CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 334/23

In the matter between:


SOUTH AFRICAN MUNICIPAL WORKERS’ UNION Applicant

and

MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION Second Respondent



Neutral citation: South African Municipal Workers ’ Union v Minister of
Cooperative Governance and Traditional Affairs and Another
[2025] ZACC 4

Coram: Madlanga ADCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J,
Rogers J, Theron J, Tolmay AJ and Tshiqi J

Judgments: Mathopo J (majority ): [1] to [ 78]
Kollapen J (dissenting): [ 79] to [ 189]

Heard on: 10 September 2024

Decided on: 9 April 2025

Summary: Local Government: Municipal Systems Act 32 of 2000 —
Declaration of constitutional invalidity — confirmation —
municipal employees — limitation of political rights — rational
connection — unjustifiable limitation — retrospective effect

2

ORDER



On application for confirmation of an order of constitutional invalidity granted by the
Labour Court of South Africa, Johannesburg:
1. The order of the Labour Court declaring the inclusion of the phrase “staff
member” in section 71B of the Local Government: Muni cipal Systems
Act 32 of 2000 unconstitutional and invalid is confirmed.
2. The declaration of invalidity shall operate retrospectively from
1 November 2022, being the date when the new Amendment Act
commenced.
3. Paragraph 2 of the order of the Labour Court is u pheld. Section 71B of
the Local Government: Municipal Systems Act 32 of 2000 is to be read
to provide as follows:
“71B Limitation of political rights —
(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).”
4. The respondents are ordered to pay the applicant’s costs in the
Labour Court and in this Court, including the costs of two counsel.



JUDGMENT




MATHOPO J
3 MATHOPO J (Madlanga ADCJ, Majiedt J, Mhlantla J, Rogers J, Tolmay AJ and
Tshiqi J concurring ):


Introduction
The ability to exercise one’s political rights forms the bedrock of constitutional
democracy. Political participation, as enshrined in section 19 of the Constitution ,1 lies
at the very heart of shaping the course of go vernance . However, in the pursuit of
preserving this constitutional right lies a legitimate need for professionalis m in local
government in an attempt to curtail political interference and stabilise the municipal
sector. This application attempts to strike a delicate balance in the interplay between
upholding fundamental political rights and enforcing crucial limitations to protect the
integrity of local governance.

This is an application for confirmation of an order by the Labour Court of South
Africa, Johannesburg (Labour Court) ,2 which declared the inclusion of the phrase
“staff member ” in section 71B of the Local Government: Municipal Systems Act3
(Systems Act) unconstitutional and invalid . This was because the inclusion of that
phras e bars all municipal employees , not only municipal managers and their direct
subordinates , from holding office in political parties.

1 According to section 19—
“(1) Every citizen is free to make political choices, which includes the right —
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right —
(a) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office. ”
2 South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs [2023]
ZALCJHB 323; [2024] 2 BLLR 221 (LC); (2024) 45 ILJ 595 (LC) (Labour Court judgment).
3 32 of 200 0.
[1]
[2]
MATHOPO J
4
The applicant is the South African Municipal Workers’ Union (SAMWU) , a
registered trade union that represents employees in the local government sector. The
first respondent is the Minister of Cooperative Governance and Traditional Affairs
(COGTA) . The second respondent is the South African Local Government Association
(SALGA).

SALGA and COGTA contest the declaration of invalidity on the basis that a
complete ban is necessary to depoliticise and professionalise local government and
improve service delivery. The prohibition on municipal staff hold ing political party
positions is therefore rational and constitute s a justifiable limitation in terms of
section 36(1) of the Constitution .4 In turn, SAMWU ’s case is that, although it accepts
that there can validly be a prohibition in respect of municipal ma nagers and manager s
who report to the latter, the res triction in respect of other sta ff members is misaligned
with the preamble of section 71B as it imposes a blanket ban on all municipal
employees.5 SAMWU argues that the limitation of political rights pertaining to political
positions for senior municipal managers is sufficient to ensure that service delivery is
prioritised and is free from political interference , since decisions are taken by senior
managers rather than junior staff.


4 Section 36(1) provides —
“The rights in the Bill of Rights may be limited only in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors,
including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose. ”
5 The preamble provides that the purpose of section 71B is to “bar municipal managers and managers d irectly
accountable to municipal managers from holding political office in political parties” .
[3]
[4]
MATHOPO J
5 Background
On 5 July 2011, the Legislature promulgated the Local Government: Municipal
Systems Amendment Act6 with the purpose of, among others , barring municipal
managers and managers directly accountable to municipal managers from holding
office in political parties ( 2011 Amendment Act ). Section 56A was thereby inserted
into the Systems Act to serve this stated purpose. Thus, the section was intended to bar
the upper echelon of the municipal workforce from holding office in political parties.

In March 2017, this Court in South African Municipal Workers ’ Union I,7
confirmed a n order by the High Court of South Africa, Gauteng Division, Pretoria (High
Court) , declaring section 56A constitutionally invalid on procedural grounds8 and
afforded the Legislature an opportunity to correct the defect.

In August 2022, the Local Government: Municipal Systems Amendment Act9
(2022 Amendment Act) was promulgated , which inserted section 71B into the
Systems Act. Section 71B, headed “Limitation of political ri ghts”, 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 sub section (1) takes
effect, must comply with sub section (1) within one year of the commencement
of sub section (1).” (Emphasis added .)

Section 71B forms the basis of SAMWU’s constitutional challenge .


6 7 of 2011.
7 South African Municipal Workers ’ Union v Minister of Co -Operative Governance and Traditional Affairs [2017]
ZACC 7; 2017 (5) BCLR 641 (CC) .
8 The declaration of invalidity was on the basis that the process followed to pass the 2011 Amendment Act did not
compl y with the provisions of section 76 of the Constitution . Since the old Amendment had been found to be
invalid on the basis of the procedural challenge, this Court held that nothing was to be gained from any
consideration of the substantive challenge .
9 3 of 2022 . [5]
[6]
[7]
MATHOPO J
6
Section 1 of the Systems Act defines “staff” as, “in relation to a municipality,
the employees of the municipality, including the municipal manager”. The main
difference between section 56A, introduced by the 2011 Amendment Act , and
section 71B introduced by the 2022 Amendment Act , is that the latter extends the
limitation of political rights to a ll municipal employees, regardless of the title or
position held.

For purposes of this judgment, t he extension of the prohibition on holding
political office to all staff members effected by section 71B will be referred to as “the
impugned extension” and the erstwhile limitation, which imposed a prohibition on
municipal managers and managers accountable to them, as the “narrow limitation”.

Litigation history
Labour Court
On 7 July 2023, SAMWU launched a constitutional challenge in the
Labour Court against section 71B of the Systems Act, to the extent that it bars
employees , not only municipal managers and managers directly accountable to them ,
from holding political office in political parties .

SAMWU challenged the impugned extension on the followi ng three grounds:
(a) that the impugned extension is irrational in relation to its promulgated
purpose in the new Amendment Act;
(b) that the impugned extension is irrational in relation to its broader purpose ,
as can be ascertained from the legislative process an d as asserted by
SALGA; and
(c) that it limits the rights of employees in the impugned category to hold
political office,10 their rights to freedom of association ( section 18), and
their right to dignity ( section 10), and does so in a manner that cannot be
justified in terms of section 36(1) of the Constitution.

10 Section 19 of the C onstitution . [8]
[9]
[10]
[ 11]
MATHOPO J
7
According to t he Labour Court , the essence of the matter was the relationship
between the limitation of a constitutional right (in the form of the impugned extension)
and the purpose as articulated by the respondents, being to depoliticise and
professionalise local government by eradicating political interference i n municipal
decision -making, so as to maintain management stability and thus improve service
delivery. It followed that the matter required assessment through a justifiability inquiry,
which necessitates, among other factors, a consideration of the relati on between the
impugned limitation and its stated purpose.

In line with the justifiability inquiry, the Labour Court recognised that there is
no dispute that the impugned limitation limits section 19 of the Constitution . On the
nature and the extent of t he impugned 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 the form of the narrow limitation, a limitation that has been in existence
since 2011.

On the relationship between the impugned extension and its purpose, the
Labour Court held that evidence must be tendered to demonstrate that the existence and
enforcement of the i mpugned extension can reasonably be expected to control the risks
that the respondents have identified, and advance the purpose of the extension. Further,
that COGTA ha d placed no evidence before the Court to justify the impugned extension
as constitutionally valid. Addressing the argument that the intention of the limitation is
to depolitici se and professionali se the public service, the Court found that there was
insufficient evidence to establish tha t the impugned extension was rationally connected
to the stated purpose of professionali sing the municipal sector. The Court rejected t he
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 amount ed to
no more than an assumption.
[12]
[13]
[14]
MATHOPO J
8
The Labour Court rejected the assertion that a connection existed between the
impugned extension and the purpose of improv ing service delivery in order to stabilise
local government. Moreover, that it may well be that improved service delivery will
result in the stabilisation of local government, but that stabilisation is a consequence of
the purpose of improved service delivery being achieved, and not a means used to
achieve that purpose. As a result, the Court concluded that the limitation c ould 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 tha t it precludes
municipal employees, who are not municipal managers or managers 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:

“(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 sub section (1) takes effect, must
comply with sub section (1) within one year of the commencement of
subsection (1).”11

In this Court
SAMWU’s submissions
SAMWU seeks 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 impugned extension constitutes an
infringement of political rights in terms of section 19. It urge s this Court to endorse the
orders of the Labour Court.

SAMWU refers to the well -known approach that a constitutional challenge to
any dispute requires a two -staged test. Firstly, whether the statutory provision limits

11 Labour Court judgment above n 2.
MATHOPO J
9 any right in the Bill of Rights, and seco ndly, if there is such a limitation, whether such
limitation can be justified in terms of section 36(1) of the Constitution. As held by the
Labour Court, SAMWU points out that the first element is not in dispute, at least in
relation to political rights. According to SAMWU, the respondents bear the onus to
satisfy this Court that the limitation is reasonable and justifiable in terms of
section 36(1) – an onus that SAMWU contends they have not discharged .

On the nature of the right and its importance, SAM WU argues that there is an
interconnectedness between political rights and the right to freedom of association that
is trite . It submits that limiting a person’s right to hold a political party position could
very well dissuade that person from participating in political party activities, and even
from voting , with the concomitant effect of directly undermining the fundamental
constitutional right of universal adult suffrage. To reinforce this submission, SAMWU
relies on New Nation Movement ,12 where it was held :

“If the content of section 19(3)(b) entails that an adult citizen desirous of standing for
and holding political office may not be able to do so without forming or joining a
political party, that pits section 19(3)(b) against section 18. That immediately becomes
a weighty consideration in determining the content of the section 19(3)(b) right.
Therein lies the relevance of the right to freedom of association in this discourse. The
Doctors for Life and UDM I principle calls for a harmonio us reading of sections 18 and
19(3)(b).”13

SAMWU submits that there is a further intersectionality between political rights
and the right to human dignity. According to SAMWU , the untested generalisation
underpinning the impugned extension, 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.

12 New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11; 2020 (6) SA 257
(CC) ; 2020 (8) BCLR 950 (CC) .
13 Id at para 20 with reference to Doctors for Life International v Speaker of the National Assembly [2006] ZACC
11; 2006 (6) SA 416 (CC) ; 2006 (12) BCLR 1 399 (CC) at para 48 and United Democratic Movement v Speaker
of the National Assemb ly [2017] ZACC 21; 2017 (5) SA 300 (CC) ; 2017 (8) BCLR 1061 (CC) at para 83.
MATHOPO J
10
On the importance of the purpose of the limitation, SAMWU submits that, while
it is undisputed that service delivery is important, it adds no value in determining
whether the impugned extension is reasonable and justifiable , because there is no
rational link between the impugned extension and the improved service delivery
purpose. SAWMU ’s view is that the narrow limitation , in any event, is already better
placed to achieve this undeniably crucial purpose. On the nature and extent of the
limitation, SAMWU submits that the impugned extension potentially leaves no room
for political participation of municipal employees whatsoever. The impugned extension
wrongly assumes that every single employee would unscrupulously wield political
influence. There is , further, no empi rical evidence at all justifying these far -reaching
intrusions and generalised assumptions.

According to SAMWU , the impugned extension is substantively irrational.
Relying on Twee Jonge Gezellen ,14 SAMWU maintains that the test is whether there is
an appr opriate relationship between the limitation and its purpose , which, i n this case,
denotes two aspects to the rationality question. First, whether the impugned extension
is rational in relation to its promulgated purpose as stated in the 2022 Amendment Act
and second, whether the impugned extension is rational in relation to its broader purpose
as gleaned from the minutes of the COGTA Portfolio Committee , and as asserted by
SALGA.

SAMWU submit s that the stated purpose of section 71B is, in the relevant part
of the preamble to the Amendment Act , “to bar municipal managers and managers
directly accountable to municipal managers from holding political office in political
parties”. And this stated purpose clearly envisages a re -enactment of the na rrow
limitation, only barring municipal managers and managers directly accountable to
municipal managers from holding political office in political parties. No stated purpose
is served by the impugned extension.

14 Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of South Africa t/a The Land Bank
[2011] ZACC 2; 2011 (3) SA 1 (CC ); 2011 (5) BCLR 505 (CC) at para 64.
MATHOPO J
11
SAMWU contends that the Labour Court ought to have expressed its view on
the substantive rationality challenge vis-à-vis (in relation to) the unstated purpose
separately from the rights infringement challenge. This purpose is to depoliticise and
professionalise local government , i.e. to eradicate political interference in municipal
decision -making , so as to maintain management stability and thus improve service
delivery.

According to SAMWU, there is simply no evidence of what SALGA proffers as
a “rational objective basis justifying the c onnection” , i.e. that banning junior employees
from holding political office will lead to senior managers being able to execute duties
freely, which will result in better service delivery. On this basis alone, SAMWU argues
that the impugned extension is i rrational and not capable of achieving the improved
service delivery purpose. SAMWU rejects the notion that all municipal managers and
managers reporting to them could become stooges of junior officers who hold higher
political rank.

In response to the a rgument advanced by SALGA that junior employees may
overstep the line or attempt to undermine municipal managers, SAMWU contends that
SALGA must invoke the disciplinary processes already in existence and educate and
remind the employees of their code of co nduct as part of sustaining good local
governance . And f urther, that their services may be terminated if they are guilty of
serious misconduct.

In conclusion, SAMWU submits that the argument that improved service
delivery will result in the stabilisation of local government is devoid of merit .
Stabilisation is not and cannot be an independent purpose divorced from service
delivery (which is the real purpose) , so the argument continue s. SAMWU submit s that
stabilisation is a consequence of the improved se rvice delivery purpose being achieved,
not the means used to achieve it. The issue is the means towards the purpose, not the
MATHOPO J
12 consequence. It argue s that there is no stabilised local government with a poor service
delivery record.

