ATC210608: Report of the Select Committee on Co-Operative Governance and Traditional Affairs, Water, Sanitation and Human Settlements on Re-Tabling of the Notice of Intervention Issued in terms Of Section 139(1)(B) of the Constitution (1996), In Metsimaholo Local Municipality, Dated 08 June 2021
NCOP Cooperative Governance & Traditional Affairs, Water and Sanitation and Human Settlements
Report of the Select Committee on Co-Operative Governance and Traditional Affairs, Water, Sanitation and Human Settlements on Re-Tabling of the Notice of Intervention Issued in terms Of Section 139(1)(B) of the Constitution (1996), In Metsimaholo Local Municipality, Dated 08 June 2021
1. Background and Overview
- The Select Committee on Co-operative Governance and Traditional Affairs,Water, Sanitation and Human Settlements, having considered the request by the National Council of Provinces (NCOP), to consider and report on the re-tabling of the notice of intervention invoked in MetsimaholoLocal Municipality in terms of section 139(1)(b) of the Constitution, the Select Committee reports as follows:
- On 24 December 2020, the Free State MEC for Cooperative Governance and Traditional Affairs communicated the re-tabling of the notice of intervention in terms of section 139(1)(b) of the Constitution in Metsimaholo Local Municipality, to the Office of the Chairperson of the NCOP.
1.3 Subsequent to the communication, the Office of the Chairperson of the NCOP referred the re-tabling of the notice of intervention by the Free State Department of Cooperative Governance and Traditional Affairs to the Select Committee for consideration and reporting in terms of NCOP Rule 101.
1.4 As part of ensuring executive accountability and performing oversight, the Select Committee had a virtual meeting on 01st June 2021 with the Free State MEC forCooperative Governance and Traditional Affairs.The Select Committee also scheduled a virtual meeting on 07 June 2021, with the internal and external stakeholders of the Local Municipality.
2. Objective of the Virtual Meeting with the Free State Department of Cooperative Governance and Traditional Affairs
2.1 The main objective of the virtual meeting was to interact with the Department in order to assess the constitutional, procedural and substantive matters related to re-tabling of the notice of intervention in terms of section 139(1)(b) of the Constitution.
3. Briefing on the Substantive, Procedural and Constitutional Matters related to the Re-tabling of the Notice of Intervention in terms of section 139(1)(b) of the Constitution in MetsimaholoLocal Municipality
3.1 TheMEC made a presentation onthe re-tabling of the notice of intervention in the Local Municipality. The departmental presentation focused on the Introduction; Background; Procedural, Constitutional and Substantive Matters related to the re-tabling of the notice of intervention in terms of section 139(1)(b) of the Constitution.
4. Background, Procedural and Constitutional Matters
4.1 The MEC reported that,since the election in 2017, the Council of the Local Municipality has not appointed senior managers and to make matters worse, the Municipal Manager was placed on suspension on the 3rd July 2018. The Local Municipality has operated for some time with middle managers acting as section 56 managers, and even acting Municipal Manager and Accounting Officer. The practice of the Local Municipality was in contravention of the Constitution, the Municipal Systems Act and the Municipal Finance Management Act, including the Municipality’s own policy on acting appointments.
4.2 In trying to resolve the impasse, the Department seconded an official to support the Local Municipality as its acting Municipal Manager, in terms of section 154 of the Constitution.He was duly appointed by the Executive Mayor for a period of three (3) months, from the 18th November 2019.His work was made very difficult by some officials, who wanted the abnormal practice of appointing people against the Local Municipality’s own policies to continue, even going to the courts, supported by some Councillors.
4.3 A Council meeting on 09 December 2019, which was going to consider, inter alia, a report on the filling of the vacant positions of senior managers, was disrupted and thecontract of the official seconded to and subsequently appointed as the acting Municipal Manager came to an end, on 17 February 2020.
4.4 The Executive Council (EXCO) invoked section 139(1)(b) of the Constitution in the affairs of the Metsimaholo Local Municipality in its meeting of 11 February 2020. On 20 February 2020, the Department went to the Metsimaholo Local Municipality to communicate the EXCO resolution of the 11th February 2020.
