PART 1: BACKGROUND TO THE STUDY

TERMS OF REFERENCE

The Select Committee on Local Government and Administration requested a research paper on the exercise of the intervention power by the provincial executive in local government This was with a view to drafting the national legislation contemplated by section 139(8) (as opposed to standing rules and orders of the House) to regulate the implementation of the intervention processes

established by that section.

AIM OF THE RESEARCH

The aim of the research is to provide the National Council of Provinces, through its Select Committee on Local Government and Administration, with relevant information concerning the following:

• Background to and development of the role of the Council in interventions by the provincial executive in local government;
• Present role of the Council in interventions under section 139: and
• Issues for consideration in preparing for legislation envisaged in section 139(8).

Interventions by the provincial executive in local government can be analysed from three periods: namely, interventions under the 1993 Constitution, interventions under the 1996 Constitution until the amendment of section 139 in 2003, and interventions since the amendment of section 139. The proposed research will highlight concerns that have arisen in the implementation of section

139 and inform at least some of the issues for the legislation envisaged in section 139(8).

There are a number of such issues that need consideration. These include respect for the constitutional status of local government and preventing any encroachment on the institutional integrity of local government. It means that the province, in exercising its power to intervene, must always be guided by the notion that the Constitution affords local government a considerable degree of autonomy. That constitutionally protected autonomy prevents provinces from using section 139 in a sweeping way, without respect for the status of local government.

METHODOLOGY

Methodology was dominated by documentary research. The research process largely involved the collection and perusal of a wide variety of documents - including legal journal articles, research bulletins from the Department of Provincial and Local Government in Pretoria as well as a range of documents on local governance. A list of all publications and documents used is contained in

the bibliography at the end of this paper.

REPORT STRUCTURE

Background to the study -

• Terms of Reference
• Aim of the Research
• Methodology
• Report Structure

PART 2:

• Principles to inform the legislative framework
• The purpose and nature of the intervention power
• The current provisions
• Overview of the areas of focus
• The provisions of Section 139(1 )(a) and (b):
• Issuing a directive
• Discretion

• Ministerial Approval and NCOP approval:

Recommendations

• Defining the power of the Province after the intervention
• Responsibilities of the province
• Costs of the intervention

• Community Participation

Recommendations

• Role of Provincial Legislatures

Recommendations

• Reporting mechanisms

Recommendations

• Determining when an intervention ends
• Section 139 (4), (5) and (6), cross-referenced with Chapter 11 of the Municipal Finance Management Act

Recommendations

• Provisions of the Municipal Structures Act

Recommendations

-Conclusion-

PART 2

Establishing a regulatory framework for Provincial interventions in Local Government in terms of Section 139 of the Constitution

It is now more almost ten years since the provisions of Section 139 of the Constitution Act (No. 108 of 1996) were first applied by the Eastern Cape provincial government in the Municipality of Butterworth in 1998. It seems a timely point to review the provisions of Section 139. The purpose of this review will therefore seek to answer three key questions:

• Has Section 139 achieved its aim?
• Are there areas in which it should be amended or improved?
• If so, what are they?

This review therefore sets out to discover:

• Which parts of Section 139 are working well and should not be changed.
• Proposals for improvements.

This paper presents an analysis of the current provisions of Section 139. Section 139 (8) envisages the drafting of national legislation to regulate the process. Such legislation is needed to define and describe the intervention process clearly so that disputes and misunderstandings may be avoided. The intervention process is often seen as intrusive and may encroach on the functional and institutional integrity of local government as a separate sphere of government.

The current system of municipal monitoring by a province is fragmented. The legislation envisaged by section 139(8) currently forms part of the Municipal Systems Act, Municipal Structures Act as well as the Municipal Finance Management Act. There is a need for a uniform and effective intervention scheme.

The paper makes recommendations about the content of the legislation required to ensure that the Section 139 is properly used and reaches its full potential. It is hoped that these will be considered in the next stage of consultation on this issue

PRINCIPLES TO INFORM THE LEGISLATIVE FRAMEWORK

A set of principles to guide the drafting of this legislation can be identified. These principles, discussed hereafter, relate to the requirements for intervention, the procedure before intervention, the procedure after intervention and the powers of the province after the assumption of responsibility.

