ATC140723: Report Of The Select Committee On Co-Operative Governance And Traditional Affairs, On The Intervention In Terms Of Section 139(1)(B) Of The Constitution: Madibeng Local Municipality – Dated 22 July 2014

REPORT OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS, ON THE INTERVENTION IN TERMS OF SECTION 139(1)(b) OF THE CONSTITUTION: MADIBENG LOCAL MUNICIPALITY – DATED 22 JULY 2014

Having considered the critical issues emanating from the briefing with the Department of Cooperative Governance and Traditional Affairs, and the report of the Ministerial Task Team (MTT) that was established by the Minister, the Committee reports as follows:

1. Introduction and Background

1.1 On the 5 ^th February 2014, during a special meeting of the North West Provincial Executive Council, it was resolved to invoke provisions of the section 139(1 )( b) of the Constitution in the Madibeng Local Municipality. The intervention was effective from the 5 ^th February 2014, for a minimum period of six months and a maximum period of twelve months. In terms of section 139(1)(b) 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 that obligation, including assuming responsibility for the relevant obligation in that municipality.

1.2 The Minister, after considering the request for the intervention, disapproved the intervention on the 7 ^th March 2014, in terms of section 139(2)(b)(i) of the Constitution. The Minister was of the opinion that the challenges in Madibeng Local Municipality can be addressed by providing support to the Municipality in terms of section 154(1) of the Constitution.

1.3 On the 12 ^th February 2014, the NCOP referred the notice of intervention in Madibeng Local Municipality, to the Select Committee on Cooperative Governance and Traditional Affairs, for consideration and reporting in terms of Rule 101. In its meeting of the 8 ^th July 2014, the Committee took a decision to receive a briefing from the Department and the MTT support that was provided in terms of section 154(1) of the Constitution. In terms of this section, national and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.

2. Notion and Necessity

2.1 The main issues identified by the Provincial Executive to intervene in the affairs of Madibeng Local Municipality related to:

· Failure by the political leadership of the Municipality to provide leadership, and failure to take ownership of the irregularities in the administration.

· Failure by Council to implement the recommendations of the Ministerial Report, which included taking disciplinary actions against the implicated officials and councillors since June 2013.

· The situation in the Municipality has continued to deteriorate, and has recently resulted in the unfortunate death of four members of the Madibeng community, during a service delivery protest.

2.2 Based on the stated reasons of poor state of governance and administration in the Municipality, the North West Provincial Executive Council resolved then to intervene and assume the executive obligations of the Municipality.

3. Ministerial Justification for Disapproval of Intervention.

3.1 The Minister however, is not in agreement with the view that challenges in Madibeng necessitate an intervention. His reasoning is based on the following:

· Although there are evident signs of poor administration and governance, however, these challenges can still be addressed by providing support to the Municipality in terms of section 154(1) of the Constitution, instead of invocating of section 139(1 )( b) of the Constitution. As a result, a MTT has been appointed, amongst other things to develop a plan with the Department of Water Affairs and Rand Water to address its water crisis.

· The implementation of the MTT Report has commenced, with the immediate precautionary suspension of the Municipal Manager, the Chief Operations Officer and the Acting Corporate Services Manager.

· Mr Tebogo Motlashuping from the Department of Cooperative Governance and Traditional Affairs has been appointed as the Acting Municipal Manager, to monitor, supervise and implement the recommendation of the MTT Report.

· In addition, the current Executive Mayor, Speaker and Council Whip, who have recently replaced the previous office bearers, have not had sufficient time in office to allow them to extricate the Municipality from the its problems.

3.2 In light of the above reasons, the Minister has deemed it appropriate to disapprove the intervention in terms of section 139(1 )( b) of the Constitution in the Madibeng Local Municipality.

4. Establishment of the Ministerial Task Team

4.1 Upon analysing the challenges in Madibeng Local Municipality, the Minister, in consultation with the Provincial Executive, appointed the MTT to conduct an investigation on whether the invocation of this section was warranted. The MTT recommended the following:

· A section 154(1) support to the Municipality that should be of a collaborative nature between the spheres of government.