4.5 The Department communicated the notice of intervention with the NCOP, the Minister and the Free State Legislature on 25 February 2020. The Select Committee is further requested to note that, even the section 139 was contested by some within the Municipal Council and its administration, in that regard. The department approached the Free State High Court to set aside the “Council meeting” that took place after the Department had communicated the EXCO resolution to the municipal council, and its resolutions.
4.6 The High Court ruled in the Departmental favor and declared the Local Municipality duly under administration at the end of August 2020. In October 2020, the Free State NCOP delegation invited the department and the leadership of the Local Municipality to come and make a presentation before them.The NCOP delegation was unanimous on the need for the Department to expedite the appointment of the senior managers, and to resolve the protracted legal matter between the Local Municipality and the Municipal Manager.
4.7 Although the appointment of senior managers was one of the substantive matters of the intervention, in November 2020, the intervention team prepared a road-map for the appointment of the senior managers for consideration by the Municipal Council.
4.8 When the Municipal Council refused to cooperate on this matter, the intervention team approached the MEC, in line with the terms of reference and particularly, clause (viii) of the appointment letter, which basically gives the EXCO Representative the power to appoint senior managers in such instances. The High Court ruled on the side of the Department, and declared the Local Municipality duly under administration at the end of August 2020.
4.9 A report was submitted to EXCO on 10 December 2020 for EXCO to, onfirm the intervention in the affairs of the Metsimaholo Local Municipality in terms of section 139(1)(b) of the Constitution; mandated the EXCO representative to uplift the suspension of the Municipal Manager; andnote that the recruitment and selection process for the positions of senior managers has been kick-started.
5. Substantive Matters and Preliminary Progress Report
5.1. The substantive matters reported to the Select Committee in relation to the invocation of section 139(1)(b) of the Constitution included, abandoning of scheduling of Council meetings, vacant positions of senior managers, alleged political interference; regression in audit outcomes; regression in governance oversight; deterioration in systems of internal controls; high concerns on financial viability; and areas of high concerns and possible irregularities.
5.2 The preliminary progress report to the Select Committee include sitting of council meetingsand disposal of matters; convening of informal Council meeting on 18 May 2021; adoption of the 2021/22 budget, filling of some of vacant position of senior managers, upliftment of the suspension of Municipal Manager on 08 January 2021 and obtainment of qualified audit outcome for 2019/20 financial year.
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6. Opinions of the Internal and External Stakeholders on the Re-Tabling of Section 139(1)(b) of the Constitution in the Local Municipality
6.1 The representative of the African National Congress (ANC), tabledan opinion that support the re-tabling of the notice in terms of section 139(1)(b) of the Constitution. the representative indicated that the Council did ask for support in terms of section 154 of the Constitution. While acknowledged progress made in respect of administrative stability, however, concerns were raised with regard to the 2 deployed officials by the Department, to be shortlisted in the interviews for the position of Director for Technical Services,Chief Financial Officer and non-involvement of the MMC.
6.2 The representative of the South African Communist Party (SACP), tabled an opinion that supported the re-tabling of the notice in terms of section 139(1)(b) of the Constitution. The representative raised concerns about the non-sitting of Council meetings, and the non- attendance of Council meetings by EFF members, without submitting apologies.
6.3 The representative of the Democratic Alliance (DA) tabled an opinion that rejected the re-tabling of the notice of intervention. The representative objected to the substantive reasons that the Council was not setting. The representative raised concerns with the failure of the MEC to provide the terms of reference of the Administrator, as the result of the Speaker of the Local Municipality for adjourning the Council meeting.
6.4 The representative of the Freedom Front Plus (FF+), tabled an opinion that rejected the re-tabling of the notice of intervention. The representative indicated that everybody within the Local Municipality was performing in terms of their job descriptions, and that the suspended Municipal Manager has been re-instated. The representative raised concern with regard to the R27 million budget allocation returned during the intervention to the National Treasury.
6.5 The representative of the African Independent Congress (AIC) tabled an opinion that did not support the re-tabling of the notice of intervention. The representative indicated that since 2018/19, the Municipality was facing challenges of convening Council meetings, falling to take decisions on service delivery matters.
6.6 The representative of the Forum for Service Delivery (F4SD) tabled an opinion that rejected the re-tabling of the notice of intervention. Having noted the progress reported, the representative argued for the upliftment of the intervention, noting that the 2021 local government election will be held during the next 138 days.
