ATC140723: Report Of The Select Committee On Co-Operative Governance And Traditional Affairs, On The Intervention In Terms Of Section 139(1)(B) Of The Constitution: Madibeng Local Municipality – Dated 22 July 2014
NCOP Economic and Business Development
REPORT
OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS, ON THE
INTERVENTION IN TERMS OF SECTION 139(1)(b) OF THE CONSTITUTION: MADIBENG LOCAL
MUNICIPALITY DATED 22 JULY 2014
Having considered the critical
issues emanating from the briefing with the Department of Cooperative
Governance and Traditional Affairs, and the report of the Ministerial Task Team
(MTT) that was established by the Minister, the Committee reports as follows:
1.
Introduction and Background
1.1
On the 5
th
February 2014,
during a special meeting of the North West Provincial Executive Council, it was
resolved to invoke provisions of the section 139(1
)(
b)
of the Constitution in the
Madibeng
Local
Municipality. The intervention was effective from the 5
th
February
2014, for a minimum period of six months and a maximum period of twelve months.
In terms of section
139(1)(b) of the Constitution, when a municipality cannot or does not fulfil an
executive obligation in terms of the Constitution or legislation, the relevant
provincial executive may intervene by taking any appropriate steps to ensure
the fulfilment of that obligation, including assuming responsibility for the
relevant obligation in that municipality.
1.2
The Minister, after considering the request
for the intervention, disapproved the intervention on the 7
th
March
2014, in terms of section 139(2)(b)(i) of the Constitution. The Minister was of
the opinion that the challenges in
Madibeng
Local
Municipality can be addressed by providing support to the Municipality in terms
of section 154(1) of the Constitution.
1.3
On the 12
th
February 2014,
the NCOP referred the notice of intervention in
Madibeng
Local Municipality, to the Select Committee on Cooperative Governance and
Traditional Affairs, for consideration and reporting in terms of Rule 101. In
its meeting of the 8
th
July 2014,
the
Committee
took a decision to receive
a briefing from the Department and the MTT support that was provided in terms
of section 154(1) of the Constitution.
In terms of this section, national
and provincial governments, by legislative and other measures, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.
2.
Notion
and Necessity
2.1
The main issues identified by the
Provincial Executive to intervene in the affairs of
Madibeng
Local Municipality
related to:
·
Failure by the
political leadership of the Municipality to provide
leadership,
and failure to take ownership of the irregularities in the administration.
·
Failure by
Council to implement the recommendations of the Ministerial Report, which
included taking disciplinary actions against the implicated officials and
councillors since June 2013.
·
The situation in
the Municipality has continued to deteriorate, and has recently resulted in the
unfortunate death of four members of the
Madibeng
community, during a service delivery protest.
2.2
Based on the stated reasons of poor
state of governance and administration in the
Municipality,
the
North West Provincial Executive Council resolved then
to intervene
and assume the executive
obligations of the Municipality.
3.
Ministerial
Justification for Disapproval of Intervention.
3.1
The Minister however, is not in
agreement with the view that challenges in
Madibeng
necessitate an intervention. His
reasoning is based on the following:
·
Although there are evident
signs of poor administration and governance, however, these challenges can
still be addressed by providing support to the Municipality in terms of section
154(1) of the Constitution, instead of invocating of section 139(1
)(
b) of the Constitution. As a result, a MTT has been
appointed, amongst other things to develop a plan with the Department of Water
Affairs and Rand Water to address its water crisis.
·
The implementation of the MTT
Report has commenced, with the immediate precautionary suspension of the
Municipal Manager, the Chief Operations Officer and the Acting Corporate
Services Manager.
·
Mr
Tebogo
Motlashuping
from the Department of Cooperative
Governance and Traditional Affairs has been appointed as the Acting Municipal
Manager, to monitor, supervise and implement the recommendation of the MTT Report.
·
In addition, the current
Executive Mayor, Speaker and Council Whip, who have recently replaced the
previous office bearers, have not had sufficient time in office to allow them
to extricate the Municipality from the its problems.
3.2
In light of the above reasons, the
Minister has deemed it appropriate to disapprove the
intervention in terms of section 139(1
)(
b)
of the Constitution in the
Madibeng
Local
Municipality.
4.
Establishment of the Ministerial Task
Team
4.1
Upon analysing
the challenges in
Madibeng
Local Municipality, the
Minister, in
consultation with the
Provincial Executive, appointed the MTT to conduct an
investigation on whether the invocation of this section was
warranted. The MTT
recommended the
following:
·
A section 154(1) support to the Municipality
that should be of a collaborative nature between the spheres of government.
