Politics at Work
Case:
South African Municipal Workers Union v Minister of Co-operative Governance and another (Case No. J 945/23, Labour Court Johannesburg) (17 November 2023)
Issue:
Rights of Municipal Workers to Hold Political Office – the constitutionality of the 2022 amendment to the Local Government: Municipal Systems Act 32 of 2002 (the Systems Act).
Background:
The Systems Act in its pre-2022 form limited the rights of senior management in municipalities to hold office in political parties. At the time, the limitation applied only to municipal managers and managers directly accountable to them.
The limitation was first introduced in a 2011 amendment to the Systems Act, but the limitation was struck down by the courts on procedural grounds. The Constitutional Court confirmed the High Court’s declaration of invalidity of the amendment act but afforded the legislature an opportunity to correct the defect. This led to the 2022 amendment, which extended the original limitation to include all municipal employees. In terms of this amendment the likes of technicians, secretaries, clerks, gardeners, drivers, cashiers, plumbers, and librarians were prohibited from holding political office.
The union (SAMWU) claimed that this extension of the limitation was substantively irrational because it was not connected to any legitimate government purpose and submitted that the new section 71B unjustifiably limited the political rights guaranteed by section 19 of the Constitution, which provides that every citizen is free to make political choices, including the right to participate in the activities of a political party. The union therefore argued that the extension of the limitation was unconstitutional and invalid. The union’s application was opposed by the Minister and the SA Local Government Association (SALGA); the municipal employers’ organisation.
SALGA argued for that the limitation was needed to achieve proper discipline of party officials where they were employed by the same municipality, but in lower positions. SALGA contended that the extension of the limitation would depoliticise local government and thus avoid political interference, which it claimed was the root cause of poor service delivery.
The union argued that decisions to prioritise the interests of communities being served by municipalities, free from political interference, were made by senior municipal managers and not junior employees. A failure by management to exercise authority over municipal staff and to permit themselves to be politically managed and held accountable by junior employees holding political office would be in breach of their terms and conditions of employment. Thus, the real problem was not the holding of political office in any political party, it was the abuse of office.
The Labour Court dismissed the union’s argument as to the rationality of the amendment, and in relation to the constitutional challenge based on justifiability, noted that this required a two-stage inquiry. The first is whether the impugned provision limits any right in the Bill of Rights, and if it does, whether that limitation can be justified in terms of section 36(1). The respondents did not dispute that the extension of the limitation constituted a limitation of the section 19 right. The issue then was whether the extension met the threshold of justifiability.
The Labour Court was not convinced that the extension of the limitation to all municipal employees was justified in terms of section 36(1). The Respondents had not placed sufficient evidence before the Court to justify the limitation of a constitutional right. An assumption that junior municipal employees holding political office would have undue influence in the workplace was not a basis for denying ordinary employees their constitutional rights. If there was unlawful interference by junior employees, the municipalities had legal remedies to resort to. A failure by municipalities to have recourse to existing remedies could not be the basis for the denial of hard-won constitutional rights.
The Labour Court declared the extension of the limitation to employees other than senior management to be unconstitutional, retrospectively to November 2022. The matter has been referred to the Constitutional Court for confirmation.
Key takeaways
The purpose of section 19 of the Constitution is to prevent the denial of political rights, bearing in mind the history of South Africa and the previous disenfranchisement of a large section of the population. Limitations on constitutional rights must be properly justified by the lawmaker, who must prove that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the intended purpose.
