Michelle R Maziwisa & Tinashe C Chigwata | Sep 30, 2021

What happens to interventions after the local government elections?

Too many municipalities are not functioning as they should. The Auditor General has repeatedly reported municipalities’ poor financial management (see 2019/2020 Report). When a municipality fails to provide basic services, the provincial government may, and sometimes must invoke section 139 of the Constitution to address municipal failures.

There were 46 municipalities under intervention in the 2019/2020 financial year, some of which are still ongoing in September 2021. It is reported that as at August 2021, 31 municipalities were under administration; however, the number could be much higher.

This article analyses the termination of interventions after the general election of 1 November 2021, and the consequence of this termination.

Section 139 interventions

The national and provincial governments are empowered to intervene in failing municipalities, subject to intergovernmental checks and balances. First, the provincial executive may ‘intervene’ when a municipality fails to fulfil its constitutional and legislative obligations (s139(1)). Secondly, it must intervene when a municipality fails to approve a budget or revenue-raising measures required to give effect to the budget (s139(4)). Lastly, the province must intervene if the municipality is in serious or persistent breach of its obligations as a result of a financial crisis (s139(5)). The national executive must intervene when provincial government cannot or is unable to undertake an intervention meant to address budgetary or financial crisis or does so inadequately. So there are discretionary, mandatory, budgetary and financial interventions. It is also clear that intervening into failing municipalities is primarily the domain of provinces, rather than of the national executive. The courts, however, are increasingly compelling the national government to bypass provinces and intervene in failing municipalities as recently happened in Lekwa Municipality. This indicates that some provinces are failing to supervise municipalities as required by the Constitution.

Termination of interventions after an election
If the intervention resulted in the dissolution of the council, it follows automatically that the intervention ends once a newly elected municipal council has been declared elected. The administrator’s appointment also ends. However, what happens to interventions, in which the council was not dissolved, for example, the assumption of a local responsibility? Do they also fall away soon after the newly elected councils has been declared elected?

What are the consequences of the termination of interventions after an election?
The termination of interventions soon after an election enables newly elected councils, with a fresh mandate from the people, to govern without being limited by another authority, for instance, an administrator. However, the termination of interventions soon after an election, particularly the termination of the role of the administrator, may threaten the recovery of the municipality. There have been many repeated interventions, and some of them take place immediately after a new council has been elected, which indicates that the problems continue and are not resolved.

According to the Public Affairs Research Institute (PARI) Mind the Gap Report, which considered interventions from 1998-2019, there were 140 interventions, 15 of which were subsequently set aside by the Minister, NCOP or the courts. The Report shows that, of the 140 interventions during this period, 48 (i.e. 34 percent), were repeat offenders. As at 2019 when the report was published, 40 municipalities were under administration and one third of these had had at least one prior intervention. For example, Ngaka Modiri Molema District Municipality in the North West has been under multiple interventions: (1) July 2009-July 2010; (2) September 2014-September 2015; (3) March 2015-August 2016, and (4) September 2018- 2019. It can be observed that some of the interventions terminated just after a local government general election.

While termination of interventions after the elections gives the new municipal council a fresh opportunity to get the municipality back on its feet, the lack of continuity leaves municipalities in a frail condition, and may offload ‘problems’ to the incumbent municipal council. Moreover, the ‘new’ council can struggle to make sense of the ‘old’ problems.

There is an assumption in law that the elections will bring in new political leadership to set the municipality on a new path. Yet, often the very same councillors who caused the failure of the municipality in the first place, are re-elected into office. There is also an assumption that bringing in new leadership will automatically resolve municipal problems. However, many of those problems are systemic. Municipalities are institutions that have not only political leaders, but also administrators, operational systems and an organisational culture. These are not bound by a five-year term and if they are dysfunctional, an election will not fix them. They require long term solutions. It is however possible that a new group of councillors can set the municipality on a new path.

Some interventions must continue after the elections

There are a number of situations (local and legal) that justify the extension of an intervention beyond an election. For example, in April 2021, the Court ordered the national government to intervene in Lekwa Local Municipality (Mpumalanga) to fix municipal problems which the provincial government had failed to address. The Court directed that national government to adopt a financial recovery plan for the Municipality to be approved within 6 months from the date of the order. This means that the plan must be approved by October 2021, which is a month away from the November local government elections. It is obvious that if the intervention is discontinued after the elections, the intervention will fail. This is one of many situations in local government that justifies the extension of the intervention beyond the November local elections. The objective should remain: to bring a municipality back on its feet.

Conclusion
New councillors will be elected into office in all 257 municipalities including those under intervention in terms of section 139 of the Constitution. The law requires that these interventions be terminated soon after the newly elected councils have been declared elected. The mandate of the administrator also ends after the election. The termination of the intervention allows the newly elected council, with a fresh mandate, to govern freely without the strictures of an intervention. However, this may undermine the recovery of the municipality and cause it to relapse. This is why it is important for provinces and where applicable, the national government, to carefully assess all ongoing interventions and decide whether or not to extend them beyond the elections. It is possible that this assessment could point to the need of an extension of the intervention but in a different form. For instance, the relationship between an administrator and the council could change.

If an intervention is extended in one form or another after the elections, this cannot be done without following the usual procedures set out in the Constitution and the Municipal Finance Management Act. In legal terms, it is a new intervention. Depending on the type of intervention, it may involve notifying provincial legislatures, seeking approval of the National Council of Provinces and the Minister of Cooperative Government etc. If these procedures are not followed, these interventions may be challenged in court.

 

by Michelle Maziwisa & Tinashe C Chigwata

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