Professor Nico Steytler argues that three main principles should inform the forthcoming legislation on section 139 as well as its implementation:

Firstly, the assumption of responsibility is a measure of last resort.

• Secondly, the integrity of local government as an independent sphere of government protects municipalities from provincial interference with its legislative functions.
• Thirdly, the aim of the intervention should be restorative rather than punitive.

In addition, the White Paper on Local Government outlines the following principles on which national guidelines on interventions should be based:

• Firstly, steps should be taken to remove the need for intervention. This includes ensuring that all municipalities have access to adequate training,- capacity-building, funding and support systems to enable them to perform their functions and manage their administrations properly. Good monitoring and information systems are required to indicate potential problems before

they become crises, so that municipalities are able to take their own corrective measures where problems arise.

• Secondly, clear responsibility and financial liability for mismanagement, maladministration or fraud must be established, with rapid procedures for prosecuting offenders at both the political and administrative level.
• Thirdly, national and provincial government should exercise the power given- to them in terms of Section 155(7) of the Constitution, to regulate the executive authority of municipalities to ensure that municipalities perform their functions effectively. It is anticipated that, in most instances, the regulation of municipal executive authority will be sufficient to ensure that municipal functions are effectively performed, and intervention in terms of Section 139

of the Constitution will be a rare occurrence.

• Lastly, that the ultimate sanction against a municipal Council for persistent non-performance is the loss of executive power.

THE PURPOSE AND NATURE OF THE INTERVENTION POWER

The purpose of the intervention power should be clearly emphasised in the proposed legislation so that the principles outlined above are clearly reflected.

The intervention power carries a much wider meaning than just the negative connotation of the assumption of executive functions. While it should be acknowledged that is a drastic step in the supporting role that a province is required to play, its ultimate purpose is to assist local government to meet its constitutional objectives that include providing services to communities, promoting social and economic development, and promoting a safe and healthy environment.

The central purpose that should underpin the proposed legislation is that interventions should ultimately result in the rehabilitation of the Municipality through the transfer of the necessary skills and capacity.

The current provisions

The Constitution Third Amendment Act promulgated in 2003 effected a number of procedural and substantive changes to Section 139. The amended Section 139 now makes provision for three forms of intervention:

• Where executive obligations are not being performed by local government. The provincial government can then intervene and assume responsibility.
• Where the local government does not pass certain legislative measures. The provincial government can take appropriate steps, including dissolving the council.
• Where there are financial problems. Local government can adopt a recovery plan. However, if that recovery plan is not being implemented by local government, then provincial government can dissolve, in the case of legislative measures not being complied with, and assume responsibility in the case of executive powers not being applied.

OVERVIEW OF THE AREAS OF FOCUS

The current provisions do not specify whether the issuing of a directive is a procedural condition for assuming responsibility. In addition, it is suggested that the provincial executive should be required to provide prior notice to the municipality of its intention firstly to issue a directive and then to assume responsibility for certain functions, should the directive not have the required

effect.

• Powers of the province after an intervention begins.

The current provisions do not clearly define the powers of the provincial executive once the intervention has begun. One area in which this causes confusion is in the area of costs and whether the municipality or the province should cover the cost of the intervention.

• Responsibility for costs incurred during the intervention.
• The need for greater community participation in the intervention process.
• Who determines when an intervention ends?

It should be specified whether this is on the recommendation of the Administrator, with the Department, the Provincial Legislature and the NCOP concurring. What criterion should be used to determine when the performance of a local authority has sufficiently improved to warrant the ending of an intervention?

• With regard to the effectiveness of interventions, have they increasingly become temporary take-overs without the necessary transfer of skills?

The aim of any intervention should be the restoration of the executive power of the Council as soon as possible. However, in order to do so, the Municipality should be assisted to develop the capacity and the necessary skills to avoid future interventions.

