Invocation of Section 139(1)(c) in OR Tambo District Municipality: continuation

Meeting report

Note: PMG missed the first 20 minutes of the meeting

The Committee considered its report on Notice of Dissolution issued in terms of Section 139(1)(C) of the Constitution (1996), in O.R Tambo District Municipality

Discussion

Mr G Michalakis (DA, Free State) said that the Committee should consider adopting a more hands-on approach during the intervention process. The municipality had neither monitored the process of the intervention (on a month-to-month basis) nor had it instituted consequence management. In adopting a hands-on approach, the Committee should monitor the progress in the municipality and ensure that consequence management is enacted.

A new Administrator has been appointed to head the intervention and prior to his appointment he was employed as the Municipal Manager of the Nyandeni Local Municipality. He proposed that the Committee assess his performance in the municipality by conducting an oversight visit, prior to approving his appointment.

Ms C Visser (DA, North West) thanked the Chairperson for how he handled the meeting held the previous night. She agreed with Mr Michalakis’ proposal that the Committee assess the Administrator’s background prior to approving his appointment.

She mentioned that in terms of Section 159 (2) of the Constitution, the views of the Municipal Council should be considered when deciding as to whether the municipality should be dissolved or not. This applies even more in this case, as there is no guarantee that the district will be able to hold an election, as the Local Government Elections are occurring soon.

As the municipality had been chosen as a pilot project, all of its issues should have been solved. She said that all political parties must take responsibility for the poor conduct of the councillors in the municipality. She added that due to the high levels of corruption, the mismanagement of finances and maladministration, it would be difficult for the new administrator to make a difference. Both the Provincial Treasury and the Provincial Department of Cooperative Governance and Traditional Affairs (DCoGTA) should implement better controls and have better communication with the municipality. She felt that both departments had failed in their duties.

Section 139 interventions cannot be used to aid factional battles.

Mr K Motsamai (EFF, Gauteng) asked why the Eastern Cape Provincial DCoGTA had not provided a solution to the issues faced by the municipality earlier, particularly with the Local Government Elections looming. He alleged that Section 139 (1c) had been instituted so that individuals could loot the municipality.

Mr I Sileku (DA, Western Cape) indicated that the scenes from the meeting held the previous night were unpleasant. He felt that the Committee had been used by the political parties represented in the municipality to fight their battles: whereas the issue at hand is that councillors in the municipality had not respected their oath of office.

For the ORTDM to overcome its challenges, all stakeholders must analyse the root causes of the problems. Many of the issues are a result of the poor conduct of councillors (particularly the Speaker of the Council) belonging to the African National Congress (ANC), which is the ruling party in the municipality. Reports have shown that councillors have not fulfilled their oversight responsibilities. The councillors in the municipality have failed the residents of the ORTDM.

He also felt that it was unfortunate that Section 139 intervention had also created a divide between Members of Parliament.

With the uncertainty surrounding the date of the Local Government Elections there is no guarantee that the ORTDM will be able to have an election within 90 days, as required by the Constitution. 

It is concerning that the Intergovernmental Monitoring and Support Bill has not been tabled in the National Assembly, as this Bill may provide the Committee with greater powers when intervening. He pleaded with Members to set aside their political differences, to ensure that the plight of the residents in the municipality is addressed adequately.

Ms S Shaikh (ANC, Limpopo) agreed with Members that the various views expressed the previous night were discomforting.

She said that the allegations by the local municipalities that they have not been supported by the district were concerning.

The Committee has had several engagements with the municipality, more recently on the irregular expenditure which related mostly to Personal Protective Equipment (PPE). It appeared that the situation had not improved.

Accusations by the provincial government that the municipality has rejected Section 154 support and insisted that it develop its own terms of reference, was a display of its arrogance.

She said that all stakeholders, whether they were for or against the intervention, referred to the dysfunctionality of the Council. This was an indication that the municipality was unable to fulfill its obligations.

She disagreed with the suggestion that the municipality should not be dissolved, as the situation is so dire that it warrants newly elected leadership.

She agreed with Mr Michalakis’ view that new mechanisms should be put in place for monitoring the progress of interventions in general.

Ms N Nkosi (ANC, Mpumalanga) said that the stakeholders present in the meeting held the previous evening indicated that there is serious infighting in the municipality. It was concerning that the infighting had been on display in the same meeting.

There was disagreement between the stakeholders, as some voiced their support for the dissolution of the municipality, whilst others did not. She said that the briefing by the stakeholders made it clear that there is no service delivery currently taking place in the municipality. These allegations were further supported by the municipalities in the district complaining that it has not provided them with support. The district has still not adopted its Integrated Development Plan (IDP), it has not passed its budget, nor has it spent its grant allocation. This showed that there was no leadership in the district.