According to SAMWU, even if one assumes , in SALGA’s favour, that
stabilisation of local government is an independent purpose sought to be achieved by
the impugned extension, SALGA has failed to establish any rational connection
between the impugned extension and the stated ob jective of stabilis ing local
government. Stabilisation in this sense appears to mean no political infighting, no
political killings, no service delivery protests, and no violence. We were urged to accept
that t he solution to curb violence is not to ban c onstitutional rights of employees , but to
ensure broader security through use of law enforcement, and to sustain ethical conduct
through proper compliance with the constitutional mandate of municipalities.

COGTA ’s submissions
COGTA opposes the relief soug ht by SAMWU on the basis that the
Labour Court erred in not finding that policy considerations alone may be sufficient to
justify the limitation of a right in the Constitution. Accordingly, COGTA submits that
the order of the Labour Court should not be co nfirmed by this Court and that SAMWU’s
contentions are without merit. Initially, COGTA supported the narrow limitation but
during deliberations on the Bill in the National Assembly , when SALGA proposed that
the limitation should extend to every “staff mem ber” employed by a municipality ,
COGTA reconsidered its position and decided to align itself with the views expressed
by SALGA .

COGTA submits that the Labour Court erred in finding that it failed to place
before it either evidence or sufficient informatio n regarding the policy being furthered,
nor reason s for that policy and its reasonab leness in limiting a constitutional right.
COGTA’s case is that the justification was based on policy considerations , not
evidence. Thus, the Labour Court erred when it found that the limitation is unjustifiable
on the basis that there was not enough evidence before the Court to justify the
amendment. The relevant policy considerations were debated and agreed to during
MATHOPO J
13 deliberations in the National Assembly , and it was agreed that there was a need for
professionali sation of administration in the municipal space and that there needed to be
legislation to that effect.

According to COGTA, the Labour Court accepted that the professionali sation of
municipal mana gement and improving service delivery are legitimate objectives which
require urgent implementation, but failed to consider whether the policy considerations
constituted sufficient grounds to limit the section 19 political rights . Instead, it
restricted i tself to the lack of evidence in arriving at its decision.

COGTA submits that in NICRO15 this Court noted that there are cases where the
concerns to which the limiting legislation is addressed are subjective and not capable of
proof as objective facts. As Chaskalson CJ explained in his judgment, “a legislative
choice is not always subject to courtroom fact ‑finding and may be based on reasonable
inferences unsupported by empirical data ”.16 Most importantly, this Court held that
there may be cases where, des pite the absence of information on the record (justifying
the limitation), a court is nonetheless able to uphold a claim for justification based on
common sense.

COGTA says the Labour Court failed to consider the well -known fact that many
municipalities are plagued by political destabilisation which has resulted in poor or no
service delivery, thus , depriving the public of the much -needed services.

Addressing the findings of the Labour Court that COGTA had placed no
evidence to justify the impugned exten sion and that it also failed to place evidence as
to the policy that is being furthered, the reason for that policy, and why it is considered
reasonable in pursuit of that policy to limit constitutional rights, COGTA contends that

15 Minister of Home Affairs v National Institute for Crime Prevention and the Re -Integration of Offenders
(NICRO) [2004] ZACC 10 ; 2005 (3) SA 280 (CC) ; 2004 (5) BCLR 445 (CC) (NICRO ) at para 34.
16 Id at para 35.
MATHOPO J
14 the Labour Court ought to have relied on policy considerations because they constituted
sufficient ground to limit the section 19 rights.

It is COGTA’s case that the Labour Court ought to have taken judicial notice of
the effects of political interference in municipalities and applied common sense in
determining whether the impugned extension is appropriate or not. This is especially
so, because the impugned amendment is not purel y fact - or evidence -based and the
Labour Court failed to consider whether, absent any evidence, the limitation of rights is
justifiable.

The Labour Court accepted that the policy aimed at depoliticisation and
professionalisation of the municipal space and the reasons for the limitation – namely,
the improvement of service delivery as a legitimate and urgent purpose . COG TA
contends that the Labour Court ought to have taken note of the devastating effects of
political interference in some municipalities , such as, Tshwane, eThekwini and the City
of Johannesburg. and should have found that the limitation is justifiable.

The fallacy in the Labour Court’s approach , so argues COGTA, is that armed
with all the information from the National Assembly and indepe ndent reports , the
Labour Court insisted on empirical evidence and wrongly concluded that the limitation
was intuitive -based as opposed to evidence -based . According to COGTA , at the very
least, the Labour Court ought to have considered these fact s, as it is a matter of public
record that many municipalities are destabilised by political infighting result ing in the
disruption of much -needed services which the public is entitled.

As a second string to its bow, COGTA places reliance on National Coalition for
Gay and Lesbian Equality17 in its submission that , even if a respondent makes no
attempt to discharge its burden of justification, a court must mero motu consider the
possibility that a limitation of rights is justifiable. We were urged to accept that , even

17 National Coalition for Gay and Lesbian Equality v Minis ter of Home Affairs [1999] ZACC 17; 2000 (1) BCLR
39 (CC); 2000 (2) SA 1 (CC).
MATHOPO J
15 if COGTA had not put up evidence to justify the limitation (which is denied) , the
Labour Court was nevertheless obliged to mero motu consider the possibility that the
limitation of rights is justifiable. COGTA maintains that the limitation meets the
rationality threshold and serves a legitimate government purpose of stabilising the
municipal sector.

In relation to the nature of the rights in section 19 of the Constitution, COGTA
contends that what is required in this instance is the weighing of the harm done by the
law as against the benefit the law seeks to achieve. The contention advanced is that
section 71B limits the rights of employees in a municipality from holding political
office. It does not bar them from associating with a political party of their choice, nor
does it bar them from participating in political party activities. The inroad that
section 71B makes into section s 18 and 19 of the Constitution , weighed against the
benefit that stands to be derived , is minimal and is accordingly ju stified. And,
section 10 of the Constitution is not impaired by section 71B. The limitation in
section 71B clearly serves a purpose that will contribute to human dignity and equality,
and the infringement is therefore justifiable.

To conclude its submis sions, COGTA argues that , given its history , the
impugned extension is justifiable in that it further s a rational and legitimate objective.
It is legitimate for the government to limit the political rights of all staff members
employed in municipalities. According to COGTA, the means suggested by SAMWU
are not sufficient and only a complete limitation of the right to hold political office is
appropriate.

SALGA ’s submissions
SALGA aligns itself with most of COGTA’s arguments and urge s the Court to
dismis s the application on the basis that depoliticisation and professionalisation of local
government to improve service delivery is a legitimate government purpose . It contends
that political interference in municipalities hampers the efficient and effective
functioning of the municipalities, especially on the part of junior staff employees who
MATHOPO J
16 hold political office. Because the limitation impact s only the holding of political office
by staff members of municipalities, it is minor as it affects a limited numb er of persons.
According to SALGA, the purpose of the limitation would be achieved by removing the
political influence of junior staff members who hold political office.

SALGA further submits that a complete ban on staff members holding political
office will achieve the objective of depoliticising the local government , as politicisation
leads to instability due to internal political infightings. SALGA takes issue with the
Labour Court’s finding that the utilisation of disciplinary procedures would be a b etter
means of achieving the stated legitimate purpose. It submits that t he suggestion that
internal disciplinary measures are adequate to deal with recalcitrant junior officials
holding high political office loses sight of the reality that the political fallout for taking
such a disciplinary measure, in itself, disrupts munici pal governance and
administration. Disciplinary steps against errant employees would not remove the
disruption. If a municipal manager faces political consequences for not following the
dictates of a junior official with higher political office in the sa me party, this would
encourage compliance with such dictates. Consequently, argues SALGA, there are no
less restrictive means to achieve the object of depoliticising local government.

The fundament of SALGA ’s case is that the enquiry into less restrictiv e means
is not fully answered by merely looking at the employer/employee relationship. It
argues that , while it is correct that the abuse of political power by a junior official in the
administration of a municipality would constitute misconduct worthy of disciplinary
action, such disciplinary action will not remove the disruption. There are no less
restrictive means that will achieve the object of depoliticising local government.
According to SALGA, o nly an entire ban on holding political office for all staff
members will achieve the objective of depoliticising local government, as the
destabilisation of local government due to internal political action will be avoided.

SALGA further contends that it is common cause that depoliticising and
professionali sing local government to improve service delivery is a legitimate
MATHOPO J
17 government purpose. It is further common cause , says SALGA, that political
interference in municipal administration hampers the efficient and effective functioning
of municipalities. Accor ding to SALGA, the question to be asked is whether the
extended prohibition is rationally linked to the depoliticisation and professionali sation
of local government administration, which answer is in the affirmative.

SALGA relies on the Moerane Commission Report18 into political killings,
particularly in Kwa Zulu‑Natal, which recommended to the government that it should
depoliticise and professionalise the public service as intended in Chapter 13 of the
National Development Plan19 relating to local government. That policy framework
intends to professionalise the public service in order to prevent the politics of patronage,
incumbency, and personal accumulation. If the limitation of political rights regarding
the holding of politi cal office is consistent with a legitimate government purpose and
policy, then there is no reason, in logic, why such limitation in respect of all municipal
staff members is not equally consistent with such government policy , thus submits
SALGA.

SALGA fur ther relies on its 2016 S tudy,20 conducted by the Human Sciences
Research Council (HSRC) , which emphasise d that incidents of violence, service
delivery protests, and political killings stem from a combination of poor service delivery
and political motivatio ns. SALGA submits that the 2016 Study presents important
evidence that illustrates how political infighting within municipalities is linked to
service delivery failures, protests, and resulting violence.

SALGA argues that , because the intention of the po licy is aimed at enabling
municipalities to comply with their constitutional obligation in terms of section 156 of
the Constitution , the rationality challenge ought to have failed for the following reasons:

18 Moerane Commission of Inquiry Report of the Moerane Commission of Inquiry into the underlying causes of
the murder of politicians in KwaZulu -Natal (2018 ) at 417.
19 National Planning Commission Our Future – Make it Work National Development Plan 2030 (2012 )
20 South African Local Government Association (SALGA) Violence in Democracy: The Political Killing and
Intimidation of Local Rep resentatives and Administrators (2016) .
MATHOPO J
18 (a) as the limitation relates to enshrined politi cal rights, the limitation needs
to be assessed in terms of section 36(1) of the Constitution, and not
merely on the basis of rationality ;
(b) even on the basis of rationality, section 71B meets the requirement of
serving as a link to a legitimate government purpose and policy ; and
(c) the proportionality challenge should fail since the depoliticisation and
professionalisation of local government is aimed at improving service
delivery.

The limitation is, therefore, not disproportionate insofar as i t relates to all staff
members. According to SALGA, the amended section 71B is accordingly justifiable in
terms of section 36(1) of the Constitution.

Issues
There is no dispute that the impugned limitation offends , primarily, section 19
of the Constituti on. The bone of contention between the parties is whether this is
justified or not.

Thus, the following issues arise for determination :
(a) whether the impugned extension in terms of section 71B of the
Systems Act is justifiable under section 36(1) of the Constitution ;
(b) whether the declaration of invalidity by the Labour Court should be
confirmed ; and
(c) if confirmed —
(i) whether such declaration should be suspended to grant the
Legislature an opportunity to remedy the defect ; and
(ii) whether the declaration should operate with retrospective effect.

MATHOPO J
19 Condonation
SALGA has requested condonation for the late filing of its written submissions,
which were filed two court days out of the period prescribed in the directions issued by
this Court. The del ay is minimal and condonation is granted.

Anal ysis
Substantive rationality challenge vis -à-vis limitation of rights challenge
Before proceeding to the section 36 analysis, it is necessary to address the
distinction between SAMWU ’s rationality challenge and its rights -limitation challenge.
While both challenges have been raised, they involve different considerations and
burdens of proof. In a rationality challenge, the party impugning the provision bears
the onus of demonstrating that the impugned provision lacks a legitimate government
purpose or a rational relationship to such purpose. However, where legislation limits a
fundamental right, as here, the burden shifts to the party seeking to justify the limitation
under section 36(1) of the Constitution.

In a line of cases, stretching back to New National Party ,21 this Court has
consistently held that , like all exercises of public power, there are constitutional
constraints that are placed on Parliament. This is so because “there must be a rational
relationship between the scheme which it adopts and the achievement of a legitimate
governmental purpose. Parliament cannot act capriciously or arbitrarily” .22 It is now
trite that the objector bears the onus of providing this justific ation. This Court, in
Glenister II,23 framed the principle thus:


21 New National Party v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3) SA 191 (CC) ;
1999 (5) BCLR 489 (CC).
22 Id at para 19.
23 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) B CLR
651 (CC) .

MATHOPO J
20 “The onus of establishing the absence of a legitimate governmental purpose, or of a
rational relationship between the law and the purpose, falls on the objector. To survive
rationality revi ew, legislation need not be reasonable or appropriate .”24

SAMWU challenges the rationality of section 71B’s blanket prohibition on two
grounds: first, that it is irrational in relation to its promulgated purpose as stated in the
2022 Amendment Act, and second, that it is irrational in relation to its broader purpose
of depoliticising and professionalising local government. However, given that
section 71B clearly limits fundamental rights protected by section 19 of the
Constitution, an d this limitation is not disputed by the parties, it is appropriate to
proceed directly to the section 36 justification analysis. Should this analysis reveal that
the limitation cannot be justified, this would be sufficient to warrant a declaration of
invalidity, rendering a separate consideration of the rationality challenge unnecessary.

The justifiability enquiry
The fundamental issue before this Court is whether the impugned extension in
terms of section 71B of the Systems Act is justifiable under section 36(1) of the
Constitution . This requires a proportionality enquiry . The question to be asked is
whether there is a limitation of a constitutional right and whether such limitation can be
justified in terms of section 36(1) of the Constitution. This Court in Makwanyane ,25
held that the balancing of different interests forms an inherent requirement of
proportionality :

“In the balancing process, the relevant considerations will include the nature of the
right that is limited, and its importance to an open and democratic society based on
freedom and equality; the purpose for which the right is limited and the importance o f
that purpose to such a society; the extent of the limitation, its efficacy, and particularly

24 Id at para 55, where this Court also relied on Pharmaceutical Manufacturers Association of SA: In Re Ex Parte
President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at
paras 86 and 89 -90 and New National Party above n 21 at para 24.
25 S v Makwanyane [1995] ZACC 3; 1995 (2) SACR 1 (CC) ; 1995 (3) SA 391 (CC ); 1995 (6) BCLR 665 (CC) .

