Cooperative Governance and Traditional Affairs Director-General Mbulelo Tshangana at the iLGM conference in Durban. (Photo: Cogta)
eThekwini municipality is not eligible for section 139 administration because it has passed a budget, adopted an integrated development plan, and submits its annual financial statements.
Instead, KwaZulu-Natal’s only metro will benefit more from the assistance being offered by the section 154 support team it is currently working with, and the presidential working group that is also providing help.
This is according to the national director-general for cooperative governance and traditional affairs (Cogta), Mbulelo Tshangana, who was speaking to the Mail & Guardian after his keynote address at the Institute for Local Government Management (iLGM) conference in Durban last week.
Tshangana comments come as KwaZulu-Natal’s Cogta MEC Thulasizwe Buthelezi, from the Inkatha Freedom party, and eThekwini’s ANC mayor Cyril Xaba, are publicly bickering over corruption allegations within the municipality, and the suspension of deputy city manager for trading services, Sibusiso Makhanya.
According to Buthelezi, Xaba has not responded to repeated correspondence regarding the issues, which the mayor denies.
Buthelezi has since threatened additional intervention because of “continued maladministration” at the metro, should Xaba not comply with several instructions he has ordered in his letters.
Xaba fired the latest salvo via a press statement issued after working hours on Friday, saying he was concerned at Buthelezi’s “abuse of power”, while insisting that he had, in fact, responded to Buthelezi and was “ready to release these letters to the public if the MEC grants him permission”.
Xaba said he found it “rather distasteful” that Buthelezi’s letters to him had made their way to the media.
Makhanya has been suspended on allegations of misconduct, reportedly for neglecting directives to address a lawsuit against the municipality. The case involves an unpaid sum of R63.5 million owed to a company that installed prepaid electricity meters.
On 12 September, Buthelezi issued a statement that his department had received “reports, some from whistleblowers, alleging fraud, corruption, maladministration and statutory non-compliance” at the metro.
There were “nine detailed allegations together with explosive annexures” that had been forwarded to Xaba, seeking his response, Buthelezi said, without providing details.
The city is currently embroiled in a legal dispute with Integrity Forensic Solutions (IFS), which has accused the metro of interference in ongoing forensic investigations and legal proceedings related to corruption charges against former eThekwini mayor Zandile Gumede and 21 others, who are accused of syphoning off R320 million via dodgy Durban Solid Waste tenders. The trial in that matter is currently sitting.
IFS was initially appointed to investigate fraud and corruption at Durban Solid Waste and the water and sanitation units. It alleges that city manager Musa Mbhele and the then acting head of the City Integrity Investigation Unit, Thulani Ntobela, unlawfully terminated its contract.
This move, IFS claims, has stalled crucial consultations with the National Prosecuting Authority and the Hawks, undermining investigations into over R1.9 billion in theft and fraud at the metro.
IFS further contends that the termination of its services was politically motivated and Ntobela’s appointment was engineered to derail the forensic work. The firm has taken legal action to have the termination overturned, accusing eThekwini of failing to provide valid justification for the decision.
IFS has warned that the continued interference could cause significant reputational damage to the municipality and compromise ongoing legal proceedings.
The allegations are detailed in a letter IFS wrote to the section 154 support team in July, asking it to investigate the matter.
On 18 September, Buthelezi again issued a press statement, this time instructing Xaba to rescind Makhanya’s suspension within 72 hours because the executive committee at the metro did not have the discretion to suspend senior managers.
“It is only the council that has the discretion to suspend senior managers – and this function cannot be delegated to the executive committee,” Buthelezi said, adding that it was “alarming” that his correspondence to Xaba had not been responded to.
“The regressing trend of poor governance, lack of consequence management and maladministration in eThekwini is a cause for concern and may lead to a recommendation for escalated intervention from the provincial government,” Buthelezi concluded in that statement.
In Friday’s statement, Xaba said Makhanya had referred his suspension to the bargaining council.
“[T]he MEC is also cited as a third respondent for reasons that are unknown to the mayor. The mayor has warned the MEC not to interfere with the interdisciplinary process,” the statement said.
