Strengthening parliamentary oversight on Section 139 interventions in municipalities

n By China Dodovu

During the last decade, a sizeable number of South Africa’s municipalities experienced repeated executive interventions invoked by various provincial governments due to their inability to fulfil their executive obligations under the constitution or due to the financial crisis which had reached unparalleled proportions.

More than 80 of these municipalities where either placed under administration or dissolved especially in provinces such as North West, Free State, KwaZulu-Natal and Northern Cape.

Under exceptional circumstances, the NEC had to also intervene due to the failures by the provincial governments to resolve persistent problems in municipalities. Currently, it has intervened in the Mangaung metropolitan municipality in Free State and Enock Mgijima local municipality in Eastern Cape.

The increasing number of inter - ventions and the way in which they are carried out call for parliament, especially its upper house, the National Council of Provinces (NCOP) to review and strengthen its oversight role in order to achieve high standards of accountability, transparency and responsibility when the executive authorities exercise their powers and perform their functions.

Throughout the world, especially in all the democratic political systems which uphold the doctrine of separation of powers between the three arms of state, parliaments are traditionally entrusted with the responsibility to perform oversight functions on all actions and decisions of the executives.

Perspective

Overseeing executive actions is a vital role of parliament which helps to enforce accountability and transparency and to promptly detect and prevent the abuse of power by the executive. It also helps parliament to prevent illegal and unconstitutional conduct by the executive and protects the rights and liberties of citizens.

Additionally, effective oversight helps parliament to hold government answerable for how taxpayers’ money is spent; makes government operations more transparent and increases public trust in the government.

When the executive fails to meet any of the standards above, it is parliament through its oversight function that holds it accountable to ensure that these standards are met by providing adequate mechanisms to challenge the executive for failure to meet them.

In terms Section 139 of the Constitution of the Republic of South Africa (Act 108 of 1996), when interventions happen, appropriate steps are taken to ensure the fulfillment of any obligation that a municipality fails to fulfil which include failure to adopt the budget or to raise revenue or a municipality is facing a financial crisis.

The interventions include issuing a directive, assuming responsibility for the relevant obligation in the municipality, imposing a financial recovery plan or even dissolving the municipal council where an administrator is appointed until a new municipal council is elected.

When Section 139 intervention is invoked, parliament must play an oversight function by receiving written notices of intervention within a prescribed timeframe, taking decisions to either approve or disapprove them, reviewing them regularly and making any appropriate recommendations on the interventions.

The NCOP’s role becomes more pronounced where it becomes a final authority on whether to approve or disapprove the intervention where its responsibility is to ensure that the constitutional, substantive and procedural processes are followed and observed by the executive.

The recent experience about the executive interventions is that they generally fail to yield the desired positive results. In some instances, where they are invoked, municipalities regress or even get worse off than before interventions.

Another weakness is that the provinces have inadequate or weak performance monitoring systems and do not have early warning systems to detect problems before they exacerbate.

In most instances, provinces cannot show any evidence that prior to the invocation of section 139, they would have sufficiently applied section 154 of the Constitution which obligates them to support municipalities and strengthen their capacities in order to exercise their powers, perform their functions and manage their own affairs.

Where interventions are invoked, they are not proactive but reactive and are weaponised as political instruments to settle factional battles and infightings.

In the North West and Free State provinces where most interventions have taken place, the relevant sector departments have not come on board to resolve specific issues identified as problematic in the municipalities.

The other problems include resistance and obstructionist tendencies where skepticism and reluctance to cooperate with the executive interventions has been identified to an extent that officials destroy documents while senior ones issue illegal instructions to the subordinates.

Due to the absence of legislation to regulate the executive support, monitoring and interventions to municipalities, the provinces use varying and inconsistent approaches to implement interventions.

Even the communities which are subjected to interventions are not often informed and consulted when interventions are invoked or during their implementation.

While national parliament has established mechanisms through Select Committees and Ad Hoc Committees to oversee the executive interventions, all these mechanisms are seen to be haphazard, ineffective and unsustainable. This is because parliament does not have either a framework or model to oversee executive interventions.

South Africa today requires stable municipalities which must in every step of the way, be sensitive, accountable and responsive to the needs of local communities.

It is the responsibility of the ex - ecutive authorities to support municipalities and to strengthen their capacities to exercise their powers, perform their functions and manage their affairs. The provinces must properly diagnose problems in municipalities and treat them before they become worse. This can be realised if they put up early warning systems to detect problems.

The executive authorities must strengthen their monitoring functions to municipalities and if problems which disable municipalities to perform their functions persist, interventions must be targeted by identifying and treating the areas of concern.

In order for interventions to have maximum impact, they must be carried out in an intergovernmental way, and using the District Development Model could be the best way to accomplish its predetermined goals where local communities play a participatory role.

When an intervention is terminated, the executive should develop an Exit Strategy which must include an After Care Strategy to ensure that the problems which would have instigated the interventions do not recur.

All the above proposals must be entailed in the intervention legislation which the government must fast-track.

Guided by these imperatives, the role of parliament becomes critical in overseeing the executive interventions. This can be realised if parliament eliminated existing gaps by introducing new innovations and by offering new and fresh perspectives on oversight.

It must be remembered that oversight is not only about parliament holding the executive arm of government accountable on behalf of the people but also, it is an important component of the system of checks and balances that ensures that no government wields enormous power in a democratic state.

The government and its decision-making processes on interventions can only stand to gain from the growing prominence and scope of parliamentary oversight n