Case  CCT 334/23
[2025] ZACC 04

Hearing Date: 10 September 2024

Judgement Date: 09 April 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 09 April 2025, at 11h00, the Constitutional Court handed down judgment in an application for confirmation of an order by the Labour Court of South Africa, Johannesburg (Labour Court), which declared the inclusion of the phrase “staff member” in section 71B Local Government: Municipal Systems Act 32 of 2000 (Systems Act) unconstitutional and invalid. The applicant is the South African Municipal Workers’ Union (SAMWU), a registered trade union that represents employees in the local government sector. The first respondent is the Minister of Cooperative Governance and Traditional Affairs (COGTA). The second respondent is the South African Local Government Association (SALGA).

On 5 July 2011, the legislature promulgated the Local Government: Municipal Systems Amendment Act with the purpose of, inter alia, barring municipal managers and managers directly accountable to municipal managers from holding office in political parties (old Amendment Act). Section 56A was specifically inserted to serve this stated purpose, to bar the upper echelon of the municipal workforce from holding political office in political parties (narrow limitation). In August 2022, the legislature promulgated the Local Government: Municipal Systems Amendment Act 3 of 2022 (the new amendment) which inserted section 71B into the Systems Act (impugned extension). The main difference between section 56A, introduced by the old Amendment Act and section 71B introduced by the new Amendment Act is that the latter extends the limitation of political rights to all municipal employees, regardless of their status. Section 1 of the Systems Act defines “staff” as, “in relation to a municipality . . . the employees of the municipality, including the municipal manager”.

On 7 July 2023, SAMWU launched a constitutional challenge in the Labour Court against section 71B of the Systems Act, to the extent that it bars employees other than municipal managers and managers directly accountable to them from holding political office in political parties. The Labour Court held, inter alia, that the issue in that instance was the relationship between the limitation of a constitutional right (in the form of the impugned extension) and the purpose as articulated by the respondents. That purpose being to depoliticise and professionalise local government by eradicating political interference in municipal decision-making, so as to maintain management stability and thus improve service delivery. The Labour Court held that the matter would be best assessed through a justifiability inquiry, which requires, among other factors, a consideration of the relation between the impugned limitation and its stated purpose.

In line with the justifiability inquiry, the Labour Court held that there is no dispute that the impugned limitation limits section 19. The bone of contention was whether this limitation was justified or not. On the relationship between the impugned extension and its purpose the Labour Court held, inter alia, that evidence must be tendered to demonstrate that the existence and enforcement of the impugned extension can reasonably be expected to control the risks that the respondents have identified, and advance the purpose of the extension. Further, the Labour Court held that COGTA placed no evidence before it showing that the limitation imposed by the impugned extension was justified. On the argument that the intention of the limitation is to depoliticise and professionalise the public service, the Labour Court held that there is insufficient evidence that has been introduced to establish that the impugned extension is rationally connected to the stated purposes of depoliticisation and professionalisation. The Labour Court also rejected the argument that every junior employee who holds a political position in a political party would necessarily wield undue political influence in the workplace because it amounted to no more than an assumption. The Labour Court also held that there were less restrictive means to achieve the legislative purpose, in the form of the narrow limitation, that has been in existence since 2011.

In conclusion, the Labour Court held that it may well be that improved service delivery will result in the stabilisation of local government, but stabilisation is a consequence of the purpose of improved service delivery being achieved, it is not a means used to achieve that purpose. Based on the above reasoning, the Labour Court held that the limitation in the form of the impugned extension could not be justified in terms of section 36(1) of the Constitution, and thus section 71B was unconstitutional to the extent that it denied municipal employees, who were not municipal managers or managers accountable to them, from holding any political office in any political party.

