In what labour has described as a victory for employees’ political rights, the Constitutional Court on Wednesday confirmed a labour court order allowing some municipal employees to hold political office.
The order declared a phrase in a controversial section of legislation unconstitutional and invalid, as it bars all municipal employees from holding political office. This came after the SA Municipal Workers’ Union (Samwu) approached the apex court in September 2024 to challenge the law.
The Municipal Systems Amendment Act, signed into law by President Cyril Ramaphosa in 2022, was ruled to be in contravention of clauses in the bill of rights which state that every citizen is free to make political choices, including the right to participate in the activities of, or recruit members for, a political party, and to campaign for a political party or cause.
In a majority judgment, Constitutional Court justice Rammaka Mathopo said the Samwu application was for confirmation of an order by the labour court, which declared the inclusion of the phrase “staff member” in section 71B of the Local Government: Municipal Systems Act unconstitutional and invalid.
This was because the inclusion of that phrase bars all municipal employees, not only municipal managers and their direct subordinates, from holding office in political parties.
Mathopo said the labour court’s declaration “stands to be confirmed”.
“The blanket implementation of the limitation, regardless of the position and/or title of the municipal employee, is overbroad, and unconstitutionally hinders the political rights of municipal employees in a manner that cannot be justified in terms of section 36(1) of the constitution,” Mathopo stated in the judgment.
“The judgment of the labour court ordered the declaration operate with retrospective effect from November 1 2022. Therefore, in the interests of justice, the declaration shall operate retrospectively from November 1 2022, being the date when the amendment act commenced.”
Mathopo directed the respondents — co-operative governance & traditional affairs minister Velenkosini Hlabisa and the SA Local Government Association (Salga), the employer body representing the country’s 257 municipalities — to pay Samwu’s costs “in the labour court and in this court, including the costs of two counsel”.
According to the judgment, a municipal manager or manager directly accountable to a municipal manager may still not hold political office in a political party, whether in a permanent, temporary or acting capacity.
Samwu, the largest trade union in the local government sector, representing 160,000 of the country’s estimated 350,000 municipal workers, is an affiliate of labour federation Cosatu and a key ANC ally. The governing party has relied on its alliance partners for election support. Samwu members are largely ANC supporters and members.
Samwu general secretary Dumisane Magagula said the union welcomed the judgment, which he described as a “resounding victory for the political rights of municipal workers”.
“It sends a clear and unequivocal message that workers do not surrender their constitutional rights at the workplace gate,” he said.
“The Constitutional Court has now affirmed that only senior municipal officials — being municipal managers and those directly accountable to them — may be restricted from holding political office, as was originally intended during the public participation process.
“The blanket ban introduced by the amendment, 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.”
‘Indefensible law’
Magagula lashed out at the department and Salga for defending an “indefensible law — despite widespread criticism and strong legal arguments against it”.
“Their decision to pursue this matter to the highest court, knowing it infringed on basic constitutional rights, was a gross misuse of public resources. Millions of rand that could have been directed towards improving municipal service delivery were instead wasted on legal costs to uphold a fundamentally flawed law,” he said.
“Samwu, therefore, demands accountability. Those responsible for initiating and defending this flawed legal battle must be held personally liable for the wasteful expenditure incurred.
“Public institutions cannot be allowed to engage in politically motivated litigation with impunity, particularly when it is funded by taxpayers and comes at the expense of workers and the communities they serve.”
DA MP and labour analyst Michael Bagraim said the court’s judgment was “fair and shows the labour court was correct in the first place”. “It won’t encourage cadre deployment. You can’t presuppose someone is going to take wrong decisions because they belong to a political party.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.