Mkhanyakude district municipality section 139 intervention: KZN Cogta input

NCOP Cooperative Governance & Traditional Affairs, Water and Sanitation and Human Settlements

06 July 2021
Chairperson: Mr C Dodovu (ANC, North West); Acting Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Video: Select Committee on Cooperative Governance and Traditional Affairs, Water Affairs and Sanitation

The Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation received a briefing in a virtual meeting from the KwaZulu-Natal Department of Cooperative Governance and Traditional Affairs (COGTA) on the provincial executive’s intervention at the uMkhanyakude District Municipality, in accordance with Section 139 (1)(b) of the Constitution.
The Committee raised concerns on the municipal council’s inability to sit and execute its functions, which had led to it not passing the Integrated Development Programme and the municipal budget. 

The Committee also suggested the implementation of the code of conduct of councillors (Schedule 1) of the Municipal Systems Act, which sets out the sanctions against councillors who do not attend council meetings. It was concerned that the municipality had failed to implement the findings and recommendations of four forensic investigations from 2012 to 2019, as well as evidence of a complete disregard for the supply chain management policy framework and procedures, which had led to the ballooning of unauthorised, irregular, fruitless and wasteful expenditure. 
For these reasons, and based on the views of both the internal and external stakeholders within the municipality, the Committee considered the intervention necessary.

The Committee adopted its report approving the intervention in Umkhanyakude District Municipality in terms of section 139(1)(b) of the Constitution.

Meeting report

The Chairperson welcomed everyone present and said that the meeting with the municipality was long overdue because the stakeholders were not present in the previous meetings. An apology had been received from the Independent Municipal and Allied Trade Union (IMATU), a local labour union in uMkhanyakude, stating that it would not be part of the meeting because the municipality had not paid for its cellphone allowances. The meeting had to continue because a final report had to be presented by the Committee to the House as soon as possible.

The Chairperson invited Mr Sipho Hlomuka, Member of the Executive Council (MEC), Department of Cooperative Governance and Traditional Affairs (COGTA), KwaZulu-Natal (KZN) to make some opening remarks and to provide guidance on the presentation from the Department.

MEC's overview

MEC Hlomuka thanked the Chairperson and greeted all the present officials from the municipality, the Department and Members of the Committee. He thanked the National Council of Provinces (NCOP) for the opportunity to present the interventions, and to ensure that there was compliance with the Constitution. The NCOP was an important partner in ensuring the functionality of municipalities. There were challenges faced by the provincial and local government, but the province and national government had an obligation to support municipalities as stated in Section 154 of the Constitution, even if the municipality was placed under Section 139 administration.

The KZN Department had taken the decision to place the uMkhanyakude Municipality under Section 139 (1)(b), and all the councillors of uMkhanyakude had been engaged with on 16 February 2021 to inform them of the decision. None of the councillors had rejected the intervention, and proper processes were followed by the provincial executive in placing the municipality under Section 139 (1)(b).

The MEC said that it should be noted that some of the challenges in uMkhanyakude included an unfunded budget for 2020/2021, and increased irregular, wasteful and fruitless expenditure as a result of unpaid service providers, but there were efforts to pay these service providers. A municipal representative had been appointed by the provincial department as an administrator to ensure that wrong decisions were rectified and were guided by the legislation.

He asked the Department’s Head of Department (HOD) to make the presentation.

KZN COGTA presentation

Mr Thando Tubane, HOD: KZN Department of Cooperative Governance, said the municipality had been placed under intervention as far back as 2015, and was dissolved at one point. Progress was made by the municipality after it was reinstituted and the intervention was revoked by the Executive Council, but the issues of the municipality had led to it being dysfunctional again despite the support that was given by the provincial department.

He said that there was division within the municipality, and reports from the municipality had not been tabled. Financial irregularities outlined by the Auditor-General (AG) had not been addressed by the municipality. Other issues were that council meetings were being dissolved, which had led to the suspension of the then chief financial officer (CFO) and the Mayor.

Mr Tubane listed the reasons for the intervention of Section 139 (1)(b), based on the "Back To Basics" pillars, and said that a war room had been established to support the municipality on service delivery issues, and a plan had been drafted based on an assessment that had been carried out to help uMkhanyakude with infrastructure services provided to the surrounding communities. On the support measures provided by the provincial government before the implementation of Section 139, he said that conditional grants had been given to the municipality, but they were not used for their intended purpose.

He outlined the key factors that were impacting the intervention, which involved the change in the political leadership within the municipality. Officials from the Department had gone to the municipality to discuss matters with the council. There had been tension between the ministerial representative and the municipal manager because of poor communication, which had led to a complaint being forwarded to the COGTA MEC regarding a breach of the Municipal Finance Management Act (MFMA) by the ministerial representative. He said that based on the challenges and reasons for the intervention, the municipality’s state had to be improved.

