FIRST PROPOSED AMENDMENTS IN RESPECT OF CLAUSE 3 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA THIRD AMENDMENT BILL, 2002

Substitution of section 139 of Act 108 of 1996

1. The following section is hereby substituted for section 139 of the

Constitution:

139 (1) When a municipality cannot or does not

(a) fulfil an executive obligation in terms of legislation or the Constitution, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation including-

(a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations: or

(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary-

(i) to maintain essential national standards or meet established

minimum standards for the rendering of a service;

		(ii)	to prevent that Municipal Council from taking unreasonable action

that is prejudicial to the interests of another municipality or to the

province as a whole; or

(iii) to maintain economic unity.

(2) If a provincial executive intervenes in a municipality in terms of

subsection (1 )(b) -

(a) the intervention must end [unless] if it is not approved by the Cabinet member responsible for local government affairs within fourteen (14) days [of] after the intervention began;

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(b) notice of the intervention must be [tabled in] submitted to the provincial legislature and [in] to the National Council of Provinces within 14 days [of their respective first sittings] after the intervention began;

(c) the intervention must end [unless] if it is not approved by the Council within [30] l80 days of its first sitting after the intervention began; or if it is disapproved by the Council earlier; and

(d) the Council must review the intervention regularly and may make any appropriate recommendations to the provincial executive.

(3) If a municipality. as a result of a crisis in its financial affairs is in serious or persistent breach of its obligations to provide basic services or to meet its financial commitments or, cannot or does not adopt a budget or revenue raising measures giving effect to the budget, the provincial executive concerned must-

which must deal with the matter --

(ii) if the municipality cannot or does not or does not adequately comply with and implement the recovery plan. or does not adopt a budget or revenue-raising measures giving effect to the recovery plan. by assuming responsibility for the implementation of the financial recovery plan. which may include the taking of appropriate steps to cause the adoption of a budget or revenue raising measures giving effect to the plan: or

(b) in exceptional circumstances. dissolve the council.

(4) If a provincial executive intervenes in a municipality in terms of subsection (3), the intervention must end if it is not approved by the Cabinet member responsible for local government affairs within seven (7) days after the intervention began.

(5) If a provincial executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in subsection (3), the national executive must act or intervene in terms of subsection (3) in the stead of the provincial executive.

(6) National legislation may regulate

(a) the [process] processes established by this section; and

(c) the implementation of this section."

(3) If a municipality, as a result of a crisis in its financial affairs is in serious or persistent breach of its obligations to provide basic services or to meet its financial commitments or, cannot or does not adopt a budget or revenue raising measures giving effect to the budget. the provincial executive concerned must

(a) refer the financial crisis to an agency established by national legislation, which must deal with the matter --

(i) by preparing a financial recovery plan, including provision for the adoption of a budget or revenue-raising measures giving effect to the recovery plan, which will bind the council in the exercise of its legislative and executive authority, and the municipality must diligently comply with and implement the recovery plan; and

(b) dissolve the council. where the council cannot or does not comply with and implement the recovery plan. or does not approve a budget or revenue-raising measures giving effect to the recovery plan, as provided for in terms of subsection (a)(ii).

(3) If a municipality. is in serious or persistent breach of its obligations to provide basic services which threatens the health and safety of residents of the municipality or to meet its financial commitments. or to adopt a budget or revenue raising measures giving effect to the budget. the provincial executive concerned must intervene by taking effective steps to resolve the crisis, [including--] which may include --

(i) by preparing a financial recovery plan including provision for the adoption of a budget or revenue-raising measures giving effect to the recovery plan, which will bind the council in the exercise of its legislative and executive authority, and the municipality must diligently comply with and implement the recovery plan; and

(3) If a municipality. as a result of a crisis in its financial affairs, is in serious or persistent breach of its obligations as described in the development policies and plans adopted bv the council ill terms of national legislation or to meet its financial commitments or. cannot or does not adopt a budget or revenue raising measures giving effect to the budget. the provincial executive concerned must-

(a) refer the financial crisis to an agency established by national legislation. which must deal with the matter --

(i by preparing a financial recovery plan. including provision for the adoption of a budget or revenue-raising measures giving effect to the recover\' plan. which will bind the council in the exercise of its legislative and executive authority. and the municipality must diligently comply with and implement the recovery plan: and

(ii) if the municipality cannot or does not or does not adequately comply with and implement the recovery plan. or does not adopt a budget or revenue-raising measures giving effect to the recovery plan. bv assuming responsibility for the implementation of the financial recovery plan. which may include the taking of appropriate steps to cause the adoption of a budget or revenue-raising measures giving effect to the plan: or

(b) in exceptional circumstances, dissolve the council.

(5) If a provincial executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in [take effective and appropriate steps ill terms of] subsection (3),the national executive must act or intervene in terms of subsection (3) [by taking effective and appropriate steps in the stead of the provincial executive.