What is best for the municipality?

An intervention into the local municipality’s affairs is high on the agenda.

The Save eMalahleni Action Group is currently in dispute with the provincial executive regarding the form and the extent of their intervention into the affairs of the municipality.

“On the one hand, the provincial executive is seeking an umbrella solution for the problems in defaulting municipalities by some type of quasi-intervention of which the details are still unclear. On the other hand, we have always been consistent in our view that the only way to regularise the affairs of the municipality is by way of a mandatory intervention in terms of section 139(5) of the Constitution,” said Mr Johan Coetzee local attorney representing the Save eMalahleni Action Group.

On Monday, February 19 the application by the group to compel the provincial and national executives to intervene in the municipality’s matters was enrolled on the unopposed motion court roll in the High Court in Middelburg.

But because of the notices to oppose the application filed by the municipality and the provincial executive the application could not be heard and the application was postponed to June 21 for hearing.

The court ordered the municipality, the premier and the provincial executive to deliver their answering affidavits by no later than Friday, March 9.

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The Save eMalahleni Action Group has to deliver their replying affidavits by no later than Friday, March 23 and their heads of argument by no later than Friday April 6.

The municipality and the provincial executive must deliver their heads of argument by no later than Friday, April 20.

“We have been engaging with the legal representatives of the provincial executive since early December 2017. The provincial executive supported us in our interdict application against Eskom in the North Gauteng High Court on December 12. They were also instrumental in obtaining an interdict to suspend of Eskom’s bulk electricity interruptions to Lydenburg, Sabie and Graskop in the Thaba Cheu Local Municipality,” Coetzee said.

He said the provincial executive is committed to intervene into the affairs of the municipality and other defaulting municipalities.

“Together with national treasury they have implemented several high-level measures to render assistance to defaulting municipalities in the province. Their proposed steps and recent efforts to put systems and infrastructure in place is done to enable them to comply with their constitutional obligations of monitoring and support as prescribed in sections 154 and 155 of the Constitution. The current process of capacity building is not an intervention of any sorts and surely not a mandatory intervention as envisaged in Section 139(5) of the Constitution.”

All the substantive requirements for a mandatory intervention in terms of section 139(5) of the Constitution have been present since at least 2012.

Coetzee is of the opinion that by not following the mandatory provisions prescribed as set out in Section 139(5), the provincial and national executives are effectively undermining the terms of the Constitution.

“The Save eMalahleni Action Group is committed to assist the provincial and national executives in finding a long-term solution for the problems in the municipality but are not prepared to do this outside the mandatory provisions of Section 139(5) of the Constitution read with sections 139 and the relevant portions of sections 140 to 150 of the Municipal Finance Management Act. We will however be engaging with the provincial executive in the next few weeks in order to find an amicable resolution regarding the basis on which an intervention into the affairs of the municipality has to be done.”

“There are impugned allegations which if left out may have negative impact to municipality such as reference to incorrect audit opinion, dissolution of council not limited thereto, but ring fencing of some accounts have been heeded to. The matter is still before court and once it have been concluded we will furnish the media with full details,” municipal spokesperson Mr Kingdom responded.

  AUTHOR
Zita Goldswain
Assistant Editor

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