Joint Workshop with National and
Provincial Legislatures
“Application of Section 139 of the
Constitution, and the need for legislation
to regulate its implementation”
2 November 2010
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PURPOSE
(1) Provide an overview of kinds of interventions;
(2) Rationale for section 139(8) legislation;
(3) Breakdown of interventions and categories of
challenges;
(4) Key findings from the past experiences;
(5) Key (ideal) success factors;
(6) Monitoring, Support and Intervention Bill; and
(7) Clarity on key issues the Bill has tried to
address from the past experiences.
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Types of constitutional
interventions: 3 Kinds
 Section 139 (1) provides for general intervention in
instances where a municipality fails to fulfil an
executive obligation;
 Section 139(4) provides for instances where a
municipality fails to approve a budget or any revenue
raising mechanism as required by legislation; and
 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.
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Section 100 and 139
(1) Section 100(3): National legislation may
regulate the process established by this
section.
(2) Section 139(8): National legislation may
regulate the implementation of this
section, including the processes
established by this section.
4
Other applicable
legislation
 MFMA (Municipal Finance Management Act,
2003;
 1998 & Local Government Laws Amendment
Act, 2009;
 South African Police Service, 1995;
 Housing Act, 1997;
 Intergovernmental Relations Framework Act,
2005.
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Why a need for Section
139(8) legislation

legislation on section 139 would ensure a consistent approach
to interventions;

Section 139(8) legislation would complement the provisions in
the MFMA, which provides a detailed framework for ‘financial’
interventions;

Section 139(8) would also supersede all other sector legislation
on the question. Sectoral legislation is increasingly referring to
interventions in terms of section 139 and MECs are sometimes
even obligated to exercise this supervisory power;

a uniform intervention regime would provide certainty for
municipalities as to the legal workings of the intervention that
they could be subjected to.
6
Interventions undertaken in the
municipalities: Breakdown
Total municipalities under section 139
51
Old section 139
7
Amended section 139(2003)
23
Municipalities currently under S139
21
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Categories of the nature of
problems experienced
Governance Political infightings, conflict between top
management and councillors, HR
management
Financial
Service
Delivery
Fraud and misuse of municipal funds and
property, lack of proper financial
systems, revenue collections, A-G
disclaimers
Related to section 152/153 of the
Constitution that clearly set out the
service delivery obligations of
municipalities
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Second Constitutional
Amendment Act of 2003

