This article, part of a series covering the Public Procurement Act, discusses the delegation of law-making powers to the responsible Minister.
Supervision (monitoring, support, interventions)
On 23 July 2024, President Cyril Ramaphosa assented and signed into law the Public Procurement Act 28 of 2024 (PPA). This article forms part of a series of articles which unpack the key legal and institutional changes introduced by the Act.
In 2023, the quality of South Africa’s water was put in the spotlight when several cholera outbreaks and deaths were recorded. The outbreaks were initially recorded in Hammanskraal, but later spread across four provinces, including Mpumalanga.
Municipal council meetings are central to local democracy. It is where the municipal executive accounts, municipal policies and by-laws are adopted, and essential governance and administrative business is transacted.
The Minister for Cooperative Governance and Traditional Affairs published a Code of Conduct for Councillors on 14 June 2023 (the new code of conduct). This Code of Conduct was made under section 92 of the Municipal Structures Act 117 of 1998. The new Code of Conduct acts as a supplement to the one in Schedule 7 of the Municipal Structures Act.
This article discusses some of the highlights of the preliminary report on "The state of local government law enforcement” prepared by the Institute for Security Studies for the South African Local Government Association.
This article is the first instalment in a series of articles that unpack the five main reasons behind the rejection of the Spatial Planning and Land Use Management of 2013 (SPLUMA) by traditional leaders in rural areas.
On 12 July 2023 the Constitutional Court overturned an order of constitutional invalidity made by the Pretoria High Court (High Court), and instead declared the Administrative Adjudication of Road Traffic Offences Act (AARTO) to be consistent with the Constitution. The AARTO will thus regulate the administration, collection and settlement of fines related to road traffic offences, irrespective of whether the offence is committed on a municipal, provincial or national road.
The long-awaited Public Procurement Bill (Bill 2023) will be introduced in Parliament for debate in the second quarter of 2023, after being in the making since 2014. A key question is whether the 2023 Bill in its current form is constitutional. Specifically, does the establishment and the powers assigned to the Central Procurement Office in the Bill encroach on the autonomy of municipalities? This question is likely to be subject of the vetting for constitutional compliance, currently being undertaken by the Office of the Chief State Law Advisor.
The Constitution creates a jurisdictional, functional and institutional space that is reserved only for municipalities. When acting in this space, municipalities are not subservient to national or provincial governments as was the case before the Constitution came into effect.
Section 106 of the Municipal Systems Act of 2000 empowers the MEC for local government to request information or to appoint an investigator(s) if he or she has reason to believe that “maladministration fraud, corruption or any other serious malpractice has occurred or is occurring in a municipality”.
In the space of one week in September, the country’s load shedding status sent any sniff of foreign investors scurrying for cover, and the City of Tshwane narrowly averted being plunged into complete darkness after settling its outstanding debt to Eskom of over R1,6bn. It joined the City of Johannesburg, Ekurhuleni, and a long list of smaller municipalities which continually roll over debt, and default on payment settlement plans until the threat of Doomsday. Pay up, or we throw the big switch.
The National Prosecuting Authority (NPA) must prosecute corruption at all levels of government. While much of the focus has been on the capture of national government and national state-owned enterprises (SOEs), there has also been widespread corruption in municipalities.
On 12 April 2022, the Dullah Omar Insitute (DOI) convened a webinar on 'Safeguarding the integrity of councillors and senior managers in local government'. The webinar, which was supported by the Hanns Seidel Foundation, had a panel consisting of Prof Jaap de Visser (Director: DOI), Dr Phindile Ntliziywana (State Law Advisor: Eastern Cape Provincial Government) and Ms Phatima Rawat (Associate: Ethics Institute).
The Dullah Omar Institute (DOI) is one of 18 international partners of the LoGov project titled ‘Local Government and the Changing Urban-Rural Interplay’. The project seeks to establish an international and intersectoral training and research network to identify, and evaluate best-fit practices for local governments in order to address the changing urban-rural interplay and manage its impacts. It is funded by the European Commission as part of the EU-Rise Horizon 2020 Marie Skłodowska-Curie Actions (MSCA).
