ATC170620: Report of the Select Committee on Co-Operative Governance and Traditional Affairs inspection in LOCO on notice of Intervention issued in terms of section 139(1)(B) of the Constitution (1996) in Emadlangeni Local Municipality, dated 20 June 2017
REPORT OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS INSPECTION IN LOCO ON NOTICE OF INTERVENTION ISSUED IN TERMS OF SECTION 139(1)(b) OF THE CONSTITUTION (1996) IN EMADLANGENI LOCAL MUNICIPALITY, DATED 20 JUNE 2017
1. Background and Overview
1.1 The Select Committee on Co-operative Governance and Traditional Affairs, having considered the request by the National Council of Provinces (NCOP) to consider and report on the intervention notice invoked in Emadlangeni Local Municipality in terms of section 139(1)(b) of the Constitution, the Select Committee reports as follows:
1.2 In terms of NCOP Rule 101, the Office of the Chairperson of the NCOP referred the notice of intervention by KwaZulu-Natal MEC for Cooperative Governance and Traditional Affairs, to the Select Committee for consideration and reporting. On 9 June 2017, the Multi-Party Delegation of the Select Committee conducted a loco inspection at Emadlangeni Local Municipality.
2. Objective of the Loco Inspection in Emadlangeni Local Municipality
2.1 The main objective was to interact with the internal and external stakeholders of the Municipality in order to solicit their opinions on the constitutional, procedural and substantive matters related to the invoking of intervention in terms of section 139(1) (b) of the Constitution and the Local Government: Municipal Structures Act (Act 117 of 1998).
3. Composition of the Delegation
3.1 The Select Committee delegation composed of the following Members of Parliament and officials: Hon JM Mthethwa, KwaZulu-Natal (ANC); Hon MT Mhlanga, Mpumalanga (ANC); Hon G Manapole, Northern Cape, (ANC), Hon D Ximbi, Western Cape, (ANC), Hon DM Monakedi, Limpopo, (ANC), Hon M Chetty, KwaZulu-Natal (DA); (Mr TM Manele, Committee Secretary (Committee Section); Mr N Mfuku, Content Advisor (Committee Section); Ms T Mpapela, Content Advisor, (Committee Section); Mr B Mahlangeni, Researcher (Research Unit) and Mr N Mangweni, Committee Assistant (Committee Section).
4. General Overview of the Loco Inspection at Emadlangeni Local Municipality
4.1 On 9 June 2017, the delegation of the Select Committee interacted with senior officials of the Department of Cooperative Governance and Traditional Affairs, party representatives in council (ANC, IFP, DA and EFF), the South African Municipal Workers Union (SAMWU) and external stakeholders in the Municipality.
4.2 The Departmental official made a presentation on the constitutional, procedural and substantive reasons for the intervention. The representatives of the political parties, Organised Labour and external stakeholders, shared their opinions with regards to the intervention, as tabled by the MEC for Cooperative Governance and Traditional Affairs.
5. Presentation by Department of Cooperative Governance and Traditional Affairs
5.1 The senior departmental official made a presentation on the status of intervention in the Municipality. The Emadlangeni Local Municipality is one of three local municipalities in the Amajuba District family of municipalities. During the 2011-2016 term, the Municipality had seven councillors led by the Speaker who was called the Mayor. The number of councillors increased to eleven for the 2016/2021 term. The Municipality now has an Executive Committee, Mayor, Deputy Mayor and Speaker. The council comprises of 6 ANC councillors, 3 IFP, 1 DA and 1 EFF.
5.2 The political challenges started soon after the 2016 local government elections with disputes around the election of office bearers. Reports were received suggesting that the Municipality had become factionalised. The factions were across the political spectrum.
- Factionalism escalated to differences relating to institutional matters, resulting in the illegal suspension of the Municipal Manager. This led to the appointment of an acting Municipal Manager who did not meet the requisite requirements, and thus leaving the Municipality exposed to litigation where decisions of the Accounting Officer could be declared invalid.
- Decisions were being taken by the council which were irregular and could financially prejudice the Municipality. The MEC deployed teams to advise the Municipality on a number of occasions on their mandate of supporting and performing oversight in Municipality to no avail.
- These attempts included the visit by the MEC to Emadlangeni in November 2016 where it appeared that a way forward had been agreed. However, soon after the MEC’s departure, the municipal council became dysfunctional. The Department was thus forced to take the extraordinary measure of approaching the courts, in an attempt to force the Municipality towards following correct legal procedures.
- The oversight structures of the Municipality were affected by the differences in council and became dysfunctional. The administration was negatively impacted as well. The Municipality was left with no Municipal Manager, until a person from outside the Municipality was appointed, and commenced duties on 12 January 2017. Even the acting Municipal Manager was let go by the Municipal Council in April 2017, for allegedly failing to cooperate with the directions of certain councillors.
