THE SA Municipal Workers' Union’s (Samwu’s) fight to restore political rights of ordinary local government employees limited by the Municipal Systems Act two years ago is heading to the Constitutional Court.
Last year, Samwu, a Cosatu affiliate, hauled then Co-operative Governance and Traditional Affairs (Cogta) Minister Thembi Simelane and the SA Local Government Association (Salga) to the Labour Court to challenge the constitutionality and rationality of the provision barring any staff member from holding political office in a political party.
In November last year, Labour Court Judge Andre van Niekerk declared Section 71B of the act unconstitutional and invalid, severed from the Municipal Systems Act the phrase staff member and referred his orders to the apex court for confirmation.
He determined the act to state that a municipal manager or manager directly accountable to a municipal manager may not hold office in a political party whether in a permanent, temporary or acting capacity.
In addition, Judge van Niekerk gave municipal managers or manager directly accountable to them a year to comply with the limitation of political rights barring them from holding office in political parties.
Initially the act limited the rights of municipal employees to hold office. In 2022, the act was amended to extend the prohibition from holding political office to all municipal employees such as technicians, secretaries, receptionists, clerks, gardeners, drivers, cashiers, plumbers and other artisans and librarians who are far removed from municipal decision-making.
The 2022 amendments made provision that a staff member may not hold political office in a political party, whether in a permanent, temporary, or acting capacity.
During the Labour Court proceedings, the union stated that the amendments limited the rights of employees in the impugned category to hold political office in violation of Section 19 of the Constitution, their rights to freedom of association, violating Section 18 of the Constitution, and their rights to dignity in violation of Section 10 of the Constitution and do so in a manner that cannot be justified in terms of Section 36 of the Constitution.
It further stated that the then minister, as the political head of the Cogta Department, which is responsible for the administration of the act, failed to provide any constitutional justification for the amendments when asked to do so by the National Assembly’s Cogta portfolio committee during the parliamentary discussions and debates on amendments.
In papers filed at the Concourt, Samwu maintained that the amendments are not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account all relevant factors.
”A core element of the right to freedom of association is the right to choose to join an association – such as a political party – and, once there, to hold office in that association,” the union argued.
It added that Salga had failed to show a rational connection between the impugned extension and the improved service delivery purpose.
Salga indicated that the limited political rights were historically significant and that the right infringed by the amendments was therefore an important right.
”The depoliticising of local and the professionalising of local government with the aim of inter alia improving service delivery is a legitimate government purpose sought to be achieved by the impugned provision. The depoliticising of local and the professionalising of local government is part of national government policy,” the association insisted.
According to Salga, stripping junior employees of their rights to hold political party positions will lead to zero or less political interference by junior employees in municipal decision-making, particularly in decisions relating to service delivery, leading to management being free to take apolitical service delivery decisions.
It insisted that this would lead to improved service delivery purpose.
Salga added that improved service delivery would result in the stabilisation of local government.
Samwu said Salga offered only five cases out of 257 municipalities where the association claimed there may have been interference by a junior employee who held political office.
Salga wants Judge van Niekerk’s ruling replaced with one dismissing Samwu’s application while the minister has asked the Constitutional Court not to confirm the order.
”While it may be correct that Cogta did not place evidence before court to justify the limitation, Cogta’s case was that the justification was based on policy considerations and not evidence,” the department submitted.
The confirmation hearing is set down for next Tuesday (September 10).