Ever since the first intervention under the 1996 Constitution in the then Butterworth Transitional Local Council (Eastern Cape) in 1998, it has remained largely unclear when and how provincial and national governments should exercise interventions powers provided under section 139 of the Constitution.
The School for Public Leadership at Stellenbosch University in partnership with the Hanns Seidel Foundation conducted a research study on the impact of the Covid-19 pandemic on municipal fiscal sustainability in the Western Cape (WC) province, which was completed in April 2021.
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.
Failed service delivery at municipal level is not a new phenomenon. In recent times, however, communities, non-governmental organisations and private companies alike are growing impatient and resorting to court action to “straighten” failing municipalities. Such is the case of Astral Operations Limited (“Astral”), the largest business and employer in Lekwa Local Municipality (Lekwa) in Mpumalanga.
Can a municipality under a section 139(5) intervention avoid or by-pass an Administrator, or adopt decisions, such as entering into contracts, that undermine a Financial Recovery Plan? According to the Western Cape High Court, in Executive Council of the Western Cape Province and Others v Kannaland Local Municipality and Others the answer is no. The Court stopped Kannaland Municipal Council from implementing a Public-Private Partnership (PPP) contract involving the outsourcing of electricity after the Municipality had acted unlawfully and at the detriment of its financial sustainability.
The African National Congress (ANC) is implementing a resolution, which provides that members who face criminal charges for corruption, must ‘step aside’. It means, amongst other things, that these members may no longer represent the ANC on any public body. How does this affect ANC members who represent the party as councillors? And what does it mean for the municipality in which they serve?
On 29 October 2019, Parliament revived deliberations on the Municipal Systems Amendment Bill (Bill). The Bill had been undergoing stakeholder engagement before it lapsed under the previous Parliament. Its revival therefore meant that deliberations on the Bill would start again. After it was revived, the Bill was allocated to the National Assembly’s Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA) (Portfolio Committee) which was tasked with facilitating stakeholder engagement. As of 30 October 2020, deliberations on the Bill in the Committee had almost been concluded in readiness for its submission to the National Assembly for Second Reading.
On 27 October 2020, the Supreme Court of Appeal (SCA) ruled in The Premier for the Province of Gauteng and Others v Democratic Alliance and Others that the municipal council of the City of Tshwane Metropolitan Municipality must be reinstated. This article discusses the legal and political consequences of the judgment for the City of Tshwane and similarly situated municipalities.
Provincial intervention under section 139 of the Constitution is one of the many mechanisms available to provinces to rectify problems at municipal level. This provision provides a menu of different interventions which are of a discretionary, mandatory, budget or financial nature. Provinces have conducted many interventions but the record of these interventions is not very good. Many of these interventions actually fail to bring municipalities back on their feet. Choosing the correct intervention without falling foul of the law also seems to be a problem.
Perhaps the most important aspect of the job of a councillor is to attend council and committee meetings. Item 3 of the Code of Conduct for Councillors provides that every councillor must attend these meetings and the municipality’s rules of order contain more detailed rules on this. Failing to attend, or to remain in attendance, without having obtained leave of absence, is a violation of the Code of Conduct (item 4(1)). If a councillor fails to attend three or more meetings in a row, the councillor must be removed from office (item 4(2)).
When a municipal council delays or fails to implement a financial recovery plan imposed by the province, can the provincial executive dissolve the council? More specifically, should the provincial executive dissolve the municipal council in terms of section 139(1)(c) or section 139(5) of the Constitution?
The Constitution confers on the national government supervisory powers over the provincial (and local) governments. It also affords the provincial government the powers to supervise local government. Generally, this arrangement has the potential to safeguard, track and ensure optimal performance of public service, effective governance, accountability, transparency and sustainable development. Most critical for this article are section 100 of the Constitution, which regulates national government intervention in a province and section 139 of the Constitution, which regulates provincial and national intervention(s) in local government. Within these two provisions, there are different forms of interventions with varying degrees of encroachment. However, a recent judgment by the North West High Court seems to have blurred the distinctions between them. The article seeks to clarify this uncertainty.