She supported the dissolution of the district as the councillors were not doing their work. 

Mr E Mthethwa (ANC, KZN) indicated that all the stakeholders agreed that there is no service delivery in the municipality. He recommended that the municipality be dissolved under Section 139 (1c).

Ms B Bartlett (ANC, Northern Cape) indicated that the stakeholders mentioned that there has been no communication within the municipality on the challenges faced and there is also no unity. She supported the dissolution of the municipality under Section 139 (1c).

Mr Michalakis mentioned that he was uncomfortable with the idea of dissolving the municipality. In normal circumstances, when an intervention is enacted, the Municipal Council still has an oversight role over the executive decisions taken by the Administrator but in this case, there will be no oversight over him/her. Due to the uncertainty of the elections, there could be a scenario where an individual, who has not been elected, is allowed to take decisions without being oversight. He suggested that the Committee discuss this matter.

The Chairperson said that he would ask a series of questions that would guide the Committee in its consideration to support the proposal to dissolve the municipality. First, is the municipality able to fulfill its obligations. Second, is the municipality able to perform its functions in line with the directives of the Constitution. Third, is it able to provide services to the residents. Fourth, has it been able to provide good governance and has it been accountable to the residents. Fifth, is it able to provide a safe and healthy environment for its residents. Lastly, are there compelling and exceptional reasons why the municipality should be dissolved.

On whether the municipality is able to provide a safe and healthy environment for its residents, he said that residents in one of the communities alleged that they have been drinking water that contained sewerage. This allegation was confirmed by news reporters in the Eastern Cape.

In 2019 the Committee noted that the district was one of the 5 municipalities with the highest recorded irregular expenditure in the country. It currently does not have an IDP, nor has it adopted a budget, which is in contravention of the legislation. Labour relations in the district were in a poor state and both the youth development programmes and business forums have been torn apart. He questioned why the political leadership had behaved in this manner when they had been elected by the citizens.

He added that the provincial government could have provided better support to the municipality. However, the Committee was informed the previous evening that the municipality had refused support. He supported the proposal to dissolve the municipality as it is unable to fulfill its executive obligations.

He asked for a mover on what decision the Committee should support.

Ms Visser asked how the Committee would get around the Constitution.

The Chairperson asked her to clarify her statement.

Ms Visser asked what security there will be that an election will be held in the district within 90 days, should it be dissolved.

The Chairperson said that should not be the consideration of the Committee, as it has to await the judgement of the Constitution regarding the 2021 Local Government Elections.

Mr Mthethwa moved to support the dissolution of the municipality.

Mr Motsamai asked why the Committee could not wait for the court verdict before deliberating the proposal to dissolve the municipality.

The Chairperson asked why the Committee should await the court case especially as it is not involved in the matter. He then asked which case he was referring to.

Mr Motsamai mentioned that one of the stakeholders stated that a faction has brought a case against the municipality.

The Chairperson indicated that the Committee should not entertain the allegations made by that particular individual. He went further and said that if there is a case and the National Council of Provinces (NCOP) is cited, then it will respond accordingly. It is not the first time that the Committee has taken a decision to dissolve a municipality.

He refuted claims of the Committee being weak on these issues, citing an instance where it rejected the proposal to institute a Section 139 (1b) by the Free State provincial government in Metsimahlo Local Municipality.

Mr Mthethwa requested that the Committee deal with the mover.

Mr Michalakis said that the Chairperson had shown in the past two meetings that he is more than capable of chairing a meeting.

He added that there is a standing precedent in the Committee not to move for the dissolution of a municipality six months before a municipal election. If the municipality were to be dissolved and the Local Government Elections to be postponed to February 2022, that would mean that the ORTDM would have had two elections in six months. This would be difficult administratively for the Independent Electoral Commission and costly for the government. For these reasons he did not support the proposal to dissolve the municipality.

The Chairperson explained that once the Local Government Elections are proclaimed, no by-election can be held. The NCOP is within its right to take the decision to support the move to dissolve the municipality, particularly considering that there is a crisis in the municipality and residents are not receiving services. 

Mr Sileku said that the lack of service delivery in the municipality is due to the ANC’s inability to deal with its deployees. He argued that the Committee should not base its support for the dissolution of the municipality on the idea that service delivery would be improved immediately once a new leadership is elected, as it usually takes six months, after an intervention, to notice any improvement in service delivery.

He seconded Mr Michalakis non-support of the proposal to dissolve the municipality.

The Chairperson disagreed that it usually takes six months to notice an improvement in service delivery. He then declared that the majority of the Committee supported the proposal to dissolve the municipality, due to the exceptional circumstances, such as the political leadership failing to fulfill its duties. He noted the objections of the members against the proposal.

The meeting was adjourned.