·
Disciplinary action against the Municipal
Manager, the Acting Chief Operations Officer and the Acting Head of Corporate
Services.
·
Disciplinary action against the Speaker.
·
Opening of criminal cases against the
Municipal Manager, the Acting Chief Operations Officer, the Acting Head of Corporate
Services and the Speaker.
·
Suspension or placing on special leave of the
first three officials mentioned above pending the finalization of their
disciplinary or criminal cases.
·
Suspension or placing on special leave of the
Speaker pending the finalization of his disciplinary or criminal cases.
·
Deployment of four officials, two from the
National Government and two from the Provincial Government, to support the Municipality.
·
One of the deployed officials
be
appointed as an Acting Municipal Manager, the other two
as Acting Chief Operations Officer and acting Head of Corporate Services
respectively, while the other was to coordinate further investigations,
institution of disciplinary processes and assist law enforcement agencies in
their criminal investigations against the suspended official and any other
official.
5.
Terms
of Reference of the Ministerial Support Team
5.1
In
pursuit of the recommendations of the MTT Report, the
Madibeng
Municipal Council
approved the
implementation of section 154(1) support and also approved the
establishment of the Ministerial
Support Team (MST), comprising of the following
officials: Mr
Tebogo
Motlashuping
;
Mr Pascal
Moloi
and Mr
Boysie
Phehlukwayo
.
5.2
The following
were the Terms of Reference or the mandate given to the
abovementioned officials (MST):
·
Improvement of service delivery,
prioritising water and sanitation services
.
·
Improve the financial controls,
expenditure management, procurement processes, revenue enhancement and debt
collection, as well as addressing the Auditor Generals reports.
·
Analysis and implementation of
past and current investigations, commissions of enquiry and forensic audits.
·
Attending to labour matters
(outstanding disciplinary cases, labour disputes and functionality of LLF) and
instil the culture of work and discipline among workers.
·
Facilitate the improvement of
governance within Council.
·
Conclude the disciplinary cases of
the previously suspended and re-instated managers (develop charges and commence
with disciplinary processes).
·
Investigate all recently awarded
contracts, to establish the validity and legitimacy thereof and terminate those
that are not legitimate.
6.
Progress
Made on the Application of Section 154 of the Constitution
6.1
The
Municipality has since placed the Municipal Manager on precautionary
suspension and subsequently appointed
Mr.
Tebogo
Motlashuping
from the
Department of Cooperative
Governance as the Acting Municipal Manager for a period
not exceeding three months.
6.2
The Acting Municipal Manager and the Mayor handed the report
of the MTT to the
Brits Police Station,
to enable the police to investigate all allegations of illegal nature
contained in the report. Progress report is
being awaited from the Police and will be
tabled
before Council once available.
6.3
The Municipality also appointed
Lourens
Bezuidenhout
Attorneys to investigate
allegations of misconduct against the
Municipal Manager, Chief Operating Officer and
the
Acting Director Corporate Services and report on the outcome to Council within
a
month, for Council to make a
determination on whether to proceed with disciplinary
proceedings against the implicated officials.
6.4
The Chief Operating Officer and the Acting Director Corporate
Services approached
the High Court
to compel the Municipality to furnish them with the copy of the
MTT report, to enable them to
challenge their suspension. The matter was set
down
for hearing on 20 May 2014. The Municipality
opposed the application and the
applicants
application was dismissed with costs.
6.5
Water Services: The water supply in the Municipality is
serviced by two main Water
Treatment
Works in Brits and
Schoemansville
. The Brits water
scheme covers a vast
number of areas
with high growth patterns and is constraints by plant conditions and
raw water quality. In
Letlhabile
,
Maboloka
,
Letlhakaneng
and
Jericho there were
water
supply interruption, due to major pipe
breakage in the field. However, pipe
breakage
was located and repaired to reinstate water supply. In the areas of
Mothotlung
,
Damonsville
,
Mmakau
,
Madidi
and
Oskraal
Water there
were supply
interruption and inadequate
water pressure, supply due to mechanical failures
and collapse of the main water line (bridge structure). As
a result, the failed pumps
have been
repaired with operating and stand-by pump available to function.
6.6
Integrated Development Plan (IDP): In March 2014, the draft
IDP Review 2014/15 was
adopted by
Council.
Submissions were made
to the Office of the MEC Local
Government
and Traditional Affairs for assessment and the District Council for
alignment. Consultative processes were
conducted through ward public
participation.