The latest municipal audit results (2017-18) released by the Auditor-General (AG), Kimi Makwetu, found amongst others that a third of municipalities are not in a financial position to pay their creditors. The financial woes of municipalities weigh heavily on municipal creditors, in particular, bulk services suppliers, such as Eskom and water boards. As of June 2018, municipalities owed Eskom R18,26 billion with arrears amounting to R9,12 billion while debt to Water Boards stood at R 9,05 billion with arrears at R5,85 billion, respectively.
Navigating the grey areas: Reflections on the Western Cape powers and functions review process
The powers and functions shared between provincial and local government have traditionally been a source of great confusion and concern for municipalities. Ill-defined powers and functions have often led to duplication, inefficiencies and arguably even deterioration in the delivery of services to communities.
Section 62 Appeals: A tender process.
Many people aggrieved by decisions made by municipalities have latched on to the fact that they have a right to appeal in terms of section 62 of the Municipal Systems Act. Municipalities have recently experienced a significant increase in the number of appeals lodged in terms of section 62. This has led to municipalities having to grapple with the parameters and practical implications of section 62. This article highlights a few difficulties in this regard.
Powers of the Speaker?
The Speaker of the Lejweleputswa District Municipality convened a council meeting on 15 July 2003 in which he purported to appoint a commission of enquiry to investigate alleged irregularities at that district municipality. The issue before the Free State High Court was whether the speaker of a district had the power to appoint a commission of enquiry.
The Service Delivery and Budget Implementation Plan.
Each municipality classified as high capacity in terms of the Municipal Finance Management Act 56 of 2003 is required to compile a service delivery and budget implementation plan. The SDBIP is a management, implementation and monitoring tool that will assist the mayor, municipal manager, councillors, senior managers and the community with realising the municipality's strategic objectives as outlined in the Integrated Development Plan.
From the Courts: Outdated Ordinances- A constitutional Headache
This case highlights the need for provincial governments to carefully re-evaluate all ordinances predating the constitutional dispensation because in all likelihood, many of their provisions are unconstitutional.
Defining Local Government Powers: The Need For Guidance.
The powers and functions of local government are listed in schedules 4B and 5B of the Constitution. The schedules list functional areas without detailed definitions of each area. There is a considerable overlap between local government functional areas and those of provincial government, listed in Schedules 4A and 5A. Due to this, there is a degree of confusion about who does what. A lack of clarity about role definition may prejudice service delivery and cause conflict over resources and authority.
Who Can Dismiss a Municipal Manager?
The recent controversy surrounding the municipal manager of the Central Karoo District Municipality raised important questions regarding which sphere of government is responsible for the conduct of a municipal manager. Ultimately , who has the power to dismiss a municipal manager?
The PPP Procurement Process.
The Public-Private Partnership procurement process overlaps in many respect with the recently published Supply Chain Management Regulations. The overlap occurs where a proposed transaction is both a PPP and one of the matters to which the SCM regulations apply. Although the focus in this article is not on the SCM regulations, any attempt to discuss the PPP procurement process separately from the SC, regulations would be incomplete.
Service Delivery Agreements: Renegotiations and Amendments.
Contract renegotiations and amendments are a relatively common feature of long-term service delivery agreements and public-private partnerships. The legislature has recognised this in existing and newly promulgated legislation which clearly aims to limit risks associated with contract amendments.
Property Rates Act in Operation.
After some delays, the Municipal Property Rates Act of 2004 was finally brought into operation on 1 July 2005. This comprehensive Act institutes a uniform structure to the levying of property rates, which was previously governed a number of old provincial ordinances. This article highlights only a number of key features of the Act.
The New Municipal PPP Regulations.
Regulations governing public/private partnerships in the local government sphere came into effect on 1 April 2005. Section 120 of the Municipal Finance Management Act also regulates PPP's and the new PPP regulations have the effect of elaborating or expanding on some of the concepts introduced in section 120.
Budget Meetings Behind Closed Doors? Interpreting the Systems Act on Public Access to Meetings.
Can mayoral committees and executive committees hold meetings behind closed doors about critical issues like draft by-laws or draft budgets? Does section 20 of the Systems Act allow the public access to all meetings of council and mayoral committees? This article discusses this issue and postulates a proper interpretation of the meaning of section 20.