The Acting Chairperson, Ms S Shaikh (ANC, Limpopo) thanked the Department for the presentation and invited Members to ask questions.


Mr X Ngwezi (IFP, KZN) thanked the Department for the presentation and noted that one of the reasons for the decision to place the municipality under Section 139 (1)(b) had been that there was a battle between the councillors and that council meetings were not sitting. He said that the reason why councillors would want to dissolve meetings was because there were motions within the municipality which were not being attended to, except those of the ANC, especially the motion that had been brought forward to remove the deputy mayor by the other political party representatives. This created instability and bias within the municipality which resulted in problems. He asked why investigations had not been carried out at the council, especially since multiple issues had been raised by the provincial COGTA Department on maladministration. and why Mr Bamba Ndwandwe, the administrator, was not ensuring that there was consequence management in the municipality for those who were implicated.  

Mr S Zandamela (EFF, Mpumalanga) said that the presentation by the Department had raised a lot of issues, including the interventions by the MEC not being complied with, the council not sitting, unapproved budgets, multiple senior officials in one position, and unspent grants. Innocent people were suffering because of the councillors and the issues within the municipality, so why had the provincial executive council not implemented Section 139 (1)(c) to dissolve the municipality, because it was clear that there was nothing that could be done to improve its leadership. The issue had been dragging on for far too long, and the residents of the community deserved new leadership. The constitutional obligation must be adhered to, and he suggested that the municipality be dissolved.

Ms C Visser (DA, North West) raised concern over the regression in both the political and administrative legs of the municipality, and said there was no consequence management. In the past two years, municipalities had been experiencing the same problems because interventions were not implemented -- and sometimes caused more regression. There must be accountability for those who did not attend council meetings, and internal discipline within the municipality must be established so that if a councillor did not attend meetings, that councillor must be removed from office. She said the municipality could not continue with unfunded budgets and the unauthorised, irregular, fruitless and wasteful (UIFW) expenditure, and checks and balances must be in place. Governance must be the focus of municipalities, and compliance with statutory obligations and constitutional obligations must be ensured. If accounting officers, councillors or any municipal representative were not going to comply, then they must be removed from office because the same issues were being raised, which was not conducive to the communities.

Mr I Sileku (DA, Western Cape) said that it was disappointing to sit in a meeting to discuss issues on the conduct of councillors who did as they pleased by not attending meetings, which affected the poorest people. He asked why the legislation that dealt with the conduct of councillors was not applied, because when they did not attend meetings, there should be consequences. The Speaker of the council should have ensured that the business of the council continued and issues were dealt with. He reminded the Committee of the issue in Tshwane where councillors had also not been attending council meetings, and a court order had been issued that councillors were compelled to attend meetings.

Councillors were ill-disciplined, and there were factions amongst them. If they refused to work with the appointed administrator, then there were slim chances of success in the municipality. If people did not want to serve the communities and work, then they should stay home and the municipality should be dissolved, because no amount of support could save the municipality. He asked why the Speaker had not dealt with the four forensic reports that were instituted, and why the recommendations in the reports were not implemented. He also asked what the Municipal Public Accounts Committee (MPAC) was doing to ensure that there was consequence management in connection with the UIFW, and said there were laws and structures that governed municipalities. Section 139 (1)(b) would not resolve the issues in the municipality especially when there were councillors who did not have the appetite to serve. He commented that Section 139 (1)(b) stated that a Member of the Cabinet must approve or disapprove the intervention within 28 days, and the presentation had stated that the approval was given after 28 days. He asked what the legal implication was on the matter, because the NCOP was still within the 180 days period. 

The Chairperson said that the failure of the NCOP to approve or disapprove of the intervention within 180 days meant that the intervention continued. Also, if the Minister failed to approve or disapprove the intervention within 28 days, the intervention continued. The NCOP was the final decision maker when it came to the intervention. Based on the presentation, it was clear that the intervention of Section 139 (1)(b) was appropriate under the circumstances of the municipality, and he supported the suggestion given by the Members of the Committee that the councillors' code of conduct must be enforced to avoid the collapsing of municipalities and councillors that acted with impunity, which was problematic. The provincial government must institute some investigations against the councillors, and appropriate measures must be taken against councillors who did not comply with the legislation and laws.

The Acting Chairperson invited the HOD to respond to questions raised by Members.


