Category: PSAM in the News

Concern at call for administration

Concern at call for administration

Council officials expressed surprise at a demand from a coalition calling themselves Concerned Citizens of Grahamstown,  acting with the support of attorneys Wheeldon Rushmere and Cole, that Makana Municipality be placed under administration in terms of Section 139(5) of the Constitution. And an expert has expressed doubt that the Province has the capacity to implement full administration.

The details of the demand were contained in a letter addressed to the Mayor, and circulated to media, councillors and political parties as well as municipal officials.

Signed by the chairperson of a group called the Concerned Citizens Committee, Ron Weissenberg, the letter refers to a special council meeting on 27 June in which alarming details of the municipality’s financial state were disclosed by councillors and officials.

The letter cited items in the agenda, most of which were discussed in the council meeting, including Makana’s debt of R146 184 978 as of the end of May 2017, and uncollected debt due to Makana of R366 812 651. Also discussed in the June meeting was the excessive overtime and wage bill. This is cited in the letter:

“80% of the municipality’s income is spent on salaries and on servicing debts. Overtime payment amounted to R5 000 000 per annum whilst only R2.1 million was budgeted for.”

READ THE FULL DOCUMENT HERE:
2017 Administration call by Concerned Citizens 05072017_150614

However, while the letter points out the Mayor’s and the Council’s admission that the financial crisis means they are unable to perform their Constitutional obligations, Council officials believe the demand for administration flies in the face of a decision taken in the Council meeting.

Acting municipal manager Dali Mlenzana said he was taken aback.

“The Council openly admitted the financial crisis and a resolution was taken, among other things, to mandate the Mayor to form a task team to work together in addressing it. The very people we had earmarked to be in this think tank are the ones now going ahead before any discussions on strategies to turn this municipality around,” Mlenzana said.

“This is how a democracy works, however, and just because we didn’t see the punch coming, it doesn’t mean we shouldn’t meet with these groups to try and understand their position. Even though we are baffled by this action, we will speak to them.”

Spokesperson for the DA’s Makana caucus Mlindi Nhanha was sceptical about the value to Makana of another round of administration.

“We can call for administration tomorrow,” Nhanha said. “Bhisho will bring a deployee who will earn a fat cheque and nothing will happen – instead pushing us back two or three months.

“This group should rather put their energy into insisting that National Treasury and the Department of Cooperative Governance and Traditional Affairs (Cogta)  provide the support they promised when they agreed to the terms of Makana’s financial recovery plan.”

ANC chief whip in Makana Mabhuti Matyumza Thursday declined to comment on the document, saying the caucus was yet to discuss it.

“There are a number of procedures to be followed when calling for administration, and these have implications. We will consider the document as a party; however, we will respond according to what we feel is best for the whole community, rather than a party-based response,” Matyumza said.

Local government researcher at the Public Service Accountability Monitor Lungile Penxa said there was a risk of the Province intervening for the sake of compliance.

“Makana civic organisations are mostly calling for the municipality to be placed under full administration,” Penxa said. “If It is feasible, Cogta, the office of the Premier and Provincial Treasury can intervene in Makana Municipality under section 139 (1) (b) (i) (iii) and s139 (5) (a). If the previous interventions by these three provincial departments were implemented by the Municipality, this will increase chances of them intervening again. If not, it means they will be intervening for the sake of compliance.”

Penxa said it was important to also think about whether these provincial departments had capacity to implement full administration. “Most municipalities in the province and in the entire county are in a financial and administrative crisis,” Penxa said.

“The Makana Unity League is proposing an intervention under section 139(5) of the RSA Constitution. Section 139 (5) of the Constitution is about a financial assistance which is not the root cause of the problem in the Makana Municipality; the municipal problems require more than just money.”

Penxa said when the municipality was previously placed under administration based on Section 139 (1) (b), there was a financial recovery plan in place to assist the municipality.

“Did the municipality implement this recovery plan? How effective was it to address the problems of the municipality, which still persist today? Did the Eastern Cape Cogta, Premier and the Eastern Cape Provincial Treasury monitor the implementation of this recovery plan? The current financial problems are clearly signs that the Municipal problems are more than just money.”

READ PENXA’S FULL COMMENT HERE:
Comment on call for full admin of MM

Recent events in the political arena have left many South Africans wondering what can be done to legitimately remove Jacob Zuma from his position as President of South Africa. Below is an overview of the options permitted by the Constitution of South Africa provided certain conditions are met.