• The provisions relating to the financial recovery of the Municipality are currently not coherently formulated in Section 139.

1. THE PROVISIONS OF SECTION 139(1)(a) and (b)

"When a municipality cannot or does not fulfil an executive obligation in terms of the

Constitution or legislation, the relevant provincial executive may intervene..."

Section 139(1)(a) and (b) provides for two types of interventions:

1) Intervention in the form of sending a directive.

2) Intervention in the form of assumption of responsibility.

In terms of Section 139(1)(a), when a municipality cannot or does not fulfil an executive obligation, the first step must be the issuing of a directive, instructing the municipality to take steps required to comply with that obligation.

What is the benchmark or standard, given that all municipalities do not have the same resources and capacity to fulfil the same obligations at the same level?

Section 139(1)(b) mentions essential national standards and established minimum standards for the rendering of a service. Therefore, the failure to meet minimum standards may give rise to an intervention.

When read together with the first part of section 139, which deals with the non fulfillment of the 'relevant' obligation that is being referred to here, this part of section 139 seems to limit the scope for assumption of responsibility to those executive obligations that are relevant to these three issues. In other words, assumption of responsibility is possible, only when the non-fulfillment of the

executive obligation endangers essential national standards, minimum standards for service delivery or economic unity, or when the non-fulfillment of the executive obligation is prejudicial to another municipality or to the province.

Jaap de Visser, in his thesis entitled "A legal analysis of provincial intervention in a Municipality’ argues that there is a need to objectify the substantive requirements for interventions. The requirements of 'essential national standards' and 'established minimum standards' should be given attention to in the legislation. Such a provision should enable Provinces to gauge when the

shortcomings of local government merit intervention and could also facilitate the solution of possible disputes, following the intervention, should they arise.

The reasons for the inability to fulfil obligations need not be specified. When a municipality cannot or does not perform, it may lead to intervention. The inability to perform may even be a result of a lack of resources. But the only thing that is really important in this context is the failure to meet certain standards. The reasons for the intervention, for instance lack of resources, capacity or political infighting, should be taken into account by the province and the administrator

when formulating a recovery plan for the municipality.

Section 139(1)(a) in its current form, does not make it clear whether the directive is a procedural condition for assumption of responsibility. This is both a procedural and legal question.

Jaap de Visser argues that a province should notify the municipality and allow it to respond before it issues a Section 139(1)(a) directive and before it assumes responsibility in terms of Section 139(1 )(b). De Visser bases this argument on the common law principle of audi alteram partem as well as the principles of co- operative governance set out in Chapter 3 of the Constitution.

De Visser quotes Baxter in his textbook Administrative Law", where he discusses the natural law principle of audi alteram partem, which requires a 'fair hearing'.s The requirement of a 'proper opportunity to be heard' entails inter alia that the affected party must be properly informed of the information and reasons which underlie the impending decision to take action against that party. Another important requirement is that the affected party 'must be given a reasonable time

in which to assemble the relevant information and to prepare and put forward his representations'."

Secondly, the principles of co-operative government inform a purposive reading of section 139 and induce the province to adhere to the principle of least interference with the consequence that a section 139(1)(b) intervention is not possible without first issuing a section 139(1)(a) directive. In other words, subsection 139(1)(a) should be read as a requirement for subsection 139(1)(b).

De Visser's argument has a number of consequences:

• Firstly, it means that the directive in terms of Section 139(1)(a) would not in itself constitute the requirement of 'prior notice'. Moreover, de Visser points out, correctly, that a notice is certainly not the same as a directive since a directive distinctly compels the municipality to perform certain detailed acts.
• Rather, it means that even prior to issuing a directive, the province will have to send the municipality a notice of its intention to do so. If, after the directive has proved to be unsuccessful, the province wants to assume responsibility in terms of section 139(1)(b) it will have to send a notice again, allowing the municipality to dispute the non –fulfillment of the content of the directive
• It also means that the directive itself issued in terms of Section 139(1)(a) should be become a procedural condition for assumption of responsibility. Research by SALGA appears to support this recommendation. It appears that there is a need for adequate notice to be given to the municipality as well as to organized local government of a province's intention to issue a directive as well as the reasons for the steps taken.

