PRESENTATION TO IMFO
CONFERENCE
30 September 2013
Presenter: Mr Muthotho Sigidi
Department of Cooperative Governance
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PURPOSE of the PRESENTATION
1. To profile the interventions regime under S100 and
S139 of the Constitution.
2. To present on a range of lessons learned re S100
and S139 interventions.
3. To review the processes and status of the draft IMSI
Bill as informed by policy and practice to date.
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TYPES OF INTERVENTIONS: THE CONSTITUTION
1.
Section 100(1) of the Constitution provides that when a
province cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the national
executive may intervene by taking any appropriate steps to
ensure fulfilment of that obligation.
2.
Section 139(1) of the Constitution has similar provisions
but pertains to provincial government intervening in a
municipality within its jurisdiction.
3.
Section 100(3) and 139(8) provides that national legislation
may be enacted to regulate the processes established by
these sections.
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OVERVIEW: S100
• In March 2011 national government announced an intervention in the
Eastern Cape, which was later followed by two more interventions in
Free State and Limpopo in December of the same year.
• A Joint sitting of the Select Committees on Finance, Public Services,
Education, Appropriations and Social Services (Feb 2012) met
thereafter to discuss interventions in provinces and the roles of
national departments.
• Members considered the role of the NCOP in oversight, the provincial
legislatures, particularly the Public Accounts Committees, as well as
pointed out the need for the exercise of specific oversight over the
affected departments.
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SECTION 100 INTERVENTIONS
PROVINCE
DATE OF
INVOCATION
DATE OF
TERMINATION
DEPARTMENT/S
EASTERN CAPE
March 2011
In Progress
1 Department (Basic Education)
FREE STATE
December 2011
In Progress
2 Departments (Provincial
Treasury; and Police, Roads and
Transport)
LIMPOPO
December 2011
In Progress
5 Departments (Provincial
Treasury; Basic Education;
Health; Roads and Transport;
and Public Works)
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ASSIGNMENT TO LEGISLATE

The President in 2012, pronounced that the Ministry of
Cooperative Governance has been delegated with the
development of legislation as required by sections 100(3)
and 139(8); it should also tap into the experiences of
provincial intervention teams, to assist with the drafting of
the new interventions framework.

CoGTA has to thus consolidate the legislative concerns of all
parties, and provide certainty on the roles of each sphere of
government, as well as define its administrative and
oversight roles.
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ASSIGNMENT TO LEGISLATE
CoGTA was given an ‘urgent’ mandate to:
1. Provide synergy between the existing IMSI Bill, with the Public
Service Act (DPSA), and financial interventions ‘triggers’ and
management with the PFMA.
2. Undertake consultative processes to ascertain necessary
amendments to the IMSI Bill to strengthen scope and
authority for provincial interventions.
3. Provide clarity on the roles of MECS and assigned
Administrators, during an intervention, as well as the roles
and obligations of the various role-players during an
intervention.
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ASSIGNMENT TO LEGISLATE
National Departments were to collaborate to ensure:
Provision of a regulatory framework for Provincial Government
(CoGTA)
 More effective management of concurrent functions (CoGTA)
 Establishment of norms and standards for concurrent functions
(DPME)
 Creation of objective criteria linked to demonstrable evidence
of failure to perform executive obligations (CoGTA, DPME)
 Stronger oversight and regulatory environment for conditions of
service and administrative matters (DPSA).
 Strengthened financial oversight (NT) .