MATHOPO J
21 where the limitation has to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right in question.”26

As stated in NICRO , “[u]ltimately what is involved in a limitation analysis is the
balancing of means and ends” .27

In order f or the limitation to be justified, it must be reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom, taking
into account all relevant factors, including :
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less res trictive means to achieve the purpose.28

The nature of the constitutional right at issue is the political right to make
political choices, specifically, the right to participate in the activities of a political party ,
as provided for in section 19(1)(b) of the Constitution . The chilling effect of the
impugned extension is that it restricts the entitlement and exercise of this right for
municipal employees by precluding them from holding political office in a political
party, irrespective of the title or position held by the employee (s).

The rights en shrined in section 19 of the Constitution are not only crucial to
individual political freedom but form an essential part of the broader democratic
process. I agree with SAMWU that it is cold comfort to sug gest that the impugned
extension limits political rights only partially. Limiting this right hinders citizens’
ability to fully engage in the country’s political activities, and could very well dissuade
citizens from participating in political party activ ities, thus directly undermining the

26 Id at para 104.
27 NICRO above n 15 at para 37.
28 Section 36(1) of the Constitution.
MATHOPO J
22 fundamental constitution al value of universal adult suffrage. With constitutional rights
not being absolute, this requires careful consideration by this Court.

What must be kept in mind, however, is that although the purpose sought to be
achieved by this limitation is creditable, it ought to be considered whether this goal can
be realised without intruding so heavily on fundamental constitutional rights. It seems
necessary to closely examine whether the limitation imposed by section 71B extends
beyond what is reasonably necessary to realise the legitimate purpose.

In Manamela ,29 this Court stressed that “[a]s a general rule, the more serious the
impact of the measure on the right, the more persuasive or co mpelling the justification
must be.” The impugned extension is very extensive in scope , in light of its far -reaching
nature . It essentially excludes an entire group of citizens at different levels in the
employ of a municipality from holding a political office . This legislative overkill
applies to all “staff members” in the municipal sector, regardless of the title, position or
responsibility held. However, unlike the erstwhile narrow limitation, this
indiscriminate limitation fa ils to differentiat e between employees who hold positions of
authority, th e upper echelon of the municipal workforce, and employees whose political
associations would in all probability have no influence on their capacity to execute their
duties impartially. This sweeping limita tion raise s considerable issues regarding its
reasonableness and proportionality.

It is trite that w here the state seeks to limit constitutional rights in the Bill of
Rights, it must support this by providing clear and convincing reasons. The political
rights at issue are crucial to our democratic order and issues of past disenfranchisement
weigh heavily in favour of the protection of these rights. In order to pass constitutional
muster, there must be an appropriate relationship between th e impugned extension and
the stated purpose, for example, depoliticisation and the professionalisation of local

29 S v Manamela (Director -General of Justice Intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC) ; 2000 (5) BCLR
491 (CC) ( Manamela ) at para 32.

MATHOPO J
23 government for the enhancement of service delivery.30 The respondents were unable to
draw our attention to any empirical evidence justifying the stated purpose (limitation).
I accept that in some instances empirical evidence may not always be required, however,
it is my view that courts cannot operate on the mere say -so of Parliament.

In an attempt to row away from this intractable position, the respondents invited
us to rely on NICRO by adopting a common -sense approach and dispense with a need
for empirical evidence in conducting this limitation analysis . As demonstrated above,
even if we were to adopt a robust common -sense approach, the impugn ed limitation
would still fail the rationality test. There are many fallacious assumptions that this
legislative policy stance raises. The limitation fails on policy considerations alone,
notwithstanding the absence of empirical evidence.

The respondents also rely on Mr Hoosen’s comment on SALGA’s slide
presentation. Mr Hoosen, a member of the National Assembly representing the
Democratic Alliance in the province of KwaZulu ‑Natal, shared a casual conversation
which he had with an “unnamed ” senior municipal official who indicated that he could
not discipline his junior employee who happened to be a senior political official in his
political party. This proves nothing and ought to simply be rejected as untested hearsay
evidence. Further, the re spondents’ submission on this score is fallacious – it carries
with it an assumption that most, if not all, municipal employees belong to the same
political party. It has not been shown how a junior official of party A can wield political
influence over a senior municipal manager who is a member of party B.

It is unconscionable, in the absence of any evidence, to expect this Court to rely
on untested and gen eralised assumptions as evidence of common sense. The solution
to curb undue influence and violence is not to ban the constitutional rights of employees ,
but to ensure broader security through the use of law enforcement and to sustain ethical

30 United Democratic Movement v President of the Republic of South Africa (African Christian Democratic Party
and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) [2002]
ZACC 21; 2002 (11) BCLR 1179 (CC); 2003 (1) SA 495 (CC) at para 55 and Pharmaceutical Manufacturers
Association of South Africa above n 24 at para 85.
MATHOPO J
24 conduct through proper compliance with the constitutional mandates of the
municipalities.

In my view, where there is an underlying policy for limiting the right, the
Government is obliged to provide the Court with sufficient information to properly
examine its purpose and by so doing assess the reasons for the limitation. In NICRO , it
was said :

“In a case such as this where the government seeks to disenfranchise a group of its
citizens and the purpose is not self -evident, there is a need for it to place sufficient
information before the Court to enable it to know exactly what purpose the
disenfranchisement was intended to serve. In so far as the government relies upon
policy considerations, there should be sufficient information to enable the Court to
assess and evaluate the policy that is being pursued.”31

It is critical to draw a distinction between the promulgated purpose and stated
purpose. The promulgated purpose of section 71B is to “ bar municipal managers and
managers d irectly accountable to municipal managers from holding political office in
political parties” . It restates the narrow limitation. I agree with both the Labour Court
and the respondents that this was most likely an administrative oversight, and this can
be attributed to the fact that the impugned limitation was a last-minute change in the
law-making process . It could not have been th e intention of the law -maker to
deliberately contradict the legislative purpose with its provisions.

In this case, no evidence was placed before the Labour Court that there is an
appropriate relationship between the impugned extension and the stated purpose . The
respondents sought to advance as evidence the slide presentation made by SALGA to
the C OGTA Portfolio Committee. There can be no reliance on this . This presentation
relies on the 2016 Study that in itself fails to establish any rational link between the
impugned limitation and the stated purpose. This report made various findings, which

31 NICRO above n 15 at para 65.
MATHOPO J
25 include intra -political party violence and community violence related to poor service
delivery (albeit it does not identify the root cause a s being attributable to junior
employees who hold political office) . The report also identifies criminal conduct which
is attributable to lack of job opportunities. There is nothing in the report that helps the
respondents’ case in establishing the link between the impugned limitation and the
stated purpose.

In the Labour Court, SALGA in its answering affidavit placed reliance on the
National Development Plan32 by the National Planning Commission. SALGA
specifically relies on page 414 of the National Development Plan, under the heading
“what needs to be done”. As correctly articulated by SAMWU in their reply, there is
nothing in the National Development Plan about stripping junior municipal employe es
of their constitutionally guaranteed and historically significant rights to hold office in
political parties.

Another fallacy in the respondents’ case is the assertion that holding political
office is the sole vehicle through which political influence may be wielded. It ignores
a situation where a person may well be capable of influencing political decisions by
virtue of being closely affiliated with someone occupying political office. Employees
do not have to hold office in a political party to influ ence the kind of mischief the statute
is said to seek to mitigate. A person can be recognised as an influential figure within a
party structure without formally occupying party office. Conversely, an influential
office -bearer can (if inclined to do so) c ontinue within the community to lean on senior
managers, even if the office bearer no longer holds a position within the municipality.
There is also a misplaced assumption that once the junior employee resigns, the political
influence they have also dissi pates with the resignation.

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

32 National Planning Commission above n 19 at 414.
MATHOPO J
26 this would result in better service delivery. What the resp ondents also ignore is that if
junior official s overstep their mark, they may be warned, suspended or dis missed . They
also lose sight of the possibility that employees who are no longer office -bearers may
still wiel d a lot of influence and power. It seem s to me that SALGA’s problems lie in
their inability to implement legal remedies with regard to these infractions. Depriving
junior st aff members of their hard -fought righ t, enshrined in section 19 of the
Constitution , to hold position s in a political party , simply because managers cannot
exercise or administer disciplinary measures , is irrational.

An important factor in the section 36(1) analysis is whether less restrictive means
may be employed to achieve the legislative purpose .33 I disagree that there are no less
restrictive means by which this stated purpose could be achieved. In its meticulous
judgment, the Labour Court correctly pointed out that there w as a less restrictive means
to achieve the object sought by the legislative purpose, a means which was introduced
by the old Amendment Act and has, as per SALGA’ s concession, resulted in the
“stabili sation of the municipal sector which for years has been plagued by political
infighting, resulting in instability” .34 If this targeted limitation has a clear track record
of having effectively accomplished the same legislative purpose, without infringing on
the fundamental and political rights of all municipal employees, there seems to be no
rationality in the superfluous ex tension of the limitation to all municipal employees .
Section 36(1) “does not permit a sledgehammer to be used to crack a nut” .35 In this
case it is not possible to hold that the limitation is justified because of the disconnect
between the impugned exten sion and improved service delivery .


33 See Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (2) SACR 101 (CC);
2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) at para 51 , where this Court held:
“What must be stressed is that the purpose of the enquiry is to determine not whether there are
other means that could have been used, but whether the means selected are rationally related to
the objective sought to be achieved. And if objectively speakin g they are not, they fall short of
the standard demanded by the Constitution .”
34 Labour Court judgment above n 2 at para 33.
35 Manamela above n 29 at para 34.

MATHOPO J
27
The respondents sought to draw a comparison between the impugned extension
and section 46 of the South African Police Service Act36 which limits political rights of
SAPS members. The respondents placed considerable reliance on this provision to
argue that a similar limitation has been effected in other spheres of our society. This
argument is untenable and has no substance . The members of the SAPS take an oath to
uphold the Const itution and pledge to protect and serve the public. They are expected
to abide by certain ethical standards. Therefore, their limitation of rights is not
comparable with the limitation of rights of a junior municipal employee who is for
instance an admin istrator or a plumber. This comparative argument seeks to assume
that a member of SAPS has equal professional standing with a junior municipal
employee . This is clearly a flawed and speculative argument which I reject. It is much
more sensible to limit a member of the SAPS’ political rights than it is to limit political
rights of a municipal employee , such as an administrator who commands minimal to no
authority.

I have had the benefit of reading the judgment of my colleague Kollapen J
(second judgment) . While both judgments largely agree on the limiting effect of
section 71B on the rights provided by section 19(1) of the Constitution, the second
judgment’s disaccord from this judgment is premised on the conclusion that the
respondents have sufficiently established that the limitation provided for by section 71B
satisfies the requirements provided for in section 36(1) of the Constitution. I disagree
with this interpretation. I pause to emphasise that the respondents carried the burden of
justifying the impugned extension in a section 36 analysis. This Court cannot be
expected to accept unsupported assertions of public interest as an alternative to
reasoning based on evidence. While the respondents have raised legitimate concerns
and objectives, these do not reli eve the respondents from their obligation to adequately
justify the proportionality and necessity of the impugned extension with some form of
evidence, at the very least, especially in the limitation of a significant right. It was
incumbent upon them to adduce and submit evidence to demonstrate that the limitation

36 68 of 1995 .
MATHOPO J
28 was reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom.

The respondents have not convinced this Court that t he impugned extension is
the sole measure through which the stated objective may be achieved. The respondents
implausibly relied on unsupported allegations. This approach is wrong. The
respondents have failed to discharge the evidentiary burden required by section 36.
Without any evidence, this Court is precluded from meaningfully evaluating whether
the limitation of the section 19 right is reasonable and justifiable.

In my view, less restrictive means in the form of the targeted narrow limitation
therefore exist, they have been tried, tested and they have proved to be workable. They
also remain unchallenged. Other mechanisms include the stringent enforcement of rules
and disciplinary mechanisms to provide oversight and curtail political interference in
the local municipal sector . It must be accepted that —

“[I]f the same objectives that a rights -limiting measure aims at can be achieved in a
manner that is less restrictive of rights, then surely the less restrictive approach is
preferable and the more extensive limitation is not justified.”37

In the circumstances, the respondents, who have the burden of justifying the impugned
extension in a section 36(1) analysis, have failed to do so .

Confirmation of the declaration of invalidity
Section 172(1)(a) of the Constitution empowers a court to declare as invalid and
unconstitutional any law or conduct to the extent of its inconsistency. Having
established that the impugned extension is unjustifiable under section 36(1), it follows
that the Labour Court’s declaration that the inclusion of the phrase “staff member ” in
section 71B of the Systems Act render s the section invalid and accordingly stands to be

37 Richard “Service Conception of the Constitution: Authority, Justification and the Rule of Law in Proportionality
Jurisprudence ” (2019) 9 Constitutional Court Review 219.
MATHOPO J
29 confirmed. The blanket implementation of the limitation, regardless of the position
and/or title of the municipal employee , is overbroad , and unconstitutionally hinders the
political rights of municipal employees in a manner that cannot be justified in terms of
section 36(1) of the Constitution .

It remains to consider whether the declaration of invalidity should apply with
retrospective effect and whether this Court should provide the Legislature with an
opportunity to remedy the defect. The judgment of the Labour Court ordered that the
declarati on operate with retrospective effect from 1 November 2022. Political rights
are a crucial aspect of local democracy , and although an order for the suspension of the
declaration would allow the Legislature an opportunity to remedy the defect and tailor
the limitation more precisely, that is, reviving the erstwhile narrow limitation, the period
of suspension would still weigh heavily on this fundamental right. I am of the view that
the retrospective application of this order will not have any disruptive eff ects or cause
any confusion . Therefore, i n the interests of justice, the declaration sh all operate
retrospectively from 1 November 2022, being the date when the new Amendment Act
commenced.

Costs
It has been well established in our law that “the award of costs is a matter which
is within the discretion of the court considering the issue of costs. It is a discretion that
must be exercised judicially having regard to all the relevant considerations” .38 In
awarding costs, the Labour Court considered the applicability of protection established
in Biowatch39 in pursuit of the vindication of the constitutional rights of SAMWU’s
members, and the rights of all municipal employees affected by the impugned
extension. It concluded that SAMWU must be awarded costs. I agree with the finding

38 Affordable Medicines Trust v Minister of Health [2005] ZACC 3 ; 2005 (6) BCLR 529 (CC) ; 2006 (3) SA 247
(CC) at para 138.
39 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).

MATHOPO J
30 that costs must follow the result .40 SAMWU is, therefore, entitled to its costs in the
Labour Court and this Court.

Conclusion
For these reasons , and in an attempt to remedy the defect caused by the new
Amendment Act, 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 this provision binds senior municipal managers is a necessary
safeguard to the employees and provides SAMWU with the assurance that the blanket
prohibition is untenable . The consequence thereof would be a resuscitation of the
narrow limitation.

