Electoral laws applicable to municipal staff

The right to vote is one of the cornerstones of our democracy. It includes the right to run for election. Section 158(1) of the Constitution provides that every citizen who is eligible to vote in a municipality may, in theory, run for council in that municipality. This means that a municipal staff member may stand for election as a councillor in the municipality where he or she is employed, or be a candidate for election to the national or a provincial legislatures (Section 71A of the Municipal Systems Act). Likewise, officials of the national and provincial governments may also stand for election.

There are a few exceptions to this rule. The Constitution excludes persons who have been declared as an unrehabilitated insolvent or of unsound mind from being a candidate. It also excludes persons who have been convicted of an offence and sentenced to 12 months imprisonment without the option of a fine. Persons employed by a municipality who have not been exempted from disqualification under national law are likewise disqualified. For example, persons currently employed in a municipality who wish to participate in the local or national elections must comply with the provisions of the Regulations regarding the Participation of Municipal Staff Members in Elections, issued in 2011 in terms of the Municipal Systems Act.

The Regulations require that a municipal employee who wishes to participate in the election must first obtain a certificate of candidacy from the IEC in terms of section 31(3) of the Electoral Act, 1998. Upon receipt of the certificate, he or she must present a copy of it to the employer (i.e. the municipal manager). If the municipal manager is the candidate, then the certificate must be presented to the mayor. The employee shall then be deemed to be on compulsory leave from the day (working day) on which he or she received the IEC certificate until the date on which the results of the election are declared. If the candidate is elected, he or she must apply for further annual leave until he or she assumes office as a councillor. In the event that the employee's annual leave days are insufficient to cover the days prior to taking office, the days of absence will be counted as unpaid leave.

If a municipal employee is elected to the provincial or national legislatures or as a councillor, the employee is regarded to have resigned on the day before the assumption of office. Conversely, a municipal staff member who is a candidate for any election and is not elected to public office will remain employed by the municipality.

Duties on municipal employees seeking to be councillors
Throughout the campaign, especially between the declaration of the results and the assumption of office, a municipal employee who is a candidate in the upcoming elections may not use the resources of the municipality for the purpose of his or her election campaign. These include the use of any immovable property of the employer, including movable property such as financial resources, communication technology, equipment, official emblems and mailing lists, amongst others. The Regulations further prohibit a municipal staff member from using or accepting, during working hours, the assistance from any staff member employed by the municipality.

A municipal staff member who violates these rules will be guilty of misconduct in terms of the Code of Conduct for Municipal Staff Members, as provided in Schedule 7 of the Municipal Structures Act. For example, a municipal employee who participates as a councillor candidate without first obtaining the required certificate from the IEC not only violates the Municipal Staff Election Regulations but also Item 11 of the Code of Conduct for Municipal Staff Members, which prohibits municipal staff members from participating in municipal council elections unless they are ‘acting in an official capacity or exercising a constitutional right.’ Such an employee will be dealt with in accordance with the relevant disciplinary processes.

In practice, the sole responsibility to manage employees who participate as candidates in the elections rests with municipalities. For example, any alleged breach of the Code must be reported to the employee’s superior or to the speaker. Except for providing candidacy certificates, the IEC has no explicit monitoring or supervisory duty.

Electoral laws applicable to public servants employed at national and provincial levels
Public servants employed at the national and provincial levels of government may compete in municipal elections as candidates. However, the Public Service Act (PSA), makes their participation subject to the Code of Conduct that governs their conditions of service, as well as any other mandated restrictions and requirements. In particular, Regulation 15 of the Public Service Regulations, 2016  allows an employee who has been issued with a certificate in terms of the Electoral Act to participate as a candidate in any election. An employee who is standing as a candidate for the municipal elections must notify his or her head of department about his or her candidacy in writing, along with a copy of the certificate. The employee is considered to be on annual leave from the day after the certificate is granted. If a public servant does not have enough leave days, he or she, like municipal employees, will be on unpaid leave for the period in issue.

Depending on the outcome of the elections, if a national or provincial employee is elected and accepts the election results, he or she must resign from the public service immediately before the date when he or she assumes office. Conversely, if he or she is not elected, or is elected but declines to serve as a councillor, such an employee is permitted to return to work. In addition, the employee's leave will expire on the date that the employee declines the election, and he or she will be required to return to work the next working day.

