Hansard: NCOP: Consideration of Report of Select Committee on Co-Operative Governance and Traditional Affairs – Notice of dissolution issued in terms of Section 139(1) (C) of the Constitution, 1996, to Mtubatuba Local Municipality
House: National Council of Provinces
Date of Meeting: 17 Feb 2015
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Minutes
"National Council of Provinces Main",Unrevised Hansard,27 Mar 2015,"Take 1 [National Council of Provinces Main].doc"
"National Council of Provinces Main",Unrevised Hansard,17 Feb 2015,"[Take-1] [National Council of Provinces Main][90P-5-085b][es].doc"
UNREVISED HANSARD
NATIONAL COUNCIL OF PROVINCES
17 FEBRUARY 2015
PAGE: 1
TUESDAY, 17 FEBRUARY 2015
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
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TUESDAY, 17 FEBRUARY 2015
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
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The House met at 09:38.
The Deputy Chairperson (Mr R J Tau) took the Chair and requested members to observe a moment of silence for prayers and meditation.
WELCOMING OF MEMBERS
The DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): Thank you very much. May I, on behalf of the presiding officers, extend a word of welcome and wish every member all of the best for this year.
NO NOTICES OF MOTION
The DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): Hon members, I have been informed that the Whippery has agreed that there won’t be any notices of motions. Therefore I will request the Secretary to read the First Order.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau)
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS – NOTICE OF DISSOLUTION ISSUED IN TERMS OF SECTION 139(1) (C) OF THE CONSTITUTION, 1996, TO MTUBATUBA LOCAL MUNICIPALITY
Mr M J MOHAPI
Mr[es2] M J MOHAPI: Thank you very much. Deputy Chair, the Chief Whip, hon members, on 11 February 2015, the select committee invited the MEC to brief it on the constitutional, procedural and substantive matters with regard to the intervention in the Mtubatuba Local Municipality. A written request was also received from the mayor, Speaker and members of the executive committee requiring a hearing. The select committee, as part of its overall mandate with respect to intergovernmental relations, considered their request in line with the provision of section 69(d) of the Constitution. However, it should be pointed out that the three councillors of the municipality were not mandated by the council nor accompanied by the management of the municipality. It was further confirmed that they came voluntarily and the information presented to the select committee was not adopted by the municipal council.
In June 2012, a discretional intervention was instituted into the Mtubatuba Municipality in terms of section 137 of the Local Government: Municipal Finance Management Act. This was subsequent to an assessment by the department of co-operative governance and provincial treasury in KwaZulu-Natal province on the finances of the municipality. The assessment established serious financial problems in the Mtubatuba Municipality in respect of the audit opinion for 2012-13. There was also irregular expenditure in that there was spending amounting to an unauthorised amount of R 11,7 million as well as material underspending of conditional grants totalling R 14,1 million.
The discretionary intervention was for a period of three months and revealed serious financial problems. A support strategy was then developed and implemented and the provincial treasury provided resources via the municipal support programme to undertake key operational activities in the treasury department of the municipality. Although the financial administrator attempted to implement the financial recovery plan, it was clear that problems persisted as a result of a lack of co-operation by the municipal management, weak performance and lack of accountability.
Although service delivery had virtually stabilised there were serious matters, for example, firstly, the municipality operated, in illegal ways, a disposal site which posed a threat to service delivery and possible litigation against the municipality. Secondly, there was an inability to maintain infrastructure using own staff and equipment. Thirdly, the council had entered into unsustainable contracts with certain service providers. Fourthly, the supply chain management unit remained significantly understaffed which compromised the integrity of the unit due to the lack of the segregation of duties. The cost of salaries continued to be significantly high and the council did not implement the findings and recommendations of the forensic investigation report. The council has condoned irregular fruitless and wasteful expenditure despite the challenges highlighted by the Auditor-General.
For the above-mentioned reason, on 19 September 2012, the executive council resolved to intervene in terms of section 139(1) (b) of the Constitution in the Mtubatuba Local Municipality. The MEC appointed Mr K Mpungose as the ministerial representative who was introduced to the executive committee and the senior management of the municipality on 3 October 2012. Certain councillors were adamant that they would not co-operate with the ministerial representatives and the intervention itself. The executive committee was clearly split on the question of the intervention by the provincial executive.
As a result of poor progress of the intervention and the political conflict which prevented the implementation of the recovery plan, the provincial executive committee resolved on 4 December 2013 to further extend the intervention in terms of section 139 (1)(b) of the Constitution until 30 September 2014. The ministerial representatives were then replaced by Mr B Ndwandwe in January 2014.
