The Constitutional Court on Wednesday confirmed an earlier order made by the labour court that only municipal managers and those who report to them in municipalities may not hold political office.
The court confirmed the order of the labour court made last year, which declared that the inclusion of the phrase “staff member” in section 71B of the Local Government: Municipal Systems Act 32 of 2000 was unconstitutional and invalid.
All declarations of invalidity made by lower courts should be confirmed by the Constitutional Court. The apex court also said the declaration of invalidity would operate from November 1 2022, when the new amendment act commenced.
The South African Municipal Workers Union (Samwu) had approached the labour court in 2023 to challenge the constitutionality of the section, because the inclusion of “staff member” barred all municipal employees, not only municipal managers and their direct subordinates, from holding office in political parties.
The section read: a staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.
The South African Local Government Association (Salga) and the minister of co-operative governance and traditional affairs (Cogta) opposed the declaration of constitutional invalidity.
They argued that a complete ban was necessary to depoliticise and professionalise local government and improve service delivery. The prohibition on municipal staff holding political party positions was therefore rational and constituted a justifiable limitation in terms of the constitution, they argued.
Addressing the argument that the intention of limitation was to depoliticise and professionalise the public service, the labour court found there was insufficient evidence to establish that the extension was rationally connected to the stated purpose of professionalising the municipal sector.
The labour court also rejected the argument that every junior employee who holds a political position in a political party would wield undue influence in the workplace, stating that this amounted to no more than an assumption.
In the Constitutional Court, Samwu’s case was that, though it accepted there could validly be a prohibition in respect of municipal managers and managers who report to them, the restriction in respect of other staff members was misaligned with the preamble of section 71B as it imposed a blanket ban on all municipal employees.
Salga told the Constitutional Court that political interference in municipalities hampered the efficient and effective functioning of the municipalities, especially on the part of junior staff employees who held political office.
In a judgment by justice Rammaka Mathopo, in which six other judges concurred, he said where the state sought to limit constitutional rights in the Bill of Rights, it must support this by providing clear and convincing reasons.
“The political rights at issue are crucial to our democratic order and issues of past disenfranchisement weigh heavily in favour of the protection of these rights.”
Mathopo said Salga and the Cogta minister were unable to draw the court's attention to any empirical evidence justifying the limitation of the employees' political rights.
“It is unconscionable, in the absence of any evidence, to expect this court to rely on untested and generalised assumptions as evidence of common sense.”
In a dissenting judgment, justice Jody Kollapen, with justice Leona Theron concurring, said Salga and Cogta had done enough to meet the threshold that the limitation of employees' political rights was reasonable and justifiable in an open and democratic society.
“Depoliticisation of local government, in its own right, is thus a legitimate government purpose. This is regardless of whether it results in improved service delivery or not. It is an end in itself,” Kollapen said.
He said Section 71B must be understood as the legislature’s chosen mechanism to achieve nonpartisanship and effective local government and to appropriately manage the interface between politics and the administration.
“Since depoliticisation achieves this, it can comfortably be accepted as a legitimate government purpose,” Kollapen said.
Samwu welcomed the judgment and said it was a resounding victory for the political rights of municipal workers and a powerful reaffirmation of the democratic principles.
“It sends a clear and unequivocal message that workers do not surrender their constitutional rights at the workplace gate.”
It said this case was brought forward after numerous Samwu members were threatened with dismissal for holding political office in their personal capacity. In some instances, workers were forced to resign from their political positions, while others were barred from contesting elections in political parties altogether.
Samwu said the blanket ban introduced by the amendment in 2022, which extended to all municipal employees regardless of their role or seniority, was an unnecessary overreach that punished ordinary workers who had no influence over political or administrative decisions in municipalities.
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