· Disciplinary action against the Municipal Manager, the Acting Chief Operations Officer and the Acting Head of Corporate Services.

· Disciplinary action against the Speaker.

· Opening of criminal cases against the Municipal Manager, the Acting Chief Operations Officer, the Acting Head of Corporate Services and the Speaker.

· Suspension or placing on special leave of the first three officials mentioned above pending the finalization of their disciplinary or criminal cases.

· Suspension or placing on special leave of the Speaker pending the finalization of his disciplinary or criminal cases.

· Deployment of four officials, two from the National Government and two from the Provincial Government, to support the Municipality.

· One of the deployed officials be appointed as an Acting Municipal Manager, the other two as Acting Chief Operations Officer and acting Head of Corporate Services respectively, while the other was to coordinate further investigations, institution of disciplinary processes and assist law enforcement agencies in their criminal investigations against the suspended official and any other official.

5. Terms of Reference of the Ministerial Support Team

5.1 In pursuit of the recommendations of the MTT Report, the Madibeng Municipal Council approved the implementation of section 154(1) support and also approved the establishment of the Ministerial Support Team (MST), comprising of the following officials: Mr Tebogo Motlashuping ; Mr Pascal Moloi and Mr Boysie Phehlukwayo .

5.2 The following were the Terms of Reference or the mandate given to the abovementioned officials (MST):

· Improvement of service delivery, prioritising water and sanitation services .

· Improve the financial controls, expenditure management, procurement processes, revenue enhancement and debt collection, as well as addressing the Auditor General’s reports.

· Analysis and implementation of past and current investigations, commissions of enquiry and forensic audits.

· Attending to labour matters (outstanding disciplinary cases, labour disputes and functionality of LLF) and instil the culture of work and discipline among workers.

· Facilitate the improvement of governance within Council.

· Conclude the disciplinary cases of the previously suspended and re-instated managers (develop charges and commence with disciplinary processes).

· Investigate all recently awarded contracts, to establish the validity and legitimacy thereof and terminate those that are not legitimate.

6. Progress Made on the Application of Section 154 of the Constitution

6.1 The Municipality has since placed the Municipal Manager on precautionary suspension and subsequently appointed Mr. Tebogo Motlashuping from the Department of Cooperative Governance as the Acting Municipal Manager for a period not exceeding three months.

6.2 The Acting Municipal Manager and the Mayor handed the report of the MTT to the Brits Police Station, to enable the police to investigate all allegations of illegal nature contained in the report. Progress report is being awaited from the Police and will be tabled before Council once available.

6.3 The Municipality also appointed Lourens Bezuidenhout Attorneys to investigate allegations of misconduct against the Municipal Manager, Chief Operating Officer and the Acting Director Corporate Services and report on the outcome to Council within a month, for Council to make a determination on whether to proceed with disciplinary proceedings against the implicated officials.

6.4 The Chief Operating Officer and the Acting Director Corporate Services approached the High Court to compel the Municipality to furnish them with the copy of the MTT report, to enable them to challenge their suspension. The matter was set down for hearing on 20 May 2014. The Municipality opposed the application and the applicants’ application was dismissed with costs.

6.5 Water Services: The water supply in the Municipality is serviced by two main Water Treatment Works in Brits and Schoemansville . The Brits water scheme covers a vast number of areas with high growth patterns and is constraints by plant conditions and raw water quality. In Letlhabile , Maboloka , Letlhakaneng and Jericho there were water supply interruption, due to major pipe breakage in the field. However, pipe breakage was located and repaired to reinstate water supply. In the areas of Mothotlung , Damonsville , Mmakau , Madidi and Oskraal Water there were supply interruption and inadequate water pressure, supply due to mechanical failures and collapse of the main water line (bridge structure). As a result, the failed pumps have been repaired with operating and stand-by pump available to function.

6.6 Integrated Development Plan (IDP): In March 2014, the draft IDP Review 2014/15 was adopted by Council. Submissions were made to the Office of the MEC Local Government and Traditional Affairs for assessment and the District Council for alignment. Consultative processes were conducted through ward public participation. Two IDP representative forum meetings were held and municipal priority needs were identified and projects were considered.