The requirement of 'prior notice' at both stages may, of course, result in a significant time delay before the actual intervention can be instituted and may even lead to the eventual collapse of the municipality. In formulating the national legislation the NCOP should apply its mind to creating an effective balance between, on the one hand rendering the intervention as unobtrusive as possible and on the other hand expediting the necessary remedial action to restore the municipality's ability to fulfil its constitutional mandate.

It appears that the use of the directive is not viewed as an effective step on its

own. It is found that municipalities do not accept directives and the Provincial Executive then finds difficulty in enforcing the directive. If directives are not carried out, there is no option left but to intervene.

It has been recommended that municipalities should be required to respond to a directive. Such a response should outline the steps that will be taken to fulfill its executive obligations, and more importantly, the assistance required in this regard, in terms of personnel, financial assistance and so forth. The Provincial Executive should consider the response and provide the Municipality with such assistance as may be necessary. Should the Municipality still fail to meet its obligations, then the Provincial Executive can proceed with the next step in the intervention.

At present the intervention in executive matters is discretionary. The Provincial Executive has discretion with regard to two aspects:

• Firstly, the phrase "may intervene..." indicates that the Provincial Executive has discretion in deciding whether to intervene or not. They are not compelled to intervene for every single failure by a municipality to fulfil a statutory obligation.
• Secondly, the Provincial Executive "may intervene by taking any appropriate-steps". This means that there is discretion with regard to both the form and to the extent to which the intervention takes place.

The question arises whether this discretion should be curtailed or expanded. There would be merit in changing this provision so that an intervention is obligatory. At the same time, as Jaap de Visser notes, provinces need discretion because clearly different circumstances require different interventions.

It is suggested that the wording of Section 139(5) is useful in this regard and may be emulated in Section 139(1)(b), so that when a municipality is in serious or persistent breach of its executive obligations the decision whether or not to intervene is no longer discretionary but the provincial executive is compelled to do so.

1.1 RECOMMENDATIONS on SECTION 139(1)(a) AND 139 (1)(b)

• A notice of intention should at least precede an assumption of responsibility.
• The requirements of 'essential national standards' and 'established minimum standards' should be given attention in legislation to the extent that it becomes possible for provinces to ascertain when the shortcomings of local government merit intervention. It would also facilitate the solution of possible disputes, following the intervention. These 'essential national standards' and 'established minimum standards' should be dearly set out in the legislation.
• The wording of Section 139(5) may be emulated in Section 139(1)(b), so that when a municipality is in serious or persistent breach of its executive obligations an intervention the decision whether or not to intervene is no longer discretionary but the provincial executive is compelled to do so.

2. MINISTERIAL APPROVAL AND NCOP APPROVAL

If a province intervenes by assuming the responsibility in terms of section 139(1)(b), subsection (2) kicks in and introduces a number of procedural requirements.

After the assumption of responsibility by a province, the national Minister responsible for local government must approve the intervention within 28 days. A notice of the intervention must be tabled in the NCOP and in the provincial legislature within 14 days after the intervention began. Unless the NCOP approves the intervention within 180 days after its first sitting, the intervention

comes to an end.

2.1 RECOMMENDATIONS ON SECTION 139(2)(a) and (b)

• It is submitted that the time periods in their current form, having been amended by the Constitution Second Amendment Act No. 3 of 2003, should ' remain as they are. It appears that these periods, are sufficiently long to allow for thorough and accurate consideration by the NCOP, which may include an in loco inspection. The NCOP is permitted to finalise approval or disapproval

before the expiry of the 180 day period should the intervention be of extreme urgency. However, should the NCOP be in recess, having a longer period available for this process would avoid the unnecessary lapsing of an intervention due to non-approval.

