Thank you hon Chairperson of the session, Ministers and Deputy Ministers present this afternoon, ladies and gentlemen, yesterday on 16 October 2019, the Select Committee on Co-operative Governance and Traditional Affairs, Water, Sanitation and Human Settlements, was comprehensively was comprehensively briefed by the MEC of Co-operative Governance and Traditional Affairs in the North West, the hon Gordon Kigakilwe on the constitutional, procedural and substantive matters related to the invocation of section 139(1)(c) of the Constitution in the Mamusa Local Municipality.
The select committee also received a legal opinion and advice from the parliamentary legal services on the consideration of the notice
of intervention in terms of Mamusa Local Municipality in respect of section 139(1)(c) of the Constitution, as well as the litigation in terms of the same clause instituted by some municipalities in the North West province.
It should also be noted that on 27 August 2019, our select committee here conducted an in loco inspection in the Mamusa Local Municipality.
The main issues identified by the provincial executive council, PEC, to dissolve the Municipal Council of Mamusa, related to the following: The absence of leadership within the municipality with two mayors within a short space of time that indicated the divisions within council.
Lack of professional ethics amongst others, councillors the way they conducted themselves which does not ensure that they are in control of the municipality.
Deep divisions emanating amongst councillors, that affect the administration, especially on the suspension of the municipal manager, the chief financial officer, CFO, as well as the acceptance of administrators in the municipality.
Administration positions are occupied by officials holding political influence in the ruling party especially, or they were former councillors within the same municipality. Administration and taking advantage of the confusion that played itself within the council itself.
Forensic investigations needed to be conducted in the municipality, as there were allegations of rampant looting of municipal resources by councillors, who connived with some municipal officials.
It should also be noted that the above challenges, led the North West Provincial Executive Council to resolve that exceptional circumstances do exist to dissolve the municipality in terms of section 139(1)(c) of the Constitution and that would happen with immediate effect.
In terms of section 139(1)(c) of the Constitution, when a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure the fulfilment of such an obligation, including dissolving the municipal council and appointing an administrator until a newly
elected municipal council has been declared elected, if exceptional circumstances warrant such a step.
In this case, the effect of invoking section 139(1)(c) of the Constitution will therefore be that, the dissolution takes effect 14 days from the date of the receipt of the notice by the NCOP, unless it is set aside by the Cabinet Minister responsible for local government or the NCOP before the expiry of the 14 days.
It must be borne in mind, hon Chair that the dissolution is the final step in a process of intervention consisting of more than one attempt to resolve the problem that may exist in a municipality. Dissolution is clearly designed as a corrective measure to ensure that appropriate steps are taken that would resolve the problems that may be experienced in a particular municipality. The existence therefore of special circumstances is a prerequisite to the exercise of the power to dissolve a municipal council.
The dissolution should be an appropriate step to remedy the situation, if exceptional circumstances exist, and such intervention was due to the unwillingness of the municipal council to resolve the problems concerned. Exceptional circumstances may lie in the nature
of the problem that may be experienced in a municipality and the fact that any form of intervention would not be appropriate.
During the proceedings of its meeting on 16 October, no issue escaped scrutiny. Its recommended decision to the NCOP on Mamusa Local Municipality, the select committee took into account all relevant factors including those challenges that were prevalent during the oversight visit to the municipality and decided that the seriousness, extent and cause of the municipality's failure to fulfil the obligation, taken together, constitute exceptional circumstances warranting dissolution of the municipal council and the appointment of the administrator in order to fulfil that obligation.
The select committee has observed that the PEC, at its meeting on 25 September 2019, resolved to dissolve with immediate effect the Municipal Council of Mamusa by intervening through section 139 of the Constitution. According to the PEC, the deteriorating situation and nonco-operation of councillors in the municipality has compelled such measures by the PEC.
The select committee has also noted that the PEC will appoint administrators who will implement the intervention on its behalf, with immediate effect.
The select committee has further noted that since the invocation of section 139(1)(b) of the Constitution, on 02 May 2019, the situation in the Mamusa Local Municipality has become worse than before and hence the invocation of section 139(1)(c).
The situation referred above include absence of leadership, presence of two mayors within a short period of time, deep divisions, lack of professional ethics, amongst others.
The select committee has noted that section 152 of the Constitution provides that a municipality must ensure the provision of services to communities and this is not happening at all in Mamusa Local Municipality.
In the opinion of the select committee, the service delivery failures, instability related to good governance, financial stress in the municipality which includes its inability to submit annual financial statements as well as its inability to align its budget with the integrated development plan, IDP, has to a large extent,
triggered the rational and motivation for the invocation of these measures.
