Section 139 Intervention: Ngaka Modira Molema District Municipality & Mpofana Local Municipality.

Meeting report

Province of the North West on Modiri Molema District
Mr Collen Maine, MEC: Local Government and Human Settlements, took the Committee through the presentation. He noted that the purpose of the presentation was to brief the Committee on reasons for invocation of Section 139(1)(c) of the Constitution on the Ngaka Modiri Molema District Municipality (NMMDM) and to seek support and approval from the Committee to invoke the dissolution clause.

Mr Maine noted that the NMMDM was, according to the Municipal Structures Act 33 of 2000, one of the four category C municipalities in the North West Province. The District is made up of six local municipalities: Mahikeng, Ditsobotla, Twaing, Ramotshere, Moiloa and Latlou LMs. The District municipality was an executive type with 45 councillors comprising of an Executive Mayor, Moyoral Committee, Speaker and Council Committee. According to Section 84 of the Municipal Structure Act, which dealt with the division of functions and powers between district and local municipalities, the NMMDM was the Water Services Authority in the district and was also responsible for disaster management and construction of municipal roads and storm water. It was also the one of the two water distressed districts in the North West Province, reliant on underground water, using boreholes.

The basis of invoking Section 139(1)(c) of the Constitution was threefold: Governance, Administration and Service Delivery. The NMMDM had been experiencing governance and administrative challenges since the beginning of the current term of Local Governance which had adversely affected the delivery of services through its constituent local municipalities (see document). The provincial government numerously engaged with the NMMDM since 2012 at both administrative and political levels and these engagement were aimed at both identifying the challenges facing the district and providing solutions and support towards addressing them. However, the district had absented itself from most meetings called by provincial department, and in cases it did attend, junior officials were sent. In addition, the provincial executive committee then, after receiving reports on the poor state of affairs in the district, resolved on 2 July 2014 to invoke Section 139(1)(b) intervention in the municipality. The district objected to the manner in which the resolution was taken and, as a result, the provincial executive committee resolved to withdraw the intervention on that basis.

The department afforded the opportunity to respond to the issues.  The session with the NMMDM eventually took place on 21 August 2014. In that meeting, the NMMDM denied and disputed all concerns raised by the Auditor General and the Department of Water Affairs in a very defensive manner. The provincial government resolved to dissolve the NMMDM council on the basis that there was no political will and ownership of the myriad of problems in the District and the fact that the communities of the entire district continue to suffer from the poor and lack of service delivery. The District council was dissolved on 3 September 2014 in terms of Section 139(1)(c).

The provincial government had resolved to put in place an intervention plan that would resolve the service delivery crisis in the district in the short, medium and long term. A rapid response team would be established to promptly respond to the critical service delivery problems and a Joint Operation Centre was being established to attend to water and sanitation crisis.

The presentation concluded with a request to the Committee to support the provincial government’s resolution to invoke Section 139(1)(c). The Committee’s support will empower and enable the provincial government to address the long-standing problems of poor service delivery, governance and administration.

Discussion

Mr J Julius (Gauteng, DA) sought clarity on the challenges, faced by the five local municipalities and their responses. He remarked that the Committee was hearing the maladministration allegations from the Provincial Executive Committee but they did not hear any complaint from any of the said local municipalities.

Mr S Thobejane (Limpopo, ANC) sought clarity on what prompted the Provincial Executive Committee to apply Section 139(1)(c) instead of Section 139(1)(b) and what the Provincial Executive Committee did in terms of Section 139(1)(5) of the Constitution.

Mr M Chetty (KwaZulu Natal, DA), referred the Committee to the key challenges which emerged from the legacy report and remarked that more issues contained therein were based on internal fighting and lack of political will to resolve the matter. What interventions were employed prior to the invocation of Section 139(1)(c) of the Constitution.  The manner in which the dissolution clause was invoked was not commendable.