3. DEFINING THE POWERS OF THE PROVINCE AFTER THE INTERVENTION

Interventions in terms of Section 139 (1)(a) and (b) only relate to executive functions that are not fulfilled. The legislative authority of the Council is not affected at all. It means therefore, that the powers of the administrator appointed in terms of Section 139(1)(b) will be exclusively executive by nature. Neither the province nor the administration will have the power to legislate. Slating this

clearly will assist in minimizing the often considerable confusion as to the division of power between the administrator and councillors.

Section 151(2) of the Constitution places executive and legislative authority in the Municipal Council. The meaning that can be inferred is that neither the Municipal Manager, the Speaker or the Mayor is accountable to the provincial, in the context of Section 139. It is important to note that, even if the Municipality is failing in the fulfillment of its responsibilities due to the action or inaction of any of these parties, the Municipal Council alone will be accountable to the province.

A lesson that can be learned from the 1998 intervention in the Butterworth Municipality is that the province found it impossible to draw a line between the functions of the Council that were being performed satisfactorily and those that were not. However, in any intervention the province must take note of section 139(1)(b), which clearly states that, if the intervention takes the form of the

assumption of responsibility, it should be limited to 'the relevant obligation' and 'to the extent necessary'. This obliges the provincial executive to attempt to limit the assumption of responsibility to those functions and powers where the problem lies and not to use section 139(1)(b) in a generalised or broad way, relieving the relevant local authority of all its powers.

The intervention should rather be focused on the issue warranting the intervention. Where intervention is required, the level of intervention needs to be appropriate to the context, ranging from support and advice through issuing directives for specific actions, to the assumption of executive authority for a municipal function by another sphere of government. Therefore, the intervening Provincial Executive should indicate with some precision which executive

obligations were not fulfilled by referring to the relevant statutory law and the specific provisions of the Constitution.

The current Section 139 is not clear on what the powers and responsibilities of the province are once the intervention had begun. It has been observed that after the Mpumalanga provincial government intervened in the Ogies Municipality because of cuts in the electricity supply due to nonpayment, Eskorn demanded that the province settle the local authority's bill. In the Northern Cape, Eskorn sought to join the provincial government as a co-defendant in its claim for the

payment of the Warrenton Municipality's electricity account.

This point leads to a discussion on meeting the costs of the intervention.

Costs of the intervention

The requirement of an adequate budget for the mandated support, monitoring and intervention by provinces in local government has been raised often. Provinces do not appear to have budgets to adequately fulfil these obligations. A provincial department must therefore stretch its existing budget for funds to employ outside agencies to assume the responsibility for a municipality's

unfulfilled executive obligations or otherwise provide its own senior staff to act as administrators.

At the same time, provinces themselves often lack capacity to deal with their mandate of monitoring and supporting local government in terms of: personnel, funds, institutional knowledge and expertise.

The question of covering the cost of the intervention is linked by one author to the capacity in which the administrator performs his/her functions. Is the administrator acting as an organ of the municipality or as an organ of the province? The answer to this question has substantial consequences with regard to the costs of the intervention and the liability for actions by the administrators.

Following the wording of section 139, it is the provincial executive that assumes the responsibility so that it can be argued that the administrator acts as an organ of the province. The administrator is appointed by the provincial executive in the exercise of the provincial power to intervene and can be recalled by the provincial executive after or during the intervention.

J
aap de Visser argues that it does not seem logical that the municipality would have to pay the costs of the intervention. Even though the intervention is a result of the municipality's incompetence, inability or unwillingness, the province remains the organ that decides to intervene. Therefore, to allow the province to do so at the expense of the municipality would open the door for abuse of section 139. Moreover, when the administrators are remunerated out of municipal funds it could blur the division of the powers between provincial executive, administrators and Council.

On the other hand, requiring that all the costs of the intervention should be borne by the province could result in unfairness. In the event of a municipality deliberately refusing to fulfil a certain duty or deliberately neglecting it, although it is capable of performing satisfactorily, it would be unfair to place the financial burden of intervention entirely on the province.