The select committee has noted in its deliberations on the matter that the majority of political parties in this House, such as the ANC, EFF, IFP, and the FFP support the intervention on the basis of the substantive, procedural and constitutional matters that are obtained in the municipality. It is only the DA in this House which has requested that its rejection of the interventions be recorded.
It must be pointed out that based on the above assertion, one of the municipalities, namely Kagisano-Molopo took the provincial government to court challenging its authority to invoke section 139 and the matter as it stands now, is a matter of appeal which is going to heard by the North West High Court on 06 December 2019. Based on the advice that we received, nothing deter this particular House to proceed in terms of dealing with this particular matter.
Based on the above situation, the select committee recommends measures taking into account the legal opinion provided by the parliamentary legal services as follows: Firstly, that the NCOP approve the intervention in Mamusa Local Municipality in terms of sections 139(1)(c) of the Constitution.
Secondly, that the North West Provincial Executive Council must appoint qualified and competent administrators who are screened and vetted in order to implement the decisions on the dissolution of the Mamusa Local Council.
Thirdly, that the North West MEC for Co-operative Governance, Human Settlements and Traditional Affairs must institute a forensic audit in terms of section 106 of the Municipal Systems Act, to investigate all allegations of rampant corruption and looting of municipal resources by councillors and officials.
Fourthly, that the North West MEC of Local Government and Human Settlements must provide the NCOP and the North West Provincial Legislature with quarterly reports on the progress made in respect of the implementation of the intervention in the Mamusa Local Municipality.
Lastly, that this Select Committee on Co-operative Governance and Traditional Affairs must in co-operation with the relevant portfolio in the North West Provincial Legislature, after the termination of the intervention, conduct a follow-up oversight visit to the municipality in order to evaluate the impact of the dissolution of
the municipality in terms of section 139(1)(c) of the Constitution. Thank you very much, hon Chair. [Applause.]
Debate concluded.
Declaration of vote:
Hon Chairperson, the intervention into the Mamusa Local Municipality was plagued by irregular procedures. The administrator appointed to lead the intervention was not properly qualified and the failure of the intervention was a direct consequence of cadre deployment.
During the committee proceedings, the DA indicated that dissolving the municipality would not solve the problem or service delivery and that would merely lead to further political instability taking into account that the by-election would have to be held in the coming months and then followed again by a local government election in 2021.
The MEC of Co-operative Governance and Traditional Affairs had send a request to dissolve the municipality in terms of section 139(1)(c) to the council on 09 October 2019. This was while the process of
approving the intervention in terms of section 139(1)(b) has not even been fully considered by the NCOP.
However, during the committee the DA had proposed an administrator who was properly qualified to assist the municipality to be appointed. Alternatively, the DA further proposed that the NCOP veto the decision of the MEC pending a report that shows that exceptional circumstances do indeed exist and then the provincial government can apply for approval to dissolve the municipality again.
It is evident that the real motivation behind this is that the dissolution of the municipality is for the ANC to solve its internal faction battles. It can never be allowed that internal party issues of the ANC be solved by misusing the Constitution, at the taxpayers expense which would lead to more political instability as opposed to better service delivery.
We have a duty to act in the best interest of the people of Mamusa, where best interest will be served by the appointment of properly qualified persons for the jobs, whether it is an administrator or any other management position in that municipality.
We agree that intervention is necessary, but has to be done properly and that section 139(1)(c) would be unconstitutional and premature if everything possible was not done to ensure that section 139(1)(b) succeeds. It is with this in mind that the Western Cape cannot support this report.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West.
ABSTAIN: Free State.
AGAINST: Western Cape.
Report agreed to in accordance with section 65 of the Constitution.
Hon members, order. Before we proceed to questions, I would like to take this opportunity to welcome the Minister, Deputy Ministers, officials from different departments, special delegates to this Question Session of the Governance Cluster.
Further, I would like to make the following remarks: The time for a reply by a Minister for a question if five minutes. Only four supplementary questions are allowed per question. A member who has asked the initial question will be the first to be afforded an opportunity to ask a supplementary question. The time for asking the supplementary question is strictly two minutes. The time for reply to a supplementary question is four minutes. The supplementary question must emanate from the initial question. I hope we are on the same page. I now call upon the Deputy Minister of Co-operative Governance and Traditional Affairs to respond to Question 112, asked by the hon Mkiva. The hon Deputy Minister.