In the result, t he following order is made:
1. The order of the Labour Court declaring the inclusion of the phrase “staff
member” in section 71B of the Local Government: Municipal Systems
Act 32 of 2000 unconstitutional an d invalid is confirmed.
2. The declaration of invalidity shall operate retrospectively from
1 November 2022, being the date when the new Amendment Act
commenced.
3. Paragraph 2 of the order of the Labour Court is upheld. Section 71B of
the Local Government: Mun icipal Systems Act 32 of 2000 is to be read
to provide as follows:
“71B Limitation of political rights —
(1) A municipal manager or manager directly accountable to a
municipal manager may not hold political office in a political
party, whether in a permanen t, temporary or acting capacity.

40 Ferreira v Levin N .O.; Vryenhoek v Powell N .O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1
(CC) at para 155.
MATHOPO J / KOLLAPEN J
31 (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).”
4. The respondents are ordered to pay th e applicant’s costs in the
Labour Court and in this Court, including the costs of two counsel.



KOLLAPEN J (Theron J concurring):


Introduction
I have had the pleasure of reading the judgment of my Colleague Mathopo J
(first judgment) in which he concludes that the declaration of constitutional invalidity
made by the Labour Court should be confirmed by this Court. He does so on the basis
that the impugned provision, section 71B of the Systems Act, unjustifiably limits the
right to hold political office found in section 19 of the Constitution. My view is that
section 71B only has the effect of limiting the right to make political choices in terms
of section 19(1) of the Constitution. In respect of that limitation, I reach the conclusion
that the respondents have established that the limitation meets the requirements set out
in section 36(1) of the Constitution. I would therefore not confirm the d eclaration of
invalidity.

The first judgment has comprehensively captured the background to the passing
of section 71B, the litigation history, the parties’ submissions and the issues for
determination. I associate myself with how they are set out there and will only expand
upon them to the extent that it is necessary for purposes of this judgment. I also agree
with the conclusion reached in the first judgment that condonation be granted to
SALGA for the late filing of its written submissions.

In addres sing my disagreement with the first judgment, I will first contextualise
section 71B and the wider limitation within the constitutional imperative of a fair and
unbiased public administration and in particular the need to depoliticise local
KOLLAPEN J
32 government. I will then distinguish the substantive rationality challenge from the
limitation challenge. Following that, I will address the various requirements in the
limitation analysis. While dealing with the limitation analysis, I will —
(a) deal with the responden ts’ policy choice to depoliticise local government,
and the place of section 71B in giving effect to that policy choice; and
(b) consider what the state is required to do to justify the limitation in terms
of section 36(1) of the Constitution when arriving at a policy choice that
limits rights, and in particular, the nature of the evidence or information
that must be advanced in support of the limitation.

I then conclude that the respondents have done enough to meet the thre shold that the
limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom.

Context
The depoliticisation of local government
Most peoples’ experience of government is manifested at the local leve l. It is
that sphere of government that provides the most intensive interface as it provides the
services that largely relate to the conditions under which people live, and which shapes
their experience of democratic government.41 It is also at the heart of poverty
eradication initiatives in the country.42 The provision of water, electricity, municipal

41 Section 152(1)(b) of the Constitution states that one of the objects of local government is to ensure the provision
of services to communities in a sustainable manner.
42 Koma “The State of Local Government in South Africa: Issues, Trends and Options ” (2010) 45 Journal of
Public Administration 111 at 111 . Service delivery at local government is also central in addressing t he spatial
divisions created by spatial apartheid, and closing the gap between services accessible to poor communities and
the wealthy. See Mkontwana v Nelson Mandela Metropolitan Municipality ; Bisset v Buffalo City Municipality;
Transfer Rights Action Ca mpaign v MEC, Local Government and Housing, Gauteng; (KwaZulu -Natal; Law
Society and Msunduzi Municipality as amici curiae) [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150
(CC) at para 105 where this Court said :
“Local government thus bears the impo rtant responsibility of providing services in a sustainable
manner to their communities. This task is particularly important given the deep divisions in our
towns, the scars of spatial apartheid which still exist and the fact that many poor communities
are still without access to basic facilities such as water, adequate sewerage systems, refuse
collection, electricity and paved road .”

KOLLAPEN J
33 health services, road infrastructure,43 and housing,44 all fall within the domain of local
government either exclusively or in concurrence with other levels of government.45

The heading of the Systems Act illustrates the significance and centrality of local
government in the democratic project. The purpose of the Act is to —

“provide for the core principles, mechanisms and processes that are necessary to enab le
municipalities to move progressively towards the social and economic upliftment of
local communities”.

It follows that it is crucial for local government to be professional and efficient,
and to perform its functions impartially, fairly, equitably and without bias. This is no
less than what section 195 of the Constitution decrees. It is headed “Basic values and
principles governing public administration” and it states:

“(1) Public administration must be governed by the democratic values and
principle s enshrined in the Constitution , including the following principles:
(a) A high standard of professional ethics must be promoted and
maintained.
. . .
(d) Services must be provided impartially, fairly, equitably and without
bias.
. . .
(h) Good human -resource management and career -development practices,
to maximise human potential, must be cultivated.” (Emphasis added.)


43 Section 156(1)(a) of the Constitution states that a municipality has the executive authority in respect of, and has
the ri ght to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5.
44 See Part 4 of the National Housing Act 107 of 1997 which sets out the functions and duties of local government
in the delivery of housing.
45 Those services, beyond being central to the quality of lives that are capable of being reali sed, also carry with
them a constitutional imperative to the extent that many of those services are what government is obliged to
provide within it s available resou rces.

KOLLAPEN J
34
One of the “democratic values and principles enshrined in the Constitution” is a
non-partisan public service, which I will dem onstrate is the primary goal of
depoliticisation. The Constitution recognises a non -partisan public service as a core
constitutional principle which is embodied in Principle XXX of the
Constitutional Principles.46 This Court in Certification47 held that on e aspect which is
fundamental to the basic structures and premises of a new constitutional text
contemplated by the Constitutional Principles is that of a non -partisan “public service
broadly representative of the South African community”, serving all the members of
the public in a fair, unbiased and impartial manner.48

Depoliticisation of local government, in its own right, is thus a legitimate
government purpose. This is regardless of whether it results in improved service
delivery or not. It is an end in itself.

Robinson has noted that a non -partisan public service reflects the aims of most
former commonwealth nations which shifted their focus towards building a model of
bureaucracy which is based on hierarchy and meritocracy,49 with its key aims being
efficiency and effectiveness in the public service and its central features being —

“A separation between politics and elected politicians on the one hand and
administration and appointed administrators on the other;

46 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) at 915. It states:
“There shall be an efficient, non-partisan, career -orientated public service broadly
representative of the South African community, functioning on a basis of fairness and which
shall serve all members o f the public in an unbiased and impartial manner, and shall, in the
exercise of its powers and in compliance with its duties, loyally execute the lawful policies of
the government of the day in the performance of its administrative functions. The structures
and functioning of the public service, as well as the terms and conditions of ser vice of its
members, shall be regulated by law. ”
47 Id.
48 Id.
49 Robinson From Old Public Administration to the New Public Service: Implications for Public Sector Reform
in Developing Countries (United Nations Development Programme, Global Centre for Public Service Excellence,
Singapore 2013) at 5.

KOLLAPEN J
35
Administration is continuous, predicta ble and rule -governed;

Administrators are appointed on the basis of qualifications, and are trained
professionals.”50

Section 71B must be understood as the legislature’s chosen mechanism to
achieve non -partisanship and effective local government and to ap propriately manage
the interface between politics and the administration. Since depoliticisation achieves
this, it can comfortably be accepted as a legitimate government purpose. It seems to
me that if the administration is unable to maintain its indepen dence from the political
environment, this exacerbates, among other ills, poor professionalisation, poor
economic growth, the failure to alleviate poverty and the failure to manage corruption.
So, setting clear boundaries between the administration and po litics must have the
advantage of preventing these ills. As Leite and Chipkin have noted:

“South Africa’s approach to state -building, by not setting clear boundaries on political
and administrative office, has over time neglected empirical studies indica ting the
advantages of an independent bureaucracy in enhancing government performance
(Oliveira et al, 2023), fostering economic growth (Evans & Rauch, 1999), aiding
poverty alleviation (Henderson, Hulme, Jalilian & Phillips, 2007), and mitigating
corrupti on (Dahlstrom, Lapuente & Teorell, 2012).

In nations characterised by patronage, those wielding political authority possess the
latitude to dictate the trajectory of public officials throughout the government
hierarchy, rather than just at the apex where democratic oversight might be justified
(Kopecky et al, 2016). Efforts to reform the civil service in such states often pivot
towards introducing merit -based systems for hiring and promotion, ensuring consistent
salary structures free from political meddl ing, and protecting employees from
politically -driven firings (Dahlstrom, Lapuente & Teorell, 2012).”51

50 Id. See also McCourt Models of Public Service Reform: A Problem -Solving Approach (Policy Research
Working Paper No 6428, The World Bank, Washington DC 2013).
51 Leite and Chipkin Beyond Political Discretion: Reforming South Africa’s Senior Civil Service (New South
Institute, Johannesburg 2024) at 2 and the sources cited therein.
KOLLAPEN J
36
Depoliticisation aims to prevent all these ills. But even if it struggles to cure
those ills, it does not lose its value and utility as a legitimate government purpose in its
own right. Depoliticisation is integral to ensuring administrative independence and
setting clear boundaries between the administrative and political environments because
politicisation occurs when politics interferes with administrative functions. Madumo
argues that “[p]oliticisation in local government develops as a result of the interference
by the political leaders in the administrative and managerial affairs of the local
government”.52 This may come as no surprise to those who have engaged with the
empirical evidence in this area in respect of other nations. It is why Robinson argues
that—

“[M]any post -colonial states experienced a decline in the quality of governance and the
effectiveness of public administration in subsequent years as neo -patrimonial pressures
asserted themselves, and state resources and public appointments w ere subject to the
personal influence of political leaders and their followers”.53

And so it is largely against that context that the idea of a non -partisan,
depoliticised and professional public service, which is at the heart of this application,
must be understood and appreciated. The politicisation of the public service stands in
stark contrast to the ideal of non -partisan and non -biased public service just as it
undermines the professionalisation of the public service if appointments and decisions
are based on political considerations rather than the public good. Equally, politicisation
runs the risk that services are provided in a politically biased fashion rather than fairly
and equitably as the Constitution mandates. It also runs the risk that serv ices are not
provided at all, due to the possible crippling effect of political interference in service
delivery.54 In sum, depoliticisation is a legitimate and valuable end in itself because it

52 Madumo “De -politicisation of Service Delivery in Local Government: Prospects for Development in South
Africa” (2016) 9 African Jour nal of Public Affairs 81 at 85.
53 Robinson above n 49 at 6.
54 An example of political interference can be seen in Msengana -Ndlela v Nelson Mandela Bay
Metropolitan Municipality unreported judgment of the Eastern Cape High Court, Port Elizabeth Case No

KOLLAPEN J
37 seeks to serve as a bulwark against all the ills that may ari se from a politicised and
partisan public service.

One must locate the legislature’s creation of section 71B in this context, in other
words, in the context of the need to ensure a non -partisan civil service that is free from
political influence. The leg islature has taken a policy decision to prohibit employees
who work within the administration from holding office in a political party. This is its
chosen mechanism to ensure that the independence of the administration is insulated
from the political envi ronment, and to create clear boundaries between the two. The
question before this Court is whether this mechanism is reasonable and justifiable. I
am of the view that it is.

The first judgment unreservedly accepts that the depoliticisation of the public
service serves a credible purpose and to that extent does not take issue with the so -called
narrow limitation which originally only prohibited municipal managers and those
directly accountable to them from being office -bearers in a political party. It is the
wider limitation, the one that applies to all staff in a municipality, that the first judgment
finds objectionable. Ultimately these confirmation proceedings turn on the reach of the
wide limitation, and this Court is not called upon to determine the constitutionality of
the narrow limitation. However, the distinction between the narrow and wide limitation
is useful in that certain valuable common principles arise from both, that may find
universal application and make the distinction less significan t. While I accept that there
is a distinction between the reach of the narrow and the wide limitation, I am doubtful
that the distinction must result in different outcomes as the first judgment accepts.
Below I will demonstrate why the wide limitation is just as necessary as the narrow
limitation, and why an acceptance of the utility and importance of the narrow limitation
must carry through to the wider limitation.


3282 /2013 (19 May 2015 ) at par as 5-6. Here, a municipal manager resigned due to sustained inappropriate and
undue influence from the executive mayor. There is nothin g to suggest that influences of this nature could not
occur within the administration itself.
KOLLAPEN J
38 The substantive rationality challenge
SAMWU contends that the wide limitation is substant ively irrational because it
is not rationally connected to any legitimate governmental purpose. It contends that it
is not rational in relation to the promulgated purpose in the preamble of the new
Amendment Act which states that the purpose of section 71B is to “bar municipal
managers and managers d irectly accountable to municipal managers from holding
political office in political parties.” It also contends that it is not rational in relation to
the broader purpose of depoliticisation, outlined by the r espondents.

The Labour Court contrasted the rationality threshold, which is one based on the
rule of law, with the question of the relation between the limitation and its purpose,
which is part of the section 36(1) analysis. It did so to distinguish the nature of the two
enquiries. That Court held that the respondents failed to provide evidence indicating a
rational connection between the wide limitation and the purpose of the provision.
COGTA argued that the wide limitation was rational because it was based on legitimate
policy considerations which were debated and deliberated on in the National Assembly.
It thus argued that the Labour Court was correct in rejecting SAMWU’s rationality
argument.

SALGA argued that SAMWU misconceived the correct questio n. It argued that
the question was not whether the narrow limitation was sufficient to give effect to
depoliticisation and professionalisation. It argued that the true question under the
rationality challenge was whether the wider limitation was rational ly linked to
depoliticisation and professionalisation. SALGA argues that there is a rational link
because, as the Labour Court acknowledged, junior municipal employees who hold
high political rank are capable of exerting influence over municipal managers or those
that report to them, and they can influence how they discharge their functions.

In relation to the promulgated purpose, the Labour Court took the view that it is
most likely that the drafter omitted to align the wording of the preamble with the f inal
provision, given that it was a “last minute change”. I agree with the Labour Court and
KOLLAPEN J
39 the first judgment’s view on the stated purpose, that it was most likely an administrative
oversight.

With regard to the broader purpose, the Labour Court underst ood the crux of the
issue to be whether there was a rational relationship between this purpose and the
limitation of a constitutional right, in the form of the wide limitation. The Labour Court
considered that this issue is best assessed through a justifi ability enquiry. SAMWU
contended that the Labour Court ought to have expressed its opinion on the rationality
challenge in relation to the broader purpose, separately from the rights infringement
challenge.

