Application of Section 139 of the Constitution

1. Application of Section 139 of the Constitution Cooperative Governance and Traditional Affairs Portfolio Committee 4 June 2013 1

2. Overview of Presentation (1) Background: the Constitutional context; (2) Breakdown of interventions and categories of challenges; (3) Summary of Intervention Triggers; (4) Current interventions; (5) Key findings from past experience; (6) Rationale for section 139(8) legislation and structure of the Bill; (7) Processes and status quo; and (8) Recommendations.

3. Background:- Constitution • Section 139(1) of the Constitution provides that when a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. • Since the advent of the Constitution, this section was invoked by the provinces starting from Northern Cape in 1998 and to date, there has been 62 invocation of this section at an average of 4 invocations per annum. • Section 139(8) provides that national legislation may be enacted to regulate the processes established by these sections; • Three types of interventions • Section 139 (1) provides for generalintervention in instances where a municipality fails to fulfil an executive obligation (this is a provincial discretionary intervention); • Section 139(4) provides for instances where a municipality fails to approve a budget or any revenue raising mechanism as required by legislation (a mandatory obligation); and • 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 (a mandatory obligation.

4. Constitution: Legislative Framework for Monitoring and Support • Section 154(1) of the Constitution provides that national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their own powers and perform their functions; • Section 155(6) of the Constitution provides that each provincial government must, amongst others, provide for the monitoring and support of local government in the province; and promote the development of local government capacity to enable the municipalities to perform their functions and manage their own affairs. • Within this context, the new Bill deals with these aspects in the form of establishing indicators for performance, establishing early warning systems and provincial monitoring mechanisms, types of support to municipalities and how provincial and national government processes can assist in providing targeted support.

5. Interventions undertaken in Municipalities: Breakdown (Annexure B): 5

6. Interventions: Provincial Breakdown (1998 - 2013) 6

7. Summary intervention triggers

8. Current section 139 interventions • Mpumalanga: • Emalahleni Local Municipality; and • Bushbugridge Local Municipalities; • North West: • Matlosana Local Municipality; • Maquassi Hills Local Municipality; and • Ditsobotla Local Municipality. • Kwazulu-Natal: • Indaka Local Municipality; • Mtubatuba Local Municipality; • Abaqulusi Local Municipality • Imbabazane Local Municipality

9. Current Section 139 Interventions

10. Current Section 139 Interventions

11. Current Section 139 Interventions

12. Current Section 139 Interventions

13. Current Section 139 Interventions

14. Current Section 139 Interventions

15. Key Observations from past interventions • Since the advent of the Constitution, it has been shown that there has been 62 interventions in the municipalities by the provincial government; • Out of these empirical evidence, a “Discussion Document: Towards the Development of Section 100 and 139 Legislation” was developed; • The Discussion Document outlined all the key obseravations as to how the interventions were undertaken; • The Intergovernmental Monitoring, Support and Intervention Bill now provides regulatory framework to overcome some of the challenges encountered and the following slides picks up on some of those.

16. Key observations vs IMSI Bill 16

17. Key observations vs IMSI Bill 17

18. Key observations vs IMSI Bill 18

19. Key observations vs IMSI Bill 19

20. Key observations vs IMSI Bill 20

21. Development of Legislation and Rationale • The legislation, particularly pertaining to section 139 interventions, seeks to ensure a consistent and uniform approach to the application of an intervention; • Section 139(8) legislation would complement the provisions of the Municipal Finance Management Act, which provides a detailed framework for (section 139(4)&(5)) ‘financial’ interventions; • A section 139(8) legislation would support sector legislation; sector legislation increasingly refers to interventions in terms of section 139; MECs are sometimes obligated to exercise this supervisory power (South African Police Services Act, 1995; and Housing Act, 1997); • a uniform intervention regime would provide certainty for municipalities and all the stakeholders as to the legal framework governing an intervention.

22. Intergovernmental Monitoring, Support and Intervention Bill • Regulate processes established in terms of Section 100 of the Constitution; • Regulate processes established in terms of section 139 of the Constitution; and • Provides for Monitoring and support in terms of section 154 and 155(6) of the Constitution. • Chapter 1: Interpretation and application of Act; • Chapter 2: National interventions in provinces; • Chapter 3: Monitoring and support of municipalities (early warning system and targeted national and provincial support matters in complementing section 154 and 155(6) of the Constitution); • Chapter 4: Provincial interventions in municipalities; • Chapter 5: Administrators in provincial and municipal interventions; and • Chapter 6: Miscellaneous (inter alia costs of interventions & Minister’s issuing of regulations assisting in the application of the Act).

23. Processes and status quo • In February 2011, the Bill was presented before the Select Committee on CoGTA ; • On 1 September 2011 the Bill was approved by the Technical G&A Cluster for submission to Cabinet; • The Bill was submitted to the State Law Advisor (SLA) to test its constitutionality and subsequently have incorporated the G&A Cluster comments. SLA did not raise unconstitutionality; • The Bill draws largely from the experiences of the invocation of section 139 of the Constitution. However, currently section 100 has been invoked in 8 provincial departments in Limpopo, Eastern Cape and Free State. The Department has now largely drawn on the experiences on these interventions.

24. Processes and status quo • The Bill will be submitted to Cabinet for consideration and approval; • Once Cabinet approves the Bill, it will be published for public comments; • Consideration and consolidation of comments will be undertaken; and • The Bill will then be submitted for parliamentary processes within 2013/2014 financial year.

25. Recommendations • It is recommended that the Portfolio Committee: • Notes the application of section 139 of the Constitution; and • (ii) Notes the salient features of the Intergovernmental Monitoring, Support and Interventions the Bill.

26. THANK YOU