6.7 The representative of the Economic Freedom Fighters (EFF) tabled an opinion that rejected the re-tabling of the notice in terms of section 139(1)(b) of the Constitution. The representative indicated that the Council meetings were functional and that the Local Municipality has considered every matter before the Council. Concerns were raised on the deployment of the officials by the Department of Cooperative Governance and Traditional Affairs, without approval of the Municipal Council.
6.8 The representative of the MetsimaholoCommunity Association, tabled an opinion that supported the re-tabling of the notice in terms of section 139(1)(b) of the Constitution. the representative indicated that it was through the Council resolution to request for deployment of capacity and in the Local Municipality.
6.9 The representative of the South African Municipal Workers Union (SAMMU) tabled an opinion that supported the re-tabling of the notice of intervention. The representative indicated that progress has been made in respect of administrative and political stability. However, concerns were raised with regard to labour instability under the coalition.
7. Observations of the Select Committee
7.1 The Select Committee has noted and observed with concern that the communication of first notice of intervention in the Local Municipality on 25 February 2020,to theChairperson of the NCOP and the Minister for Cooperative Governance and Traditional Affairs, did not comply with the constitutional requirements and was procedurally flawed.
7.2 The Select Committee has also noted that, in order to ensure constitutional compliance, the Free State Provincial Executive Council (PEC), took a decision on 10 December 2020 and delegated the MEC for Cooperative Governance and Traditional Affairs to re-table the notice of intervention in terms of section 139(1)(b) of the Constitution to relevant stakeholders, as prescribed by the Constitution.
7.3 Subsequent to the decision of the EXCO, the Free State MEC for Cooperative Governance and Traditional Affairs communicated the re-tabling of the notice of intervention in terms of section 139(1)(b) of the Constitution to the Minister for Cooperative Governance and Traditional Affairs on 23 December 2020, and to the Chairperson of the NCOP on 24 December 2020.
7.4 In terms of the presentation by the Free State MEC for Cooperative Governance and Traditional Affairs, the Select Committee has noted that the substantive matters leading to the invocation of section 139 in the Local Municipality, did not change as the result of the re-tabling and communication to the Minister for Cooperative Governance and Traditional Affairs and the Chairperson of the NCOP.
7.5 The substantive matters that the Select Committee has noted the abandoning of scheduled Council meetings, vacant position of senior managers, alleged political interference, regression in governance oversight, deterioration in systems of internal control, high concern on financial viability and possible irregularities.
7.6 Having noted the re-tabling, communication of the notice of intervention and non-change of the substantive matters, the Select Committee has however, observed with concerns the financial implication of the first notice of intervention communicated on 20 February 2020.
7.7 The Select Committee has further noted that the presentation by the MEC for Cooperative Governance and Traditional Affairs did not provide information on the issuing of directive in terms of section 139(1)(a) of the Constitution, as well as time frames of the re-tabling of the notice of intervention in the Local Municipality.
8. Recommendations of the Select Committee
8.1 Having interacted through the virtual platform with the Free State MEC for the Department of Cooperative Governance and Traditional Affairs and the internal and external stakeholders of the Local Municipality, the Select Committee recommends as follows:
8.1.1 The NCOPdisapproves the notice of intervention in terms of section 139(1)(b) of the Constitution in Metsimaholo Local Municipality and that the intervention be terminated with immediate effect.The Select Committee is of the view that the current situation in the local municipality does not warrant section 139 (1) (b) of the Constitution.
8.1.2 The Free State MEC for Cooperative Governance and Traditional Affairs should provide continuous supportto the Local Municipality in terms of section 154 of the Constitution.
8.1.3. The Local Municipality should fast-track the process of filling outstanding vacant positions of the senior managers in the Local Municipality.
8.1.4. The MEC for Cooperative Governance and Traditional Affairs should provide progress and termination report on the intervention in terms of section 139(1)(b) of the Constitution in Metsimaholo Local Municipality to the National Council of Provinces and to all the internal and external stakeholders.
8.1.5. As part of monitoring, the Select Committee on Cooperative Governance and Traditional Affairs should coordinate a joint proactive and follow-up visits with the relevant Portfolio Committee in the Free State Provincial Legislature, in order to interact with internal and external stakeholders.
Report to be considered.
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