienced. There was a need for councillors to understand administrative law. He noted that political contestation was everywhere in the Western Cape. It was present all over.

Mr A Moseki (NW, ANC) stated that government had a strategy in place to assist municipalities i.e. Project Consolidate. He asked whether the municipality had been part of Project Consolidate prior to the intervention or whether it was now part of it. He questioned the political willingness of councillors to co-operate and whether their genuineness was assessed.

Mr Moseki asked how the problem of unreliable information in the municipality had been solved.
He asked what the MEC’s long-term plan for municipalities was.

Mr Dyantyi responded that the municipality had not been under Project Consolidate. Principles of Project Consolidate were being used to resolve issues in Oudtshoorn. He noted that training on its own was not good enough. Some things such as how not to be lazy, could not be trained.

Mr Scheepers referred to the political willingness of councillors and said that there had been political buy-in of councillors.

He added that unreliability of information was a common problem. He suggested that many municipalities could have a combined IT system. There was no need for each municipality to have its own. Mr Scheepers felt that this was the way of the future for local government in SA.

Mr A Worth (Mpumalanga, DA) remarked that the Oudtshoorn municipality was a political hotbed like many other municipalities.

Mr L Fielding (NC, DA) commended the work of the department and said that many municipalities needed the same attention. He commented that it was highly unlikely that an official from within a municipality would be willing to assist the Administrator.

The Chair referred to the invocation of Section 139 of the Constitution and stated that it firstly took the administration function (that is, executive function) away from the municipality and placed it in the hands of the province. The next step was the dissolving of the municipal council without the consultation of the electorate who had placed them in power. The Chair commented that the lack of consultation was not in line with the Committee’s objectives. He referred to the steps of the MEC of not dissolving the municipal council but only to strip away the office-bearing powers of councillors, thereby making them ordinary councillors. The Chair asked whether section 139 gave the MEC the power to do so.

He also asked what disciplinary procedures had been put in place. The Chair noted that on a recent visit to Oudtshoorn Municipality the issue of language was raised as a concern as Afrikaans was primarily being used in communications. This was a problem for councillors who were not fluent in the language. He referred to the problems with the political structure of the Municipal Council and asked how the problem was to be resolved.        

The Chair commended the MEC for acting decisively in Oudtshoorn.

Mr Dyantyi responded that the legal team would address the legality of the MEC’s actions. He said that language was an issue as complaints from councillors had been received that minutes and agendas of meetings were only in Afrikaans. A balance was needed in language usage.

Mr Dyantyi said that resolving the political issue was a challenge as it was a unique situation. Part of the problem was the mayoral system. In 26 out of 30 municipalities in the Western Cape, there had not been a decisive victory and power sharing was taking place. It was what the electorate had wanted. Mr Dyantyi said that it would seem that the executive mayoral system was not in line with a power sharing system. He said that the department was considering a collective system of decision making. It was one option to consider.

Mr Scheepers emphasised that the action by the MEC in taking away the powers of the Oudtshoorn councillors was legal and in terms of section 139 of the Constitution. The provision allows for the provincial government to take, “any appropriate steps” to support the municipality to function. It was felt that appropriate steps had been taken. Mr Brevis agreed that the action taken was legal and that it was based on precedents set in courts.

Mr Jacobs addressed the issue of disciplinary action and said that four forensic audits tackling corruption was currently under way. Once the audits were complete, the department planned to institute criminal proceedings against councillors and the municipal manager.

Mr Scheepers added that the Oudtshoorn Municipal Manager had been suspended and that disciplinary action had been taken against him. The exercise up until now had cost R40 000 and it was decided to wait for the expiration of his contract on the 30 June 2007 rather than incur further costs. Mr Scheepers pointed out that the possibility existed that the municipal manager might still be criminally prosecuted after the expiration of his contract.

He added that it was the right of councillors in Oudtshoorn to complain about the predominant use of Afrikaans as they were being hampered in delivering to the people in a language that was understood, that is, Xhosa.
 
Mr Dyantyi said that the Oudtshoorn intervention was setting a benchmark in that it was unique. It could be used in other municipalities.  

Mr Scheepers said that a major problem was that Oudtshoorn had a low revenue base. Oudtshoorn had a revenue of R170 million which serviced 174 000 people whereas Mossel Bay had a revenue of R384 million servicing 82 000 people. The fact that it was a rural area and that it had seasonal income worsened matters.

The MEC commented that the interaction with the Committee had been enriching and had alerted the department to new issues.

The Committee thanked the department for the briefing and the meeting was adjourned.