Record of Interventions and action taken in Oudtshoorn
For the past two years the Department of Local Government in the Western Cape has been actively addressing challenges in the Oudtshoorn Municipality.
Responding in an Interpellation delivered in the Parliament of the Province of the Western Cape today, the Minister of Local Government, Environmental Affairs and Development Planning, Anton Bredell, said that especially since May 2013 the Oudtshoorn Municipality has been characterised by political instability.
“This is due to the fact that the majority coalition in the council has, since a previous by-election of 7 August 2013, been prohibited by the existing governing political leadership - and in particular the speaker - from executing its democratic right to govern.”
Bredell says the continued political instability has adversely impacted on the administration of the Municipality and, amongst others, it was not possible to appropriately fill the critical posts of Municipal Manager, Chief Financial Officer and Director Technical Services.
Bredell told Members of the Provincial Parliament that he has on numerous occasions during the past two years intervened in the Municipality, acting at all times within the legal framework.
These interventions to date have included:
• The invoking of section 139(4) of the Constitution when council did not timeously approve its 2013/14 annual budget by 1 July 2013.
• Ensuring proper administrative procedure by contesting legal action taken by the Municipality and the initiating of legal action where I believed the Municipality was misguided. Three cases are noteworthy:
1. In the matter of C MacPherson and Thirteen Others vs JNH Stoffels and Three Others which dealt with the Speaker’s suspension and revoking of the rights of two members to vote in council, I filed affidavits setting out my interpretation of the law. The stance of the Oudtshoorn Speaker in this matter was dismissed by the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court. In the High Court the Judge referred to stratagems employed by the Speaker to prevent motions of no confidence from being considered and put to the vote.
2. In the matter of the Democratic Alliance and Other vs the Oudtshoorn Municipality and Eight Others which dealt with the removal by the Speaker of 12 members from Council. I filed an affidavit to the effect that only the MEC for local government has the power to remove a councillor in the applicable circumstances. The Western Cape High Court agreed with my interpretation of the law.The Municipality went ahead and took the matter on appeal.
3. On 28 May 2014 Council voted on its 2014/15 budget. The vote resulted in a deadlock with an equal number of votes for and against. The Speaker who already voted in favour of the budget, then cast an additional vote to break the deadlock as purportedly allowed for under the Structures Act. I argued, as I have in respect of other municipalities who have been in similar situations, that this action is prohibited as the Structures Act does not give the Speaker a casting vote for a matter listed in in section 160(2) of the Constitution and I informed the Municipality accordingly. In my view the budget was not lawfully approved. Following unsuccessful attempts to resolve the matter via mediation, I launched an application in the Western Cape High Court to have the relevant section of the Structures Act declared constitutionally invalid. This action was taken with due regard to the importance of the principle at stake and this Province’s constitutional obligations. The Municipality eventually did not oppose the application and the High Court held that the relevant provision was, on the face of it, unconstitutional. The matter has since been put to the Constitutional Court for an order to confirm the High Court’s order of invalidity. The ruling/confirmation of the Constitutional Court is currently being awaited.
• When complaints came to my attention from various sources that the awarding of a tender in respect of the managing of the restaurant, curio outlet and tuck shop at the Cango Caves was not procedurally sound, my Department requested the relevant information from the Oudtshoorn Municipality and assessed the tender. Numerous shortcomings were pointed out to the Municipality. Two unsuccessful bidders took the Municipality to court and the Municipality indicated its willingness to withdraw the award and to restart the process. However, the bidders proceeded with their applications and a ruling is still being awaited. My Department thus immediately intervened through the Municipality’s administration and dealt decisively with this matter when it came to our attention.
• Additionally my department has for some time now put measures in place to commence with the process of consulting on an appropriate management model for the Cango Caves. To date these efforts have been blocked by the Municipality due to its stance that the Caves are to be managed as an integral part of the Municipality. Recently the Municipality has however, requested my Department’s assistance and it is trusted that progress will now for the first time be made.
• The - in my view - invalid appointment of the acting Municipal Manager, has been taken up with the Municipality on a number of occasions. The latest response alerted me to certain Bargaining Council orders that apply to the acting Municipal Manager and another senior manager and which prohibits Council to deviate therefrom. The appointment of a municipal manager, whether in an acting capacity or on contract, is the responsibility of Council and given the political instability, the position of a municipal manager could not be secured by Council or Province as yet.
• From a municipal support point of view, my Department has recently embarked on a diagnostic assessment of all the functional areas of the Municipality. With this information, a support plan will be compiled by my Department in liaison with the Municipality.
• During the past year I have been in several discussions with the National Minister and Deputy Minister of COGTA in an effort to resolve the political impasse in the council which adversely affects the day to day running of the Municipality. The recent combined efforts by COGTA and myself to get the Municipality to approve a nationally offered support and good governance package was unsuccessful in that the Municipality put procedural reasons forward why it could not consider the good governance package.
“At this point in time Council has not yet approved its annual budget for 2015/16 and my colleague the Minister of Finance and myself are monitoring the situation closely in order to take appropriate action in terms of the prescribed legislation, should it become necessary.