Xaba said Buthelezi was issuing an unlawful ultimatum “instead of assisting the process”, adding that the MEC’s actions were “a naked abuse of power” and he would “seek the court’s protection should the MEC continue with these tendencies”.
Buthelezi’s tone and threats about additional intervention are contrary to the stance taken by national Cogta minister, IFP president Velenkosini Hlabisa.
Hlabisa has previously said that he is “satisfied” with the work being done by the section 154 support team and the presidential working group, both of which have been tasked with finding solutions to reverse the decline of the municipality.
The presidential team’s focus is on intergovernmental cooperation in critical areas such as tourism, while the section 154 team is seized with the nuts and bolts of clean and effective municipal governance.
The section 154 support is an attempt to avoid the more draconian section 139 intervention, which would see the municipality labelled as distressed and in need of full administration.
Tshangana told the M&G that a section 139 intervention “would not necessarily solve the problems” at the municipality.
As previously reported by the M&G, governance expert and former eThekwini municipal manager Michael Sutcliffe said in a progress report prepared for cabinet in July, that municipal manager Mbhele had been “very selective” with information needed for him and the other section 154 governance expert, Dr Cassius Lubisi, to do their work.
It is understood that Mbhele has still not supplied the information being sought by Sutcliffe.
A diagnostic report is expected from the section 154 duo within the coming months, which will be used to formulate a turnaround strategy for eThekwini. The presidential working group has a period of two years within which to complete its mission.
But there has been concern that the metro will not enforce the recommendations from either group, given that myriad other internal and external reports, including ones from previous Cogta administrations that have highlighted “challenges” at eThekwini — rampant corruption, lack of accountability, lack of consequence management, deteriorating services — have not been acted on.
While the Constitution empowers national and provincial governments to assist and bolster municipalities in managing their own affairs, the Municipal Systems Act asserts the right of a municipal council to govern independently, exercising executive and legislative authority free from undue interference, although its autonomy is limited.
Speaking specifically about the municipality implementing the yet to come recommendations from the presidential working group, of which he is a part, Tshangana told the M&G: “They have to [implement the recommendations]. They don’t have a choice. We do not just recommend, we make sure [that the recommendations] are implemented.”
During his keynote address at the iLGM conference while speaking generally about section 139 interventions and section 154 support, Tshangana said that if a section 139 intervention had to be activated, it meant section 154 support had failed.
Cogta subscribed to section 154 assistance “without any fear of contradiction”, he said.
Cogta’s view was that section 139 was a constitutional requirement, but it was “an extreme” that could be avoided if more was invested into section 154 support, which Tshangana said Hlabisa would agree with had he been at the conference.
Section 139 intervention was “a demonstration that we have failed as provincial and national government”, he said, adding that there were currently 36 section 139 interventions taking place countrywide.
Prior to Tshangana’s address, iLGM president Maxwell Mbili, also speaking generally about section 139 interventions and 154 support, said such should not be used for “political reasons” and should not be “cause for celebration”.
Instead, the interventions and/or support must have clear frameworks and performance indicators in order to ensure they were credible and their recommendations enforceable.
There was also a need for more intentional and qualified deployment of administrators under section 139 — those who have a track record of success in similar environments.
“We have seen a tendency where MECs or ministers are using sections 154 or 139 for political reasons because there is not a clear framework,” Mbili said.
“[The framework must make clear] what exactly you are trying to do. What is the timeframe for the intervention? What will it achieve? What are the performance indicators?”
Some municipalities had been under administration for 10 years, Mbili said, with municipal managers and an administrator being paid to effect a turnaround.
A team of people would be better than just one administrator, he said, or at a minimum, someone who was a specialist in governance and finance.
When a municipal manager is employed, he or she has to undergo competency assessments and must meet myriad requirements, “but when you deploy administrators, you take someone who has never worked in a municipality and expect them to rescue that same municipality”, he said.
And if the chosen administrator does have municipal experience but was overseeing a municipality where disclaimer audits were received, how could they actually be of assistance, he asked.
“Section 139 should not be used as an employment agency,” said Mbili. “We must put politics aside.”
MECs should “not celebrate” a municipality being placed under full administration, he said, “because it is a sign of failure”.
If section 154 support was effective, no municipality would have to be placed under full blown section 139 administration, he added.