De Visser argues that the province is liable for actions by the administrators and the costs resulting from their appointment should be paid by the province. But where the reason for the intervention lies in obstructionism by a municipality, it should be required that the municipality bears the costs. De Visser submits that there is a role to be played by the NCOP, as the 'supervisor' of the intervention.

The NCOP could play a decisive role in considering and determining which party, the province or the municipality, should bear the costs of the intervention.

• Section 139(1)(b) should also make provision for the appointment of a municipal support team that is paid by either the province or the national Government. This will allow the administrator to have the necessary access to a range of skills to turn the municipality around. Those skills should be transferred by the end of the intervention.
• There should be further consideration of whether measures could be introduced to allow the legal status in a contract between a municipality and an employer to be subsumed by the province?

3. COMMUNITY PARTICIPATION

Section 139 in its current form, makes no provision for community participation in the process leading up to the intervention or following the intervention. The NCOP, in considering whether to approve or disapprove the intervention, has developed a practice of meeting with relevant stakeholders and community representatives to ascertain their views on whether the intervention is justified. In many cases, it has emerged that stakeholders were never consulted or informed

of any crises faced by the municipality, remedial action by the province or the eventual intervention.

3.1 RECOMMENDATIONS

• There is a need for greater community participation both prior to and during the intervention process. An early sign of trouble is often the inability of the Municipality to fully meet its service delivery obligations. The community therefore needs to be informed very early on of efforts by the province to assist the Municipality to restore its ability to meet its obligations. It is also important to alleviate the concerns of the business community within the municipal area. This is particularly so when the confidence of businesses has been affected by the municipality defaulting on payment for services. In devising a recovery plan for the Municipality, the community's needs and priorities should be taken into account but this can only be done through constructive consultation with community representatives.

• It has also been suggested that the local community could themselves play a role in alerting either the provincial government or the NCOP of prolonged or continual failure in the delivery of services by a municipality.
• Both the NCOP and the provincial legislature should consider mechanisms to allow them to report back to the communities with whom meetings are held. Communities should be guided on how to monitor and participate in Council activities during and following the intervention.

4. ROLE OF PROVINCIAL LEGISLATURES

In its ATC of 1 April 2003, the Mpumalanga Legislature noted that, although Section 139 of the Constitution places major responsibilities on Provinces, the Provincial Legislature (which is required to fulfil its oversight role and approve the funding thereof) has no role in the intervention process. In addition, it should be clarified that the provincial executive should notify the Provincial Legislature and the NCOP simultaneously.

4.1 RECOMMENDATIONS

• Reports should be sent to the Provincial Legislature as well as the NCOP. The legislature of the province should be given a bigger role to play to ensure that local government is functioning properly. Since it is difficult for the NCOP to actively conduct on-site investigations, legislatures could perform these tasks as part of their assistance role.

5. REPORTING MECHANISMS

In terms of Section 139(2)(c) the NCOP is required to review the intervention regularly and to make recommendations to the provincial executive. It is currently left to the NCOP to impose reporting obligations on the Provincial Executive.

5.1 RECOMMENDATIONS

• A provision needs to be inserted to regulate a mechanism to enforce reporting to both the NCOP and the Provincial Standing Committee. These reports should contain sufficient information to enable the NCOP and the Standing Committee to assess whether the intervention is continuing to serve the best interests of the Municipality and the community.

• Consideration should also be given to the need to report regularly to organised local government, should they have been involved extensively in the intervention.
• Provincial portfolio/standing committees should be encouraged and assisted to develop systems to monitor municipalities in their provinces.

6. DETERMINING WHEN AN INTERVENTION ENDS

Who determines when an intervention ends?

One MEC.for Local Government has complained that the Constitution does not stipulate when an intervention should end since there are no established criteria in place to indicate when the situation at a local authority has improved. He was of the view that:

• The NCOP cannot decide on whether an extension for the intervention should be granted or not; it can only approve the intervention.
• The NCOP has no capacity to solve problems.
• The Constitution should be amended to determine when the intervention should be stopped.

It should be specified whether the ending of the intervention of the intervention is on the recommendation of the Administrator, with the Department, the Provincial Legislature and the NCOP concurring. What criteria should be used to determine when the performance of a local authority has sufficiently improved to warrant the ending of an intervention?