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ASSIGNMENT TO LEGISLATE
7. An Inter-departmental Technical Task Team was established
to manage and coordinate the redrafting of the MSI Bill.
8. The Technical task team comprises of: DCoG, DPSA, National
Treasury, DPME and the Public Service Commission.
9. Each department was tasked to work on the revised drafts of
certain sections of the IMSI Bill and also propose
amendments to their own legislations : e.g PFMA; MFMA
and the PSA.
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KEY FEATURES OF DRAFT S100 LEGISLATION
Provides for:
(i) The Minister, or the Minister and another Minister jointly, may be
delegated authority to intervene in terms of section 100.
(ii) A clear definition of what constitutes an ‘executive obligation’, (as
per the Constitutional trigger re ‘failure to perform’).
(iii) All notices of interventions to be submitted to the NCOP, National
Treasury, the national department having a sectoral interest in
the intervention, and the DCoG Ministry.
(iv) Regular or minimum 3 monthly reviews of the intervention to be
undertaken, covering the effectiveness of the intervention, and
reported to the CoGTA Minister.
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CURRENT STATUS OF S100 LEGISLATION
• The Department has received representation from the Minister responsible for
public service and administration regarding the placing of the responsibility of
section 100 of the Constitution.
• The DPSA has requested that the Intergovernmental Monitoring, Support and
Interventions Bill should exclude all the processes relating to section 100 of the
Constitution; the DPSA is intending to amend the Public Service Act, 1994 to
regulate the process established by this section.
The Department of Public Service and Administration (DPSA) has developed:
a) The Provincial Monitoring, Support and Intervention Bill, and
b) The Public Administration Management Act (PAMB)
Both of which impact on provincial governance.
COGTA and the DPSA are advised by FOSAD to meet to establish a way forward
regarding the separation or not, of the IMSI Bill re S100 provisions.
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SECTION 139 INTERVENTIONS
I.
In terms of section 139 (1) of the Constitution the provincial
executive has the power to intervene into the local government
affairs when a municipality cannot or does not fulfil an executive
obligation in terms of the Constitution or legislation.
II.
Section 139(1) provides for general intervention in instances
where a municipality fails to fulfil an executive obligation (this is
a provincial discretionary intervention);
III.
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
IV.
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).
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OVERVIEW OF GENERIC CHALLENGES IN S139 MUNICIPALITIES
Governance
Financial
Service
Delivery
Challenges persist in the political/administrative interface: e.g. conflicts
between top management and councillors and political in-fighting; there
may be non-adherence to the Code of Conduct for Councillors and
inability of a Council to perform as required by legislation. Often cited is
poor or non-performance of top management, lack of proper
organisational structures and vacant post in key management positions
(e.g. technical, engineering, planning).
Financial mismanagement: this includes a lack of adequate systems and
capacity to effectively manage financial resources; e.g. insufficient
revenue raising due to weak billing and tariff systems, and weak debt
collection policies; poor budgeting; lack of internal controls related to
revenue management allowing for fraud, and misuse of municipal funds;
lack of controls through internal audit and risk management committees.
Sections 152 and 153 of the Constitution clearly set out the service
delivery obligations of municipalities, this is often highly uneven and may
significantly lag demand; there may be high debt levels for bulk water
and electricity purchases, and little or no spending on repairs and
maintenance, resulting in distribution losses, breakdowns of systems, or
services not rendered.
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CURRENT INTERVENTIONS
Currently there are 13 municipalities in 4 provinces under
administration in terms of S139 (10 municipalities) and of S136
(MFMA) (3 municipalities).
Province (No.)
Municipality (ies)
KwaZulu-Natal [ S139 (1) (b) - 4]
S136 Financial Intervention
(MFMA) - 3
Imbabazane LM, Indaka LM, Abaqulusi LM, Umvoti
LM,
Ugu DM, Uthukela DM, Umzinyathi DM
Eastern Cape [S139 (1) (b) - 1]
Mnquma LM
Mpumalanga [S139 (1) (b) - 2]
Emalahleni LM, Bushbuckridge LM
North West [S139 (1) (b) - 3]
Matlosana LM, Ditsobotla LM, Maquassi Hills LM
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TRIGGERS FOR REFORMS: – LEARNING FROM PRACTICE
•
•
•
•
Pre–intervention Directives in terms of section 139(1)(a) not
always issued prior to the intervention.
Monitoring can be highly uneven, including analysis and
action on S139 Review Reports.
Degree of Provincial Legislature oversight over the Provincial
Executive uncertain.
District municipalities have not determined their support
roles: e.g. request progress reports on S139 municipalities at
their IGR Forums, determine areas of support; escalate
matters to LG MinMec.
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TRIGGERS FOR REFORMS: – LEARNING FROM PRACTICE

An intervention should be used as a ‘last resort’; ‘early-warning’ and
pre-intervention support mechanisms are needed.

The provincial duty to monitor and support local government is
undermined by insufficient personnel, funds, institutional knowledge,
and expertise to drive systemic monitoring and support initiatives.

Sustainability uneven: complexities of the root causes; need to review
overall viability i.r.o some municipalities.
The IMSI Bill frames roles and responsibilities across and
between spheres: it will require an intergovernmental
response re suitable capacities and skills to implement.
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Summary Objectives:
Stabilise the interventions environment through:
1. Clearer procedures and processes for undertaking both
S100 and S139 interventions;
2. Establish, together with DPME, a range of sector norms
and standards for service delivery to better define
executive obligations;
3. Ensure that interventions are used as a ‘last resort’ and
prevent ‘conflictual interventions’ through providing preintervention measures for provision of support.
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Summary Objectives:
4.
Providing for a consistent and uniform approach to the
application of an intervention at both provincial and local level
(and rationalising procedurally, re both S139 and S100);
5.
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.
Status
The IMSI Bill is ready for Cabinet: it will be processed through
Cabinet and Parliament during 2014/2015, either as is, or separated
as S139 legislation.
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CURRENT S139 SUPPORT MEASURES
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CoGTA initiative for Joint Programme: Support and Monitoring
Project Management
Initiative
Verify accuracy of data and information on 1. Assess ‘state of play’ and agree proposed
municipalities under S139, S136, and priority support measures required per
establish records.
category.
2. Agree approaches with stakeholders.
3. Agree key indicators per category
Create simple system for Monitoring and (Governance, Finance, Service Delivery)
Evaluation to determine
between DCOG, Provinces, Treasuries, AG
a) Progress of the S139 intervention;
and other stakeholders.
b) Support measures adopted; and
c) Effectiveness of support measures.
4. Establish shared platform for reporting by
government and stakeholders on progress
with implementation of support measures.
CoGTA initiative for Joint Programme: Support and Monitoring:
Finance and Governance
Challenge
Enhance Financial and Governance
Competencies
Initiative
Consolidate the provision of initiatives
by provinces, National Treasury, AuditorGeneral, LGSETA, IMFO
Determine :
• Areas not yet being addressed
• The reason why impact is not yet
sufficient
• Craft inter-sectoral plan in place to
address challenges
• Maintain oversight through joint
programme.
Support Approaches strategies to address challenges
Available through the department:
• Deploy critical technical skills through MISA
• Monitor rigorously the implementation of the amended Municipal Systems
Act.
• Strengthen oversight structures like s79 Committees, Audit Committees and
Ethics Committees.
• Engage in partnerships for support programmes.
Not within the control of the department:
• The political environment in municipal spaces: e.g. coalitions, which can
lead to continuous chopping and changing of Mayors and speakers; plus
overall problem of political in-fighting and tensions and interference in the
political/administrative interface.
• Rectifying financial mismanagement, holding to account, ‘consequences’ and
technical support for financial turnaround.
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Thank you..
Siyabonga
Nkosi
Dankie
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