Despite these challenges this intervention produced positive progress at its inception in respect of matters in the recovery plan such as, firstly, the overdraft was removed. Secondly, the Municipal Infrastructure Grant deficit of R 1,2 million has also been addressed as well as the R 2,4 million for electrification. The collection for October 2013 was 128%; outstanding creditors amounted to R 5,8 million as at 31 October 2013, including R3,4 million for rural metros. The Audit Action Plan was developed to address findings raised by the Auditor-General. All top four management positions had been filled. There was improved participation by sector departments during the integrated development programme, IDP, processes.
The ministerial representatives subsequently reported that political instability within the municipality had reared its ugly head and political tensions became exacerbated between February and June 2014. This heightened level of tension affected the functionality of the council, its committee and the administration. The SA Police Service had become a common feature at the council meetings to contain or dissipate chaos that characterised these meetings. In addition, the ministerial representatives reported significant lack of progress in five key performance areas which were used to measure progress in the implementation of the recovery plan. It became clear that the municipality was regressing mainly as a result of political instability. It was apparent that the general feeling amongst councillors was that political intolerance, tensions, instability, disregard of the rule of law, weak political leadership, infighting, finger-pointing and blame-shifting had rendered the municipality dysfunctional.
Based on the above-mentioned challenges, on 3 January 2015, the provincial executive committee resolved to intervene in terms of section 139(1) (c) of the Constitution in order to dissolve the Mtubatuba Municipal Council and to appoint an administrator until the election of a new municipal council. The national Minister of Co-operative Governance and Traditional Affairs has already approved the intervention.
In terms of the procedural and substantive requirements, the provincial executive can dissolve the municipal council if exceptional circumstances warrant such a step. The Local Government: Municipal Structures Act gives further content to the substantive requirement for dissolution when it says that dissolution is possible when an intervention in terms of section 139 of the Constitution has not resulted in the council being able to fulfil its obligations. In combination with section 139, it means that if the failure of the intervention is due to the council’s unwillingness to resolve problems, exceptional circumstances exist and dissolution is warranted. A specific example is, firstly, when the municipal council refuses to co-operate with the administrator, as in the current situation in the Mtubatuba Local Municipality. The Constitution therefore provides for a fourteen-day window period within which the national Minister or the NCOP has the opportunity to set aside the dissolution. At its meeting on 11 February 2015, the committee received a briefing from the MEC, and the committee would like to emphasise that any decision to intervene in the municipality should be guided by the principle that section 139 of the Constitution is a measure of the last resort. After all forms of support had been exhausted, it became clear that the municipality was regressing mainly as a result of political instability. Hence all committee members of the select committee unanimously agreed on the need to support the dissolution of the municipality since all forms of support in terms of other interventions were exhausted and the municipality will not recover.
Minimum progress has been made with the implementation of the recovery plan and the municipal council has openly indicated that it will not co-operate with the ministerial representative. Exceptional circumstances existed in the municipality for the dissolution of the municipal council since other forms had been unsuccessful due to unwillingness on the part of the municipality to resolve matters.
The select committee therefore recommends the following. Considering the challenges Mtubatuba Local Municipality has faced , the committee recommends the following: firstly, that the NCOP support the decision by the provincial executive council of KwaZulu-Natal province to intervene in the Mtubatuba Local Municipality in terms of section 139 (1)(c)of the Constitution; and secondly, that the MEC for the Department of Co-operative Governance and Traditional Affairs in KwaZulu-Natal province should table quarterly reports to the NCOP on progress made in respect of the dissolution of the municipality. I thank you, hon Chair. [Applause.]
The DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): Thank you very much, hon chairperson.
Debate concluded.
Ms[es3] C LABUSCHAGNE
The DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau
Declarations of vote:
Ms[es4] C LABUSCHAGNE: Thank you, Chair. Whilst we, the Western Cape, support the intervention of invoking section 139 (1) (c), we want to record the following declaration.
This decision is long overdue by the MEC for Cogta, hon Nomusa Dube-Ncube, to dissolve the Mtubatuba Municipality. The MEC’s failure to act and act decisively further amplifies the concerns raised that if the intervention when the earlier and first signs of a failure emerged was addressed, service delivery breakdown would be less costly and more effective.
