South Africa's next local government elections are set to be held between November 2026 and February 2027. These elections will certainly be influenced by the declaration of invalidity of Section 71B of the Local Government: Municipal Systems Act 32 of 2000 (“Systems Act”).

In August 2022, the Local Government: Municipal Systems Amendment Act 3 of 2022 (Amendment Act) was assented to and took effect from November 2022, which inserted section 71B into the Systems Act. Section 71B, is headed “Limitation of political rights” and reads as follows:

“(1) A staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.

(2) A person who has been appointed as a staff member before subsection (1) takes effect must comply with subsection (1) within one year of the commencement of subsection (1).”  

After the promulgation, the trade union, SAMWU, launched a constitutional challenge in the Labour Court against section 71B of the Systems Act, to the extent that it bars employees in a municipality, not only municipal managers and managers directly accountable to them, from holding political office in political parties.

In line with the justifiability inquiry, the Labour Court recognised that there is no dispute that the contested limitation restricts section 19 of the Constitution, which guarantees the right of every citizen to make political choices and to participate in the activities of a political party. On the nature and the extent of the contested limitation, the Labour Court found that political rights are interconnected and thus implicate other rights. The Court was of the view that there were less restrictive means to achieve the legislative purpose of the Systems Act. 

In addressing the argument that the limitation intends to depoliticise and professionalise the public service, the Labour Court found that there was insufficient evidence to establish that the contested extension was rationally connected to the stated purpose of professionalising the municipal sector. The Labour Court rejected the argument that every junior employee who holds a political position in a political party would necessarily wield undue influence in the workplace, stating that this amounted to no more than an assumption.

The Labour Court rejected the assertion that a connection existed between the contested extension and the purpose of improving service delivery to stabilise local government. The Labour Court concluded that the limitation could not be justified in terms of section 36(1) of the Constitution and declared the inclusion of the phrase “staff member” in section 71B as unconstitutional to the extent that it precludes municipal employees, who are not municipal managers or managers directly accountable to them, from holding political office. 

To remedy the defect, it held that the phrase “staff member” should be severed, and the provision should read as:

“(1) A municipal manager or manager directly accountable to a municipal manager may not hold political office in a political party, whether in a permanent, temporary or acting capacity.

(2) A person who has been appointed as a municipal manager or manager directly accountable to the municipal manager before subsection (1) takes effect must comply with subsection (1) within one year of the commencement of subsection (1).”

After SAMWU’s victory in the Labour Court, the trade union approached the Constitutional Court for an order confirming the Labour Court’s declaration of the inclusion of the phrase “staff member” in section 71B of the Systems Act as unconstitutional and invalid on the ground that the contested extension constitutes an infringement of political rights in terms of section 19. SAMWU urged the Constitutional Court to endorse the orders of the Labour Court.

In terms of the Constitution, the Constitutional Court is empowered to declare as invalid and unconstitutional any law or conduct that is inconsistent with the Constitution and section 71B of the Systems Act was thus declared unconstitutional and invalid. 

The majority of the Constitutional Court held that it is untenable to assert that banning junior employees from holding political office would lead to senior managers being able to execute their duties better and that this would result in better service delivery. The Constitutional Court confirmed that the section could be remedied by severing the word “staff member” in section 71B and replacing it with the phrases “municipal manager and manager directly accountable to the municipal manager”, such that the provision bound senior municipal managers but was not a blanket prohibition. The Constitutional Court held that this declaration would operate retrospectively from 1 November 2022, being the date when the new Amendment Act commenced.


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