Intergovernmental
Monitoring, Support and Intervention
Bill
5th National Municipal Managers Forum
Date: 30 April 2013
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OVERVIEW OF THE PRESENTATION
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Constitutional Context;
Constitutional Interventions Provision;
Development of the Bill;
Rationale behind section 100/ 139 Legislation;
Interventions undertaken so far;
Observations and current challenges;
What the Bill regulates and the Structure of the
Bill;
Salient features of the Bill; and
Process going forward.
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Constitutional Framework for
Monitoring, Support and Intervention
RSA Government System – Unitary state with limited
autonomy
(Cooperative
Governance
System
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distinctiveness, interdependent and interrelated);
Schedule 4&5 of Constitution allocates functional
responsibilities across the three spheres of government
(exclusive, concurrent and subsidiarity);
Premised on the principles of Cooperative Governance as
set out in Chapter 3 of the Constitution;
All spheres in the performance of their powers and
functions must provide for an effective, transparent,
accountable and coherent government for the republic as a
whole;
Spheres must cooperate with each other by monitoring and
supporting one another
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Constitutional Framework for
Monitoring, Support and Intervention
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Section 154 (1) of the Constitution provides that national
government and provincial government, by legislation and
other measures, must support and strengthen the capacity of
municipalities to manage their own affairs, to exercise their
own powers and functions;
Section 155(6) of the Constitution provides that each
provincial government must, amongst others, provide for the
monitoring and support of local government in the province;
and promote the development of local government capacity
to enable the municipalities to perform their functions and
manage their own affairs;
There is a supervisory responsibility attach to the supporting
and monitoring role of National and Provincial government;
(guard against instances when one sphere cannot or does
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not fulfill its constitutional obligations
Constitutional Intervention Provision
Corrective Measures:
•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 ensure fulfilment of that
obligation;
•Section 139 (1) of the Constitution have similar provisions but
pertains to provincial government intervening in a municipality
within its jurisdiction;
Section 100 (3) and 139 (8) provides that national legislation
may be enacted to regulate the processes established by these
two sections.
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Development of the Bill
• Bill has been developed drawing from empirical data and
lessons learned from experiences of interventions over past
years;
• Comprehensive Interventions Report, Guidelines and Toolkits
were developed to application;
• Extensive consultations within government, particularly
National Sector Department, Provincial Dept of Local
Government and Local Government Sector, SALGA and LG
MinMec;
• NEC Sub-committee L&G has been processed the Bill in the
past years culminating in the Mangaung Resolution on the Bill;
• State Law Advisor has been engaged and detailed comments
received that strengthens legality and testing muster of the
Constitutionality of the Bill; and
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• Participated in the Presidential Task Team on Limpopo.
Rationale of the Bill
To provide for support and intervention measures to strengthen
the capacity performance of each sphere to fulfil its executive
obligations; and to
• Stabilise the interventions environment through clearer
procedures and processes for undertaking both S100 and S139
interventions;
• Establish, together with DPME and Sector Department, a range
of sector norms and standards for service delivery to better
define executive obligations;
• Ensure interventions are used as a ‘last resort’ and prevent
conflictual interventions through providing pre-intervention
measures for provision of support, for ‘early-warning systems,
and for comprehensive monitoring of performance across
government
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Rationale for the Bill
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Sector 100 legislation is designed to provide for procedure
and processes for National interventions into provinces,
similar to those provided for in section 139;
The legislation, seeks to ensure a consistent and uniform
approach to the application of an intervention at both
Provincial and Local level;
The legislation emphasises the need for early warning
systems and targeted support before an invocation of an
intervention;
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.
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Interventions: Provincial Breakdown
Province
No. of Interventions
North West
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Free State
Gauteng
Northern Cape
Eastern Cape
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2
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Mpumalanga
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Kwazulu-Natal
Western Cape
Limpopo
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3
0
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Observations from Past Interventions
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There is uncertainty regarding the procedures and required
intensity to follow for intergovernmental checks and balances;
i.e. the review by the Minister and the NCOP;
There was little indication that the provincial legislatures
exercised oversight over the Provincial Executives’ actions in
regard to section 139 interventions;
The role of district municipalities in interventions (into local
municipalities) had not had desired role-playing;
There has been a lack of targeted monitoring, oversight and
support mechanisms before the invocation of an intervention
(e.g. ‘early-warning’ for performance failures to avert the need
for an intervention);
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Observations from Past Interventions
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More often than not, the provinces lack the capacity to deal
with their mandate of monitoring and supporting local
government in terms of personnel, funds, institutional
knowledge, and expertise;
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Some of the interventions could have been prevented if an early
warning system, leading to proper support, had been in place;
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The effectiveness of the interventions can be questioned. Are
the interventions curative or were they simply temporary takeovers without the necessary skills transfers? (political triggers)
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Directives in terms of section 139(1)(a) were not often issued or
were at least not part of the documentation for review by the
Minister and/or the NCOP.
