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SALGA Special Working Group on the application of section 139 of the Constitution to the affected municipalities and the database of red zone municipalities due to their audit findings

 


Posted: 17 October 2018

The National Councillor Welfare and Empowerment and Governance and Intergovernmental Relations Working Group held a special meeting at the SALGA national office, Menlyn, Pretoria on 17 October 2018.

The special gathering scheduled to consider the latest developments regarding the institution of section 139 interventions in certain provinces and other related matters. The gathering forms part of SALGA’s Strategic Goal 2: Good governance and resilient municipal institutions with the Strategic Objective to strengthen oversight and accountability for effective accountable leadership practices.

Section 151 of the Constitution vests the authority to govern the local government affairs of communities in municipalities. In so doing, municipalities must adopt a developmental approach by structuring and managing its administration, budgeting and planning processes in a manner that gives priority to the basic needs of the community, and by promoting the social and economic development of the community.

Furthermore, section 154 of the Constitution creates an obligation for national and provincial government to support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their function.

However, should any sphere of government be unwilling or unable to meet its obligations, the Constitution provides for a system of interventions, in terms of which the national government may intervene in that affairs of the provincial government and provincial government may intervene in local government affairs. Section 100 regulates national interventions in provinces while section 139 structures provincial interventions in municipalities

Section 139 of the Constitution which provides for the following three instances where a province may intervene in the affairs of local government. These scenarios are as follows:
(a)      Section 139 (1) provides for general intervention in instances where a municipality fails to fulfil an executive obligation;
(b)      Section 139(4) provides for instances where a municipality fails to approve a budget or any revenue raising mechanism as required by legislation; and
(c)       Section 139(5) provides for intervention in instances where a municipality due to its financial affairs is unable to deliver services or meet its obligation.
The purpose of a section 139 intervention is to address the failures or provide for corrective measures in assisting the municipality to become a sustainable and self-sufficient municipality, with the capable ability to perform its executive obligations, execute its powers and functions as assigned to it by the Constitution and other legislation efficiently and effectively and to enable the municipality the ability to collect and generate its own revenue base.

The importance of monitoring, support and intervention lies in the fact that municipalities have a developmental mandate to give priority to basic needs of the community as well as promote social and economic development of the community.

SALGA has observed that often monitoring in local government is not consistent, as the key performance indicator used to monitor the performance of local government are not informed by the evolved and transformed local government agenda. Municipal support and intervention over the past 18 years has been fragmented and often the basis for it has been unclear. There has been no generic guide or collectively shared approach in terms of timing, resourcing and implementation of municipal support and intervention. 

To respond to this action, SALGA developed the Municipal Support Interventions Framework, which is intended to guide the manner in which national and provincial government monitors and supports Local Government in terms of section 154 and lay a concrete basis for the evocation of section 139 interventions as the last resort.

The Framework proposes that only when all spheres of government have exhausted various levels of coherent monitoring, integrated support should the application of section 139 intervention be considered to assist a municipality to discharge its constitutional and legislative mandate and executive obligations.

In observing the application of section 139 of the Constitution, it has been noted that local government faces a number of challenges and some of them include, good governance; financial viability; institutional arrangements; service delivery; as well as the political infighting within council and amongst the municipalities that were found to be dysfunctional, the leading factor seems to be politics.

In that regard the application of section 139 interventions has been haphazardly applied, without informed monitoring and support processes.

Enoch Mgijima, Mpofana, and Umzinyathi Local Municipality presented on their developments since the municipality was subjected to section 139 of the Constitution, where they outlined the challenges they have endured with the amalgamations/merging of Lukhanj, Tsolwana and Inkwanca Local Municipalities, which left the newly established Enoch Mgijima Local Municipality with incomplete process of the merger, as well the servicing of debt that came with the merged municipalities.

The political Troika of the municipality has requested for SALGA to consider solutions on how they are going to offer support while municipalities are placed under administration; with the administrator in place there seems to not be a function for the council; thus newspapers do not always reflect what is happening within the municipality which calls for need of good stories within local government; municipalities further want a standard approach in the process of section 139 as there is confusion as to relevant constitutional prescripts applied to Enoch Mgijima as it relates to the intervention.

To further strengthen oversight and accountability for effective accountable leadership practices, SALGA has undertaken the following Support Programmes for its members:

  • In the Umzinyathi Local Municipality the Financial Recovery Plans has been developed and is currently being implemented with the support of SALGA. Also, the municipality is currently being assisted to improve its audit outcomes, which has led to the continuation of the intervention.
In the Mpofana Local Municipality an administrator was introduced to council and the developed financial recovery plan has been adopted by council. The municipality has also made progress in allocating revenue to pay back Eskom by not outsourcing equipment by purchasing their own. Furthermore, with the assistance of SALGA the electricity license has been revoked.
 
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