Local Government Capacity 2004: Municipal Demarcation Board's National Report.
The Municipal Demarcation Board has released its 2004/2005 local government capacity assessment report. It showed a steady increase in both the range and level of services provided by local and district municipalities.
From the Courts: Powers of Municipalities to Impose Property Rates.
A recent judgment by the Constitutional Court clarifies the powers, duties and status of municipalities and pronounces positively on the powers of municipalities to impose property rates. This case is a significant victory for municipalities in their efforts to value property and levy property rates.
Applying the New Section 139 Intervention Powers: Issues Arising from Practice.
Section 139 of the Constitution permits a provincial government to intervene in the affairs of a municipality under certain specified circumstances of non-performance. Such an intervention has serious consequences for the municipal council's authority to govern. In 2003, provincial government's intervention powers were increased significantly. Most importantly, the revised wording for the dissolution of a council and for interventions in the event of so-called financial emergencies.
Salary Increases For Councillors.
Councillors may see an increase of 7% in their salaries, benefits and allowances. This was the recommendation to the President by the Independent Commission for the Remuneration of Public Office Bearers.
Municipal Debts Are Rising.
In a recent report to Parliament, the Auditor-General, Shauket Fakie questioned the ability of South African municipalities to continue operating as a going concern. He commented that municipalities mounting levels of uncollected debt relative to their income was a cause for concern. The total municipal debt countrywide is more than R32 Billion and it is getting worse each year because of non-payment.
From the Courts: Councillors and Contracts With Their Municipality.
In the case of Mpakathi v Kgotso Development and Others SCA, Case No. 334/03, the Court had to consider whether a property attached by a municipality may be sold in execution to a close corporation if one of the members of that close corporation is a municipal councillor.
Supply Chain Management and Public-Private Partnership Provisions.
Chapter 11 of the Municipal Finance Management Act came into force on 1 July 2004. This chapter contains provisions that strictly regulate the acquiring of goods and services and the disposal of municipal assets. A sound knowledge and understanding of its provisions is therefore an essential requirement for all municipalities and municipal entities.
Powers Over Liquor Matters: A Case Study of Provincial and Local Powers over Retail Liquor.
The demarcation of local government powers vis-a-vis other spheres of government is fast becoming a critical area of research and intergovernmental dialogue. It is expected that municipalities will start asserting their institutional integrity. This article presents a case study of the demarcation of the powers of local government in the regulation of the liquor retail industry.
From the Courts: Notifying the IEC of a Floor-Crossing.
The Constitution of South Africa Amendment Act 18 of 2002 and the Local Government: Municipal Structures Amendment Act 20 of 2002 contain provisions designed to allow defection by an elected representative from one political party to another.
Setting Service Delivery Targets.
During the past two months, the newly elected government has emphasised the important role that local government must play in meeting the challenges of economic development and poverty alleviation.
Phasing in the Municipal Finance Management Act.
The Municipal Finance Management Act which was adopted by Parliament on 26 November 2003, took effect on 1 July 2004. It seeks to modernise and improve financial governance in all municipalities. Together with the Municipal Systems Act, it clarifies the roles and responsibilities of executives and non-executives councillors and officials, modernise budgeting and financial management practices and improves governance over municipal entities.
From the Courts: Property Rates on Agricultural Land
The issue before the Court in Boshoff v Nkwetana Munisipaliteit 1935/2003 FS was whether the municipality had the authority to levy rates on agricultural land and whether it followed the correct procedure in doing so.
Dissolution of the Lekwa Teemane Council.
On 21 January 2004 the Provincial Executive of the North West approved a resolution to dissolve the Lekwa Teemane Local Council in terms of section 139 (1) (c) of the Constitution.
Responsibilites of Municipal Managers: The Municipal Finance Management Act
The Municipal Finance Management Act is a very prescriptive piece of legislation and should not be read piecemeal, but worked through as a whole. Many chapters and sections are inter-related. For example, the duties of the municipal manager and the accounting officer of the municipality are not found in only one chapter but are scattered throughout the Act.
