By Thebe Mabanga and Johnathan Paoli
The Constitutional Court has upheld a Labour Court ruling that removes a blanket ban on all municipal employees from holding political office.
The application was brought by the South African Municipal Workers Union (SAMWU), with the Department of Co-Operative Governance and Traditional Affairs (COGTA) and the South African Local Government Association (SALGA) as respondents.
The ruling, handed down on Wednesday, declares Section 71B of the Municipal Systems Amendment Act – specifically the inclusion of the term “staff member” – to be unconstitutional and invalid.
Section 71B, titled “Limitation of political rights,” states that “a staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.”
The judgment is retroactive to November 2022 and renders all disciplinary actions, including dismissals issued under the challenged provisions, invalid.
The law introduced sweeping prohibitions on political participation by municipal workers, extending what was previously a limited restriction – intended only for senior municipal managers – to all 350,000 employees in local government.
The Municipal Systems Act, initially passed in 2011, barred municipal managers and their direct reports from holding political office through Section 56B.
Then, in 2022, an amendment extended this limitation to all employees.
It is this extension that SAMWU successfully challenged.
The Labour Court initially held that the case involved the relationship between the limitation of rights and the Constitution.
While acknowledging the provision’s aim to depoliticise and professionalise municipal service delivery, the court questioned whether the extension was justified.
At the heart of the dispute was whether sufficient evidence existed to support the risks associated with allowing municipal employees to hold political office.
The Labour Court found that COGTA did not present adequate evidence of such risks.
The court rejected the claim that junior employees could exert undue political influence, and held that the long-standing limitations already in place for senior managers were sufficient.
It also suggested that disciplinary measures could be used where interference occurred.
Crucially, the Labour Court emphasised that stabilising management is not a precondition for service delivery but rather a result of it.
It concluded that the extension violated Section 36 of the Constitution – the limitation clause of the Bill of Rights – which allows restrictions on rights only if they are reasonable and justifiable.
Before the Constitutional Court, SAMWU argued that the blanket ban was irrational in an open democratic society, lacking a rational connection to improved service delivery.
It further contended that service delivery would not automatically result in stabilised local governance.
While SAMWU acknowledged that depoliticisation and professionalism were legitimate goals, it maintained that these policy considerations alone did not justify the broad limitation on rights.
COGTA criticised the Labour Court’s reasoning, and SALGA argued that policy considerations were sufficient grounds for the ban, warning that political interference could destabilise local governance and that enforcing discipline could lead to political fallout.
However, the Constitutional Court appears to have rejected these arguments.
Meanwhile, the Congress of SA Trade Unions (Cosatu) welcomed the Constitutional Court’s landmark ruling, calling it a decisive victory in the long-standing legal battle led by the federation and its affiliate, SAMWU.
“This was a gross and shamefully unconstitutional assault on the right of freedom of political association and expression—not only for municipal workers, but for all workers. If it had been allowed to stand, it would have been a gross undermining of the Constitution,” said Cosatu parliamentary coordinator Matthew Parks.
SAMWU’s secretariat, while welcoming the judgment, noted the human cost of the amendment.
“Many workers were forced into an impossible choice: give up their right to participate in the democratic process, or lose their jobs. Some municipal workers were removed from their positions; others were discouraged or even barred from standing as candidates in elections,” it said.
The union said it would now intensify efforts to ensure that workers who were unfairly dismissed or pressured to resign are reinstated or appropriately compensated.
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