BRIEFING OF THE NATIONAL COUNCIL OF PROVINCES ON THE INTERVENTION AT KING SABATA DALINDYEBO (KSD) MUNICIPALITY

As requested in your letter dated 26 August 2004 this report focuses on three broad areas viz.

1. DETAILED REPORT ON THE PREVAILING SITUATION

KSD Municipality comprises the former transitional local councils of Urntata and Mqanduli as well as vast rural areas within its area of jurisdiction.

It is situated on the N2 between East London and Durban. It is approximately 220 kms from East London and 350 from Durban. Although it is regarded as the major secondary city in the province it is regarded a primary city in the area of Transkei.

Being the largest municipality in the area the KSD in particular the Urntata Unit has vast economic potential. It is surrounded by a number of small rural towns and villages whose residents continue paying visits to acquire services that are not available in their own towns. A recent study has found the Urntata Administrative unit has a population influx, of up to 50 000 people per day.

This obviously provides this municipality with a huge economic boost. It also, however, has its problems in that it puts severe pressure on the infrastructure in the municipality. This undoubtedly demonstrates the central role KSD Municipality plays in this region. Being the largest municipality in the Transkei Region it serves all the municipalities in the OR Tambo and Alfred Nzo District Municipalities as well as some municipalities within the

Amathole and Ukhahlamba DMs.

In a situation where there is infighting within the council it therefore becomes impossible to strike a balance between taking advantage of the large influx of people whilst at the same trying to build and maintain the required infrastructure to meet the needs of all these people.

The KSD Municipality has for some time been embroiled in a political infighting which took the party political lines. In a situation where there is such infighting within the council it therefore becomes impossible to develop

appropriate strategies to deal with challenges of this nature. The result is nothing else but failure to provide communities with the services they deserve and desire.

2.LEGAL BASIS UPON WHICH THE INTERVENTION IS PURSUED

The Provincial Executive has intervened at KSD in terms of S.139 (1) (a), (b) and (4) (b) of the Constitution of the Republic of South Africa, Act 108 of 1996 as Amended.

Section 139 (1) (a) and (b) provides that "when a municipality cannot or does not fulfill an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure the fulfillment of that obligation, including

(a) issuing a directive to the municipal council describing the extent of the failure to fulfill its obligations and staling any steps required to meet its obligations

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

a maintain essential standards or meet established minimum standards for the rendering of a service

b. prevent that municipal council from taking unreasonable action that is prejudicial to the interests of another

municipality

c. maintain economic unity"

MEC has in the past issued a number of directives to KSD Municipality describing its failure to fulfill its executive obligation as the attached documents illustrate. None of these directives were complied with.

The MEC on behalf of the Provincial Executive has therefore had to assume responsibility for the relevant obligation in order to ensure that national standards or established standards for the rendering of service have been met since:

(a) no staff restructuring has occurred as the legislation requires

(b) the council failed to meet in terms of the applicable legislation

(c) the mayoral committee made decisions on behalf of the council without the necessary delegations - refer to the approval of the IDP, Service Delivery Mechanisms and Tariff increases.

The effect of the above has been a lack of decision-making and a lack of policy development, which has led to a total collapse of service delivery.

Responsibilities furthermore had to be assumed to prevent KSD from taking action that is prejudicial to another municipality - in this instance the OR Tambo DM.

Despite the water service authorization by the national Minister to OR Tambo DM the KSD Mayoral Committee, instead of the Council, has refused to relinquish its power as an old water services authority (WSA). However, their appeal to the Minister was turned down. Consequently KSD demanded to be

appointed as service provider, which OR Tambo DM did not accept. This eventually culminated into KSD taking legal action against OR Tambo DM.

The MEC convened a meeting between the two municipalities in an attempt to find an amicable solution to the problem. Despite these efforts by the MEC this court action is continuing.

The above assertion demonstrates unsound relations prevalent within KSD and between KSD and the District Municipality within which it falls. The prevailing unsound relationships have had negative impact on service delivery in this area.

Section 139 (4) (b) stipulates that "if a municipality cannot or does not fulfill an obligation in terms of the constitution or legislation to approve a budget or any revenue raising measures necessary to give effect to the budget the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue measure are approved, including dissolving the municipal council and

(b) approving a temporary budget or revenue raising measures to provide for the continued functioning of the municipality"

KSD failed to adopt its budget by 30 June 2004 as required. In terms of S.26 (1) of the Municipal Finance Management Act, Act No. 56 of 2003 the Provincial executive must intervene in terms of S.139 (4) (b) of the

Constitution if a municipality has failed to approve its annual budget by 01 July.

It is also reported that the said budget, which has not been approved is based on new tariff which have obviously not been implemented as yet. The budget will therefore not be cash funded as the new tariffs will not be in force for the entire financial year. Hence intervention thus became necessary. It also stands to be mentioned that the constitution provides that the provincial executive may dissolve the council. The MEC has however considered such an action to be too harsh and has instead opted for a limited intervention into

the functional areas of finance and corporate services, which comprises administration and human resources with all councillors continuing to remain in office.

3. PENDING COURT CASES

The following are the court actions to which KSD is currently a party

(i) v/s OR Tambo DM in connection with water services provision

(ii) Municipal Manager against the Executive Mayor.

In this regard reference can be made to the fact finding of the department in which it was found that this and other unsound relationships between councillors and officials is impacting negatively on the operations of the

municipality as a whole (service delivery and general administration),