CONSTITUTIONAL COURT OF SOUTH AFRICA
Case Number: 186/14
High Court Case Number: M390/2014 (North West Division, Mafikeng)
In the matter between:
THE NGAKA MODIRI MOLEMA DISTRICT MUNICIPALITY Applicant and
THE CHAIRPERSON OF THE NORTH WEST PROVINCIAL EXECUTIVE COMMITTEE First Respondent
THE PRIMIER OF THE NORTH WEST PROVINCE Second Respondent
THE MEMBER OF THE EXECUTIVE COUNCIL: DEPARTMENT OF LOCAL GOVERNMENT AND HUMAN SETTLEMENTS OF THE NORTH WEST PROVINCE Third Respondent
THE MINISTER OF COOPERATIVE GOVERNANCE & TRADITIONAL AFFAIRS Fourth Respondent
THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent
THE SPEAKER OF THE PROVINCIAL LEGISLATURE OF THE NORTH WEST PROVINCE Sixth Respondent
KHULU NAIR N.O. Seventh Respondent
THE INDEPENDENT ELECTORAL COMMISSION Eighth Respondent
ANSWERING AFFIDAVIT
I, the undersigned,
KUMARAN NAIR
do hereby state under oath as follows that:
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1. I am an adult male person and the seventh respondent in this application.
2. The Municipality is one of the four Category C municipalities in the North West
Province. It is an executive type Municipality which is constituted by an
Executive Mayor, Mayoral Committee, Speaker and Council Committees. In
terms of the provisions of section 83(3) of the Municipal Structures Act (the
Structures Act):
“A district municipality must seek to achieve the integrated, sustainable and equitable social and economic development of its area as a whole by:
a) Ensuring integrated development planning for the district as a whole; b) Promoting bulk infrastructural development and services for the district as a whole; c) Building the capacity of local municipalities in its area to perform their functions and exercise their powers where such capacity is lacking; and d) Promoting the equitable distribution of resources between the local municipalities in its area to ensure appropriate levels of municipal services within the area.”
3. Furthermore, in accordance with the provisions of section 84 of the Municipal
Structures Act, 1998 which deals with the division of functions and powers
between district and local municipalities:
3.1 the Municipality is a water services authority with the responsibility to supply bulk
water and sanitation services and amenities in its entire district;
3.2 it is also responsible for emergency services and disaster management within its
district; and
3.3 in addition, it is responsible for the construction of municipal roads and storm
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water drainage pipes or culverts.
4. In terms of Chapter 2 of the Municipal Systems Act, the Municipality is required
to exercise its executive and legislative authority within the constitutional
system of cooperative government as envisaged in section 41 of the
Constitution.
5. On 3 September 2014, I was appointed by the Member of the Executive
Council Executive responsible for Local Government and Human Settlements
as the administrator of the Ngaka Modiri Molema District Municipality (“the
Municipality”). The Municipality has been dissolved in terms of section 139(1)(c)
of the Constitution. As a result, until the next elections, I exercise all executive
obligations at the Municipality.
6. The intervention by the province was opposed by the Municipal Councillors.
This resulted in an urgent interim application being brought. The application
was refused on 25 September 2014.
7. I assumed office as administrator on 26 September 2014. Since then there has
been resistance by some employees, including the Municipal Manager and
senior managers. I was compelled to take disciplinary measures to normalise
the situation. To a large extent, as at the time of the filing of this affidavit, the
situation at the municipality has returned to normality, although there are still
areas of disruption. The Municipal Manager is on suspension on allegations of
gross insubordination and serious financial mismanagement.
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Context and response to intervention
8. The following were the identified challenges that led to the intervention:
8.1 the audit outcomes for the financial years 2010/11, 2011/12 and 2012/13 from the
Auditor General have consistently shown a chronic failure on the part of the
District Municipality to address issues raised in the management letter that
contributed to three consecutive years of Disclaimers. There are poor internal
controls which comprises supply chain processes.
