1 Intergovernmental Monitoring, Support and Intervention Bill 5 th National Municipal Managers Forum Date: 30 April

2 OVERVIEW OF THE PRESENTATION 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.

3 RSA Government System – Unitary state with limited autonomy (Cooperative Governance System – 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 Constitutional Framework for Monitoring, Support and Intervention

4 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 not fulfill its constitutional obligations Constitutional Framework for Monitoring, Support and Intervention

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. 5

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 Participated in the Presidential Task Team on Limpopo. 6

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 7

Rationale for the Bill 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. 8

99 Interventions: Provincial Breakdown ProvinceNo. of Interventions North West11 Free State10 Gauteng1 Northern Cape2 Eastern Cape9 Mpumalanga11 Kwazulu-Natal12 Western Cape3 Limpopo0

10 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); Observations from Past Interventions

11 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; Some of the interventions could have been prevented if an early warning system, leading to proper support, had been in place; The effectiveness of the interventions can be questioned. Are the interventions curative or were they simply temporary take- overs without the necessary skills transfers? (political triggers) 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. Observations from Past Interventions

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 12

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 13

Structure of the 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 (c)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). 14

(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 newspaper circulating in the province; 15 The Salient Features of the Bill

(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. 17 The Salient Features of the Bill conti..

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 18 Way Forward and Recommendations

19 THANK YOU