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Latest additions to the Bill
Presidential Task Team was established to assess the issues and
conduct emanating from the Limpopo Interventions;
Key issue:
• Monitoring and early warning signals;
• Clarify what constitute failure to perform executive obligation;
• Clarify accountability lines and roles of different stakeholders
in an intervention, e.g. Administrator, HOD’s, Ministers,
Premier’s, MEC’s and Mayors and MM;
• Ensure sustainable outcomes of interventions;
• Synergise MSI Bill with PFMA, PSA and PSCA,
• Possible Constitutional amendment to synergise Section 100
with Section 139 provisions on the triggers for interventions,
etc
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Constitutional Amendments
Key issues have emerged that require Constitutional
Amendment:
Key issue:
• Synergise Section 100 with Section 139 provisions on the
financial triggers for interventions;
• Amend section 100 and 139 on the obligatory and
discretionary nature of a“Directive”;
• Amend procedures and timelines for approval by Minister and
NCOP;
• Create role Provincial legislatures
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Structure of the Bill
(a)
(b)
(c)
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Regulate processes established in terms of Section 100 of the
Constitution;
Regulate processes established in terms of section 139 of the
Constitution; and
Monitoring and support in terms of section 154 and 155(6) of the
Constitution.
Chapter 1: Interpretation and application of Act;
Chapter 2: National interventions in provinces;
Chapter 3: Monitoring and support of municipalities (early warning
system and targeted national and provincial support matters in
complementing section 154 and 155(6) of the Constitution);
Chapter 4: Provincial interventions in municipalities;
Chapter 5: Administrators in provincial and municipal interventions; and
Chapter 6: Miscellaneous (inter alia costs of interventions & Minister’s
issued regulations assisting in the application of the Act).
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The Salient Features of the Bill
(a)Provides for a clear definition of what constitute an “executive
obligation” which has always been problematic for the
provinces to interpret;
(b) Provides for different kinds of intervention ‘options’ as
deemed most appropriate;
(c)Provides for the Minister or the Minister and another Minister
jointly to be delegated authority to intervene in terms of
section 100 (and MEC in terms of section 139);
(d) Provides for all notices of interventions must be submitted to
the NCOP, National Treasury, the national department having
a sectoral interest in the intervention, and the Minister of
Cooperative Governance;
(e)Provides for notices of intervention (and termination thereof)
must be published in a Government Gazette and at least one
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newspaper circulating in the province;
The Salient Features of the Bill conti...
(f)
Provides for regular or minimum 3 months review of the
intervention, including the effectiveness of the intervention
must be undertaken and reported to the Minister as such;
(g)Provides for aspects that there must be capacity building and
transfer of skills before there can be any consideration of
termination of an intervention;
(h) Provides for an early warning system and monitoring and
reporting systems in terms of section 154(1) of the
Constitution. The current revisions to the Bill also propose the
monitoring of provincial governments’ performance;
(i) Provides for a national or provincial monitoring system as may
be prescribed;
(j) Minister is empowered to issue a list of persons that may only
be considered to be appointed as administrators in
interventions from time to time in the Government Gazette; 16
The Salient Features of the Bill conti..
(k) The Minister may make regulations not inconsistent with this
Bill by prescribing:
(i) any matter that may be prescribed in terms of this Act;
(ii)sources of information for provincial monitoring systems;
(iii) procedures for including persons on the list of persons
approved for appointment as administrators;
(iv) scales of remuneration, benefits and other terms and
conditions of appointment of persons in private practice
appointed as administrators;
(v)mechanisms and procedures to resolve disputes arising from
section 100(1) interventions; and
(vi) any other matter necessary for facilitating the application of
this Act.
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Way Forward and Recommendations
• Submission to Cabinet in May 2013, for approval and gazette
for Public comments;
• Introduce the Bill to Parliament for promulgation in June/July
2013;
• Finalise the Regulation to guide implementation of the Act –
concurrent with processing of the Bill by Parliament; and
• National Municipal Managers Forum to provide comments
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THANK YOU
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