CHUMA VABAZA AND HOPE MBOWENI
Section 19 of the Constitution of South Africa guarantees every citizen the right to make political choices and to participate in the activities of a political party. The rights and freedoms under section 19, along with others contained in the Bill of Rights, are not to be easily undermined. Lest it be forgotten, there was a time in our nation when most of the population was disenfranchised.
Municipal Systems Act
On November 17, 2023 in the case of SAMWU v Minister of Cogta and Others, the labour court in Johannesburg had to determine whether section 71B of the Municipal Systems Act (the Systems Act) unconstitutionally limits an ordinary municipal employee’s political rights.
Section 71B of the Systems Act essentially provides that all municipal employees - from senior management to technicians, secretaries, receptionist, clerks, gardeners, drivers, cashiers, plumbers and other artisans – regardless of their status, are prohibited from holding political office in a political party.
It is worth noting that prior to the enactment of Section 71B in 2022, in terms of section 56A only municipal managers and managers directly accountable to a municipal manager were prohibited from holding a political office in a political party – whether in a permanent, temporary or acting capacity.
In the case at hand, the SA Municipal Workers’ Union (Samwu) submitted that the extension of the limitation to all municipal employees is unconstitutional as there is no rational connection between the limitation and its purpose. It further argued that the extension infringes on the rights of ordinary municipal employees who do not form part of management, in a manner that cannot be justified in terms of Section 36 (1) of the Constitution.
Samwu, however, did not dispute that there is political interference in municipal administration that hampers the efficient and effective functioning of municipalities.
Notwithstanding, it maintained that the reasons given for making the policy (limiting political participation at local government level) and the means to arrive at the policy, must be rationally connected to the end goal.
The South African Local Government Association (Salga) submitted that only a complete ban on political membership at all levels of local government would achieve the objectives of stable local government and the promotion of service delivery. Salga further submitted that junior municipal staff members who hold political positions are able to use their political influence to dictate to those employed in senior management positions in municipalities.
The Co-operative Governance and Traditional Affairs (Cogta) minister, concurring with Salga, submitted that the extension of this limitation to all municipal employees was a legitimate government instrument to professionalise the local government sector and ensure service delivery and stability. The minister further submitted that the power to interfere with the running of municipalities is derived from political rank and not by virtue of the authority conferred by a particular municipal post. As a result, both the minister and Salga contented that Section 71B is rational and the limitation on political rights is justifiable in terms of section 36(1) of the Constitution.
After considering all the arguments, the court was not satisfied that there was evidence before it to justify the extension to all municipal employees as constitutionally valid.
A claim for justification cannot be based only on what is contended to be common sense and judicial knowledge. To justify the limitation of a constitutional right, sufficient evidence should be placed before the court.
The court further reasoned that the minister and Salga cannot just assume that every junior employee who holds a political position in a political party will have undue influence in the workplace. Simply put, this cannot be a basis for denying ordinary employees their constitutional rights. Municipalities and municipal managers have legal remedies to resort to in cases where there is unlawful interference from junior employees who hold political offices.
Under the circumstances, the court held that section 71B of the Systems Act is unconstitutional to the extent that it prohibits municipal employees who are not municipal managers or senior managers from holding any political office in any political party. The court declared the extension of the limitation invalid with immediate effect, and with retrospective effect from November 1, 2022.
To remedy the defect, the court held that the phrase “staff member” in section 71B of the Systems Act must be removed, and the section must be read to only include a municipal manager or manager directly accountable to a municipal manager.
However, as with all matters concerning constitutional invalidity, the case has been referred to the Constitutional Court for confirmation.
* Vabaza and Mboweni practice in the Employment Law department of Shepstone & Wylie Attorneys