While there is an overlap between the two chall enges, it is worthwhile
distinguishing the two. A substantive rationality enquiry and a limitation enquiry are
separate and distinct enquiries. A substantive rationality enquiry seeks to determine
whether there is a rational relationship between an impug ned provision and a legitimate
governmental purpose. In contrast, the limitation enquiry seeks to determine whether
the law is reasonable and justifiable in an open and democratic society. The focus in a
limitation enquiry is the nature of the right, and the extent of the limitation, and whether
the interaction between the right and the limitation is reasonable and justifiable. Laws
can be impugned on either basis, and it is why this Court has often dealt with them
separately.55

In New National Party this Court held:

“The first of the constitutional constraints placed upon Parliament is that there must be
a rational relationship between the scheme which it adopts and the achievement of a
legitimate governmental purpose. Parliament cannot act capriciously or arbitraril y.
The absence of such a rational connection will result in the measure being
unconstitutional. An objector who challenges the electoral scheme on these grounds

55 See Independent Candidate Association SA NPC v President of the Republic of South Africa [2023] ZACC 41;
2024 (2) SA 104 (CC); 2024 (3) BCLR 321 (CC) at paras 50-62 and 128 -155.

KOLLAPEN J
40 bears the onus of establishing the absence of a legitimate government purpose, or the
absence of a rational relationship between the measure and that purpose.”56

In Pharmaceutical Manufacturers ,57 this Court held in relation to the rationality
threshold:

“It is a requirement of the rule of law that the exercise of public power by the executive
and other functionaries should not be arbitrary. Decisions must be rationally related
to the purpose for which the power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement. It follows that in order to pass constitution al
scrutiny the exercise of public power by the executive and other functionaries must, at
least, comply with this requirement. If it does not, it falls short of the standards
demanded by our Constitution for such action.”58

Rationality review is limited in scope. The crisp focus of rationality review is
that the exercise of public power should not be arbitrary or irrational.59 Courts cannot
interfere in policy choices which are for the legislature to make, under the guise of
rationality review.60 Nor can it be used to invalidate legislation because a court
disagrees with the means selected to achieve an objective or believes there are more
appropriate or less invasive means that could be selected.61 In contrast, the limitation
enquiry is a proportionality assessment, which entails balancing the right, the link
between the limitation and its stated purpose, less invasive means and the other factors
listed in section 36(1).


56 New National Party above n 21 at para 19.
57 Pharmaceutical Manufacturers Association above n 24.
58 Id at para 85 (footnotes omitted).
59 Id.
60 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) [1998] ZACC 18; 1999 (2) SA
1 (CC); 1999 (2) BCLR 139 (CC) at para 17.
61 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC) at para 51 and Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6)
BCLR 759 (CC) at para 36.
KOLLAPEN J
41
In my view, the applicants must fail on the rationality challenge. I have already
stated above that depoliticisation is a legitimate government purpose. During the
limitation analysis I expand on why section 71B is rationally connected to
depoliticisation as an objective. In my view, it is not arbitrary or irrational because
there is a sufficient connection between the need to depoliticise and professionalise
local government and excluding employees working in local government from holding
office in a political party. Such an exclusion ensures that there are no persons working
in the p ublic service who have deep partisan interests.

Given that rationality is the minimum threshold, if a provision that limits a
fundamental right can be justified under 36, it would inevitably also withstand a
separate irrationality attack. I am of the v iew that the limitation imposed by section 71B
survives a limitation analysis and thus find it unnecessary to consider the irrationality
attack any further.

Is the limitation imposed by section 71B reasonable and justifiable?
To answer this question, this Court must engage in the limitation analysis under
section 36(1) of the Constitution. It provides as follows:

“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonabl e and justifiable in an
open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and exte nt of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”

KOLLAPEN J
42
The section 36(1) analysis is a balancing exercise, which requires this Court to
come to an ultimate judgment on proportionality.62 The less intrusive the limitation on
the right, the less the state needs to put up to justify the limitation.63 This is critical for
present purposes because, if section 71B only limits one component of the section 19
right, then all tha t is required is a level of justification that is relative to that component
of the right.

Since the first judgment impugns section 71B due to the lack of evidence in
support of its necessity, the jurisprudence of this Court on the treatment of evidence
during a section 36(1) analysis is relevant. In Lawrence64 this Court held that:

“[T]he question is whether that purpose is justifiable in an open and democratic society
based on freedom and equality is essentially a question of law; so too is the question
whether there is a rational basis for the means to achieve the legislative purpose. That
is not to say that evidence will not be relevant to these enquiries; it may well be. The
evidence, however, is more likely than not to consist of ‘legislative facts ’.”65

The Court went on to say that “[l]egislative facts do not have to be proved as
strictly as adjudicative facts” and that “the question of ‘burden of proof’ is likely to be
less important than where adjudicative facts have to be established.”66 Adjudic ative
facts are thus facts that are supported by evidence. Legislative facts are findings or

62 As this Court held in Manamela above n 29 at para 32:
“[T]he Court must engage in a balancing exercise and arrive at a global judgment on
proportionality . . . As a general rule, the more serious the impact of the measure on the right,
the more persuasive or compelling the justification must be. Ultimately, the question is one of
degree to be assessed in the concrete legislative and social setting of the measure, paying due
regard to the means which are realistically available in our country at this stage, but without
losing sight of the ultimate values to be protected.”
63 Id.
64 S v Lawrence ; S v Negal ; S v Solberg [1997] ZACC 11; 1997 (4) SA 1176 (CC) ; 1997 (10) BCLR 1348 (CC) .
65 Id at para 52.
66 Id.

KOLLAPEN J
43 assumptions that “need not and often cannot be supported by evidence.”67 The present
case is a classic case where reliance on legislative facts is apposite.

It is therefore trite, because this Court has repeatedly affirmed it, that the burden
of justifying the limitation is not the same as in civil and criminal matters.68 Reliance
on legislative facts is totally appropriate to justify a limitation of a right. The party with
the onus of justifying the limitation must put up evidence and argument in support of
the limitation, but if they fail, this does not mean that the limitation is unjustifiable, and
the Court still has the obligation to conduct the justification analysis.69 The enquiry is
legal and normative in nature, not factual, even though evidence may assist in
conducting that legal assessment. A limitation of a right is thus not automatically
unreasonable and unjustifiable simply because the party cannot, or fails to, provide
evidence which proves otherwise. It is the Court that must ultimately make a
determination on whether the limitation is reasonable and justifiable, based on its own
judgment following the balancing exercise referred to above.

The nat ure of the right
The main proposition to note upfront is that section 71B does not limit
section 19(2) and (3). It only imposes a limitation on section 19(1). And in respect of
section 19(1), it only limits one component of that right.

Determining the n ature of the right requires an examination of the content and
scope with reference to the text, historical context and purpose of the right in question.70

67 Davis “Judicial Notice in the Proposed Federal Rules of Evidence” (1969) Washington University Law
Quarterly 453 at 455. See also Dyk “The Role of Non -Adjudicative Facts in Judicial Decision -Making” (2023)
Stanford Law Review Online 10 at 11-12.
68 Phillips v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 1; 2003 (3) SA 345
(CC); 2003 (4) BCLR 357 (CC) at para 20 and NICRO above n 15 at para 34.
69 Phillips id at para 20; NICRO id at para 36; and National Coalition for Gay and Lesbian Equality above n 17at
paras 33-57.
70 Ramakatsa v Magashule [2012] ZACC 31 ; 2013 (2) BCLR 202 (CC) at para 64.

KOLLAPEN J
44 This Court neatly captured the important historical context of the right in Ramakatsa71
as follows:

“During the apartheid order, the majority of people in our country were denied political
rights which were enjoyed by a minority. The majority of black people could not form
or join political parties of their choice. Nor could they vote for those who wer e eligible
to be members of Parliament. Differently put, they were not only disenfranchised but
were also excluded from all decision -making processes undertaken by the government
of the day, including those affecting them. Many organisations whose object ives were
to advance the rights and interests of black people were banned. These organisations
included the present ANC. Participation in the activities of these organisations
constituted a serious criminal offence that carried a heavy penalty. The purp ose of
section 19 is to prevent this wholesale denial of political rights to citizens of the country
from ever happening again.”72

In departing from this history, the Constitution introduced a system of
democracy where all political parties “occupy the cen tre stage and play a vital part in
facilitating the exercise of political rights”.73 Political parties do so by serving as a
platform for citizens to participate in the democratic process,74 and through which they
exercise their franchise.75 While this hist orical and purposive context is important in
guiding the interpretation of the rights at issue, the exercise is not complete without a
thorough examination of the nature of the right implicated in this case.

The right to hold public office and the right t o make the political choice to hold
office in a political party are distinct rights protected by distinct sub -provisions in
section 19. In some instances, there may be a link between a section 19(1) limitation
and the exercise of a section 19(3)(b) right. This is a matter I address later in this
judgment.

71 Id at paras 63–72.
72 Id at para 64.
73 Id at para 65.
74 Id at para 66.
75 Id at para 68.
KOLLAPEN J
45
Section 19 provides as follows:

“(1) Every citizen is free to make political choices , which includes the right —
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political
party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative
body established in terms of the Constitution.
(3) Every adult citizen has the right —
(a) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office .”
(Emphasis added.)

The section 19(3)(b) right to stand for and hold public office is the right to
candidature. That this is so is borne out by the historical context. The Freedom Charter,
which inspired the creation of section 19(3)(b), stated that “every man and woman shall
have the right . . . to stand as a candidate f or all bodies which make laws”.76 As much
as black people were systematically deprived of the right to vote, they were equally
deprived of the right to hold public office which made laws. This exclusion was
concretised with the introduction of the tricame ral system. Whether black people could
hold certain positions within a party made no difference to the fact that the apartheid
government intended to prevent black people from holding public office which would
enable them to wield public power.

It was th is particular deprivation that section 19(3)(b) sought to extinguish. This
is not to say that the right to hold office within a political party is not important and
does not hold its own historical context: it most certainly does. It too is important in
the ability of the collective to advance a political agenda, as well as the individual in

76 The Freedom Charter, adopted at the Congress of the People, Kliptown, 1955 under the heading “The People
Shall Govern!”.
KOLLAPEN J
46 embarking on a political career. This is simply to make the point that the right to hold
office in a political party does not fit within the scope of section 19(3)(b ). That this is
so is further borne out by the Constitution itself.77

This is not to say that the rights are not interrelated, in the sense that a limitation
on section 19(1) will never impact or affect section 19(3)(b). It may well do so. But it
is not a foregone conclusion that a limitation on section 19(1) will always negatively
impact on the exercise of the section 19(3)(b) right. Whether this occurs is a question
that must be answered with reference to the circumstances of the case. This may often
be determined by the internal arrangements of political parties which may require
holding of office in a political party as a pre -condition to standing for public office.

In sum, I recognise that in some instances, a provision that limits the right to ho ld
office in a political party may have a residual impact on the right to hold public office.
But that is by no means automatic, and it does not appear to me that the residual impact
on section 19(3)(b) by the limitation of section 19(1) in this matter co nstitutes a
limitation of the right in section 19(3)(b). Section 71B, then, ought not to be regarded
as a law of general application which generally imposes a limitation on section 19(3)(b),
since it does not expressly prohibit municipal employees from st anding for, or holding
public office.

While the rights in section 19 are intertwined, and must be read and understood
together,78 this does not mean that we should give a right a meaning it clearly does not
have. Each right plays a distinct role, and whil e some rights provide guidance into the
meaning and applicability of other rights, one must afford each right its distinct meaning

77 Another indication that section 71B does not apply to section 19(3)(b) is found in section 219 of the
Constitution. It is headed “Re muneration of persons holding public office” and refers to, among others, members
of the National Assembly, Members of the Cabinet, Deputy Ministers and Members of Executive Councils.
Therefore, the Constitution clearly understands public office as office within government, and not within a
political party. New Nation Movement above n 12 is a further indication that the right to hold public of fice under
section 19(3)(b) is geared towards office in law -making bodies and not office within a political party . It concerned
the right of independent candidates, persons who sought to hold public office without being a part of a political
party, to stand for and hold publi c office.
78 New Nation Movement above n 12 at para 16.
KOLLAPEN J
47 so as to retain the distinction created by the Constitution, and to give the respective
rights their proper and full effect.

The right we are concerned with here is essentially section 19(1) which is the
freedom to make political choices. While section 71B may have a residual impact on
section 19(3)(b), ultimately the nature of the right that it limits is the right to make the
political choice to hold office within a political party.

Turning specifically to the nature of section 19(1) this Court said:

“In relevant part section 19(1) proclaims that every citizen of our country is free to
make political choices which include the right to participate in the activities of a
political party. This right is conferred in unqualified terms. Consistent with the
generous reading of provisions of this kind, the section means what it says and says
what it means. It guarantees freedom to make political choices and once a choice on a
political party is made, the section safeguards a member’s participation in the act ivities
of the party concerned . . .

This right may be limited only on authority of a law of general application . But even
then only to the extent that the limitation is reasonable and justifiable in ‘an open and
democratic society based on human dignit y, equality and freedom.’”79
(Emphasis added.)

The right thus entails the freedom to make political choices. There is no closed
list as to what these choices may be.80 It is an expansive right which intersects with
many others that are political in natur e, such as the right to, and freedom of, expression,
association, belief, opinion and conscience.81 It is an important right in the broad

79 Ramakatsa above n 70 at paras 71-2.
80 New Nation Movement above n 12 at para 17.
81 This Court in Pilane v Pilane [2013 ] ZACC 3; 2013 (4) BCLR 431 (CC) at para 69 stated as follows:
“It strikes me that the exercise of the right to freedom of expression can be enhanced by group
association. Similarly, associative rights can be heightened by the freer transmissibility of a
group’s identity and purpose, expressed through its name, emblems and labels. These rights are
interconnected and complementary. Political participation, actuated by the lawful exercise of

KOLLAPEN J
48 architecture of our democracy as it is central and unlocks the very idea of a participatory
democracy and the opportun ity to shape, and participate directly in the political and
governance framework that the Constitution details.

While acknowledging the historical, contextual and textual significance of the
right to political activity, this Court also recognised that, de spite this significance, it can
be limited by a law of general application and on the basis that the limitation is
reasonable and justifiable. It also does not entitle a citizen to participate in any activity
of the party of their choice.82 Like all other rights, it is not absolute, and is also subject
to reasonable limitations.

The right to hold office in a political party does not constitute the section 19(1)
right itself. The nature of the right in question forms part of the subspecies of the
politica l rights set out in section 19(1). Section 71B, however, does not make inroads
into any of the other rights that section 19(1) guarantees. The limitation does not
prohibit nor does it affect the right to join a political party, to vote for and within tha t
party, to participate in its activities (save for holding office in that party), and to
advocate and campaign for the political party and its ideologies. Subsections 19(2) and
(3), of course, still remain fully available to that person – subject to the limitation
imposed on the exercise of those rights. Regarding its scope, therefore, the right in
question forms but part of the entirety of the rights afforded by section 19(1).