8.2 The Municipality had incurred unauthorized, irregular, fruitless and wasteful
expenditure to the aggregate amount of R1, 352 billion for the 2011/2012 and
2012/2013 financial years;
8.3 water and sanitation remain the major problem in areas that fall within the
jurisdiction of the Municipality. It is quite clear that the Municipality has failed
and / or neglected to put adequate measures in place to address these
matters. The current measures that are in place are not effective. National
Government has had to intervene, for example, at Mokgola Village in
Ramotshere Moiloa;
8.4 the management of water provision programmes by the Municipality has
aggravated the water supply challenges experienced in the geographical area
of the Municipality. Furthermore, the challenges and shortcomings that were
identified in both the National Department of Water and Sanitation’
assessments – per the findings in both the Blue Drop and Green Drop reports
have still not been attended to and remain cause for serious concern; and
8.5 in contravention of the MFMA and the relevant Treasury Regulations, there
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remain huge amounts of funds that go unspent by the Municipality while
communities suffer and service delivery issues remain not attended to.
9. It is common cause that the decision of the EXCO to intervene in the affairs of
the Municipality was challenged in the North West High Court by the applicants.
The application for interim interdict was dismissed by the High Court on 25
September 2014 as I thereafter assumed official duties the following day, 26
September 2014.
10. The events that took place after the Court pronounced judgement follow below.
11. There has been disruption of some of the key services such as the supply of
water and electricity to communities. The MEC responsible for Local
Government and Human Settlements and I responded to this challenge by
establishing a Joint Operations Centre (‘JOC’) with the aim of responding to
any emergency situation that may reported.
12. We have also established an emergency reaction unit to be on standby in order
to attend to any emergency situation that may be encountered. The disruptions
of services manifested as follows:
12.1 the entrances into the Municipal offices (head office) have been barricaded by
heavy trucks, including a TLB;
12.2 keys for fire engines (trucks and other small vehicles) have been unlawfully
taken from the premises by some known individuals, ostensibly those who are
resisting the intervention. In the area under Ramotshere Moiloa local
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municipality, the instruction to take the keys of these fire fighting vehicles were
given by one of the senior managers being Mr Abe Metsoamere, who is
responsible for municipal health and emergency services. In the area of
Ditsobotla, I was informed by Mr Mtutuzeli Matwa (‘Matwa’) who is one of the
fire and emergency personnel, that the two individuals who took the keys were
Mr Koos Mokgele and Mr Isaac Motsepo;
12.3 similarly, keys to Municipality offices were removed from the premises. I was
informed that the keys were removed by, amongst others, Mr Mashi who is
the manager responsible for security services;
12.4 the sale and supply of electricity coupons to members of the community was
also disrupted as the responsible employees had been out in the streets
protesting against the intervention; and
12.5 the provision of water through trucks and the removal of sanitation waste were
discontinued by some of the service providers. Some of the reasons that were
advanced by the service providers were that they were owed by the
Municipality for services rendered while some did not want to recognise and /
or cooperate with the intervention team.
13. In my observations, during the period that I have been at the Municipality, the
interruption of services was caused primarily by workers, including senior
managers (section 56 & 57 managers) by embarking in unlawful
demonstrations and withdrawal of services (labour) in protest against the
decision by the Provincial Government’s Executive Council to invoke the
provisions of section 139(1)(c), to dissolve the municipal council. The situation
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was exacerbated by the failure of the urgent High Court bid to interdict the
intervention, where the situation became volatile. I have established that the
employees’ reaction was instigated by the former Councillors, the Municipal
Manager and certain section 56 and 57 managers who are resisting the
intervention.
14. On 26 September 2014, I attended at the Municipality’s offices in the company
of the MEC and other senior officials of the Department. On arrival at the
Municipality I was confronted by the occurrences as I have mentioned above,
inter alia:
14.1 the entrances into the Municipal offices (head office) were barricaded by
heavy trucks, including a TLB;
14.2 I had to be escorted into the Municipality premises by the SAPS using one of
their Nyala vehicles;
14.3 on our arrival, we found a group of employees singing struggle songs in the
Council chambers. The songs grew louder as we arrived and upon the group
noticing the presence of the MEC;
14.4 I noticed that tension was rising and the SAPS took us out of the premises as
they sensed that our security was under threat. The workers tried to block the
entrance that we had used to enter the premises but the police managed to
get us out;
14.5 similarly, offices at the Municipality were locked and the keys to offices were
removed from the premises.
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15. These demonstrations lasted for approximately two weeks as the employees
remained in defiance of the Administrator’s calls for them to return to work. The
employees have since returned to work and all the trucks that were used to
block entry into the premises have been removed with the help of the SAPS.
