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A minority judgment offered a different perspective.
Full bench of the Constitutional Court (ConCourt). Picture: Gallo Images/Alon Skuy
Municipal workers will not be barred from holding positions within political parties anymore, the Constitutional Court (ConCourt) has ruled.
On Wednesday, the ConCourt confirmed a Labour Court ruling that declared part of the Local Government: Municipal Systems Amendment Act unconstitutional.
The Labour Court struck down the inclusion of the phrase “staff member” in section 71B of the Systems Act, which had effectively prohibited all municipal employees — not just senior managers — from holding political office.
The matter was brought before the ConCourt by the South African Municipal Workers’ Union (Samwu).
The Minister of Cooperative Governance and Traditional Affairs (Cogta) and the South African Local Government Association (Salga) were the respondents in the case.
Samwu challenges Municipal Systems Amendment Act
Samwu challenged the constitutionality of section 71B, arguing that it unjustifiably limited municipal employees’ constitutional right to participate in political party activities, as protected under section 19 of the Constitution.
The provision, introduced through the 2022 amendment to the Systems Act, extended a previously narrow prohibition that had applied only to municipal managers and those directly accountable to them.
Samwu contended that this infringed on the rights of ordinary municipal employees and lacked sufficient justification.
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Salga and Cogta had opposed the declaration of invalidity on the basis that a complete ban was necessary to depoliticise and professionalise local government and improve service delivery.
However, the Labour Court ruled in the trade union’s favour in 2023, ruling that the broader ban was not justified under section 36(1) of the constitution.
The court also concluded that less restrictive measures – such as the original, narrower limitation – were already in place and had proven effective in stabilising the municipal sector.
ConCourt judgment
In a majority ruling with six other judges concurring, Acting Deputy Chief Justice Mbuyiseli Madlanga found that section 71B infringed on the political rights of municipal employees.
“Limiting this right hinders citizens’ ability to fully engage in the country’s political activities, and could very well dissuade citizens from participating in political party activities, thus directly undermining the fundamental constitutional value of universal adult suffrage,” he said.
Madlanga said that although the limitation has merit, it was important to consider whether its goal can be achieved without infringing so much on constitutional rights.
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The acting deputy chief justice also found that a 2016 study cited by the Cogta Minister and Salga did not support their arguments in the ConCourt.
The report highlighted incidents of political party violence and community unrest linked to poor service delivery, and also indicated that some criminal activity was driven by high unemployment.
“There is nothing in the report that helps the respondents’ case in establishing the link between the impugned limitation and the stated purpose,” the judgment reads.
ConCourt on municipal workers’ influence
Madlanga further rejected the notion that preventing junior municipal staff from holding political office would advance depoliticisation or improve service delivery.
He pointed out that the respondents overlook the fact that former office-bearers may still hold significant influence and power.
“Employees do not have to hold office in a political party to influence the kind of mischief the statute is said to seek to mitigate.
“A person can be recognised as an influential figure within a party structure without formally occupying party office,” the acting deputy chief justice remarked.
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“There is also a misplaced assumption that once the junior employee resigns, the political influence they have also dissipates with the resignation.”
He emphasised the importance of upholding constitutional rights and urged that issues of political interference be addressed through existing disciplinary procedures and proper enforcement mechanisms.
“What the respondents also ignore is that if junior officials overstep their mark, they may be warned, suspended or dismissed.”
Municipal Systems Amendment Act reversed
A minority judgment by Judge Jody Kollapen, however, offered a different perspective.
Kollapen agreed that section 71B limited political rights, but held that the limitation was reasonable and justifiable, citing evidence relied on by the government and the constitutional imperative of a depoliticised civil service.
Nonetheless, the ConCourt confirmed the section to be invalid and unconstitutional.
“In an attempt to remedy the defect caused by the new Amendment Act, severing the word ‘staff member’ in section 71B and replacing it with the phrases ‘municipal manager and manager directly accountable to the municipal manager’ such that this provision binds senior municipal managers is a necessary safeguard to the employees and provides Samwu with the assurance that the blanket prohibition is untenable.”
It also ordered that the declaration of invalidity operate retrospectively from 1 November 2022 — the date the new amendment came into effect — ensuring that any action taken under the invalidated provision will have no legal force.
Additionally, Samwu was awarded costs.
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