(i)
Section 139 of the Constitution was amended in 2003, the provisions
coming into effect on 11 July 2003. The following are the major effects of
the amendments:
The Provincial Executive has a prerogative in terms of the
amendments whether to issue a directive, assuming
responsibility or dissolving the municipal council by
substituting “and” with “or” in the old provision;
(ii) The Provincial Executive may now dissolve the municipal
Council and appointing an administrator if exceptional
circumstances warrant such a step (“exceptional
circumstances” is not defined);
(iii) The provisions empower the Provincial Executive to intervene
in cases of financial crisis in a municipality within its
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jurisdiction;
Second Constitutional
Amendment Act of 2003
(iv) Dissolution of the municipal council if the
municipality does not adopt a budget or revenue
raising measures to give effect to the budget;
(v) Time frames within which the Minister and the
NCOP to approve the intervention has been
extended from 14 and 30 days to 28 and 180 days
respectively; and
(vi) The national government may intervene in the stead
of the provincial government only in the application
of subsections 4 and 5.
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Key findings
(a) The vast majority of interventions were conducted in
terms of section 139(1)(b). The Provincial Executive
usually appointed a representative to assume the
authority over the entire municipal administration.
(b) 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. The value
and status of the directive might need to be reexamined in terms of emphasis.
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Key findings
(c) The intervention mechanism can also be used outside
the scenario of total collapse: more targeted
interventions are possible (New Castle LM).
(d) The limitation of section 139(1) to failures to fulfil an
“executive obligation” led to difficulties in interpreting
(a) when intervention is permitted and (b) what steps
are permitted.
(e) There is uncertainty regarding the nature of, and
required intensity of the intergovernmental checks
and balances, i.e. the review by the Minister and the
NCOP.
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Key findings
(f) There was little indication that Provincial Legislatures
exercised oversight over the Provincial Executives’
actions in terms of section 139.
(g) The involvement of district municipalities in
interventions (into local municipalities) seems apposite.
(h) Participation by the local community in the
implementation of section 139(1)(b) interventions is a
critical factor for its success (Oudtshoorn).
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Key (ideal) success
factors
Section 139(8) of the Constitution: “National legislation may
regulate the implementation of this section, including the
process established by this section”.
(a) Intervention is a targeted response to a failure to fulfil
obligations, whereby the most appropriate step is chosen out
of the variety offered by section 139.
(b) There should be clarity amongst all stakeholders on the legal
basis, appropriate steps and procedural requirements of
section 139.
(c) Provincial Executives have due regard to intergovernmental
checks and balances within and outside section 139.
(d) Provincial Executives adopt an incremental approach with, in
principle, the issuing of a 139(1)(a) directive as a regular first
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step.
Key (ideal) success
factors
(e) There is timely submission by the Provincial Executive of
complete documentation to the Minister, NCOP and
Provincial Legislature.
(f) The effective and immediate oversight over the actions of
the Provincial Executive is exercised by the Provincial
Legislature.
(g) The NCOP guards the fair and effective implementation of
the intervention by means of an objective review and by
means of useful recommendations to the Provincial
Executive.
(h) The role of the Provincial Executive and/or its
representatives at the municipal level is clear for all
stakeholders.
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Key (ideal) success
factors
(i) Interventions are carried out with an
‘intergovernmental approach’, with the involvement
of the district municipality (where applicable) as a
key strategy.
(j) Interventions are carried out with a strong focus on
participation with the local community in the
implementation of an intervention.
(k) The Provincial Executive ensure that there is a sound
exit strategy after a section 139(1)(b) intervention,
with a role for the district municipality in the ‘after
care’ (where applicable).
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Monitoring, Support and
Intervention Bill
(a) Regulate processes established in terms of
Section 100 of the Constitution;
(b) Regulate processes established in terms of
section 139 of the Constitution; and
(a) Monitoring and support in terms of section 154
and 155(6) of the Constitution.
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Structure of the Bill
 (Chapter 1): Preamble; Interpretation and
application of the Act;
 (Chapter 2): Monitoring and support of
municipalities; Early warning system;
 (Chapter 3): Provincial interventions in
municipalities;
 (Chapter 4): National interventions in provinces;
 (Chapter 5): Administrators in provincial and
municipal interventions;
 (Chapter 6): Miscellaneous.
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Clarity on key issues
“Executive obligations”




The Constitution limits intervention to the non-fulfilment of
an executive obligation “in terms of the Constitution or
legislation.”
This requires the intervening Cabinet or Provincial
Executive Council to identify the statutory source of the
executive obligations that are not being fulfilled;
In many interventions, the references to executive
obligations in the documentation submitted to the Minister
and NCOP are incomplete or inadequate;
The practice may render the interventions vulnerable to
legal challenges;
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Clarity on key issues
“Executive obligations”
 Meaning of “executive obligation” in the Bill, in relation to –
(a) a province, means an obligation placed on a province in terms
of the Constitution or legislation as contemplated in section
100(1), excluding an obligation to approve a budget or to pass
revenue raising measures or provincial legislation; or
(b) a municipality, means an obligation placed on a municipality in
terms of the Constitution or legislation as contemplated in
section 139(1), excluding an obligation to approve a budget or
to pass revenue raising measures or a by-law;
 Thus, “executive obligation” is defined in terms of section
160(2) of the Constitution. It means everything outside of the
issues listed in this section are constituting executive obligation.
20
Clarity on key issues
Monitoring & support of municipalities