Mr L Nzimande (Kwazulu Natal, ANC) stated that when all got elected into their seats, they were constitutionally obliged to serve the citizens. The oath of allegiance was not made to respective parties but to the citizens. Members of the Committee should be conscious that municipalities were run by political parties and that, regardless of that fact, political parties represent and protect the public. What the Committee was discerning from the brief was deaths of the people due to the lack of (or inequality in) water supply and non-functionality of the District. Those problems should not be taken lightly. The Committee was not asked to investigate the Provincial Executive Committee but to consider and approve the intervention in terms of Section 139(1)(c). The Committee should, on the basis of the brief, determine whether such intervention would be effective.

The Chairperson seconded Mr Nzimande and remarked that the Committee’s approval of intervention was based on three factors: Effectiveness, constitutionality, and procedural aspects of intervention.

Mr Maine in response stated that members of the Committee should formalise themselves with the Constitution and reiterated that they should exclude politics in governance. The Provincial Executive Committee was composed of different opposition parties’ members, who were all in support of the intervention. It was a collective decision. The National Parliament was not for the ANC but for South Africans. The resolution to invoke the dissolution clause was informed by the need to restore good governance and effective leadership.  In 2009, the provincial government intervened in terms of Section 139(1)(b), but, immediately after the intervention, the situation regressed. That was a real problem. With reference to listening to the other side, it was the duty of the Committee to call the dissolved municipal administration to come and brief it.

Mr Maine stated that the provincial government could not sit idly and watch citizens suffering from water inaccessibility. Three years in a row and there had been no effective action or intervention. The provincial government found it necessary to intervene in terms of Section 139(1)(c) of the Constitution. On several occasions, numerous interactions with the District Executive Council were initiated. The senior members were not willing to attend. In the interest of the public, the Provincial Executive Committee took a decision to employ the dissolution clause so as to turn around the situation.

Mr Maine objected to the allegation of infighting between the provincial government and local government and instead noted that it was the duty of the provincial government to intervene. The provincial government was exercising its constitutional mandate.

Ms G Manolope (North West, ANC) commented that it was problematic to hear that the people were suffering whilst R60 million was allocated to the District to assist in eradicating water and sanitation backlogs. It was sad that the people were denied access to water due to political manoeuvre.

Mr Chetty referring to Mr Maine’s earlier comments noted that  he issues that were being raised did not arise over night. The provincial government could have responded to them before they escalated.  The report of the researcher of the Committee contained differing facts.

The Chairperson overruled Mr Chatty’s comments. The referenced report was to enlighten Members to enable better engagement with the briefing.

Mr Thobejane seconded the Chairperson and concluded that the intervention was necessary and important and the Committee should approve it.

Mr Julius sought clarity on whether there was any municipality or metro or district in the North Province that was experiencing similar problem.

Mr Maine responded that he would like to contest the report of the researcher. From the outset, it was indicated that the NMMDM was one of the four category C municipalities and that it comprised of six local municipalities. These municipalities had their own functions allocated to them to play. It was regretted that there had been no opportunity to brief the Committee on the problems that each local municipality was encountering.  No other municipality experienced similar issues.

Mr Nzimande seconded Mr Thobejane’s suggestion that the intervention should be approved.

Ms Manolope sought further clarity on whether North West provincial government received any communication or report from the South African Human Right Commission (SAHRC) in relation with lack of water services.

Mr Maine responded that there was neither communication nor report from SAHRC. Instead, numerous complaints from the Agri-Forum and other local civil societies were received. Some had indicated that they would take the provincial government to court if nothing was done.

The Chairperson asked Mr Maine whether the provincial government took a decision due to the pressure of civil organisations.

Mr Maine disagreed. The decision was taken on the basis of its own assessment of the situation.

Mr Nzimande reiterated that the members of the Committee were obligated as a Committee to deliberate on the matter of intervention. The Committee was bound to protect and promote the rights and interest of the people. The Committee had received the report that the District was in a total mess and such report was meant to help them to reach an informed decision.

The Chairperson asked the members of the Committee to move to adoption and said that any member who was against intervention should indicate.

There was no objection.