Mr Tubane said that the message and the concerns raised by the Committee were clear -- that councillors should be doing their work, and if not, there should be consequence management. The Executive Council had been approached by the provincial Department in relation to the conduct of councillors. It was painful to see that critical issues in the municipality were not being addressed and that the municipality could not be active because the municipal budget had not been passed. The provincial Department was aware of the issues in the municipality and there were efforts to resolve them.

MEC Hlomuka said that Section 154 of the Constitution stated that the provincial government had the responsibility to support local government, which was what had been happening in uMkhanyakude when the municipality was placed under administration. On the comments made that the municipality should rather be dissolved under Section 139 (1)(c), he said it was important that the proper procedures were followed in implementing Section 139(1)(b) before Section 139 (1)(c), and highlighted that the behaviour and conduct of the councillors had been different at the time, which was why Section 139 (1)(b) had been implemented.

Most of the issues at uMkhanyakude were political and not administrative, because during engagements with the Nquthu municipality the response of the Portfolio Committee had been based on disagreements between the political parties, and not the general principle. At local government level, issues were resolved based on caucus and not principle, which had been observed at a few municipalities. Engagements had been held with the political party representatives before they were appointed to office, to ensure that people with a conscience were appointed. The issue at uMkhanyakude was that the budget had not been approved, and there were questions regarding the expenditures that were forwarded to Treasury, because the budget had not been approved. The comments by the NCOP had been noted and the final decision maker on the matter of interventions was the NCOP.

The Acting Chairperson said that inputs from the municipal councillors could be presented on the intervention.

Cllr Makhosonke Sithole, uMkhanyakude District Municipality, said that there were matters in the presentation that had not been reflected truly, especially on the political instability in uMkhanyakude. He confirmed that there was political instability at the municipality, where council meetings were not sitting, and said that in 2020 a letter had been written to the MEC to apply the law on the matter of it not sitting, but the MEC had not responded to the letter. ANC councillors were constantly excusing themselves from meetings, and by law they were supposed to be excused from their duties.

He said that IFP councillors had submitted three motions that were supposed to be tabled in the council meetings, but the Speaker had decided to consider the ANC’s motion, and there had been a request to remove all the motions from the meeting's agenda, and to include the budget, the Integrated Development Plan (IDP) and the water master plan instead, but the Speaker had ignored these requests.

He said that the MEC was aware of the reasons for the council meetings not taking place. The IFP supported the intervention, but the issue was that the MEC was supposed to resolve the issues at uMkhanyakude, but instead the MEC was politically biased. The investigation reports had not been tabled since 2020, when they were requested. The intervention was supported by the IFP because for the past five years, services had not been delivered to the residents of uMkhanyakude, which was why investigations were encouraged and consequence management should be implemented.

Cllr Solomon Mkhombo said that the ANC supported the intervention at uMkhanyakude, and that there was cooperation with the intervention. No explanation would be enough until water was provided to the people of uMkhanyakude, and said the situation was more complicated than it seemed. On the implementation of Section 32 of the MFMA, there were hopes that the administrator could be given more power to deal with the situation. He highlighted that there were three councillors who had been inconsistent in attending meetings and forwarded their apologies to the municipal manager, which meant that they had some sort of relationship with the municipal manager. Assistance had been requested in dealing with these councillors, because all the councillors were being painted with the same brush.

He said that there were issues that were administrative, such as by-passing supply chain management (SCM) processes, non-submission of irregular expenditure and investigation reports, irregular appointment of service providers and unsupervised service providers. The attempt to avoid consequence management by the administration of the municipality was done by collapsing the oversight structures, and a summary of the AG's report from the 2019/2020 financial year would show that as much as councilors did not approve the budget, the level and extent of corruption and poor performance was still happening. He said that payments were made but the services were never provided or delivered, and that there was an invoice from Vodacom for R5.5 million, but only 56 domestic water meters were installed, which meant each meter cost the municipality over R80 000. There was also a logo that was created for the municipality which cost R1.4 million but was never delivered, while a steel tank that was supposed to be replaced was just painted, and the full amount was claimed and paid.

Cllr Emmanuel Zuma said that a motion had been raised to remove the previous mayor, which had been passed, which was why the municipality had a new mayor. The problem had started because the mayor was from the IFP, and the Speaker and deputy mayor were from the ANC, and that when the Speaker forwarded the agenda, councillors from the IFP did not attend meetings, including the mayor. There seemed to be a battle between the IFP and the ANC. The budget of the municipality had not been passed because of the tension between these two parties. Consequence management should be implemented for councillors who did not attend council meetings. He added that the IFP had rejected reports previously. 

Mr Mfundiso Sakha, Local Secretary: South African Municipal Workers' Union (SAMWU), welcomed the Section 139 (1)(b)intervention, and said there were concerns such as communication between organised labour and ministerial representatives, because the local labour forum structure had been collapsed more than three times.

