Extension of the ban on political party positions to all municipal staff does not survive in Labour Court
In 2011, the Municipal Systems Amendment Act was passed to prohibit senior municipal managers (municipal managers and managers directly accountable to them) from holding political office in political parties. The Amendment Act was subsequently invalidated by the High Court and confirmed by the Constitutional Court because its passage in Parliament did not follow the correct procedure. In 2022, Parliament corrected the procedural defect and promulgated another Municipal Systems Amendment Act, as covered previously in the Bulletin. Unlike the 2011 Amendment Act, the 2022 Amendment Act imposed a total ban on all municipal employees, irrespective of whether they were senior or junior staff, from holding political positions in political parties. Aggrieved by this blanket ban, the South African Municipal Workers' Union (SAMWU) approached the Labour Court challenging the constitutionality of this ban. In South African Municipal Workers' Union v Minister of Cooperative Governance and Traditional Affairs and South African Local Government Association, the Labour Court ruled in the Union’s favour.
The new provision, section 71B, of the 2022 Municipal Systems Amendment Act, titled “Limitation of political rights”, provides that:
1)“A staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.
2)A person who has been appointed as a staff member before subsection (1) takes effect, must comply with subsection (1) within one year of the commencement of subsection (1).”
The parties to this case, namely SAMWU, the Minister of Cooperative Governance and Traditional Affairs (COGTA) and the South African Local Government Association (SALGA), all agreed that this provision infringes on section 19 of the Constitution. This provision guarantees political rights of every citizen, including the right to participate in the activities of a political party. They differed on whether this infringement was justifiable in line with section 36(1) of the Constitution, which provides limited circumstances under which rights entrenched in the Bill of Rights may be limited. SAMWU’s submitted that the blanket ban was irrational since it could not be linked to its purpose. The Union cited the preamble to the Amendment Act which outlines the object of the new section 71B as “…to bar municipal managers and managers directly accountable to principle managers from holding political office in political parties”. It stated that section 71B is misaligned with this preamble as it imposes a blanket ban on all municipal employees. SAMWU further argued that the limitation of political rights for senior municipal managers is sufficient to ensure that service delivery is prioritised, free from political interference, since decisions are taken by senior rather than junior staff. In conclusion, the Union contended that the “real problem” was not necessarily the holding of political party positions by junior staff members rather the abuse of office, which should be dealt through other ways, rather than through this blanket barn.
SALGA submitted that a complete ban is necessary to depoliticise and professionalise local government, and improve service delivery. The Minister supported SALGA’s arguments and submitted that the complete ban was a legitimate government instrument to stabilise and professionalise the local government sector, and ensure improved service delivery. The prohibition for municipal staff to hold political party positions was, therefore, rational and constitute a justifiable limitation in terms of section 36(1) of the Constitution, so SALGA and the Minister argued.
The Court had to determine whether the limitation of political rights was directly linked to the purpose which the Amendment Act sought to achieve, which is to depoliticise and professionalise local government, and improve service delivery. After assessing the facts and relevant legal provisions, the Court decided that the blanket limitation of political rights for all municipal staff was not justified as it could not be linked to the intended purpose. The Court stated the Minister and SALGA failed to provide the necessary evidence in support of their submissions that there was in deed a relationship between the limitation and the intended purpose. However, the Court ruled that the limitation of political rights is justifiable for senior municipal managers, as they exercise decision making power. The Court, thus, declared the blanket limitation of political rights for all municipal staff unconstitutional and invalid. To remedy this defect, the Court directed that the word “staff member” in section 71B be replaced with the phrases “municipal manager and manager directly accountable to the municipal manager’ so that this provision could bind only senior municipal managers. Given that this an order of invalidity, it must be confirmed by the Constitutional Court before it can be implemented.
With this judgment the debate around limiting political rights of municipal officials is far from being settled. Given the challenges facing the local government sector, it is difficult to fault the government and SALGA for pushing for the extension of the limitation of political rights to all municipal employees. As stated above, many of the challenges being experienced in local government can be linked to political interference in municipal administration. It maybe artificial to suggest that staff below the senior management don’t take decisions because some of them do especially in large cities. In addition, it isa not only about whether a staff member takes decisions or not but also about the extent of influence that a municipal official has on those that takes decisions.
The Court was not convinced by the evidence submitted by SALGA in its call for a blanket ban. The Dullah Omar Institute conducted research on this topic back in 2009 which SALGA and other stakeholders are encouraged to consider. In the end, the Court is of the view that the ban should be limited to senior managers, as provided by the 2011 Amendment Act, as they exercise the most significant decision-making powers. As for the rest of the staff, any unregulated interference, political or otherwise, should be dealt with using the usual disciplinary processes, in terms of the Code of Conduct for Staff. The Bulletin will monitor this case and provide an update once it has been decided by the Constitutional Court.