16. In the process, I received information that some employees, some of them
senior managers, are deliberately working to disrupt municipal services (fire
and emergency services) when they removed keys for the fire-fighting trucks in
an attempt to create chaos within the district. Some of these individuals are
known and cases were reported to the SAPS with the view of enlisting their
help to recover the vehicle keys and to arrest those who were responsible for
such criminal deeds.
17. Furthermore, some employees acting in concert with or under the directions of
the Municipal Manager, who is currently on suspension, decided to tamper with
the water supply to various communities within the district. Some water pipes
were closed in order to ensure that water is not pumped to reservoirs leading to
shortage of water supply to communities.
18. From the exposition presented above, it is obvious that the Municipal Manager,
s 56 and 57 managers together with other sympathetic employees colluded to
disrupt services by the Municipality in order to create an impression that the
intervention has negatively impacted on service delivery.
19. I have already pointed out the identity of some of the employees and managers
who participated in the disruption of services. I have been informed by Mr
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Matwa from the Ditsobotla fire and emergency station that the keys to the
vehicles have been returned to the station and that they are now able to
provide full emergency services.
20. I will now address the directions of the Constitution Court.
Whether there has been a cessation of basic services to communities
21. The Municipality is one of four district municipalities. District municipalities do
not deliver services directly to communities. Their contact with communities is
via local municipalities. But often because of the breakdown in services by local
municipalities and the weak infrastructure at local level, districts are compelled
to step in and render the services directly. There are five local municipalities
resorting under the jurisdiction of the Municipality, namely, Tswaing;
Ramotshere Moiloa; Mafikeng; Ratlou; and Ditsobotla.
22. The area serviced by the Municipality is, however, vast and with the exception
of the Mafikeng Local Municipality, the communities are peri-urban and rural
communities. There are approximately 115 000 households, and at the last
census count, the population was 842 000. Needless to mention, the area is
one of the poorest in South Africa.
23. The services which we provide to Municipalities and are relevant to this
application include water and sanitation, emergency services, bulk
infrastructure and reticulation and municipal health services.
24. Since we do not provide these services directly, we conclude service level
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agreements with external agents who, in turn, render the services to
municipalities. In relation to water and sanitation we are a water services
authority, in terms of the National Water Act 36 of 1998. There are two water
services suppliers which we have contracted with to supply water to
municipalities in the district, namely Botshelo Water and Sedibeng Water.
25. But some context needs to be given here. The district is one of the two water
stressed districts in the province. One of the reasons why the provincial
government dissolved the municipal council was about its failure to enter into
service level agreements with Botshelo Water and Sedibeng Water. The result
of this failure was that by July 2014 Botshelo Water and Sedibeng Water were
owed an amount in excess of R270 million by local municipalities, who were
compelled to conclude service level agreements with Botshelo Water because
of the failure by the district to conclude the service level agreements. The
district was refusing to settle the bill, while the local municipalities claimed that
the money should be paid by the district. Ultimately, this led to a breakdown in
water supply to communities. Some communities in Dinokana, Madibogo and
Setlagole villages have not had water for years, while the district received
equitable share allocations and grants for water and sanitation.
26. The Municipality experienced “service delivery protests” as a result of the
failure by local municipalities to deliver water. Communities of Ratlou
(Madibogo, Setlagole), Ramotshere Moilwa (Dinokana, Khunotshwana) and
Ditsobotla (Itsoseng, Bodibe) have protested against the lack of water provision
on their areas for several years before the intervention years.
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27. There was also a further problem related to water, namely, the quality of the
water supply and the quality of sanitation services. This led the national
government to issue a warning in relation to the drinking of the water at the
Municipality. Basically the warning was that communities should boil the water
before drinking it as the national government could not vouch for its safety.
28. When I was appointed, I realised that these service level agreements were not
in place. Since my appointment, I have concluded the service level agreements
with Botshelo Water and Sedibeng.
29. But I also experienced a different problem. The intervention was resisted by
some employees at the Municipality, as alluded to above. After the application
had been dismissed by the High Court on 25 September 2014, I was instructed
to assume my responsibilities as administrator at the municipality. In this
regard, on 26 September 2014, I attended at the premises of the municipality.