The Chairperson said it should be noted that the intervention was unanimously supported and approved. The briefing was informative- the provincial government should ensure that it interacts with the Committee and briefed it on progress of the intervention. The Provincial government should also ensure that the municipal administration receives the capacity that it requires. The progress report was to be submitted to the Committee so the Committee could monitor the intervention.

Province of Kwazulu Natal on Mpofana

Ms N Dube-Ncube, MPL – MEC for Cooperative Governance and Traditional Affairs: Kwazulu Natal took the Committee through presentation. The purpose of the presentation was to brief the Committee on substantive, procedural and constitutionality of the resolution of the Kwazulu Natal Provincial Executive Council, dated 01 September 2014, to intervene in terms of Section 139(1)(c) of the Constitution at Mpofana Municipality. 

In terms of demography, Mpofana Local Municipality constituted a total population of approximately 38 103 people with 10 425 households. Its population growth rate was approximately 0.34% per annum whilst local unemployment was currently at 23.90%. With regard to political management, the Municipal Council consisted of 5 African National Congress (ANC), 1 Democratic Alliance (DA), and 1 Inkatha Freedom Party (IFP) members. The Mpofana Municipality had been in the limelight for a number of reasons, particularly, its challenges which has created perceptions of state of anarchy and paralysis. The state of Mpofana Municipality had been a sore point for the provincial government and most importantly the communities that were served by the municipality. Since 2002, the Mpofana Municipality had been plagued by a continuous of series of labour unrest incidents, including unprotected strikes, community protest actions and serious financial difficulties. A number of support interventions were tried to get things back to normal without success. The Mpofana Municipality scored 47.54% for its IDP in the 2013/14 financial year, which was well below the provincial average. The IDP was not credible, in that it omitted critical aspects such as a workable human resource strategy, workplace skills plan, integrated waste management plan, status of road networks, human settlements, associated levels of services and backlogs, consumer debts, borrowing and spatial development framework. This was indicative of the lack of planning and commitment to orderly developmental local government.

In the submission of the 2013/14 annual financial year statements, the Auditor General issued an opinion on the audit report that regressed the municipality to a qualified audit. The municipality did not include particulars of irregular expenditure in the notes to the financial statements as required by Section 40(3)(1) 0r 55(2)(b)(i) of the Local Government: Municipality Finance Management Act (MFMA) 56 0f 2003.  The Municipality made payments in contravention of the supply chain management requirements which were not included in irregular expenditure, resulting in irregular expenditure being understated by 26.43 million. No disclosures were made in the financial statements regarding irregular expenditure or such expenditure that was condoned. Irregular expenditure of R26.43 million was a substantial percentage of the municipal budget which was expended in an irregular manner. The findings raised in the audit report of the municipality reflect that Mpofana was steeped in cash flow problems and a general mismanagement of funds. Money owed by the municipality was not always paid within 30 days or an agreed period, as required by law. Payments were made without the approval of accounting officers or a properly authorised official. An effective system of expenditure control, including procedures for approval was not in place, as required by Section 65(2)(a) of the MFMA.  Adequate management, accounting and information system were not in place which recognised expenditure when it was incurred, as required by Section 65(2)(b) of the MFMA. Reasonable steps were not taken to prevent unauthorised, irregular and fruitless and wasteful expenditure, as required by Section 62(1)(d) of the MFMA.

In respect of the supply chain management, sufficient appropriate audit could not be obtained. It therefore became clear that the municipality had ignored and disregarded all supply chain management regulations and the lack of financial controls in this regard has given rise to a situation where abuse of public funds was rife. It would appear that due to the lack of executive oversight, a culture of impunity was prevalent within Mooi Mpofana Municipality. The staff members of the Municiplaity did not regard themselves as being accountable to the public whom they are supposed to serve. The behaviour of the staff have been described by new appointed Municipal Manager as “unbecoming, unruly, rebellious and mutinous, with a blatant disregard of the laws that govern municipality as well as its Code of Conduct. Indeed, staff members together with counsellors were allegedly, in some cases, leading protest marches against service delivery that they should be providing.