Civil servants standing as candidates must adhere to the Code of Conduct for Public Servants. For example, while campaigning, civil servants may not use or disclose any official information for personal gain. More specifically, civil servants may not use their position in the public service to promote or prejudice the interest of any political party (section 20(g) Public Services Act). Furthermore, public employees may not engage in remunerative labour outside of their official tasks without prior authorisation, nor may they use office equipment for such activity. For instance, a civil servant who performs other remunerative work such as working for the IEC as a voting official must obtain the written permission from the relevant executive authority, or an officer authorised by such an authority (i.e. head of department).

The Regulations and Guidelines anticipate that some civil servants may wish to pursue a career in politics. Indeed, while civil servants at national and provincial levels are permitted to belong to a political party and attend political meetings (section 36 of the PSA), they are not permitted to engage in party-political activity at work. In contrast, municipal staff in terms of the Municipal Systems Amendment Bill in future will be prohibited from holding ‘political office in a political party, whether in a permanent, temporary or acting capacity.’ The law prohibiting municipal workers from occupying a political office in a political party is not new to local government. In fact, the Municipal Systems Amendment Act of 2011, previously struck down by the Constitutional Court in SAMWU v Minister of COGTA on procedural grounds (i.e. parliament failed to follow the correct legislative procedure) contained a similar prohibition (i.e. section 56A prohibited municipal managers, including managers directly accountable to the MM from holding a political office in a political party). It is unclear if the prohibition unfairly infringes municipal employees' political rights (i.e. the right not to be treated unfairly on political grounds), as the Constitutional Court did not address this question.

A breach of the abovementioned provisions of the Code of Conduct for Public Servants, along with the provisions of the PSA constitutes misconduct in terms of the PSA (section 20, PSA). The investigation of these forms of misconduct is the responsibility of the respective head of departments, who must follow the procedure outlined in PSA (sections 21-26). Again, the IEC has no investigative or supervisory duty with respect to non-compliance by civil servants.

Commentary
Government employees may run for council in the upcoming local government elections or participate as candidates in by-elections. The rules governing the participation of civil servants as councillor candidates becomes important when viewed against the current dismal state of municipalities, as revealed by the Auditor-General’s reports. Indeed, the Auditor-General, Tsakani Maluleke, listed mismanagement, political instability or interference, corruption, and incompetence as contributing factors to municipalities' low audit performance (just 27 out of 257 municipalities received clean audits in her 2019/20 report). By all accounts, the reasons behind the performance failures of municipalities are manifold. The practice of cadre deployment, for example, is ubiquitous across government. This is a practice in which political parties places their members in important positions, making officials answerable primarily to their political principals rather than to the public. The Regulations regarding the Participation of Municipal Staff Members in Elections, including the Public Service Regulations, 2016 (including the Code of Conduct for Municipal Staff Members) aims to minimise this by proscribing that civil servants who aspire to run for public office shall not misuse public resources to pursue political interests. To this end, the Regulations requires councillor candidates to take annual leave (during the campaign period) and prohibit the usage of state resources for election purposes. It also prohibits any interaction between the staff member participating in elections and other staff members.

This does not mean the regulations are faultless. For example, the Regulations create a shaky monitoring and enforcement system. Breaches of the Regulations are investigated by municipalities themselves rather than by an impartial authority like the IEC. As a result, municipalities frequently fail to enforce restrictions against implicated personnel, particularly when those employees are affiliated with the ruling party. The Regulations on the Participation of Municipal Employees in Elections have also a narrow field of application because they do not cover prior conduct or interactions between a councillor candidate and other employees. As it stands, the duty not to seek the assistance of other employees only applies to employees who wish to run for council from the date when he or she received a candidacy certificate. This anomaly can however be avoided when reading the Regulations along with the codes of conduct for municipal staff and public servants. For example, municipal employees are particularly barred from utilising their position or privileges as a staff member for private gain under the Code of Conduct for Municipal Staff Members, (Item 4(1)(a).

By Curtly Stevens, Doctoral Researcher