We had been tipped off that there was a possibility of resistance taking place at
the municipality. That possibility, we were made to understand, had been
orchestrated by the former councillors who had lost their application on 25
September 2014.
30. Indeed, on our arrival on 26 September 2014 at approximately 11h00, we
requested the escort of the police. We went to the municipal chamber and on
our arrival there, there were approximately 40 members of the applicant trade
union who were singing and chanting liberation songs. They noticed the fact
that I was coming together with the MEC and escalated the singing, shouting
and hurling insults at the MEC. In essence, they were trying to convey to him
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that he is not wanted at the municipality. After some attempts at intervening
through the police to negotiate with the leadership of the group which
essentially was trying to cause embarrassment to both me and the MEC, it
became clear that the situation could easily escalate into violence and we
elected to leave so that the temperatures could cool down.
31. As we were leaving the premises of the municipality, two official vehicles
attempted to block the road so that the police vehicle, the Nyala, could not exit
the premises. Although this was a highly provocative step, particularly directed
at the members of the police and clearly orchestrated by the members of the
applicant who we could spot by virtue of their SAMWU t-shirts, the police
decided not to take the bait. Instead, they arranged for me and the MEC to use
a private vehicle in order to leave the premises. We were finally given a
security escort when leaving the premises together with the MEC. It was clear
at that stage that the intervention would be resisted by some elements and that
the situation could turn volatile. We left the municipality without having had an
opportunity to greet the employees or to have me introduced to the employees
by the MEC as had been planned. The MEC's confirmatory affidavit is
available upon the court issuing a directive calling for it; it is not attached to
avoid exceeding the required number of pages, in terms of the directions under
reply.
32. Between 29 September to 3 October 2014, there was massive destruction of
infrastructure by some employees which was aimed at undermining the
intervention. We responded by setting up a Joint Operation Command Centre
(“JOC”) in order to monitor the situation from a security perspective as well
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infrastructure perspective. A full JOC report, detailing all the incidents observed
is also available, upon the court directing me to make it available; it is not
attached to avoid exceeding the required number of pages, in terms of the
directions under reply. As the report makes it clear, there are areas affected by
disruption of services which are directly connected to acts of sabotage by
people supporting the former councillors who have been removed from office.
33. There is an emergency plan in place aimed at restoring services. During the
course of last week, virtually all areas affected by the disruption in services had
been reconnected. This also explains why there has been relative calm in
community protests.
34. I have also personally visited several areas to understand community
grievances and to work out solutions with communities. The visits were
conducted as follows:
34.1 Zeerust: 8, 9 and 10 October. We attended community gatherings and spoke
directly to affected communities. The communities have been very angry with
disruption of services by people who have political agendas. But most
importantly, it became clear that the problems were deep seated and required
massive infrastructural investment in the long term. For the time being, we are
providing water through tankering services.
34.2 We visited the Zeerust areas again on 16 and 17 October. The community
made it clear that they did not want anything to do with the former councillors
as there were allegations of fraud and corruption against them, which have
been publicised in the media.
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34.3 During the week of 20 October, we have visited the areas of Manche,
Schoongezicht and Dihatshwana. The purpose was to understand community
concerns and address these to the extent possible.
35. Because of the interruption in services, there have been community protests in
Zeerust, where the community blockaded the N4 on 6th and 7th October 2014.
The cause of this was that the tankering of water was stopped by the service
provider, who is being investigated for being involved in improper procurement
practices.
36. But we have intervened in this regard.
36.1 I found that there were 3 service providers on 7 October. They have been
providing tankered water in Tswaing, Ratlou and Zeerust.
36.2 In total I now have about 9 tankers which are providing water to the affected
areas, until the situation is stabilised and a long term solution is found.
36.3 In addition to the above, on 7, 8 and 9 October 2014, I entered into
discussions with Rand Water. Rand Water has agreed to supply, which they
have already done, another 20 tankers of water. I can now state that we have
more than the required supply of water to all the areas with need, as we are
addressing a more permanent solution to the delivery of these basic services.
37. I have not received any further reports of water shortages in these areas since
the additional water supplies.
38. In the same period and because the water tankering can only be a temporary
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solution, I appointed engineers to attend to the pump stations, boreholes and
diesel. Piping is being attended to through the installation of new and special
pumps. This is extensive engineering work, which will take some time to
produce results.
