The Constitutional Court has confirmed that municipal workers can hold political office, if they wish.

Depriving junior staff members of their hard-fought rights to hold positions in a political party, simply because managers cannot exercise disciplinary measures, is irrational, the court said in a majority judgment delivered on Wednesday.

Judge Rammako Mathope, who wrote the majority judgment, remarked that the ability to exercise one’s political rights forms the bedrock of constitutional democracy and political participation is enshrined in the Constitution.

“However, in the pursuit of preserving this constitutional right lies a legitimate need for professionalism in local government in an attempt to curtail political interference and stabilise the municipal sector.”

The judge added that this application attempts to strike a delicate balance in the interplay between upholding fundamental political rights and enforcing crucial limitations to protect the integrity of local governance.

The application was for confirmation of an order by the Johannesburg Labour Court which ruled that municipal workers can indeed hold political office. The application was brought by the South African Municipal Workers’ Union (Samwu), against the Minister of Cooperative Governance and Traditional Affairs.

In July 2011, the legislature promulgated the Local Government Municipal Systems Amendment Act, barring municipal managers and managers directly accountable to municipal managers from taking political office. It was intended to bar the upper echelon of the municipal workforce from holding office in political parties.

In 2022, a further amendment was promulgated, which stipulated that an office worker may not hold office in a political party - in a temporary, permanent or acting capacity.

Samwu successfully challenged this earlier before the labour court to the extent that it bars employees, not only municipal managers and managers directly accountable to them, from holding political office in political parties.

The union submitted that there is an intersectionality between political rights and the right to human dignity. According to Samwu, the argument that all municipal employees who hold political office will use their office to wield political influence is an assumption that cannot be sustained.

Cogta and the South African Local Government Association (Salga), which was also a respondent in this matter, contested the application on the basis that a complete ban is necessary to depoliticise and professionalise local government and to improve service delivery.

In response to the argument advanced by Salga that junior employees in political office may overstep the line or attempt to undermine municipal managers, Samwu said that Salga must invoke the disciplinary processes already in existence and educate and remind the employees of their code of conduct as part of sustaining good local governance.

Judge Mathope, however, said it is untenable to assert that banning junior employees from holding political office would lead to managers being able to execute their duties better and that this would result in better service delivery.

His judgment is backdated to November 2022.

In a minority judgment, judges Jody Kollapen and Leona Theron held that section 71B of the Act only has the effect of limiting the right to make political choices in terms of the Constitution. In respect of that limitation, Judge Kollapen, who wrote the minority judgment, reached the conclusion that the respondents have established that the limitation meets the requirements set out in the Constitution. “I would therefore not confirm the declaration of invalidity,” he said.

Both Samwu and Cosatu, meanwhile, welcomed the judgment and said it is a resounding victory for the political rights of municipal workers and a powerful reaffirmation of the democratic principles enshrined in the Constitution.

“It sends a clear and unequivocal message that workers do not surrender their constitutional rights at the workplace gate,” Samwu said.

Cosatu remarked that if the amendment to the Act regarding ordinary municipal workers had been allowed to remain, it would have been a slippery slope to later be extended to all public servants, parastatal employees and eventually private sector workers.

zelda.venter@inl.co.za

salga

Constitutional Court confirms that municipal workers can hold political office