Primary responsibility of ensuring municipalities fulfil their
executive obligation lies with the municipalities
themselves;
If municipality encounter signs of possible or impending
failures, it must immediately take remedial steps;
Municipality must establish self-monitoring systems and
must diagnose possible, impending or actual failures
followed by remedial steps; and MM must determine
whether national or provincial support is needed and what
kind of support;
Provinces must also monitor compliance by municipalities
of their executive obligations and must provides a
framework for the establishment of a provincial monitoring
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Clarity on key issues
Interrelation and conditionality
 Is a 139(1)(a) directive a precondition for
assumption of responsibility? The Constitutional
Court’s interpretation of section 100 suggests that
it is.
 2003 effected amendments to section 139 of the
Constitution by replacing “and” with and “or”.
 On the other hand, section 100 did not have such
an amendment.
 The Bill does not provide for this preconditionality.
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Clarity on key issues
Assumption of responsibility

To date, the 139(1)(b) intervention usually meant the
deployment of an administrator who ‘took over’ the affairs
of the municipality.

It should be noted that it is a subject for different
interpretation whether section 139(1)(b) allows for the
appointment of an “administrator”;

Example: In the Ngaka Modiri Molema intervention, the
municipality challenged the North West Provincial
Executive that the application of section 139(1)(b) does
not provide for the appointment of an “administrator”; 23
Clarity on key issues
Assumption of responsibility



The Bill provides for the appointment of an Administrator even
when invoking section 139(1)(b) – This is not against the
Constitution;
Section 100 allows for the appointment of an Administrator when
assuming the executive obligation and this is also covered in the
Bill;
Dissolution of provincial legislature and provincial legislative
council dealt with in terms of section 109 and 141 respectively.
Bill does not deal with these aspects.
Dissolution

Dissolution of the council can be done “if exceptional
circumstances warrants such a step’.
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Clarity on key issues
Suspension of councillors
 In the review of past interventions, the issue arose as
to whether section 139(1)(b) offers a legal basis for the
suspension of the council;
 The constitutional difficulty is that the suspension is
then based on the non-fulfilment of an executive
obligation but encroaches on both the executive and
legislative function of the council;
 The Bill does not seek to suspend the council, except
for undertaking certain identified executive obligation.
The councillors will still receive remuneration.
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Clarity on key issues
Court action




In certain instances, court action may be the appropriate intervention
mechanism outside of invocation of section 139 of the Constitution.
The situation obtained in Abaqulusi Municipality is an example. If a
municipal council refuses to accept the election of a councillor (even after a
section 139(1)(a) directive instructing it to do so) , obtaining a court order
may be an appropriate intervention.
Similarly, in August 2008, the Minister disapproved section 139 intervention
in the Amajuba District Municipality and advised that the matter can best be
resolved by applying legal route after the Council refused to accept specific
particular individuals appointed by a political party for a proportional
representation.
The Bill allows for court action to be used outside of section 139 of the
Constitution.
26
Clarity on key issues
Clarify the review role of the Cabinet member responsible for local
government affairs, NCOP and the Provincial Legislatures
 It is suggested that the Minister’s review role should be
specifically defined to include, procedural requirements
such as the issuing of a directive,

determine if the cited reasons for an intervention are
indeed executive obligations,

determine if there were any prior endeavours by the
provincial executive to resolve the matter with the
municipality (especially support issues),
 Role of the Minister regarding section 139(4) &(5):
Minister will still not have a role in the application of
section 100 in the Bill.
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Clarity on key issues
Clarify the review role of the Cabinet member responsible for
local government affairs, NCOP and the Provincial Legislatures



(i)
(ii)
(iii)
The absence of specific provisions in section 139 with regard to the
Provincial Legislature’s oversight role seems to have led to the
misguided conception that the Provincial Legislature hardly plays a
role.
One of the Provincial Legislature’s key functions is to exercise an
oversight role over the Provincial Executive.
The Bill is now dealing specifically with:
the oversight role of Provincial Legislatures;
the duty on Provincial Executive to furnish them with the relevant
information; and
the provincial legislatures assuming more the role as that of the
NCOP.
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THANK YOU
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