Before I launch into these options, it is necessary to explain why our President’s removal is considered necessary by some members of civil society who are at the forefront of the ‘Zuma must Fall’ movement. Not only has a court ruled that the 783 corruption charges against Jacob Zuma should be reinstated,[1] but the Constitutional Court found last year that the President breached the Constitution when he failed to implement the findings of the Public Protector’s Nkandla report.[2] Jacob Zuma has also failed to pay back R7,8 million out of the R 246 million of tax payer money that was used to build non-security features at his Nkandla homestead. This is R7,8 million of YOUR money which could have been used to provide YOU with a better education, better housing and better healthcare. Jacob Zuma’s blatant disregard for the wellbeing of citizens is also apparent in his disastrous decision to keep our incompetent Minister of Social Development whose irresponsible actions could have left approximately 17 million people without social grants.[3] The State Capture report is further evidence of our President’s disregard for our Country and its citizens. The report shows how our Country is being run, not by our President, but by a wealthy family in accordance with their business interests.[4] These decisions are all to the absolute detriment of accountable public resource management, governance and – ultimately- to the effective delivery of public services.

Apart from the President taking a decision to resign from his post, the Constitution allows for the impeachment of the President (in terms of s89) where the President has; seriously violated the Constitution or the law; behaved in a way which constitutes serious misconduct, or where the President is found to be unable to “perform the functions of office”. In such circumstances, the National Assembly, can vote for the President’s impeachment, provided two thirds of its members support such a resolution.[5] A significant consequence of this avenue of ‘removal’ is that the President will not be entitled to receive the benefits afforded to him by virtue of being the President, and he is also prevented from holding public office in the future.[6]

In terms of s102(2) of the Constitution,  a ‘motion of no confidence’ can be brought against the President. It is this option which has increasingly gained traction in recent years. In order for the public to get to grips with this avenue and to understand why the previous 7 motions of no confidence have been unsuccessful, it is necessary to explain the intricacies around this issue.

Section 102(2) of the Constitution, states that if a simple majority of the National Assembly votes in favour of a motion of no confidence in the President, the President along with his Cabinet and Deputy Ministers must resign.[7] This process seems simple enough, however, there are many underlying factors which influence the way members of the National Assembly vote.

One of the underlying factors is that members of parliament (MPs) within the majority party (the African National Congress (ANC)) may lose their seats in the National Assembly if they vote in favour of a motion of no confidence in their current President. South Africa’s electoral system consists of proportional representation informed by a party list system. While MP’s are representatives of their constituencies, recent history has shown repeatedly that loyalty to their political bosses remains their guiding priority, especially where their oversight actions may result in action against them by their superiors.  This latter point has been reiterated by the Premier of Mpumalanga who recently warned that ANC MPs will be removed if they vote in favour of a motion of no confidence.[8] With this in mind, it is understandable that a considerable number of MPs are reluctant to vote in favour of such a motion as it could affect their own political livelihood.

Of course, a solution to this problem would be to conduct the voting on a motion of no confidence using a secret ballot which would conceal which MP’s voted for and against the motion. Currently, there is confusion surrounding the use of a secret ballot in this regard.

Rule 103 of the 9th Edition of the National Assembly Rules directs that decisions are to be made using an electronic voting system if the chamber in which the decision is taken is equipped with this type of technology. Furthermore, Rule 104 states that, where electronic voting is not possible, MPs must vote manually. In both scenarios, the identity and the way in which the votes were cast are public knowledge. The only motion which specifically requires a secret ballot is where the National Assembly is electing the President and the name of more than one person has been put forward for this position.[9]

In 2015, an application was brought in the Western Cape High Court to ask, inter alia, that the Court hand down an order allowing for a vote of no confidence to be exercised using a secret ballot.[10] In this case, the Court held that s57 of the Constitution directs that rules and regulations of the National Assembly are to be determined by the National Assembly itself.[11] Furthermore, if the Court were to direct the Speaker of the National Assembly to conduct a vote of no confidence by way of a secret ballot, it would be violating the principle of separation of powers which is sacrosanct in our constitutional democracy.[12] However, the Court specifically stated that “it is within the power and privilege of the National Assembly to amend the Rules of the National Assembly to provide for voting by secret ballot”.[13] It is therefore possible that a vote of no confidence is exercised by way of a secret ballot, but the decision to do so would need to be affirmed by a majority of the National Assembly.[14]