Two IDP representative forum meetings were held and municipal
priority needs were identified and
projects were
considered.
6.7
Community Services: The
Madibeng
Music and Arts academy has been established
and
was opened in the month of June 2014 to the public. Beautification of entrances
has been done in
Oskraal
and
Hartbeespoort
. Construction of
Lethabong
Library has
been
finished and furniture as well as library books procured. The Library it is set
to
be handed over this month.
Procurement of Library books for other libraries has
been completed.
6.8
Budget and Treasury Office:
The Municipality
has an approved SCM Policy and
procedures
that need to be followed for all procurement transactions. Strict
enforcement of SCM processes is done to all
procurement transactions to ensure that
irregular
expenditure is eliminated. The transactions are being investigated by MPAC,
to advise municipal council on actions to
be taken to any official found to have
negligently
contravened the established SCM processes.
6.9
Human Settlement:
The
Municipality has over 35 informal settlements with housing
needs estimated at over 40,000 (houses
with serviced stands).
The Department is
currently conducting township
establishment at
Mooinooi
,
Bokfontein
and
Scheerpoort
that
will yield over 2000 serviced stands. The North West Department of Human
Settlement Public Safety and Liaison has
committed to provide RDP houses at those
settlements.
The Executive Mayor of
Madibeng
and the MEC for Human
Settlement
and Public Safety and
Liaison, handed over 100 RDP houses at
Mothotlung
Extension
2 and 1000 houses at
Sunway Township on the 16 April 2014.
6.10
Economic Development and Tourism:
Fifteen young people have been trained in
Entrepreneurial Starter-up program by National Youth
Development Agency (NYDA)
on
Business Management. In addition,
two LED awareness campaigns
have been
held with relevant
stakeholders with the involvement of NGOs, SEDA, and other
government departments on opportunities for
economic growth. In addition to the
above,
25 youth members have also been trained in Heritage and Culture research by
the National Department of Arts and
Culture
7.
Committee Observations and Opinion
7.1
The Committee is of the
opinion that monitoring and support of local government is a
constitutional obligation in terms of sections
154(1) and section 155(6) and (7) of the
Constitution.
The principle for the application of sections 139 has always been to
invoke it as a last resort, after all forms of
support have been exhausted.
7.2
The
critical issue is how government can bring the necessary checks into the system
before a legislative intervention
becomes a necessity. Integral to this would be
mechanisms
for improved monitoring, an early-warning system and strengthened
means for intergovernmental
oversight and support measures, particularly in the after
care phase. Hence there is a need
for the legislation envisaged in section 139(8) of
the Constitution,
to assist
and provide provinces with uniform approach to the
supervision of local government.
7.3
The Committee has also observed
the hands-on support which is of a collaborative
nature between the spheres of government provided by the
Minister, instead of
invocation
section 139(1
)(
b) of the Constitution in the
Municipality.
7.4
Although there are still outstanding challenges in the
Municipality, much work has
been
done by the MTT in addressing good governance and administration, in order to
normalise service delivery in
Madibeng
.
7.5
The Committee is of the
opinion that the Bojanala Platinum District Municipality, South
African Local Government Association (SALGA),
as well as the Municipality Public
Accounts
Committee (MPAC), have a critical role in
supporting
the executive authority
of the
Municipality to ensure that it performs its functions effectively.
These would
include: enhancing municipal leadership and accountability;
strengthening
participation
mechanisms and strengthening intergovernmental processes.
8.
Recommendations
8.1
Having deliberated with the Department
of Cooperative Governance and Traditional Affairs on the challenges in
Madibeng
Local Municipality, the Committee recommends as
follows:
8.1.1
The NCOP takes note of the Report by the
Ministerial Task Team, and support the
termination
of intervention as stipulated in terms of section 139(2)(b)(i) of the
Constitution.
8.1.2
The Department of Cooperative Governance
and Traditional Affairs, through the
Ministerial
Task Team, should fast-track the process of filling all vacant positions
and the appointment of skilled
personnel in
Madibeng
Local Municipality, in order to
facilitate the transfer of
skills and to ensure continuity and stability.
8.1.3
The Department of Cooperative Governance
and Traditional Affairs should
submit
quarterly progress reports to the Provincial Legislature and the NCOP,
on the section 154(1) of the Constitution
support to the Municipality.
8.1.4
A follow-up to be made by the Committee on
the briefing and progress report
submitted
by the Ministerial Task Team, as well as on service delivery
challenges in
Madibeng
Local Municipality.
Report to be considered.
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