6.7 Community Services: The Madibeng Music and Arts academy has been established and was opened in the month of June 2014 to the public. Beautification of entrances has been done in Oskraal and Hartbeespoort . Construction of Lethabong Library has been finished and furniture as well as library books procured. The Library it is set to be handed over this month. Procurement of Library books for other libraries has been completed.

6.8 Budget and Treasury Office: The Municipality has an approved SCM Policy and procedures that need to be followed for all procurement transactions. Strict enforcement of SCM processes is done to all procurement transactions to ensure that irregular expenditure is eliminated. The transactions are being investigated by MPAC, to advise municipal council on actions to be taken to any official found to have negligently contravened the established SCM processes.

6.9 Human Settlement: The Municipality has over 35 informal settlements with housing needs estimated at over 40,000 (houses with serviced stands). The Department is currently conducting township establishment at Mooinooi , Bokfontein and Scheerpoort that will yield over 2000 serviced stands. The North West Department of Human Settlement Public Safety and Liaison has committed to provide RDP houses at those settlements. The Executive Mayor of Madibeng and the MEC for Human Settlement and Public Safety and Liaison, handed over 100 RDP houses at Mothotlung Extension 2 and 1000 houses at Sunway Township on the 16 April 2014.

6.10 Economic Development and Tourism: Fifteen young people have been trained in Entrepreneurial Starter-up program by National Youth Development Agency (NYDA) on Business Management. In addition, two LED awareness campaigns have been held with relevant stakeholders with the involvement of NGO’s, SEDA, and other government departments on opportunities for economic growth. In addition to the above, 25 youth members have also been trained in Heritage and Culture research by the National Department of Arts and Culture

7. Committee Observations and Opinion

7.1 The Committee is of the opinion that monitoring and support of local government is a constitutional obligation in terms of sections 154(1) and section 155(6) and (7) of the Constitution. The principle for the application of sections 139 has always been to invoke it as a last resort, after all forms of support have been exhausted.

7.2 The critical issue is how government can bring the necessary checks into the system before a legislative intervention becomes a necessity. Integral to this would be mechanisms for improved monitoring, an early-warning system and strengthened means for intergovernmental oversight and support measures, particularly in the ‘after care’ phase. Hence there is a need for the legislation envisaged in section 139(8) of the Constitution, to assist and provide provinces with uniform approach to the supervision of local government.

7.3 The Committee has also observed the hands-on support which is of a collaborative nature between the spheres of government provided by the Minister, instead of invocation section 139(1 )( b) of the Constitution in the Municipality.

7.4 Although there are still outstanding challenges in the Municipality, much work has been done by the MTT in addressing good governance and administration, in order to normalise service delivery in Madibeng .

7.5 The Committee is of the opinion that the Bojanala Platinum District Municipality, South African Local Government Association (SALGA), as well as the Municipality Public Accounts Committee (MPAC), have a critical role in supporting the executive authority of the Municipality to ensure that it performs its functions effectively. These would include: enhancing municipal leadership and accountability; strengthening participation mechanisms and strengthening intergovernmental processes.

8. Recommendations

8.1 Having deliberated with the Department of Cooperative Governance and Traditional Affairs on the challenges in Madibeng Local Municipality, the Committee recommends as follows:

8.1.1 The NCOP takes note of the Report by the Ministerial Task Team, and support the termination of intervention as stipulated in terms of section 139(2)(b)(i) of the Constitution.

8.1.2 The Department of Cooperative Governance and Traditional Affairs, through the Ministerial Task Team, should fast-track the process of filling all vacant positions and the appointment of skilled personnel in Madibeng Local Municipality, in order to facilitate the transfer of skills and to ensure continuity and stability.

8.1.3 The Department of Cooperative Governance and Traditional Affairs should submit quarterly progress reports to the Provincial Legislature and the NCOP, on the section 154(1) of the Constitution support to the Municipality.

8.1.4 A follow-up to be made by the Committee on the briefing and progress report submitted by the Ministerial Task Team, as well as on service delivery challenges in Madibeng Local Municipality.

Report to be considered.