7. SECTION 139(4), (5) and (6), CROSS-REFERENCED WITH CHAPTER 11 OF THE MUNICIPAL FINANCE MANAGEMENT ACT

In terms of Section 139(4) the province can intervene in the failure by a municipality to pass a budget or approve revenue-raising measures and the failure to fulfil any other obligation prescribed in an Act of Parliament. Section 139(5) makes provision for the imposition of a financial recovery plan or, in terms of 5(b) dissolution of the Council and the appointment of an administrator.

In terms of Section 139(6) the NCOP's supervisory role is obscured, as the provincial executive is only required to submit a written notice of an intervention in terms of Section 139(4) and (5). Neither Ministerial nor NCOP approval is not required.

The Community Law Centre's Local Government Project raised the following concerns with these provisions in their submission on the Constitution of the Republic of South Africa Third Amendment Bill, 2002:

• Since the intervention includes the assumption of legislative authority (approval of a budget), more control rather than less is required.
• The mandatory review is a critical measure that requires the NCOP to remain seized with the matter. By making the review discretionary, it places the onus on the municipality to raise the matter and convince the NCOP to review the intervention.

Moreover, it is submitted that separating provisions relating to financial recovery between the Municipal Finance Management Act and Section 139(5) requires cross-referencing and is unnecessarily cumbersome.

7.1 RECOMMENDATIONS

• The NCOP should be required to approve or disapprove an intervention in terms of Section 139(4) and (5).
• Where the province is intervening in terms of Section 139(4) or (5) the provincial Department of Local Government should also consult with the Provincial and National Treasury.
• The provisions in the Municipal Finance Management Act and the Systems Act should be incorporated in Section 139(4). This will avoid having to cross- reference many different pieces of legislation.
• The ATC of 1 April 2003, Mpumalanga, notes that, while Section 139 only makes provision for an Act of Parliament, it is silent about the need for a Provincial Act. The amendment to Section 139 should provide for provincial legislation to regulate the process and the responsibilities that fall to the provincial legislature, in particular.

8. PROVISIONS OF THE MUNICIPAL STRUCTURES ACT

In formulating the legislation in terms of Section 139(8) the NCOP should consider repealing or amending the provisions of Section 34(3)(b) of the Municipal Structures Act No. 117 of 1998. These provisions empower the Minister responsible for local government in the province (MEC) to dissolve a Municipal Council if-

"an intervention in terms of section 139 of the Constitution has not resulted in the council being able to fulfil its obligations in terms of legislation."

On the face of it Section 34(3)(b) could constitute a serious threat to the institutional integrity of local government as a sphere. The relationship between the provisions of Section 34 and Section 139 are unclear.

Section 34(3)(b) does not clarify under which circumstances the MEC can dissolve the council. Section 34(3)(b) does not indicate which form of section 139 intervention should precede dissolution. Moreover, Section 34 provides for the appointment of 'administrators' by the MEC, when a Council is dissolved or does not have enough members for a quorum. These administrators ensure the continued functioning of the municipality until a new. Council is elected or until it has sufficient members for a quorum. As Jaap de Visser warns, this opens the possibility for a full-scale assumption of responsibility 'through the backdoor

8.1 RECOMMENDATIONS

• The NCOP should consider repealing or amending the provisions of Section 34(3)(b) of the Municipal Structures Act.

9. CONCLUSION

With regard to the effectiveness of interventions, have they increasingly become temporary take-overs without the necessary transfer of skills? The aim of any intervention should be the restoration of the executive power of the Council as soon as possible. However, in order to do so, the Municipality should be assisted to develop the capacity and the necessary skills to avoid future interventions.

• De Visser, Jaap LLM Thesis "A legal analysis of provincial intervention in a municipality" 1999
• De Visser, Steyler, Mettier. Provincial Supervision: Manual for the Application of Section 139 of the Constitution. Department of Provincial and Local Government. 2000
• www.communitylawcentre.org.za