The executive functions were not met. The prevalent compounding matters included illegal protests and councillors embroiled in infighting. The Municipality continued to experience maladministration and disarray, and there was an on-going battle between rival factions, As a result there had been a complete erosion of public confidence in the municipality. The Municipal Council was operating in a state of chaos, and order and stability must be restored.

Given the prevailing circumstances at Mpofana Municipality, on 01 September 2014, the Executive Council resolved to place Mpofana Local Municipality under intervention in terms of Section 139(1)(c) of the Constitution. The dissolution of the Municipal Council would take effect 14 days after the Minister responsible for local government and the National Council of Provinces have been informed of the resolution, unless such resolution is set aside by either the said Minister or the National Council of the Provinces within a period of 14 days. The 14-day period would expire on 16 September 2014.

MEC was also authorised by the Executive Council to appoint an Administrator to facilitate a new Municipal Council. The resolution to dissolve the Municipal Council was informed by the need to restore the confidence in the communities.

Ms Dube-Ncube noted that she would be monitoring the activities of the Municipal Council closely and would also be required to report to the Provincial Executive Council regularly. She therefore requested the Committee to consider approving the intervention, taken by the Provincial Executive Council.

Discussion

Mr Thobejane sought clarity on what kind of the interventions were made in terms of Section 154 of the Constitution and whether there were reports in that regard. It could be in the interest of justice to deliberate on the intervention issue after listening to the other side’s story.

Mr Chetty remarked that the intervention came too late and costly. The earlier the interventions could be decided on, the better. What was the role of the municipality and what did it do or fail to do; this was necessary so that the Committee could hold it to account.

Mr Thobejane sought clarity on functional areas of concurrence between national and provincial governments, in particular, whether they all supported intervention.

The Chairperson referred the Committee to Section 47 of the Municipal System Act which stated that there should be consistent reports to enable the Committee to monitor their functions and to detect early warning signs and to refrain the Committee from being fire fighters. He disagreed with Mr Thobejane and said that the Ms Dube-Ncube could not answer the question, particularly on the position of the national government.

Ms Dube-Ncube, referring to Section 154 of the Constitution, stated that both national and provincial governments were required to support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. As indicated in the briefing, during the year 2013, when there was no senior management at Mpofana Local municipality, the provincial government deployed candidates for senior management and for two financial officers’ positions. On several occasions, the provincial government interacted with the local administration. It sought to strengthen the local municipality in the following ways:

• Overcoming financial problems it was facing;
• Devising the support plan;
• Adopting a recovery plan;
• Taking some turn around measures aimed at cutting down on costs, including issues of reducing absenteeism, provision of tools and equipment,
• Putting in place debts collections and credit control measures
• Reviewing  staff organograms;
• Verification of various operations in respect of how the municipality spent the grants, and
• Holding meetings with communities and other stakeholders, but, on the other hand, the community was encouraged by the counsellors to protest for a removal of Mayor.

The provincial government was not successful in all its intervention because, at the end of the day, whichever action plan it came up with, the people it was trying to treat were not responding.  The Councillors continued to take unpopular decisions in terms of cutting their own costs and disciplining staff. At some stage, the Councillors were active in the protest and were the first in burning tires in front of community members‘; the provincial government had to take over because it was apparent that the leadership was ineffective and failed in its responsibility to govern. The provincial government understood that the Councillors could be activists in their own rights, but they put their responsibility to govern at stake.

The Chairperson thanked Ms Dube-Ncube for her clarification.

Mr Nzimande appreciated the clarification on the substantive and procedural aspects of the intervention in terms of Section 139(1)(c). It was clear from the brief that the provincial government had consulted widely, even outside the local government. The intervention was necessary and it should be supported.

The Chairperson said it was a time to consider and vote for or against the intervention. He asked members of the Committee if they seconded it. 

All agreed in unison.

In his concluding remark, the Chairperson noted that the most disturbing issue was a lack of disciplinary measures and remarked that discipline should be enforced.  The Committee should be briefed quarterly on the progress of intervention. The interaction with the Committee should not be once off. It should rather intensify. The Committee would also conduct an oversight visit.

The meeting was adjourned.