In April 2025 the Constitutional Court invalidated the legislature prohibition on staff members of municipalities holding political office in a political party and confined the prohibition to municipal managers or managers directly accountable to municipal managers.
The South African Municipal Workers’ Union challenged the provision in the Local Government: Municipal Systems Act of 2000 prohibiting municipal staff members from holding office in political parties.
Section 19 of the Bill of Rights provides that every citizen is free to make political choices including the right to participate in the activities of a political party. The disputed legislation offends section 19 of the Constitution. The question was whether this was justified or not. Section 36 of the Constitution allows a court to ask whether there are less restrictive means to achieve the purpose of the legislation. The court rejected the suggestion that banning junior employees from holding political office would lead to senior managers being able to execute their duties better resulting in better service delivery. A junior official who oversteps their mark may be warned, suspended or dismissed. To deprive junior staff members of their constitutional rights simply because of the suggestion that managers cannot exercise or administer disciplinary measures was found to be irrational. Less restrictive means could therefore be employed to achieve the legislative purpose. The less restrictive means was to limit the prohibition to managers and managers accountable to them. The law was amended retrospectively from 1 November 2022 being the date the Labour Court had made such an order.
The judgment is of limited general application on its facts save for the reminder regarding our section 19 rights. It is a good indication of the role of section 36(1) of the Constitution and the fact that the court has a discretion to limit constitutional rights in a reasonable and justifiable manner appropriate to an open and democratic society. The frequent cry of “this is not constitutional” suggest absolutes when this is not the case.