North West takeover no simple task
National government’s use of section 100 of the Constitution to take over the failing North West province is not a panacea, civil society representatives say and it’s too soon to say whether it will yield better results than similar previous interventions.
A briefing by Minister in the Presidency Nkosazana Dlamini-Zuma, who leads the interministerial task team for North West, attempted to shed light on how the government’s takeover of the province will take effect.
On Wednesday, Dlamini-Zuma said “fact-finding” work was ongoing, and that national ministers with equivalent departments in the province will assess whether to invoke section 100 (1) (a) or the more invasive section 100 (1) (b) of the Constitution.
The justice and security cluster has been tasked with conducting further investigations where maladministration or corruption are suspected, she said, and glaring contraventions of the Public Finance Management Act will be referred to law enforcement agencies.
Although departments in various provinces have been placed under administration in the past, this is the first time an entire province has been.
North West has seen violent protests recently, precipitated by the state of its healthcare system, which has all but collapsed. Before the decision to intervene in the entire provincial government, the health department was placed under a section 100 (1) (b) intervention. Under this clause national government takes over the province’s obligations.
But a section 100 intervention “is not a panacea”, said Russell Rensburg of the Rural Health Advocacy Project (RHAP).
“The intent of a section 100 is to stabilise a department or, in this case, a province, to ensure it delivers on its mandate and does not deteriorate further.”
How effective the process would be, he said, would depend on how the intervention is designed. The RHAP’s interaction with the health process suggested it would be a “system-wide response to the challenges around health” and go beyond simply stabilising the province, said Rensburg.
Past interventions in Limpopo and Mpumalanga had not shown sustained results, he continued.
Section 100 interventions were often about stabilising finances and improving officials’ ability, then handing the department back to them, said Rensburg. This was complicated by the question of the separation of powers enshrined in the Constitution, he added.
“So the gains are not sustained over time, and the capacity that is strengthened is eroded,” he said.
One of the largest section 100 interventions took place in Limpopo in 2011 and several provincial departments, including health and education, were placed under the control of the national government. But in a report to the National Council of Provinces, Anis Karodia, the administrator for the education department, detailed problems that can arise in such interventions.
In a report written in 2012, he noted “threats and nonco-operation” from staff in the Limpopo department, and complained of poor interactions, particularly with senior management. “Many of them refuse to understand that the Limpopo department of education is under administration and … technically bankrupt and felt that the … section 100 (1) (b) intervention is completely unnecessary.”
The departments were under administration for three years but the provincial education department is still garnering controversy, including over pit toilets in schools.
Sarah Sephton, the regional director for the Legal Resources Centre, which has worked on education in the Eastern Cape, said that, unless the provincial officials’ financial powers were removed, the administrator would have no power, particularly if there was no political will to co-operate. “You’ve immediately got a problem if the accounting officer is different to the [administrator],” she said.
In the Eastern Cape, placed under administration in 2011, she said the intervention was so “lacklustre” that it ultimately fell to the high court to clarify in 2016 whether the administration was in fact still in place. The department of planning, monitoring and evaluation, which is leading the task team in North West, did not respond questions about whether national government has the financial and human resources to navigate such an intervention, and criticisms that past interventions had not sustained results.
The state of municipalities in North West adds another layer of complexity to the government’s action.
The Constitution, under section 139, makes provision for local governments to be placed under administration by provincial authorities. But where provincial government fails to do so, the national government can intervene.
Twelve of North West’s 22 municipalities have been identified as distressed. But, according to the national department of co-operative governance and traditional affairs, none of the municipalities will be placed under administration.
Instead, a directive will be issued to the provincial department of co-operative governance, in terms of section 100 (1) (a), “to provide dedicated support to the municipalities under distress, with specific timeframes and specific deliverables”, the department said.
The Democratic Alliance’s Kevin Mileham said the province’s municipalities are emblematic of a wider crisis at local government level. In a recent parliamentary reply to Mileham, Finance Minister Nhlanhla Nene said that 43% of the country’s municipalities had unfunded budgets.
Mileham said: “What that means is that they have budgeted for more expenditure than revenue, which is unsustainable.”
He said this situation highlighted the need to revive the Intergovernmental Monitoring Support and Interventions Bill, which was first proposed in 2013. The Bill was supposed to clarify questions about these kinds of interventions.
In his budget vote speech, Minister of Co-operative Governance and Traditional Affairs Zweli Mkhize said that 31% of the country’s municipalities are considered “dysfunctional or distressed” but only 11 nationally have so far been placed under administration.
Given the extent of the crisis, the lack of intervention at local government level was “shocking”, Mileham said.
But Mkhize said his department would embark on an aggressive turnaround strategy to address the decline in local government.
“To build functional municipalities nationwide, we have decided to initiate an intensive recovery programme, which encompasses a package of clustered support in three focus areas, namely governance, service delivery and financial management.”