It is therefore relatively limited in its scope, and thus any limitation on it
constitutes only a partial limitation on the section 19(1) right as a whole and even a
much smaller part of section 19 as a whole. This must mean that the level of

these rights, can and should assist in ensuring accountability in all forms of leadership and in
encouraging good governance”.
82 Brickhill and Babiuch “Political Rights” in Woolman and Bishop (eds) Constitutional Law of South Africa 2 ed
(Juta & Co Ltd, Cape Town 2014) at 34.

KOLLAPEN J
49 justification required to limit the choice to hold office in a political party must be
narrower than the level of justification required to limit the entirety of section 19(1).83

The importance of the purpose of the limitation
At this point it is necessary to be clear about, and re -emphasise, the legitimate
government purpose which is the pri mary target of section 71B. This is because the
first judgment criticises the limitation for being excessive in achieving the purpose of
enhancing service delivery and that there was no evidence to support the proposition
that it would improve service del ivery.84 My reading of the respondents’ case is not
that improved service delivery is the primary goal and thus purpose of the limitation,
rather, that it is a desirable by -product of depoliticisation and professionalisation. The
first judgment itself ack nowledges, by reference to what the Labour Court understood
as “the essence of the matter”, that the true purpose of section 71B was depoliticisation
and professionalisation “ so as to maintain management stability and thus improve
service delivery”.85 Stability and improved service delivery are thus not the primary
purposes of section 71B, but they are possible by -products of depoliticisation and
professionalisation.

Depoliticisation and professionalisation are the primary purpose of section 71B
and it is this purpose that we must consistently capture as our focal point of the
section 36(1) analysis. When evaluating the rational link, then, all that is necessary is
to establish a link between excluding municipal employees from holding office in a

83 In S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1995 (12) BCLR 1579 (CC); 1996 (1) SA 388 (CC) at para 18
this Court held:
“In sum, therefore, the Court places the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the infringement ca used by the
legislation on the other. The more substantial the inroad into fundamental rights, the more
persuasive the grounds of justification must be.”
And in Manamela above n 29 at para 69 this Court said:
“The more invasive the infringement, the more powerful the justification must be”.
The inverse must of course be true.
84 First judgment at [71] and [73].
85 First judgment at [12] (emphasis added).
KOLLAPEN J
50 political party and depoliticisation and professionalisation within local government.
The respondents did not have to draw a direct link between excluding municipal
employees from holding political office and improved service delivery. It would not be
correct to suggest that an improvement in service delivery would obviate the need for
depoliticisation. The objective of a depoliticised public administration stands on its
own footing. Improved service delivery is not the only positive outcome of
depoliticisation. It is depoliticisation itself that is envisaged in Constitutional
Principle XXX and the provisions of section 195 of the Constitution. It is an objective
worthy of being pursued as an end in its own right.

While the narrow limitation was challenged pre viously before this Court on
procedural grounds,86 it was largely accepted in argument before us in this matter that
the narrow limitation was not constitutionally offensive and was rational as it was
sufficiently linked to the legitimate purpose of the dep oliticisation of local government.
This acceptance in my view has two important consequences. First, it is an acceptance
of the legitimacy of depoliticisation as a purpose. Second, it constitutes an acceptance
that the risk of politicisation was real, a nd that, at the level of the municipal manager
and those directly accountable to them (senior managers), a prohibition of the kind
contemplated by the narrow limitation was necessary and defensible. The parties
accepted these two propositions as being sel f-evident. In other words, no evidence was
required to convince the parties, including SAMWU, that depoliticisation was
necessary, and that the narrow limitation took positive steps to achieve it.

In fairness, the closeness to the levers of power of seni or managers is certainly a
factor that could be said to bring the risk of harm closer to materialisation. One must
then be compelled to ask if politicisation is a real risk only when the top echelons of
local government are also office -bearers in a politi cal party. Why should that risk be
any different or less real for junior municipal employees who occupy the top echelons

86 South African Municipal Workers’ Union I above n 7 at para 59. This Court, at paras 77-81, found it
unnecessary to deal with the substantive challenge, and thus expressed no view on the constitutionality of the
limitation imposed by the narr ow limitation.
KOLLAPEN J
51 of a political party? For that distinction to hold good, one would have to accept that the
risk of politicisation is negligible or no n-existent when it comes to junior employees,
even though they are office -bearers in a political party. I do not think that this is the
case.

Members of a political party, unlike employees of a municipality, are drawn
together and bound together by a com mon political vision and a platform of action that
all its members are committed to advancing. The duty of political office -bearers in
realising those political objectives is a heightened one, given the positions of leadership
they are elected to, and tha t in most instances they would be accountable to the
membership of the party on their performance in achieving such objectives. They have
a real and substantial interest in advancing the political objectives of their party which
is invariably linked to th eir ability to seek and gain re -election if they so desire. These
objectives and policy positions may not however always be aligned to those of the
particular administration in which they are employed, and in some instances, they may
represent an opposing policy stance. If an employee is tasked with executing an
administrative function which is directly opposed to that employee’s political
objectives, there arises a conflict of interest, even if the employee is not a senior
manager.

By way of example, a political party may be opposed to the mandatory
installation of pre -paid electricity meters and may actively campaign against it, while
the administration in a particular municipality may have adopted a policy in support of
it. In those instances, it woul d follow that when those office -bearers are employed in
local government, there is at the very least a conflict between the party -political
objectives and those of the employer. Some may be victimised, or even victimise
others, purely because of their pol itical affiliation.87 If the employee is a high -ranking

87 See, for example, SA Municipal Workers Union on behalf of Mavimbela and Uthukela District Municipality
(2023) 44 ILJ 1366 (SALGBC) at para 48. Here, a deputy mayor was found to have dismissed a political employee
simply because they did n ot approve of their political affiliation. While here it was a deputy mayor who did the
firing, there is nothing to suggest that an employee high up in the administration could not do the same to persons
below them in the hierarchy.
KOLLAPEN J
52 politician, they may even feel compelled to do so given their political objective as an
officer in a political party. There is also the potential that those members may see the
institution of local g overnment as a site to advance the objectives of the political party
– thus undermining efforts to fully and independently implement the policy. The
obstruction could be so subtle that it is incapable of evidence – but it may still negatively
impact the i mplementation of the policy.

It is this risk that the wide limitation seeks to prevent. In other words, it does not
need to be proved that an employee who is an office -bearer in a political party will
obstruct the municipality’s policy in advancement of their political objectives. But
common sense dictates that there is a risk that such employees could undermine the
implementation of that policy to achieve political objectives, given their dual -role as an
office -bearer of a political party and an employe e within the municipality. This is in
appreciation of the fact that the employee is committed to advance the objectives of the
party as an office -bearer in that party. It is in those circumstances that the risk of
politicisation is heightened, and invari ably, the many ills of politicisation referred to
earlier (including poor service delivery).

Depoliticisation seeks to avoid such risks. Clearly the risk here is not confined
to the municipal manager and those directly accountable to them. In a programm e to
roll out meters, there may well be others lower in the administration’s hierarchy that are
responsible for overseeing or implementing various facets of the programme such as
the provisioning of meters, the installation of meters, the setting up of an administration
system for consumers and the like. I will demonstrate shortly that municipalities consist
of administrative personnel below senior management, and these administrative
personnel also wield a certain degree of power. All these officials are likely to have
decision making powers and are required to give effect to the policy of the
administration in the face of possible public opposition from their political party. Under
those circumstances, a narrow limitation would be of limited effect, ign oring the risk
that a senior office -bearer in a political party, who is employed even in a middle or
junior management position in the administration, would carry.
KOLLAPEN J
53
I use two examples to illustrate the point. According to its 2023 annual report,
the admin istration of the City of Tshwane Metropolitan Municipality was headed by the
City Manager.88 Those directly accountable to the manager were the heads of only three
of 16 municipal departments, and the heads of specialist offices and units.89 These are
the only persons that would fall into the narrow limitation. The heads of the remaining
13 departments were directly accountable either to the governance and support officer,
or the chief operations officer. Therefore, the heads of those 13 departments, it w ould
appear, would not have fallen within the reach of the narrow limitation.

In addition, the narrow limitation would not have applied to all the staff who fell
below the heads of those departments, even those right below the heads who wielded
power in t hose departments and could perhaps influence those above them. This risk
becomes stark when you consider the total number of employees who were below top
and senior management: approximately 19 100.90 Given that many in senior
management (approximately 30 0) would not have reported directly to the City Manager,
this left those, potentially influential within the administration, untouched by the narrow
limitation. I think it is fair to assume that senior managers would generally enjoy some
level of decision making, and it must then raise the question whether the narrow
limitation sufficiently insulates local government from politicisation. This would be
the result of a narrow limitation but not a wide one.

The City of Tshwane is a metropolitan municipality with a higher capacity for
senior and other employees, and so it may be said that this phenomenon is unique for
metropolitan municipalities and the wider limitation may only be justified in that
context. This is no different in smaller municipalities. T ake the Knysna Local
Municipality for example. Its latest annual report indicates that there were 540

88 City of Tshwane Metr opolitan Municipality Annual Report 2022/23 (April 2024) at 23.
89 Id at 58.
90 Id at 224.

KOLLAPEN J
54 employees in total.91 If all the approved posts were filled, the narrow limitation would
have applied to approximately seven persons, namely, the municip al manager, the chief
financial officer and five managers who report directly to the municipal manager. The
narrow limitation would not apply to the remaining employees – approximately 530 –
even if they held powerful positions within the municipality or in a particular
department.

Those remaining 530 employees may well be fulfilling their administrative
functions at different levels of authority but there is nothing to suggest that all of them
are incapable of wielding political influence. The multiple levels of hierarchy and
power within the administration, and the potential for political influence within those
multiple levels, are so varied and nuanced that it seems to me impractical, and perhaps
irrational, to draw a bright line between managers, thos e that report to them (or heads
of departments), and the remaining employees. This is apart from the fact that those
who report to a municipal manager can delegate their power to those who fall outside
the narrow limitation. This delegation of power itse lf may confer significant power and
influence on the delegate, who will be left untouched by the narrow limitation.

There is therefore no justification for the differentiated approach suggested for
senior managers as opposed to other members of the munici pal staff who are also office -
bearers in a political party. The importance of the purpose of the narrow limitation is
no different to the importance of the purpose of the wider limitation. The risk may be
different in the two scenarios, but it is real, t angible and substantive in both.

In this regard, it is relevant to recall the observation of Leite and Chipkin, that
those wielding political authority possess the latitude to dictate the trajectory of public
officials throughout the government hierarchy and not just at its apex.92 Given that
political influence can occur at positions outside the narrow limitation, it can hardly be

91 Knysna Local Municipality Annual Report 2022/23 (March 2024 ) at 121.
92 Leite and Chipkin above n 51 at 2.
KOLLAPEN J
55 said that the narrow limitation gives proper effect to the principle of a non -partisan
public service and the dictates of sect ion 195 of the Constitution. It is difficult to see
how a limitation that affects only a small portion of the upper echelons of local
government can properly achieve the purpose of a depoliticised and professional public
service. And so the emphasis cann ot be on whether the position in government is a
senior or junior one, but on the fact that political office -bearers generally wield political
authority, and when that is brought to bear on local government, it may well carry the
risk of blurred lines of a ccountability throughout the hierarchy of local government.

However, beyond this, there is also the risk of the perception of bias. In our law,
the test for bias does not require actual bias but can also be satisfied if there is a
reasonable apprehension of bias.93 It is not unreasonable to expect that many will know
the identity of office -bearers in a political party. They are, after all, the face of the party
and represent it in the public space. When those same people are employed in local
government , it is not unreasonable that questions may be raised, valid ones as I have
shown, about this dual accountability and bifurcated loyalty to the party and the
administration. This in itself is a basis for a reasonable perception of bias which should
be avo ided if the integrity of local government is to be protected and if those whom it
serves are expected to have faith in its legitimacy and its ability to serve all without
bias.

An unmanaged interface deepens this perception and with it comes a distrust in
the ability of local government to deliver services fairly which, as the 2016 Study94 has
highlighted, often comes with deadly consequences. It is a risk that the limitation seeks
to moderate and the broader purpose of the limitation – to depoliticise and
professionalise the public service – resonates with the Preamble to the Systems Act,95
the Constitution (including section 195) and the constitutional principles on which it is

93 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 1999 (4) SA
147 (CC) ; 1999 (7) BCLR 725 (CC) at para 30 and S v Basson [2005] ZACC 10 ; 2005 (12) BCLR 1192 (CC) ;
2007 (3) SA 582 (CC) at para 27 .
94 See the First Judgment at [45].
95 Which refers to the need to comply with the Constitutional Principles.
KOLLAPEN J
56 founded. It also speaks to the ability of the state to effectively manage the
transformation of our society through the improvement in the quality of the lives of its
people through good governance, professionalisation and the delivery of services. One
of the more important barometers in assessing this is whether the services the
Constitution promises will be delivered, and if they are, that they will be delivered
professionally, effectively, fairly and without bias. Few will argue that depoliticisation
in the public service is not a purpose that is central to how we unfold and bui ld this
democracy in the coming years.

Depoliticisation as a policy choice is founded on what the Constitution
contemplates, and it largely accords with the values of a democratic government that
must ensure accountability, responsiveness and openness.96 It is also aligned to the
nature of a professional, fair and unbiased administration that section 195 proclaims. It
is a salutary purpose, and I have shown how the limitation in question aligns with that
purpose. This above all goes to illustrate the imp ortance of the limitation. Given its
connection with the foundations of our Constitution and to the wellbeing of citizens,
there is no doubt that the purpose of the limitation is of great importance.

The nature and extent of the limitation
I now deal wit h what has been described as the width of the limitation.
Section 71B applies to all staff members and its effect is to exclude all staff members
of a municipality from being office -bearers in a political party. However, in reality, the
category of perso ns may be considerably less than all staff members. It is reasonable
to assume that not all staff members of a municipality are members of a political party.
It is also reasonable to assume that not all members of staff who are members of a
political par ty aspire to become office -bearers within the political party. So in the end,
it is only those staff members who are members of a political party and who aspire to
hold office in the political party who are affected. In a politicised country such as ours ,

96 Section 1(d) of the Constitution states that the Republic of South Africa is one, sovereign, democratic state
founded on universal adult suffrage, a national common voters roll, regular elections and a multi -party system of
democratic government, to ensur e accountability, responsiveness and openness.
KOLLAPEN J
57 it may well still be a substantial number of people and I do not wish to suggest that the
numbers ultimately become dispositive. The point is simply that in practice the
prohibition is likely to affect a relatively small proportion of South Africa’s mun icipal
workforce.

