Constitutional Court Defends Political Freedoms of Municipal Employees

Introduction

In South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another (334/23) [2025] ZACC 4 (9 April 2025), a landmark judgment, the Constitutional Court has reaffirmed the political rights of municipal workers. The ruling follows a challenge brought by the South African Municipal Workers’ Union (SAMWU) against a blanket prohibition on holding political office. This marks a significant victory for political freedom within the public service.

The facts

The case arose from the extension of a political ban that had previously applied only to senior municipal managers. The amended section 71B of the Local Government: Municipal Systems Act (“the LGMSA”) sought to expand this prohibition to all municipal staff. SAMWU argued that such a broad restriction was unjustified, especially since lower-ranking employees hold limited decision-making power and political influence.

The amended provision prohibited all municipal employees—regardless of their position—from holding political office. SAMWU challenged this amendment, contending that it unfairly limited the political participation of junior staff. The Labour Court agreed, declaring the inclusion of the term "staff member" unconstitutional. The matter then proceeded to the Constitutional Court for confirmation of the ruling.

The law

In paragraph 52 of the judgment the Constitutional Court found that the inclusion of the phrase "staff member" in section 71B of the LGMSA infringed on section 19(1)(b) of the Constitution, which guarantees every citizen the right to participate in the activities of a political party. In paragraph 53, the Court applied section 36(1), which provides that any limitation of rights must be reasonable and justifiable in an open and democratic society, otherwise known as the proportionality test.

In its proportionality analysis, the majority found the limitation overbroad as it applied indiscriminately to all municipal employees without distinction, without sufficient evidence to justify such a sweeping restriction. The Court emphasized that a narrower limitation already existed, targeting only municipal managers and their direct subordinates. This, it held, was a less restrictive and more appropriate means to achieve the goals of professionalism and impartiality in local governance.

Conclusion

The Constitutional Court confirmed the Labour Court’s ruling, holding that section 71B applies only to municipal managers and those directly accountable to them. This decision entrenches the political rights of junior municipal employees and reinforces the principle that any limitation on constitutional rights must be evidence-based, proportionate, and necessary.