Local Government, Environmental Affairs and Development Planning
Question by Hon Stoffel.
How many times has the provincial government intervened in municipalities using section 139 and/or section 106 of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000), in (i) 2019, (ii) 2020, (iii) 2021, (iv) 2022, (v) 2023 and (vi) 2024 to date, (b) what specific factors were considered for each intervention before deciding to intervene and (c) why has the provincial government not intervened in the City of Cape Town where the former Member of the Mayoral Committee for Human Settlements is currently facing court charges related to maladministration, fraud and alleged collusion with the construction mafia?
Interventions in terms of section 139 of the Constitution | |
Garden Route District Municipality | Section 139(1)(a) intervention approved by the Provincial Executive on 18 October 2024. |
Theewaterskloof Local Municipality | Section 139(5) intervention approved by the Provincial Executive on 6 November 2024. |
No section 106 investigations have been initiated in the 2024/25 financial year.
(b) Factors considered during the section 139 interventions cited in question (a) above include the following:
Municipality | Interventions in terms of section 139 of the Constitution |
Garden Route District Municipality | Factors considered before deciding to intervene in terms of the section 139(1)(a) of the Constitution included consideration of whether the Municipality has refused or has failed to fulfil an executive obligation in terms of the Constitution.
Besides the consideration of the Municipality’s executive obligations, the explicit obligation to prevent and recover fruitless and wasteful expenditure was also considered through which statutory provisions permit the provincial executive to intervene under section 139 of the Constitution. Chapter 4 of the Local Government: Municipal Finance Management Act, in terms of section 27(5) of the Act confirms that: “The provincial executive may intervene in terms of the appropriate provision of section 139 of the Constitution, if a municipality cannot or does not comply with a provision of this Chapter, including a provision relating to process.” |
Theewaterskloof Local Municipality | Factors considered before deciding to intervene in terms of the section 139(5) of the Constitution included a legislative threshold assessment as determined by section 140(1) to (3) of the MFMA. In accordance hereto, the Provincial Treasury assessed the Municipality and found the Municipality to have triggered criteria set out in section 140 of the MFMA indicating that the Municipality is in serious material breach of its obligations to meet its financial commitments requiring a mandatory intervention in terms of section 139(5) of the Constitution. |
(c) Section 106 of the Systems Act regulates the powers of the Provincial Minister to initiate investigations into allegations of maladministration, fraud, corruption, and/or any other serious malpractice that has occurred or is occurring in a Municipality. The Provincial Minister is required to assess all available information objectively, before taking a decision on the necessity for a provincial investigation. A pre-investigation assessment is conducted in order to objectively assess all available information before taking a decision on the necessity for a provincial investigation.
In terms of section 106 of the Systems Act, the Provincial Minister can take action as described in the above-mentioned legislation, only if he has reason to believe that maladministration, fraud, corruption or any other serious malpractice has occurred or is occurring in a municipality in the Province.
Provincial investigations into allegations of maladministration, fraud, corruption and/or any other serious malpractice are subject to strict Constitutional and statutory parameters before the Provincial Minister can invoke his powers in terms of the Systems Act. The Provincial Minister is only empowered to designate investigators in accordance with section 106 of the Systems Act if an investigation is deemed necessary.
In context of the City of Cape Town matter, no formal complaint has been received by the Provincial Minister to consider or initiate investigations into the specific allegations referred to. This matter has furthermore been investigated by the HAWKS, which have made a number of arrests and are conducting a criminal investigation into the allegations. It should be noted, in this regard, that the intention behind a section 106 investigation is not to conduct a criminal investigation.