The related and important issue is the nature of the limitation of the right. The
limitation is confined to those who hold office in a political party. While I agree that
holding office in a political party is an important component of the right to make
political choices under section 19(1) of the Constitution, the rest of the rights in the
section remain relatively intact, even with the wider limitation in place. These rights
continue to represent a substantial part of the political r ights that section 19 guarantees.
The limitation is therefore not a wide limitation in so far as it relates to the full panoply
of section 19 rights.

The first judgment also suggests that the limitation could very well dissuade that
person from participa ting in political party activities, and even from voting, with the
concomitant effect of directly undermining the fundamental constitutional right of
universal adult suffrage.97 This assumes that members of political parties make political
choices, partici pate in such activities and vote, only to the extent that they can run for
political office. But many people make political choices, participate in political party
activities and vote, without any desire to run for political office. If the limitation did
have the consequence suggested in the first judgment, it would naturally be a cause for
concern. But there is simply nothing to suggest that it will. It is indeed difficult to
conceive that its ripple effect could be as wide as the first judgment sugges ts.

I pause, however, to reflect on the argument that, even for those limited category
of staff members of a municipality who seek to become political party office -bearers,
they would invariably be required to make a choice between ongoing employment with
the municipality and becoming an office -bearer in their political party. In this regard,

97 First Judgment at [56].
KOLLAPEN J
58 it is fair to assume that those who seek to become office -bearers have a serious intention
to play a more important role in politics and to possibly hold elected off ice, whether in
the national, provincial or municipal sphere. For those persons who would still be
employed in a municipality, it may not be unfair to require them to make a choice
between a career in the administration or a career in politics at that sta ge, as the situation
is simply that as one becomes more involved in the political space, the interface between
the political and the administration becomes more fraught with risk. Bear in mind that
this choice only needs to be made if the employee is in f act appointed to hold office in
a political party.

It is in this narrow case that the section 71B limitation kicks in, to safeguard the
independence of the administration and create boundaries between the administration
and the political environment. Ind eed, this is why section 71A of the Systems Act,
which has not been challenged, places a hold on the employment of an employee who
is running for political office, and requires them to resign once elected. Section 71A of
the Act is headed “Participation o f staff members in elections” and provides that:

“(1) A staff member may be a candidate for election to the National Assembly or a
provincial legislature or may be nominated as a permanent delegate to the
National Council of Provinces subject to the Code of Conduct for Municipal
Staff Members contemplated in Schedule 2, and any other prescribed limits
and conditions as may be regulated by the Minister.
(2) A staff member who is nominated as a permanent delegate to the National
Council of Provinces, must re sign not later than the date on which he or she is
appointed as a permanent delegate to the National Council of Provinces in the
manner contemplated in section 61 (2) (b) of the Constitution of the Republic
of South Africa, 1996.
(3) A staff member may be a candidate for election to a municipal council subject
to the Code of Conduct for Municipal Staff Members contemplated in
Schedule 2 and any other prescribed limits and conditions as may be regulated
by the Minister.”

KOLLAPEN J
59
The Code of Conduct contemplated in t he subsection in turn regulates the further
relationship between staff members who become candidates for elections and their
ongoing employment and connection with the municipality. Clause 11 of the Code is
headed “Participation in elections” and provides as follows:

“A staff member of a municipality may not participate in an election of the council of
the municipality, other than in an official capacity or pursuant to any constitutional
right.”

In giv ing content to section 71A, COGTA promulgated regulations regarding the
participation of municipal staff members in elections.98 Regulation 2 provides that:

“These Regulations apply to all staff members of municipalities.”

In broad terms, regulations 399 and 4100 provide that once a staff member is
certified to be a candidate for municipal elections, they are deemed to be on annual

98 Regulations regarding the Participation of Municipal Staff Members in Elections 2011 , GN R210 GG 34095 ,
10 March 2011 .
99 Regulation 3 is headed “Staff members as candidates for and becoming members of legislatures” and it states:
“(1) A staff member who is issued with a certificate in terms of section 31(3) of the
Electoral Act, 1998 (Act 73 of 1998), or section 15(3) or 18(1)(d) of the Local
Government: Municipal Electoral Act, 2000 (Act 27 of 2000), shall, on the working
day following the day on which she or he receives the certificate, present a copy of the
certificate to her or his employe r.
(2) A staff member contemplated in subregulation (1), shall be deemed to be on annual
leave from the working day contemplated in subregulation (1) until the date on which
the result of the election is declared in terms of section 190(c) of the Constitut ion.
(3) If a staff member is elected, she or he shall apply for further annual leave until her or
his resignation in terms of subregulation (5).
(4) If a staff member has insufficient annual leave, she or he shall be deemed to be on
unpaid leave for the p eriod of leave taken in excess of her or his available annual leave.
(5) Subject to section 21(2) of the Local Government: Municipal Structures Act, 1998 (Act
117 of 1998), a staff member who has been elected as a member of the National
Assembly, a provinc ial legislature or a municipal council shall be deemed to have
resigned from the employer concerned with effect from the date immediately before
the date she or he assumes office.”
100 Regulation 4 is headed “Use of employer’s property” and it states:
“A staff member, who is a candidate in elections, may not, for the purpose of her or his election
campaign, utilise —

KOLLAPEN J
60 leave and are further prohibited from using the property of the municipality in advance
of their election campaign. If elected, they are required to resign as employees of t he
municipality. Regulation 5 goes further, in that it prohibits any staff member who is a
candidate in elections from utilising or accepting assistance from any staff member of
the employer for the purposes of promoting their political campaign.101

These provisions further demonstrate the risk of politicisation, but in another
context – standing for election to public office. These provisions indicate the state’s
awareness of a real risk that may arise when an employee of a municipality is engaged
in a po litical activity: that employees may use their position in the administration to
advance their political objectives which have nothing to do with their role as civil
servants. It acknowledges that local government is an arena with resources that can be
utilised for political gain. It further recognises the conflict that may arise when
employees seek to advance their political goals while serving the public in local
government.


(a) any immovable property of the employer but may utilise community halls, and any public
amenities on the same terms and conditions applicab le to—
(i) ordinary members of the public;
(ii) political parties; or
(iii) community and professional institutions; and
(b) any movable property of the employer, including any —
(i) financial resources;
(ii) communication technology;
(iii) equipment;
(iv) official emblems;
(v) official transportation;
(vi) official mailing lists; and
(vii) intellectual property. ”
101 Regulation 5 is headed “Assistance from other staff members” and it states:
“A staff member, who is a candidate in elections, may not, during wo rking hours, utilise or
accept assistance from any staff member of the employer for the purpose of promoting her or
his election campaign. ”

KOLLAPEN J
61
What is of interest here is that the prohibition on a continued relationship
between the staff member and the municipality during the election period extends to all
staff members and not just those in the upper echelons of management. This is clearly
suggestive that the risk of politicisation and of political interference cannot r ealistically
be confined to the class of employees covered by the narrow limitation. It is a risk that
extends beyond that narrow channel and the response to that risk must recognise that.
The narrow limitation does not sufficiently extend to employees w ho may have the
power and influence to politicise the administration.

I acknowledge the proposition that the right afforded to employees to stand for
office in terms of section 71A might be meaningless given the effect of section 71B
which negates the pos sibility to hold office in a political party. This Court in
New Nation Movement has already recognised that the possibility to run for public
office need not be tied to a person’s relationship with a political party.102 Similarly, a
person need not hold of fice within a political party to be able to stand for elected office.
In that instance, both sections 71A and 71B operate harmoniously while protecting the
administration from political influence.

Is it unreasonable to expect a person in that position to make an election between
their own individual political aspirations and the need for a depoliticised
administration? This question requires a balancing of individual aspiration against the
interests of the municipality and those whom it serves shaped by the expectation that
such services will be delivered in a professional, fair and unbiased manner. This is
precisely the type of balancing act that the limitation analysis requires us to conduct.103
A constitutional democracy thrives when it creates opportu nities for the development
of its people. But the commitment to achieving the full potential of each person must
also be moderated by the legitimate needs and interests of the broader society. The
choice between individual political aspiration and the in terests of the broader society

102 New Nation Movement above n 12 at para 188.
103 NICRO above n 15 at para 37.
KOLLAPEN J
62 must in this case lean heavily in favour of the broader society in justification of the
limitation. So, where the risk of politicisation and the ills that flow from it are high, it
is reasonable to expect a person to make th is choice.

The first judgment also takes the view that the preferred method to deal with
politicisation would be through a disciplinary process. While again in theory that may
be so, in practice that approach may run into intractable difficulties. First , the very
process of politicisation may often occur between the colluding activities of likeminded
individuals who seek to advance a common political interest. Finding evidence that
would be admissible and cogent may well prove difficult, as in that scen ario we are
dealing with two or more individuals who have every intention of keeping what they do
under wraps without a paper trail. Political influence and politicisation will in all
likelihood not be overt but subtle, which renders evidence of wrongdoin g probably
difficult to obtain.

In addition, and even in the case of a junior staff member seeking to exercise
undue influence over a senior staff member who may be junior in the party structure, a
disciplinary route may prove unsustainable. What it woul d require is for the senior staff
member to initiate a complaint and be a witness. That may not sound unreasonable.
But when those two staff members hold opposite positions in terms of seniority in their
political party, then it is tantamount to a junior party official initiating proceedings
against a senior party official albeit in respect of conduct that occurred in the workplace.
Whether that disciplinary process would ever materialise in this context must be
doubtful, and a resort to disciplinary pro cesses as the first resort hardly sounds like an
effective option. I acknowledge that this assumes that the employees belong to the same
political party, which may not always be the case. However, it may be the case for
municipalities which have one or m ore political parties who are dominant in the
particular region.

KOLLAPEN J
63
The reliability of evidence in a politically charged environment diminishes when
there is a conflict. As the Labour Court held in Heyneke104 in the context of an
apparently politically motiva ted dismissal of a municipal manager:

“Another consequence of the conflict is that it could impair the reliability of the
evidence, located as it is in the context of a political milieu. The propensity for
mendacity to serve party political or even shame less self -interest cannot be
discounted.”105

While the allegedly politically charged decision in Heyneke came from the
municipal council, decisions which are similarly charged could arise from within the
administration itself – especially if those within th e administration hold office in a
political party. This is simply an example illustrating some of the avenues of political
interference.

It is important to record that the task of achieving a depoliticised public service
rests ultimately on a wide number of complex factors. A legislative mechanism is one
of them, but so is political will and a commitment by political parties to look beyond
staff appointments and procurement, and to prioritise the needs of communities. To
that extent, even the wide limit ation has its limitations so to speak. An example that
comes to mind is where an influential member of a political party (who is not an
office‑bearer) is deployed to local government in a position other than a municipal
manager and those that are accounta ble to them.

The wide limitation would not affect such a person since that person would not
hold office in a political party. The wide prohibition would thus not prevent their ability
to use the workplace to advance the political aims of their party and the activities of
politicisation of such a person would be difficult to establish, manage and eliminate. If
the law went as far as to prohibit such an eventuality, then it would go too far, because

104 Heyneke v Umhlatuze Municipality (2010) 31 ILJ 2608 (LC).
105 Id at para 11.
KOLLAPEN J
64 that would entail prohibiting all members of political pa rties from being local
government employees. The extent of such a limitation would be wider than the
limitation imposed by section 71B. To prohibit all members of a political party from
being staff members in a municipality would constitute a form of ove rreach and would
effectively undermine the entire spectrum of section 19 rights. This is not what
section 71B does, nor will this be one of its unintended consequences. The limitation
is therefore not as invasive and far reaching as the first judgment su ggests that it is. It
is confined to that part of the right that relates to the holding of office in a political party
and also applies to employees who are appointed to office in that party. While the
prohibition in form affects all municipal employees, in substance, it will only impact on
those who are members of and hold office in a political party.

The wide limitation was never intended to be a silver bullet, but rather an attempt
to ensure that a mechanism existed that was substantial, even though n ot all
encompassing. This is what the COGTA submitted during its oral submissions, that the
wider limitation was simply one measure within the broader government strategy to
achieve depoliticisation. The limitation must be seen in the context of its spec ific role
in this broader strategy.

The relation between the limitation and its purpose
Is the limitation related to the purpose of depoliticisation? Or does the limitation
go further than is necessary to achieve the goal it seeks to achieve? A key crit icism is
that section 71B constitutes legislative overkill, it is using a sledgehammer to crack a
nut, and that this is not necessary to improve service delivery. I have already made it
clear above that the respondents have made depoliticisation and profe ssionalisation
their primary target. And it is improved service delivery and stabilisation that is the by -
product of that main purpose. So in examining the relationship between the limitation
and its purpose, we must examine the exclusion from holding of fice within a political
party relative to depoliticisation and professionalisation.

KOLLAPEN J
65
I have already demonstrated that the limitation is not only closely related to, but
is necessary to achieve depoliticisation, which may lead to an additional benefit of
improved service delivery. This is because the limitation creates appropriate boundaries
between the administration and the political environment. It does not entail a complete
separation, and it is not designed to do so – it is not a silver bullet. All of this is true for
the wider limitation just as it is true for the narrow limitation. The limitation thus does
not go further than is necessary to meet its purpose. It does just enough to ensure that
those who work for the municipality as civil servant s do not hold a position which may
conflict with their role as civil servants. Just because it cannot be seen how this will
improve service delivery is no reason for section 71B to be declared unconstitutional.
The legitimate government purpose is depoli ticisation, a legitimate goal in its own right.
Section 71B is reasonable and justifiable as long as it is capable of achieving that goal,
which in my view it is.

What is left is the basis relied on by SALGA and COGTA to demonstrate the
relationship betw een the limitation and its purpose and whether the information they
have put up in justification is sufficient. The first judgment is critical of the
respondents’ failure to put up credible evidence in support of the limitation that
section 71B seeks to i ntroduce. I understand this criticism to mean that for the
limitation to pass muster, it is incumbent on the respondents to prove that what they
seek to avoid by section 71B is something that has occurred and that section 71B will
be effective in eradicat ing it. I am doubtful about this proposition in cases where
government seeks to introduce what I call forward –looking measures.

KOLLAPEN J
66
This Court in NICRO106 and Centre for Child Law107 set out the test for what is
required to justify a policy choice made in legisl ation:
(a) Justification does not only depend on facts, but may derive from policy
objectives based on reasonable inferences unsupported by empirical data.
(b) The party relying on justification should place sufficient information (not
evidence) before the Court c overing the following three areas:
(i) the policy that is being furthered;
(ii) the reasons for that policy;
(iii) why it is considered as reasonable in pursuit of that policy to limit
a constitutional right.