Before the Constitutional Court, SAMWU submitted that the impugned extension is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors provided in section 36 of the Constitution. This is because there is no rational link between the impugned extension and the improved service delivery purpose and that the impugned extension potentially left no room for political participation of municipal employees. SAMWU submitted that there is no empirical evidence at all justifying these far-reaching intrusions and generalised assumptions. Further, that the stated purpose of the insertion of section 71B was, in the relevant part of the preamble to the Amendment Act: “to bar municipal managers and managers directly accountable to municipal managers from holding political office in political parties”. SAMWU disputed the notion that improved service delivery would result in the stabilisation of local government.

COGTA opposed the relief sought by SAMWU on the basis that the Labour Court erred in not finding that policy considerations alone may be sufficient to justify the limitation of a right in the Constitution. COGTA criticised the Labour Court judgment because it accepted that the professionalisation of municipal management and improving service delivery are legitimate objectives which require urgent implementation, but failed to consider whether the policy considerations constituted sufficient grounds to limit section 19. COGTA contended that the inroads that section 71B made into section 18 and 19, weighed against the benefit that stood to be derived were minimal and thus justified.

Similarly, SALGA contended that this Court should decline confirmation of the judgment and order of the Labour Court. According to SALGA, it is common cause that depoliticising and professionalising local government to improve service delivery is a legitimate government purpose. It is further common cause that political interference in municipal administration hampers the efficient and effective functioning of municipalities. SALGA submitted that the Labour Court erred in assessing the rationality of the extension. The suggestion that internal disciplinary measures are adequate to deal with recalcitrant junior officials holding high political offices loses sight of the reality that the political fallout for taking such disciplinary measure, in itself, disrupts municipal governance and administration. Thus, the Labour Court also erred in suggesting that the utilisation of disciplinary procedures would be a better means of achieving the same result.

The first judgment penned by Mathopo J (Madlanga ADCJ, Majiedt J, Mhlantla J, Rogers J, Tolmay AJ and Tshiqi J concurring) started its analysis by drawing a distinction between rationality challenge and rights-limitation challenge. The first judgment held that in a rationality challenge, the party impugning the provision bears the onus of demonstrating that the impugned provision lacks a legitimate government purpose or a rational relationship to such purpose. However, where legislation limits a fundamental right, as here, the burden shifts to the party seeking to justify the limitation under section 36(1) of the Constitution. The first judgment held that should the justification analysis reveal that the limitation cannot be justified, this would be sufficient to warrant a declaration of invalidity, rendering a separate consideration of the rationality challenge unnecessary.

In line with the justifiability inquiry, the first judgment found the central issue to be whether there is a limitation of a constitutional right and whether such limitation can be justified in terms of section 36(1) of the Constitution. It held that the nature of the constitutional right at issue is the political right to make political choices, specifically, the right to participate in the activities of a political party, as provided for in section 19(1)(b) of the Constitution. Further that limiting this right hinders citizens’ ability to fully engage in the country’s political activities, and could very well dissuade citizens from participating in political party activities, thus directly undermining the fundamental constitutional value of universal adult suffrage. According to the first judgment the respondents were unable to draw the Court’s attention to any empirical evidence justifying the limitation. While accepting that in some instances empirical evidence may not always be required, the first judgment, however, held that courts cannot operate on the mere say-so of Parliament. Further that even if a robust common-sense approach is adopted, the impugned limitation would still fail the rationality test as there are many fallacious assumptions that this legislative policy stance raises. The limitation fails on policy considerations alone, notwithstanding the absence of empirical evidence.

The first judgment held that it is unconscionable, in the absence of any evidence, to expect the Court to rely on untested and generalised assumptions as evidence of common sense. The solution to curb undue influence and violence is not to ban the constitutional rights of employees, but to ensure broader security through the use of law enforcement and to sustain ethical conduct through proper compliance with the constitutional mandates of the municipalities. The respondents’ problems lie in their inability to implement legal remedies with regard to these infractions. Depriving junior staff members of their hard-fought right, enshrined in section 19 of the Constitution, to hold positions in a political party, simply because managers cannot exercise or administer disciplinary measures, is irrational.