The DA believes that the invocation of section 139 must be based on constitutional intervention and not political intervention. This is raised due to the fact that the MEC’s decision on 30 January 2015, 15 days after the ANC/NFP coalition disintegrated and the balance of power shifted to the IFP, the KwaZulu-Natal MPs resolved to intervene in terms of section 139 (c), yet whilst the council was under ANC leadership, the MEC was willing to allow for the intervention in terms of section 139 (b), initiated in December 2012, to be extended until March 2015. This is the second municipality in KwaZulu-Natal that has been placed under section 139 (1) (c) within six months.
It is evident that where the ANC governs it deploys cadres and, of more concern, its deployed cadres are more concerned with political infighting and positions rather than governing and focusing on service delivery and ensuring the wellbeing of their community.
The growing number of KwaZulu-Natal municipalities under provincial administration is evidence of the result of poor cadre deployment by the ANC. However, the reality is that these cadres are redeployed to other spheres of government whilst the citizens of this country continue to pay for their incompetence. We implore the MEC to guarantee the residents of Mtubatuba that none of the current ANC councillors will be brought back. The DA once again expresses our concern regarding the ...
The[es5] DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): Hon member, just on a point of clarity. Is it a DA declaration or a Western Cape declaration? Can we be specific that it is a Western Cape declaration?
Ms[es6] C LABUSCHAGNE: It’s a Western Cape declaration.
The[es7] DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): It is a Western Cape declaration.
Ms[es8] C LABUSCHAGNE: Thank you, Chair.
Once again, the Western Cape expresses our concern regarding the inability of the MEC Nomusa Dube-Ncube to manage local government in this province. This action is typical of the ANC’s inability to grasp the need for timeous intervention in troubled municipalities as in Madibeng and Mogolakwena. Dissolving another KwaZulu-Natal municipality will result in further burdens on the taxpayer and also reflects the ANC’s lack of commitment to service delivery and improving the lives of the people of KwaZulu-Natal.
We request that the MEC ensures that an investigation into the misappropriation of council coffers is done, and that all those responsible have criminal charges laid against them for the recovery. Thank you.
Mr L P M NZIMANDE
"National Council of Provinces Main",Unrevised Hansard,27 Mar 2015,"Take 2 [National Council of Provinces Main].doc"
"National Council of Provinces Main",Unrevised Hansard,17 Feb 2015,"[Take-2] [National Council of Provinces Main][90P-5-085b][es].doc"
Mev C Labuschagne
Mr[es9] L P M NZIMANDE: Thank you. I am declaring on behalf of the KwaZulu-Natal government, which resolved in terms of section 139 (1) (c) to dissolve the municipality of Mtubatuba.
The provincial executive has run and overseen and supported municipalities in KwaZulu-Natal without interference, even in those municipalities that are run by the IFP such as Nkandla and Ulundi, to name a few. There is no interference from the executive of the ANC. So there are no political aspirations of the ANC to disturb any municipality under any circumstances, except regarding service delivery, poor governance, and mismanagement of people’s assets in municipalities. We have done so. This executive did just that in Mooi-Mpofana, which is a municipality run by the ANC. The ANC is exemplary as a political party that is not scared of taking decisions, where necessary, on behalf of the people it represents. Further, we would like to say that this municipality has been babysat for three years, since the elections in 2011. This is on record. It’s been babysat in a number of ways ...
Mr[es10] J W W JULIUS: Chairperson, is the hon member doing the declaration on behalf of KwaZulu-Natal or the ANC? He just mentioned ``we the ANC’’. Thank you.
The[es11] DEPUTY CHAIRPERSON OF THE NCOP (Mr R J Tau): The first time when the member rose, he rose on behalf of KwaZulu-Natal. That is what I picked up. I might not have heard correctly. Make the declaration a declaration on behalf of KwaZulu-Natal. You may proceed, hon member.
Mr[es12] L P M NZIMANDE: Just to answer him, Chair, this declaration, the mandate I am rising on, is signed by the Speaker of the legislature, and we, all the delegates and I, are representing the head of the province, the premier, as I make the declaration.
Therefore, we continue to support any interventions that are necessary and are constitutional and procedural on behalf of the people that we represent, to make sure that public representatives respect the mandates that are bestowed on them by the people by making sure that they deliver what they are supposed to deliver constitutionally and that they are supposed to deliver under oath.
Therefore, we would like to say political parties must never raise issues in terms of party politics when they are dealing with the issues of people, service delivery and governance. We have had interventions in the Western Cape. We’ve undertaken interventions in Oudtshoorn. We’ve undertaken interventions in Swellendam. They are all municipalities in the Western Cape. So it cannot be true that ... We declare thus that we support the intervention. [Time expired.]
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
The Council adjourned at 09:58.
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