As already noted above, this Court almost 30 y ears ago recognised in Lawrence
that evidence has a role to play in the overall justification enquiry, but that evidence is
not dispositive. And so, at the very least there is a duty on the respondents to place
sufficient information before the court to c over the three areas mentioned above.
Empirical data is not a requirement, and reasonable inferences may be drawn from the
policy objectives in support of its justification.

In its answering affidavit in the Labour Court, SALGA, in support of
section 71B, referred to the report of the National Planning Commission which spoke
to the need to stabilise the political and administrative interface by having a public
service that is sufficiently autonomous to be insulated from political patronage. There

106 This Court in NICRO above n 15 at para 36 held as follows:
“[T]he party relying on justification should place sufficient information before the Court as to
the policy that is being furthered, the reasons for that policy and why it is considered reasonable
in pur suit of that policy to limit a constitutional right. That is important, for if this is not done
the Court may be unable to discern what the policy is, and the party making the constitutional
challenge does not have the opportunity of rebutting the content ion through countervailing
factual material or expert opinion.”
107 In Centre for Child Law v Minister of Justice and Constitutional Development [2009] ZACC 18; 2009 (2)
SACR 477 (CC); 2009 (6) SA 632 (CC ); 2009 (11) BCLR 1105 (CC) at para 54 this Court held as follows:
“The difficulty is that the Minister’s affidavit tenders no facts from which the legitimacy of this
purpose, and the efficacy of its execution, can be assessed. This Court has said that justification
does not depend only on facts, but may derive from policy objectives based on reasonable
inferences unsupported by empirical data. ”
KOLLAPEN J
67 are man y similarities between what SALGA says in this regard and the context I have
set out above. The depoliticisation imperative aligns in large measure with
Constitutional Principle XXX and the provisions of section 195 of the Constitution, all
of which requi re a public service that functions in a non -partisan and unbiased manner
and that can deliver services efficiently and professionally partly as a result of
depoliticisation.

SALGA also relied on the work of the Moerane Commission that recommended
the need to depoliticise and professionalise the public service. Further reliance was
placed on the 2016 Study which, among other things, dealt with the spike in service
delivery protests and concluded that frustration about the lack of service delivery was
the m ain motive for threats and violence.

What emerged from this information was both the constitutional imperative for
the policy position as well as information from the ground about how depoliticisation
was inextricably linked to, at the very least, the hop e for better service delivery and the
stabilisation of local government. SALGA also sought to rely on remarks made during
parliamentary deliberations about how the political hierarchy was grafted onto the
operations of the municipality to the detriment of efficiency and accountability. Here,
it argues that narrow party -political interests took precedence over those of the
municipality.

I refer in particular to the remarks of a Mr Hoosen concerning the position of a
junior official in the municipality who held a senior party position. This official did not
show up for work and was not held accountable or disciplined since he was a senior
party official. In my view, this anecdote need not suffice as evidence of undue political
influence in the administrat ion due to holding of political office. Rather, it illustrates
the risk that the legislature seeks to avoid and thus provides a reason to ground the
legislature’s policy choice to rely on the wide limitation as a measure to achieve
depoliticisation. It i s reasonable to expect Mr Hoosen’s experiences to play out in other
KOLLAPEN J
68 municipalities, since it aligns with the systemic issues discovered by the authors alluded
to above.

The use of this information is criticised in the first judgment as being hearsay. I
can only imagine the difficulty in obtaining such information under oath from those
involved in the politicisation of local government. But in any event, the cases from
Lawrence all the way to NICRO remind us that the absence of empirical data can hardly
be fatal in this exercise. This was information that the legislature was entitled to
consider in support of the proposed amendment introducing the wide limitation. That
information, even if anecdotal and based on hearsay, does not stand in isolation.

On 5 June 2020, and in support of the wide limitation, SALGA made a
PowerPoint presentation to the Portfolio Committee on Cooperative Governance and
Traditional Affairs. In that presentation, it referred to the practical challenges that faced
it in this sphe re of governance and noted the following:
(a) The appointment of a political party office -bearer to a position in the
administration not only affects the administration but also the functioning
of the council.
(b) It is not uncommon for senior management to be populated by party
officials.
(c) The appointment of a party official who occupies a position higher than
any councillor, to an administrative post plays havoc with all the legal
lines of accountability.
(d) Where the party officials are in a positio n below the municipal manager,
the municipal manager cannot exercise disciplinary supervision, even if
there are allegations of maladministration, absenteeism and so on.

This observation by SALGA was based in part on interviews that it conducted
with poli tical leaders and members of the administration. Comments from some
interviewees indicated the dangers of office -bearers holding positions in the
administration and that this danger was not confined to the upper echelons of the
KOLLAPEN J
69 municipality. This appeare d to accord with the observation of Mr Hoosen noted above.
Again, in the toxic and dangerous environment that had engulfed local government and
its interface with politics, it would be asking too much for those interviewed to come
on the record to identif y themselves and reduce to affidavit their concerns. It warrants
consideration. The codification of a measure contemplated in section 71B cannot
realistically be subject to empirical evidence.

In the same PowerPoint presentation, SALGA also relied on th e work of
Professor Jaap de Visser who, in an article titled “The political -administrative interface
in local government – Assessing the quality of local democracies”,108 captured the
reality of political interface in the following terms:

“Further confusion between the political party and the municipality is created when a
senior party -political office -bearer becomes a municipal staff member. The normal
lines of accountability then no longer apply, particularly when the staff member
outranks the mayor. The staff member then actually becomes the political head,
undermining the political leadership of the mayor. The municipality is thus ‘rewired’
in a very damaging way. This often leads to perennial power struggles that spill over
into service delivery prob lems.”109

De Visser articulates not just the risk of those in the lower echelons of the
administration acting in loyalty to their political views in priority over those of the
administration, but also what I term the relational risk that is created when sen ior
political office -bearers become municipal staff members and, in particular, when such
office -bearers occupy relatively junior positions in the administration but enjoy political
superiority over senior members of the administration. He refers to this as ‘rewiring’

108 De Visser “The P olitical -Administrative Interfa ce in Local Government – Assessing the Quality of Local
Democracies ” (2009) Local Governme nt Bulletin 18 at 19.
109 Id.

KOLLAPEN J
70 the municipality, and its consequences are power struggles that result in service delivery
challenges.110

In the same article De Visser also refers to what he terms the growing concern
around the inappropriate relationship between regional par ty structures and
municipalities. He refers to reports of instances where regional party structures seek to
operate municipalities by remote control.111 He goes on to say:

“The strongest evidence yet comes from a recent court case, involving the appointme nt
of a municipal manager for Amatole District Municipality ( Vuyo Mlokoti v Amathole
District Municipality and Mlamli Zenzile (2009) 30 ILJ 517 (E), 6 November 2008).
The court found that, under instruction from the ANC Regional Executive, the majority
ANC caucus members of the council approved the appointment of one of the two final
contenders for the position, despite the fact that the other candidate had outperformed
him in the interview and assessments. The judge in the matter concluded that:
‘. . . t he involvement of the Regiona l Executive Council of the ANC
. . . constituted an unauthorized and unwarranted intervention in the
affairs of [the municipality]. It is clear that the councillors of the ANC
supinely abdicated to their political party their responsibility to fill the
position of the Municipal Manager with the best qualified and best
suited candidate on the basis of qualifications, suitability and with due
regard to the provisions of pertinent employment legislation . . . . This
was a responsi bility owed to the electorate as a whole and not just to
the sectarian interests of their political masters . . . [The council] has
demonstrated a lamentable abdication of its responsibilities by
succumbing to a political directive from an external body, r egardless
of the merits of the matter. It continues, with an equally lamentable
lack of insight into its conduct, to contend that it was proper for it to
have done so.’”112


110 See De Visser “The P olitical -Administrative Interfa ce in South African Municipalities A ssessing the Quality
of Local D emocracies” (2010) Commonwealth Journal of Local Governance 86 at 95 -6 where De Visser explores
the perennia l power struggles further in his more comprehensive work on this issue.
111 Id at 94.
112 Id at 95.
KOLLAPEN J
71
So in sum, what was before the legislature and the Labour Court in justification
of the impugned provision was:
(a) depoliticisation as a policy choice located in the Constitution and the
National Development Plan;
(b) the SALGA survey that captured the views of those involved in the
administration of the damaging effects of an unmanaged and unregulated
political interface between politics and the administration;
(c) the HSRC survey that indicated how service delivery frustrations were
the cause of tensions and violence, which could be combatted by
depoliticisation;
(d) the writings of an academic, supported by case law, of the consequences
of an unmanaged interface between politics and the public service; and
(e) a living example of it happening beyond the theoretical level.

To the extent that the legislature was required to have sufficient information in
effecting the wide limitation, there was sufficient information from various sources that
provided a proper basis for the deliberations of the legislature and the ultimate decision
it reached. If this information were insufficien t to provide a basis for the legislature’s
policy choice, the question then would be what standard this information would have to
meet to be regarded as sufficient in justification of the legislature’s policy choices. The
complexity of municipal structure s and political structures indicates why it is not
suitable to be categorical about what is needed to justify the narrow and wide
limitations. This complexity also indicates why the wide limitation cannot realistically
be subject to empirical evidence. T he added complexity brought about when persons
in these two structures interact with each other is precisely the type of complexity the
legislature should be entrusted with. As a body of elected representatives, the
legislature has the capacity to underst and this complexity and to develop the right
solutions to it. It should be given the benefit of the doubt when it has developed such a
solution, as long as the solution is reasonable and justifiable when it limits rights in the
Bill of Rights.

KOLLAPEN J
72
The first judgment says that it is unconscionable to expect this Court to rely on
untested and generalised assumptions as evidence of common sense. The information
to which I have already referred, and which served before the legislature does not
constitute unteste d and generalised assumptions. It consisted of the work including
surveys and the experiences of SALGA, political and administration office -bearers, the
work of the HSRC, and the considered views of an academic supported by a judgment
of the High Court. Far from being untested and generalised assumptions, they represent
a conscious and sincere attempt to grapple with a difficult issue in our society mindful
of the constitutional implications that came with it, and in doing so, it satisfied the three
requi rements that NICRO and Centre for Child Law said should be met in such
situations.

In sum, there was sufficient information about the policy itself, the reasons for
the policy and why the legislature considered it reasonable to limit a constitutional righ t
in pursuit of that policy. The respondents have shown that the limitation is related to
its overall purpose. They have established the relationship between the means and ends
with sufficient information that illuminates the legislature’s reasons for th e limitation.
The decision of the legislature was hardly arbitrary or irrational. It constituted the
pursuit of a rational and legitimate response to the problems of political interference in
local government.

Ultimately, whether section 71B achieves it s purpose in fact is a factual exercise
that can only be determined once it has had the chance to live.113

Less restrictive means to achieve the purpose
It was suggested by SAMWU, and to some extent has found favour in the first
judgment, that the narrow li mitation achieves the purpose of depoliticisation and
professionalisation. To the extent that the respondents conceded that the narrow

113 Williams “Municipal Crisis: A Justifiable Limitation of Political Rights” (2023) 140 SALJ 38 at 49.
KOLLAPEN J
73 limitation resulted in stabilisation, I did not understand that to mean that all that was
required in terms of depolitic isation had been achieved.

This is for two reasons. First, it seems to me that the narrow limitation was
certainly effective as a positive step towards depoliticisation. But this positive step
forward does not equate to an effective fulfilment of depoli ticisation. It also does not
mean that the state is prohibited from taking greater measures, if those measures will
advance the purpose of depoliticisation further. I have demonstrated that the narrow
limitation may only target a very small percentage of the overall management structure
of local government. Where this is so, the question that arises is whether it can still be
said that the narrow limitation achieves a sufficient degree of depoliticisation if it does
not affect those who still wield immen se power, but who fall outside the scope of the
narrow limitation. Clearly it does not.

The second reason is that nobody has explained what stabilisation means. It is
unclear to me whether the fact that the narrow limitation had a stabilising effect
automatically means that depoliticisation was achieved. My view is that stabilisation
and depoliticisation are not the same thing, even though they may influence each other.
Stabilisation may indicate that the narrow limitation has made a difference, but th is does
not mean that depoliticisation is achieved.

Mindful that depoliticisation is unlikely to be fully achieved with this measure
alone, the narrow limitation leaves unaffected an entire swathe of public servants at
local government level (those who ar e not municipal managers and those directly
accountable to them). I have demonstrated in the cases of the City of Tshwane and the
municipality of Knysna, that the unaffected public servants could include those who
wield significant administrative power. They are not subject to any mechanism or
limitation in how they reconcile their political aspirations with the duties they are
required to perform for their employer. If it remains unaddressed it may continue to
have unsatisfactory consequences for the sy stem of local government across the
country.
KOLLAPEN J
74
The option of the narrow limitation, useful as it is, does not adequately address
politicisation. In particular, it draws an unwarranted distinction between the upper and
lower echelons of management and emplo yees, suggesting that power is only located in
the upper echelon when in truth and reality it is more likely diffusely spread across the
administration, albeit at different levels. Additionally, the narrow limitation does not
address the relational aspect of politicisation. This occurs when the hierarchical
relationship between two or more members in the political party is inverted in the
administration. This may result in blurred lines of accountability, or what De Visser
refers to as the rewiring of th e municipality. The legislature has chosen the wider
limitation to address these concerns. The test is not whether this is the right choice, but
whether the choice is reasonable and justifiable. My view is that it is.

The limitation, viewed holisticall y, constitutes less restrictive means when
compared to the converse, for example, a total and outright prohibition on all members
of political parties from being employed in local government. Such a limitation could
undermine the rights in section 19, lea ving very little to salvage and little residual rights
to make political participation possible and meaningful. And so to that extent it does
represent means that are less restrictive than this alternative, even though they may well
be more restrictive th an the narrow limitation.

Conclusion
It is for the above reasons that I have no hesitation in concluding that the
respondents have provided more than a sufficient basis to demonstrate that the
limitation is reasonable and justifiable in an open and democr atic society based on
human dignity, equality and freedom.

If I had commanded the majority, I would have refused to confirm the declaration
of constitutional invalidity by the Labour Court and dismissed the application by
SAMWU.

KOLLAPEN J
75
Since, in my judgment, SAMWU would have failed in its challenge to
section 71B, I would have granted it protection from an adverse costs order in
accordance with the principle in Biowatch .114 Thus, I would have ordered the parties to
bear their own costs in this Court and the Labour Court.


114 Biowatch above n 39.

For the Applicants:



For the First Respondent:



For the Second Respondent:

F Boda SC and M Z Gwala instructed by
Cheadle Thompson and Haysom
Incorporated

FJ Nalane SC and NP Mashabela
instructed by the State Attorney,
Pretoria

EC Labuschagne SC and V Mabuza
instructed by Diale Mogashoa Attorneys