On the issue of the unfunded budget, he said that SAMWU was engaging on wage and salary increases nationally, and the NCOP should be concerned about the status of SAMWU members and the percentage increases of wages/ salaries. SAMWU had participated in the implementation of the intervention, and the issue of political interference during recruitment was also a matter of concern, because some of the SAMWU members had been affected during their interviews by these political interferences. He said there was a motion that was being driven that the SAMWU leadership must be removed because it not supporting a certain faction within the municipality, which was why a letter supporting the intervention had been written to the MEC.

On the corruption activities, he pleaded with the NCOP that these investigations should not be selective, and said that the corruption issues at uMkhanyakude were being institutionalised. SAMWU and IMATU had decided to call the accounting officer and the ministerial representative and outlined the issues at uMkhanyakude that might cause a collapse, such as the unpaid cellphone allowances.

The Acting Chairperson said that while the presentation on the Section 139 (1)(b) intervention by the NCOP from the provincial Department was welcomed, internal and external stakeholders had been given a chance to either support or not support the intervention. The acting Chairperson opened the platform for follow-up questions.

Follow-up discussion

Mr Ngwezi asked for clarity on the passing of the municipal budget, because all the other motions had been set aside, except for the passing of the budget. The budget had to pass, despite the challenges. He asked whether the NCOP could assist the municipality in passing the budget and conducting follow-ups on the matter.

Mr Sileku said that allegations had been made against some ANC councillors who had missed meetings, and asked the MEC to clarify the matter.

Ms E Nkosi (ANC, Mpumalanga) said that the issue of administrators who were not performing their duties was not ethical, and she asked whether the MEC was aware of the conduct of administrators involved in political matters.

Ms Visser said that the running of municipalities should not be treated as a game. The law had to be followed, because it was not "rocket science" to run a municipality. The same problems could not be discussed over and over.

MEC Hlomuka welcomed the comments by the different councillors, and urged them to work together. Some of the comments made by the councillors were not true. Hr said that on 30 June, the Speaker had called the council for a budget approval meeting, but the council did not sit. The NCOP would assist in ensuring that the residents of uMkhanyakude received services from the government.

The Acting Chairperson thanked everyone who had made contributions on the intervention, and said that the meeting would be adjourned. The Committee would meet to discuss the matter further at 14h00. She added that the inputs from the various stakeholders had been noted.

Report of the Select Committee on Cooperative Governance and Traditional Affairs, Water, Sanitation and Human Settlements on notice of Intervention issued in terms of Section 139(1)(B) of the Constitution (1996), in Umkhanyakude District Municipality

The Acting Chairperson took Members through the report.

Mr Ngwexi asked about the ministerial representative noting that the internal stakeholders said the administrator was failing to work impartially as a deployee of the provincial government. He wondered how best the ministerial representative would assist this time around. He thought that if there was more time, more could be heard about the representative. He supported the other points in the report.

The acting Chairperson said the report said “The appointed Administrator should, in line with the terms of reference, fast-track the implementation of the findings arising from any investigations into fraud, maladministration and corruption”.

Ms Visser shared the concerns of Mr Ngwezi in terms of the administrator. Too often, appointed administrators remote control the management of the municipality. Perhaps the NCOP should look into this to ensure the terms of reference issued to the administrator be tailor-made for the municipality and not just a copy and paste job from one municipality to the next. The administrators must be clear on what their jobs are and what the expected outcomes are in terms of getting the municipality back to governance. Administrators also do not finish their terms with close-out reports and this is problematic as people do not know what happened during their tenure. The NCOP needs to intervene in this regard.

Mr Motsamai contributed in another language.

Chairperson Dodovu interpreted to say Mr Motsamai said he has a problem with the administrator where action was not taken against the five councilors.  

Chairperson Dodovu said legally, the NCOP cannot dictate to the province on which administrator must be appointed or not. The NCOP can only make recommendations. The Committee can recommend that the province look at issues regarding the administrator. There must be consequence management and disciplinary action if councilllors are not doing their jobs. There is a code of conduct pertaining to councilors and this could be used. The NCOP however cannot dictate regarding the administrator – it can only make recommendations.

The acting Chairperson agreed noting that the report said the administrator must act in line with is terms of reference and the province should ensure this happens. The report also speaks to consequence management. She suggested the Committee staff beef up some of the clauses. Otherwise, Members were in agreement with the report and were just emphasising some issues.

The report was adopted with the corrections made - The NCOP approves the intervention in Umkhanyakude District Municipality in terms of section 139(1)(b) of the Constitution.

There would be an urgent House sitting scheduled for the NCOP to adopt the report. 

The meeting was adjourned.




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