39. My plan is that when I leave the municipality, after the 6 months of my
appointment, the quality of the water would have improved to blue drop status
and the sewer system would return to green drop status. A detailed strategic
plan is also available, upon the court directing me to make it available; it is not
attached to avoid exceeding the required number of pages, in terms of the
directions under reply.
Cause, extent, geographic area, and duration
40. These questions have been addressed above.
Who is obliged, under the Constitution and the law to provide the services
41. In broad terms, the responsibility for the provision of the services lies on local
municipalities. But the district is accountable for the services.
42. The most senior administrative official is the municipal manager. The municipal
manager is currently on suspension for reasons of gross insubordination and
serious financial mismanagement. He has challenged his suspension in the
Labour Court and the matter is opposed by the administrator. Disciplinary steps
will be taken against him in due course. An acting municipal manager has not
yet been appointed, pending consultations with the provincial government.
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43. At the district, the responsibility for the provision of sanitation and water falls
under senior manager for infrastructure, Mr Eddie Van der Heiden. He
continues to give the administrator his full cooperation and done what he could
to ensure the services are being rendered.
44. His subordinate, Abram Senwedi, who is the manager for water services,
continues to give me problems and he is uncooperative and insubordinate.
45. However, as noted above, the municipality has concluded service level
agreements with external parties involved in tankering and Botshelo Water and
Sedibeng Water. These entities actually deliver water to communities.
46. The other employees who are important in ensuring that the services are
rendered are the following:
46.1 Mr Letlhogonolo Mokoena: the acting Chief Financial Officer. The absence of
the CFO and his staff from 06 October 2014 had resulted in the Auditor
General suspending the 2012/2014 municipal audit until mid-January 2015.
The MFMA require the Auditor General to conclude and submit the final
2013/2014 audit report by no later than 30 November 2014.
46.2 Mr Seymore Williams. He is responsible for Business process support.
46.3 Mr Lekgoa Mahole. He is the senior manager for corporate services.
46.4 Mr Abbey Metsoamere. He is responsible for public safety and community
services. Mr Metsoamere has encouraged acts of sabotage in his department
knowing full well that employees in emergency services cannot engage in any
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acts of protests.
46.5 Mr TJ Mbekweni. He is responsible for growth and development.
47. Although these employees initially stayed away from work, I must mention that
with effect from 20 October 2014, they have all returned to work. But they still
resist instructions from me. This is an area in which I shall be taking disciplinary
measures.
48. In relation to middle management I have received full cooperation and have not
had any resistance since the intervention.
49. On 20 October 2014 I met with all municipal managers at the local
municipalities falling within the district. They all bear the responsibility to ensure
that the services are delivered in their areas. The purpose of the meeting was
to discuss improvement of service delivery and audit outcomes. Included in the
discussions was a discussion on spending against the provision of services.
These discussions are ongoing and my assessment is that there is full
cooperation at this level as well.
50. The National Department of Cooperative Governance and Traditional Affairs
has also seconded about 10 experts to work with the municipality during the
period of the intervention.
51. In addition to these experts, I also work with a team of 5 experts seconded by
the provincial government that are skilled in different areas in local government.
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Why this Court should not order the provision of services
52. I do not have a difficulty with any order of this Court compelling the provision of
services. In fact such an order will assist me in the discharge of my
responsibilities as the administrator given the resistance I have experienced
since taking charge of the municipality.
53. I do not intend to exclude myself in the list of people who may be ordered to
continue with the provision of services to communities. I have set out above the
names of officials and their positions, who are responsible for the various
portfolios to provide services to the communities.
54. However, when the Court considers whether to grant any order I ask that
cognisance be taken of the facts on the ground as described in the JOC report
attached hereto as well as the plan which I have instituted, which is also
attached hereto. In this regard I ask that a balance must be struck between the
supervision by this Court and the steps which are already being taken to
address the breakdown in the services.
______Deponent
THUS SIGNED AND SWORN TO BEFORE ME at on this day of 2014 the deponent having acknowledged that he/she knows and understands the contents of this affidavit, that the deponent has no objection to taking the prescribed oath, that the oath which the deponent has taken in respect thereof is binding on the deponent's conscience, and that the contents of this affidavit are both true and correct.
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______COMMISSIONER OF OATHS
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