Q&A: Do section 139 interventions work?

Modise: The nature of municipal interventions in municipalities is case dependent. However, common reasons cited often include issues including political instability, council infighting and acute service delivery failures. In terms of Section 139 of the Constitution, “When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the provincial executive (PEC) may intervene by taking any appropriate steps to ensure fulfilment of that obligation by either, 

• Issuing of a Directive: section 139(1)(a)
• Assuming responsibility: section 139(1)(b)
• Dissolving the Municipal Council: section 139(1)(c)
• Taking appropriate steps to ensure that the budget or revenue-raising measures are approved: section 139(d); and
• Imposing a recovery plan and possible dissolution of the Municipal Council: section 139(e).

De Visser: Section 139 is quite a long section in the Constitution. There are quite a lot of modalities and issues involved. But in general, you can distinguish two categories of interventions in the municipality and each has their own trigger. 

The first one is quite a broad one. Basically, if there is a failure to fulfil an executive obligation … basically it means, if there are serious failures in governance or service delivery, then in principle a provincial government may intervene. It could do so in a soft manner by issuing a directive, an instruction, or it could go further and appoint an administrator to take over the functioning of the municipality or the administration of the municipality. Or it could dissolve the council. This is in response to the failures such as a lack of basic services being delivered … But also governance failures when the municipality fails to submit reports and fails to run its finances properly and clear indications of those failures. The provincial government has the discretion. So it may decide to intervene or not. It becomes a political decision. So that is one category.

The second category is financial intervention. So when there is a specific financial crisis. For example, when the municipality fails to adopt a budget or when it can no longer meet its financial commitments. It can no longer, for example, pay salaries, or pay Eskom, or pay contributions to medical aid, pension funds. Then the province must intervene. It can then do similar things like dissolve the council, impose a budget, and things such as those. But the key difference is, this is a must. The province doesn’t have a choice.

There is an interesting trend that we are seeing [with financial interventions]. The law says that if a province doesn’t intervene,  then the national government can step in. This is the only place when the national government can step in when the province fails.

Modise: The role of the municipal council is to determine the IDP which is [the] strategic objectives and plan of the municipality. The IDP determines the key performance indicators for the council’s term of office and key result areas of their administrative staff.

Once completed, the IDP determines the municipal budget. Ideally the budget is also a product of consultations among various stakeholders within the Local Government. This process is driven politically by the mayor and approved by [the] council. The municipal manager must then manage the budgetary process in terms of the municipal cycle plan. If this process is not completed in a timeous manner or before the 30^th of June the MFMA [Municipal Finance Management Act] empowers the [member of the executive] of [the department of cooperative governance and traditional affairs] to dissolve the council and appoint an administrator. 

In most cases, if your local municipality is placed under administration, it means that there will be a disruption in services rendered to the residents. It will likely mean there is not [an] IDP in place and a municipal budget.

De Visser: In theory, what it should mean for residents is that there is going to be improvement. That’s the whole point of it. There is action being taken. Somebody comes in, or a team comes in and actually turns the municipality around, disciplines the corrupt officials, cleans out the administration and ultimately then improves service delivery. 

Residents should notice the benefit of it. Quite often, they do in the beginning. If there is a good administrator who can do his or her work free from political interference and can do the job that is needed, then residents should be getting better services. 

The downside, perhaps of it, is you lose local democracy, because now the place is run by one individual. Ward councillors don’t have a lot to say anymore. Your mayor – if he or she is still in office – is a lame duck. So the vibrancy of local democracy is gone, but vibrancy was probably the problem in the first place that is what was running it into the ground. 

So in theory, there should be improvement with an intervention. In that sense residents should care. Residents have – in some cases – demanded change, saying we need someone to come and crack the whip here and in practice – unfortunately – these interventions aren’t successful.

Modise: Unfortunately, the trend is that a municipality is unlikely to recover if it has been placed under administration and will continue to face governance challenges in future. 

De Visser: You will probably find that in many of these interventions in the beginning there is progress. But in the long run things start falling apart again. One clear indication that we have of the lack of success of these interventions is that we have quite a number of municipalities that [Treasury or the provincial government] has to intervene in multiple times. If you need an intervention two or three times in a row, clearly it is not working. …

There is very little capacity in the province to actually do these interventions well. They are dependent on these consultants who come at a price and they are often at the receiving end of political interference.

Modise: Consequence management is severely lacking at local government level. The municipality manager is the chief accounting officer and is responsible for financial oversight. Often when there are accusations of financial mismanagement at local government it is the municipal manager and other administrators who are held liable and likely face charges of corruption or maleficence. For politicians at local government, normally they retain their political positions as councillors unless if the municipality is dissolved 

De Visser: So it depends on the type of intervention. So normally – what happens most often – is that everybody stays. The council stays. The officials stay. Basically, there is someone who has supplanted over and above all of that into the municipality. And that person works with the council with the existing municipal manager. But obviously [the administrator] comes with the authority to issue instructions. 

Depending on the type of intervention, you may very well have the council that caused the mess. The municipal manager that caused the mess, still sitting there and earning a salary. The administrator can obviously go after them with disciplinary measures against the officials, but he or she can’t really go after the mayor or the councillors – other than reporting them to SAPS [South African Police Service] if there are real allegations of corruption.

So it is only different, if there is a dissolution. If the provincial government decides to dissolve the council that means basically the whole council – all the councillors and the mayor – is fired. 

The administrator becomes the mayor and council in one. The municipal manager then reports the administrator. 

That is happening more and more. Provinces are realizing that sometimes you just have to use a heavy hand and intervene in a political sphere and send all the councillors home. Then obviously they [the councillors] would be without jobs and income. 

And the IEC [Independent Electoral Commission of South Africa] must come in and organize an election, which the law says must happen within three months. After the IEC has organized an election, the situation changes and the administrator must work with the new council.