The first judgment agreed with the Labour Court that there are less restrictive mechanisms to achieving the object sought by the legislative purpose, one which was introduced by the old Amendment Act and has, as per SALGA’s concession, resulted in the “stabilisation of the municipal sector which for years has been plagued by political infighting, resulting in instability”. That less restrictive means is the narrow limitation, which has been tried, tested and has proved to be workable. It also remains unchallenged. Other mechanisms also exist, which include the stringent enforcement of rules and disciplinary mechanisms to provide oversight and curtail political interference in the local municipal sector.

The first judgment thus held that the respondents, who have the burden of justifying the impugned extension in a section 36(1) analysis, have failed to do so. The Labour Court’s declaration that the inclusion of the phrase “staff member” in section 71B of the Systems Act renders the section invalid was therefore correct. The retrospective application of the order will not have any disruptive effects or cause any confusion. Therefore, in the interests of justice, the declaration should operate retrospectively from 1 November 2022, being the date when the new Amendment Act commenced. For these reasons, the first judgment confirmed the order of the Labour Court declaring the inclusion of the phrase “staff member” in section 71B of the Systems Act unconstitutional and invalid, ordering the declaration of invalidity to operate retrospectively from 1 November 2022, being the date when the new Amendment Act commenced.

The second judgment penned by Kollapen J, concurred in by Theron J, agrees with the first judgment that section 71B constitutes a limitation on the right to participate in political activities as envisioned in section 19(1) of the Constitution. However, it held that COGTA and SALGA have provided enough information to establish that the limitation is reasonable and justifiable under section 36(1) of the Constitution. In doing so, the second judgment highlights the context within which one must understand section 71B. It held that a primary goal of the Constitution is a non-partisan civil service, and that depoliticisation is one of many mechanisms to achieve that goal. The challenge to section 71B must be seen in light of the legislature’s efforts to achieve depoliticisation, and not as an unsupported prohibition on the right to political activity.

Regarding the substantive rationality challenge, the second judgment held that one must distinguish between a rationality challenge, which is one based on the principle of legality, and the question whether a limitation is rationally related to a legitimate government purpose, which is a question which forms part of the limitation analysis under section 36(1) of the Constitution. It held that the true enquiry here is whether section 71B is reasonable and justifiable in an open and democratic society. If it is, then this disposes of the question of whether section 71B is rational. Given its conclusion that section 71B passed the limitation analysis, the second judgment found it unnecessary to determine whether section 71B was rational.

Regarding the limitation analysis, the second judgment found that the limitation is reasonable and justifiable for five main reasons. First, the nature of the right in question is the right to hold office in a political party which is a minor component of the right to political activity under section 19(1) of the Constitution. Given that the level of justification must be relative to the nature of the right, the information provided by COGTA and SALGA was enough to justify the relatively minor limitation on the section 19 right. Second, depoliticisation is an important purpose given that it is founded in Constitutional Principle XXX, and thus relates to the very foundation of our constitutional democracy. Third, section 71B applies only to those municipal employees who are elected to office in a political party. While, many employees may form part of political parties, only a few of them will be elected to office within that party. The limitation is therefore relatively minor in its nature and extent because, in substance, only a few municipal employees will be affected by the prohibition.

Fourth, the legislature considered a host of information which it relied on to support section 71B. This included a report by the Human Sciences Research Council, a reported judgment, a PowerPoint Presentation by SALGA and scholarly research from Professor Jaap de Visser. This information established a relationship between a prohibition on municipal employees from holding office in a political party and depoliticisation of local government. Finally, the narrow limitation does not constitute less restrictive means to achieve depoliticisation because it is not capable of achieving the level of depoliticisation desired by the Constitution.

The second judgment concluded that the limitation imposed on section 19 of the Constitution by section 71B of the Systems Act is thus reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Full judgment  here