Audit outcomes do not measure service delivery or the lived experience of local communities. However, they are a strong indicator of the capacity of municipal administrations to perform effective and efficiently (Auditor General, 2025: 27). These findings suggest that the bulk of municipalities across the country lack credible records, compliance with key legislation, and consequence management, which are essential for improving service delivery outcomes in municipalities. Most municipal administrations face serious capacity constraints, including political interference, weak institutions, inadequate human resources and poor leadership, which prevents them from being responsive and development-orientated.

In response, policymakers have pursued reforms to professionalise municipal administrations. For example, the Local Government: Municipal Systems Act 32 of 2000 (Systems Act) was amended to ban all municipal employees to hold office in political parties. But is it constitutional to limit the political rights of all municipal employees in an effort to professionalise and depoliticise municipalities? This was addressed in South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another [2025] ZACC 4. The Constitutional Court (CC) confirmed the order of the Labour Court, which declared that the prohibition barring all municipal employees from holding office in political parties (namely section 71B of the Systems Act) is unconstitutional and invalid. This article provides a summary of, and reflects on, the majority judgment.

The issue for determination

The CC had to determine whether section 71B of the Systems Act is justifiable under section 36(1) of the Constitution and whether the declaration of the Labour Court should be confirmed. Section 71B wanted to amend section 56A of the Systems Act, which only barred the municipal manager and senior managers from holding office in a political party. The Court had previously invalidated that section because Parliament used the wrong procedure. In fixing this problem, government introduced section 71B in 2022, extending the ban to all municipal employees.

Arguments by the parties

At the heart of the issue was government’s argument that (junior) municipal employees who hold political office may abuse their political power to influence how senior managers exercise their decision-making functions.

The South African Municipal Workers Union (SAMWU) wanted the Court to confirm the Labour Court’s declaration of invalidity, arguing that the extension unjustifiably limits the political rights of municipal employees. The ‘untested generalisation’ that ‘all municipal employees who hold political office will use their office to wield political influence, is an assumption that cannot be sustained absent any supporting evidence’, so SAMWU argued (paras 16-19).

The Minister of Cooperative Governance and Traditional Affairs (CoGTA) disagreed and argued that a right may be limited based on policy considerations, and that the Labour Court thus erred in finding that they failed to adduce sufficient evidence to justify section 71B of the Systems Act (paras 28-33).

The South African Local Government Association (SALGA) aligned itself with CoGTA and argued that banning all staff members from holding political office will depoliticise municipalities. It argued that ‘political interference in municipalities hampers the effective and efficient functioning of municipalities, especially on the part of junior staff employees who hold political office’ (paras 40-41).

The rationality and rights-limitation tests

When challenging a law that limits a constitutional right, two arguments are possible. The first is that the law lacks a legitimate governmental purpose or fails to establish a rational connection to that purpose. The onus then rests on the objector to demonstrate that the provision is irrational. The second, based on section 36(1) of the Constitution, is that the limitation is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Here, the burden of proof shifts to the party justifying the limitation, usually government. In this matter, the CC determined the issue on the basis of section 36(1) of the Constitution (para 52).

Is evidence required to determine the constitutionality of legislative provisions?

The Labour Court had declared section 71B unconstitutional and invalid because CoGTA did not produce evidence to justify the blanket prohibition as constitutionally valid. There was thus no rational connection between section 71B and its objective, namely, to professionalise the public sector. The Labour Court held that the argument that junior municipal employees who occupy political office in a political party would wield undue influence in the municipal administration, was no more than an assumption (para 14). In considering the question of evidence, the CC noted that while empirical evidence may not always be required to establish a rational connection with an impugned provision, ‘courts cannot operate on the mere say-so of Parliament’. Notwithstanding this, the CC stated that even if it adopts a ‘common-sense approach’ by dispensing with the need for empirical evidence, section 71B would still fail the rationality test as there are ‘many fallacious assumptions’ that the section raises (paras 59-60). When a law limits a right, government must provide the Court with sufficient information to properly examine its purpose and assess the reasons for the limitation (para 63).

Findings of the CC

The CC found that section 71B of the Systems Act restricts the political rights of municipal employees: it hinders them from fully engaging in political activities. While the purpose of professionalising and depoliticising municipalities is credible, the question is also how this can be done ‘without intruding so heavily on fundamental constitutional rights’ (paras 55-57). The CC stressed that the state must provide ‘clear and convincing reasons’ when it seeks to limit constitutional rights. The Court stated that it could not be expected to rely on untested and generalised assumptions. Moreover, the CC concluded that there are less severe remedies available, including the previous prohibition (namely banning senior managers from holding political office) which SALGA argued resulted in the stabilisation of the municipal sector. Other potential remedies are the strict enforcement of rules and disciplinary mechanisms to provide oversight, and curtail political interference. Therefore, the CC concluded that CoGTA and SALGA failed to discharge their evidentiary burden under section 36(1) of the Constitution.

The effect of the judgment is that the situation returns to the ‘old’ section 56A of the Systems Act, which barred only the municipal manager and managers reporting to him or her, from holding office in a political party.

Opinion

The history of local government reforms shows that stricter laws do not always change things. Thus, limiting constitutional rights of municipal employees may be unlikely to yield the desired outcomes. Efforts to professionalise and depoliticise municipalities should shift away from creating more law, towards effective implementation, monitoring and consequence management.

Prohibiting all municipal employees from holding political office in political parties could discourage skilled individuals from seeking employment in municipalities, thus exacerbating the problem of attracting and retaining talent. While the objective of professionalising and depoliticising municipal administrations is legitimate, practical steps are needed to achieve this, such as enhancing oversight in recruitment processes, and ensuring merit-based appointments.

Instead of expanding the prevailing overregulated legislative environment, what strategies could be adopted to promote the implementation of existing laws and policies in municipalities? What could be done to place a stronger focus on implementation as opposed to policy reform?

The judgment highlights that the state may not limit constitutional rights without evidence. Had the Labour Court or the CC adopted a ‘common sense approach’ to justify the ban, without requiring evidence, it would have set a dangerous precedent. In this case, CoGTA and SALGA failed to produce evidence for the rational connection between municipal governance problems and (junior) officials holding political office. This is a pity, given that DOI produced empirical evidence in 2009  detailing that connection. In his dissenting opinion, Justice Kollapen referred to an article in the Local Government Bulletin, in which the evidence was summarised. It goes to show that, if reforms such as these are essential, CoGTA and SALGA must rely on research institutions to produce data-driven research outputs that substantiate their policy shifts.

By Jennica Beukes, Doctoral Researcher