Counting the Cents: Municipal Budgets and Mayors Responsibilities Under the MFMA.
A new era has dawned in municipal finances with the enactment of the Municipal Finance Management Act 56 of 2003. The main objective of the MFMA is to ensure sound and sustainable financial management. In short the MFMA will pave the way for three year budget planning on capital appropriations.
Supply Chain Management under the Municipal Finance Management Act
Municipalities and municipal entities will have to read carefully when acquiring goods or services or when disposing of goods when the Municipal Finance Management Act comes into operation.
Who Appoints the Municipal Manager?
In terms of section 82 of the Municipal Structures Act, not only a municipal council can appoint a municipal manager. Furthermore, section 30 (5) of the Structures Act states that, before a municipal council can decide on the appointment of a municipal manager or of the head of a municipal department, the executive mayor or the executive committee must submit a report and recommendation concerning the appointment and conditions of employment.
A New Role For Provincial Treasuries
The Municipal Finance Management Act gives provincial treasuries an important role in supervising municipalities. Whereas the provincial Departments of Local Government were responsible in the past for most aspects of local government, including monitoring municipalities financial well-being, provincial treasuries will now perform important functions with regard to monitoring of, and intervening in municipalities.
Interventions in Municipalities: Amendment to section 139 of the Constitution.
The Second Constitutional Amendment Act of 2003 dramatically increases the powers of provincial government to intervene in a municipality, through amendments to section 139. These now provide the constitutional basis for the Municipal Finance Management Bill to empower provincial executives to intervene in a municipality in case of a financial crisis
From SALGA: Local Democracy at Risk?
The Justice and Constitutional Development Portfolio Committee held public hearings on the Third Constitutional Amendment Bill, 2002, at Parliament on 5 and 6 December 2002.
Easing Interventions in Local Government: The Proposed Constitutional Amendment
The proposed amendment to section 139 (2) of the Constitution, tabled in Parliament in August, creates new grounds on which a province may intervene in a municipality, obliges a province to intervene in certain circumstances and waters down the supervision function of the National Council of Provinces. In short, it eases provincial intervention in local government.
Intergovernmental Relations in the Western Cape
The need for an intergovernmental structure was identified in order to streamline the transformation process in the Western Cape.
From the Courts: Firing the mayor with a 'double barrelled' motion
Marais v Democratic Alliance 2002 (2) BCLR 171 (C)
Province not Liable for Municipal Debts.
MEC for Local Government, Mpumalanga v IMATU 2002 (1) SA 76 (SCA)
Constitutional Amendments: Local Democracy at the Altar of Supervision?
On 12 July 2001 the Minister for Justice and Constitutional Development published two Bills with proposed amendments to the Constitution. This article summarises the proposals that impact on local government and puts forward some comments and suggestions.
Implications of Non-Compliance With Treasuries Competency Requirements.
In 2007, in response to the capacity constraints bedevilling local government, the National Treasury issued regulations setting out minimum competency requirements which all municipal financial and supply chain management officials have to meet. The regulations took effect on 1 January 2008, but gave a fiveyear period of grace within which all financial and supply chain management officials throughout the country were required to attain the minimum competency levels. For these officials, the countdown reaches zero on 1 January 2013.
Consequences of Failing to Adopt a Budget by 30 June.
Political disagreements in a municipal council sometimes lead to stalemates on important matters such as the adoption of a municipal budget. Failure to adopt a budget by 30 June triggers the question: must the provincial government intervene, and, if so, how? This matter was the subject of a recent ruling of the Western Cape High Court. In this case, the High Court for the first time addressed the mandatory provisions of section 139(4) of the Constitution.
Public Hearing on Service Delivery
In response to widespread and ongoing service delivery protests across South Africa, Parliament has established a special committee to investigate and gather information about the causes of these protests. This ad hoc committee is tasked with conducting visits to urban and rural areas, holding public hearings and generally exercising coordinated oversight in respect of service delivery and, more particularly, the problems impeding service delivery.
Court Rejects the Traditional Method of Intervention in Municipalities.
