The government is yet to decide whether or not to challenge the Labour Court’s judgment declaring the law rendering ordinary municipal workers ineligible to hold office in political parties unconstitutional and invalid.
Labour Court Judge Andre van Niekerk on Friday ruled in favour of the SA Municipal Workers’ Union (Samwu), which had challenged the Municipal Systems Amendment Act of 2022 signed into law by President Cyril Ramaphosa in August last year.
In terms of the act, now amended by Judge van Niekerk, a staff member was not allowed to hold political office in a political party, whether in a permanent, temporary or acting capacity.
Judge van Niekerk found that the act’s prohibition extended to all municipal employees, whatever their status.
”In consequence, technicians, secretaries, receptionists, clerks, gardeners, drivers, cashiers, plumbers and other artisans, librarians and the like, all of whom are far removed from the realm of municipal decision-making, may not hold office in a political party,” reads the judgment.
Samwu argued that the prohibition on municipal employees engaged outside of the echelon of senior municipal management from holding office in a political party is unconstitutional and invalid.
The judge agreed with the union and declared that the inclusion of the phrase “staff member” in the act is unconstitutional and invalid.
In the order to remedy the defect, Judge van Niekerk severed the phrase “staff member” and ordered the section to provide that the limitation of political rights to hold office in political parties only applies to municipal managers and managers directly accountable to them (municipal managers).
Additionally, should a municipality appoint a municipal manager or manager directly accountable to a municipal manager the person must resign within one year of the commencement of the provision.
Judge van Niekerk’s orders will operate retrospectively from November 1 last year and have been referred to the Constitutional Court for confirmation.
Cooperative Governance and Traditional Affairs Minister Thembi Nkadimeng initially did not oppose Samwu’s legal action and undertook to abide by the Labour Court’s decision but made a U-turn and reconsidered her position after discussions with various stakeholders including the SA Local Government Association (Salga), which was also cited as a respondent.
Nkadimeng’s spokesperson, Tsekiso Machike, told Independent Media that the department was still studying the judgment and that it will advise on its course of action as soon as it has fully read the judgment.
Salga told the Labour Court that it was necessary to extend the prohibition to hold office in political parties to all employees because failure to do so would discriminate against their bosses in senior management.
However, Judge van Niekerk was not convinced.
”The evidence that was presented by Salga references more deep-seated causes of conflict in the local government sector and fails to establish precisely how a limitation of the constitutional right to political activity will achieve the objectives that have been identified,” the judge explained.
Salga did not respond to requests for comment yesterday but earlier this month it cautioned municipalities not to hire new employees who hold office in political parties despite the then pending constitutional litigation.
”Doing so would be contrary to section 71B (1) (of the Municipal Systems Amendment Act of 2022) and unlawful as a result.
Employees who hold political office in political parties, should have resigned from holding such political office by November 1, 2023,” the association stated.