While the Speaker has contended that she does not have a discretion to allow a secret vote during the upcoming motion of no confidence, Constitutional Law expert Professor Pierre de Vos has highlighted that in fact, the Speaker has a discretion to order that a vote be conducted by way of a secret ballot.[15] After declaring that votes must be exercised electronically, rule 103(1) of the National Assembly specifically states that the presiding officer may direct otherwise. Furthermore, rule 104(1) directs that, “where no electronic voting system is in operation, a manual voting system may be used in accordance with a procedure predetermined by the Speaker and directives to be announced by the presiding officer”.[16]

If the Speaker does not direct otherwise, the majority of the National Assembly may decide to vote on the motion of no confidence via a secret ballot in accordance with s57 of the Constitution.[17]

In addition to the above and as Prof. Pierre de Vos explains, members of Parliament must be reminded that in terms of s8(1)(c) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures  Act[18]; “a person may not… attempt to compel a member to declare himself or herself in favour of or against anything pending before or proposed or expected to be submitted to Parliament or a House or committee”. This significant provision supports the view that MPs should (a) have the right to vote according to their consciences and beliefs rather than according to the dominant views of their  political bosses and (b) that MPs should not be subjected to intimidation and compulsion in the lead up to and whilst exercising their constitutional obligations.

The United Democratic Movement (UDM) has filed papers at the Constitutional Court asking that a secret ballot occur during the upcoming vote of no confidence in President Jacob Zuma. Yet again the highest court in South Africa is being called upon to adjudicate (at the expense of the taxpayer) the extent to which MPs and the Executive should be held accountable for their decisions and actions. Having said that, the judgment will at least provide us with much more clarity on the issue of the use of secret ballots.

 

By: Nicola Sülter

[1] http://www.news24.com/SouthAfrica/News/concourt-refuses-to-hear-npa-appeal-on-zuma-corruption-charges-da-20161007

[2] Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 para 36.

[3] https://www.dailymaverick.co.za/opinionista/2017-03-08-sassas-forgotten-17-million-are-real-people/#.WRFgQtwlHDc

[4] https://www.dailymaverick.co.za/article/2017-04-11-iss-today-south-africa-pays-the-price-of-state-capture/#.WRFdX9wlHDc

[5] S89(1) of the Constitution of the Republic of South Africa.

[6] S89(2) of the Constitution of the Republic of South Africa.

[7] S102(2) of the Constitution of the Republic of South Africa.

[8] http://www.news24.com/SouthAfrica/News/anc-mps-must-toe-party-line-or-be-replaced-mabuza-20170403.

[9] Schedule 3, section 6 of the Constitution of South Africa.

[10] 2016 (1) SA 534 (WCC) at 5.

[11] 2016 (1) SA 534 (WCC).

[12] 2016 (1) SA 534 (WCC).

[13] 2016 (1) SA 534 (WCC) at 123.

[14] S53(1)(c) of the Constitution of South Africa.

[15] http://constitutionallyspeaking.co.za/on-a-secret-ballot-in-the-no-confidence-vote-against-president-zuma/.

[16] R104(1) of the Rules of the National Assembly, 9th ed.

[17] S57 of the Constitution of the Republic of South Africa.

[18] Act 4 of 2004.

WHAT ROLE DOES THE MUNICIPAL INFRASTRUCTURE GRANT (MIG) PLAY   IN THE CASH-STRAPPED MAKANA MUNICIPALITY (MM)?

07 April 2017

By Lungile Penxa

The Municipal Infrastructure Grant (MIG) is a conditional grant from the national government that goes to local government for maintaining and improving municipal infrastructure. The Municipal Finance Governance (MFG) programme of the Eastern Cape Provincial Treasury monitors the MIG expenditure, because it affects the allocation of resources from the National Fiscus.

Within the Makana Municipality jurisdiction, it is widely known that Makana Municipality has ageing infrastructure. In the 2015/16 financial year, the Municipality was allocated their portion of the MIG to maintain and improve their infrastructure. Has the Municipality appropriately spent their MIG on its infrastructure? What was prioritised in the spending? It was definitely not roads because the results are not positively showing. If the MIG allocations for 2015/16 financial year were appropriately and fully spent, this guarantees to National & Provincial Treasuries that Makana Municipality is needy and deserves to be allocated MIG from the National – Provincial Budget for 2017/18 financial year. If the MIG for 2015/16 financial year was inappropriately spent, the Eastern Cape Provincial Treasury makes proposals for rescheduling of the unspent grants to fund needy municipalities. Can the financially needy Makana Municipality afford to inappropriately spend their MIG? Can they afford to have the balance of their MIG taken and given to other needy municipalities?