As the local government turnaround strategy gains momentum (see page 7 and the editorial) and energy is focused on assessing the state of local government, the role of provincial oversight in respect of municipalities, including interventions, is critical. The Mnquma case revisited what is required of provinces in the context of an intervention. The judgment, while contributing to the debate, may, however, have raised more questions than it provided answers.
Vision 2011 and 2014 of the Department of Cooperative Governance and Traditional Affairs.
At the Local Government Bulletin’s tenth anniversary conference, Mr Elroy Africa, the acting director-general of the Department of Cooperative Governance and Traditional Affairs, outlined the vision of the ministry and the department in the short and long term, emphasising the need to improve the quality of governance and service delivery by local government.
New Leaders, Persistant Challenges
The outcome of the elections of 22 April is critical for local government. The success of ‘developmental local government’ depends to a large extent on the choices the incoming national and provincial governments make around local government. For example, the review of provincial and local government, started by former Minister Sydney Mufamadi, will be completed under the auspices of the incoming national government. This article presents some perspectives of the Good Governance Learning Network (GGLN) that the incoming governments and the political parties that populate them may want to consider.
Holding the Municipal Executive To Account
The accountability of the executive to the council is a cardinal principle of good governance. Information flow is essential to holding it accountable for its decisions and performance in delivering services and meeting locally prioritised outcomes. A prerequsite for information flow is transparency in the manner in which the executive carries out its tasks, and this begs the question: are there fault lines in the design of the local government system that have given rise to a lack of accountability and responsiveness.
Strengthening Accountability and Political Oversight.
The Gauteng province took a policy decision in 2007 to promote municipal public accounts committees (MPACs) in municipalities in the province. Although these committees are structurally different from the standing committees on public accounts, (SCOPAs) they are to resemble SCOPA's. The main purpose of MPACs is to create a process of accounting that is more transparent, effective and efficient , thus enhancing political oversight and accountability in the use of municipal financial resources. MPACs are section 79 committees and fall within the domain of the speaker, who acts as the link between the MPAC and other municipal committees and structures.
From SALGA: Section 139 Interventions: Establishing a Regulatory Framework.
The Constitution demands that each sphere of government must respect the constitutional status, powers and functions of the other spheres and that each should exercise its powers and perform its functions without encroaching on the geographical, functional or institutional integrity of another sphere.
Section 139 Intervention
Section 139 of the Constitution authorises the provincial executive to intervene in a municipality when it does not fulfil its executive obligation in terms of legislation. This article seeks to introduce the rules and principles that can be derived from the Constitution.
Intervening into Warrenton
On 17 February 1999, the provincial executive of the Northern Cape Province intervened into the Warrenton municipality On 16 March, the matter was reported to the chairperson of the NCOP and three days later, the NCOP process got off to a start. This article will examine the circumstances that gave rise to the intervention, the handling of the intervention by all concerned and any lessons that may be learnt from it.
The Battle of Butterworth
Butterworth, an industrial and business centre halfway between East London and the former Transkei capital of Umtata, made history as the first municipality to be subjected to an intervention by provincial government under the 1996 Constitution The Eastern Cape provincial executive intervened in the Butterworth Transitional Local Council and assumed full responsibility for the administration of Butterworth.
Municipal Structures Act: Division of Powers and functions: Who does What in the District?
Section 83 of the Municipal Structures Act stipulates that a municipality has those functions and powers assigned to it in terms of sections 156 and 229 of the Constitution.
Provincial Supervision of the New Municipalities: The Challenges ahead
The Constitution requires from provinces to monitor, support and, if necessary intervene in a municipality. The new local government dispensation, establishing metropolitan, district and local municipalities, will impact on the way provinces execute their constitutional obligations of monitoring and support. This article examines how provinces should respond to those challenges.
Holding onto the Family Silver: Powers of MEC's in Respect of Certain Financial Matters.
Prior to the previous amalgamation process, some municipal councils engaged in measures designed to bind the succeeding councils into an array of long term agreements. Such measures included the entering into of long term employment contracts, granting of additional remuneration and allowances, leasing of council land and property for extended periods and other similar schemes that had an adverse effect on the finances of municipalities.