- In the premises, the Executive Council deemed it necessary to invoke section 139(1)(b) of the Constitution at Emadlangeni Local Municipality in order to contain the situation, restore normalcy and institute the Code of Conduct investigations against councillors who were alleged to have contravened the Code.
- The Emadlangeni Municipal Council took and implemented illegal decisions relating to forcing the Municipal Manager to take special leave, and the subsequent illegal suspension. The Municipal Council incurred costs amounting to hundreds of thousands associated with the illegal suspension of the Municipal Manager, despite advised to the contrary.
- The rejection by Emadlangeni Municipal Council of support and advice from CoGTA resulted in the Municipality being left without an Accounting Officer for a considerable period of time. The failure by the Emadlangeni Municipal Council to replace the Director Corporate Services despite timely advised by CoGTA, forced the Municipality to appoint an acting person.
- The Municipal Council appointed an acting Municipal Manager, who did not have the requisite requirements for the job, and this concomitant decisions resulted in the Municipality incurring fruitless and wasteful expenditure. As a result, decisions were being taken by the Municipal Council which were irregular and could financially prejudice the Municipality.
- Opinions of Political Parties and Stakeholders of the Municipality
6.1 The delegation of the Select Committee solicited opinions of the political parties and the internal and external stakeholders of the Municipality
7. Opinion of the Inkatha Freedom Party (IFP)
7.1 The representative of the IFP tabled an opinion that did not supported the intervention, since they claimed that the intervention was not informed by the failure on the side of the Municipality.
8. Opinion of the Democratic Alliance (DA)
8.1 The representative of the DA did not supported the intervention, as they claimed that the Municipal Council was ready to deliver services to the community.
9. Opinion of the Economic Freedom Fighters (EFF)
9.1 Acknowledged that there were political factions in the Municipality, as a result of the suspension of the Municipal Manager. The party supported the intervention, since they believed that there were a number of investigations to be conducted in the Municipality.
10. Opinion of the African National Congress (ANC)
10.1 The ANC representative supported the intervention in the Municipality.
11. Opinion of the South African Municipal Workers Union (SAMWU)
11.1 The representative of the Organise Labour tabled an opinion that supported intervention, as well as the terms of reference of the Administrator.
12. Opinion of the Emadlangeni Youth Council
12.1 The representative of the Youth Council supported the intervention. They asserted that, since the Municipal Council was dysfunctional, youth programmes and funding were neglected in the Municipality.
13. Local Sports and Recreation Forum
13.1 The Forum supported the intervention, and hoped that the Administrator will assist in sports’ development at Emadllangeni.
14. Select Committee Observations and Opinion
14.1 The notice of intervention to Emadlangeni Local Municipality submitted by the MEC for Cooperative Governance and Traditional Affairs in KwaZulu-Natal Province, complies with the provisions of section 139(2)(a)(ii) of the Constitution, meaning the NCOP was officially informed within 14 days after the intervention began.
14.2 While acknowledging that there are challenges with regards to the appointment of senior managers in the Municipality, these positions were all advertised at the end of May 2017. Other challenges including the performance of the Municipality in terms of the Integrated National Electricity Programme (INEP), these challenges could still be addressed by providing support to the Municipality in terms of section 154(1) of the Constitution, instead of the invocation of section 139(1)(b) of the Constitution.
14.3 Further, section 155(7) of the Constitution requires provincial governments to provide, by legislative and other measures, for the monitoring and support of local government in a province, and to promote the development of local government capacity so as to enable municipalities to carry out their required functions and manage their own affairs. In addition, both the national and the provincial governments are required to support and strengthen, by legislative and other measures, the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. Section 139 of the Constitution can only come into play, when all these forms of support have been exhausted.
14.4 Since the intervention was instituted or the Provincial Executive Council resolution to intervene at the Municipality was made, the Administrator has not been appointed and there is no progress reported on the achievement of the recovery plan in the Municipality.
14.5 The Select Committee took note of the Municipal Council’s attempt in challenging the intervention in court on the basis of irrationality, although they later withdrew the court case, and opted to resolve the matter amicably with the MEC.
15.1 Having conducted the oversight visit to Emadlangeni Local Municipality and interacted with internal and external stakeholders, and further considered the substantive matters brought to the attention of the Select Committee in application of the relevant legislations, it is recommended that:
15.1.1 The NCOP disapproves the intervention in Emadlangeni Local Municipality in terms of section 139(1)(b) of the Constitution.
15.1.2 The South African Local Government Association (SALGA) in co-operation with Local Government Sector Education and Training Authority, should facilitate training and capacity building for Municipal Councillors at Emadlangeni; to further deepen their understanding of their oversight role; legal framework and policies that govern the activities of the Municipality.
15.1.3 The KwaZulu-Natal MEC for Cooperative Governance and Traditional Affairs should table quarterly progress report to the NCOP on the performance and implementation of the Back to Basics pillars in the Municipality; including the filling of the senior management vacant positions.
Report to be considered.
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