A recent Constitutional Court judgement (9 April 2025) decided that it is unconstitutional to prevent municipal employees from holding office in political parties.

Does this mean that Fikile Mbalula, Helen Zille, and Jacob Zuma could now (if they were all young enough) become municipal employees?

While Mbalula, Zille and Zuma are likely too busy at their day-jobs as senior leaders of their political parties, and are unlikely to apply for municipal positions, the ruling highlights the potential power dynamics that may arise in municipalities as a result of this judgment.

Put yourself in the shoes of an MK-aligned municipal manager tasked with disciplining a stray Jacob Zuma.

The issue at hand is that individuals who hold office within their political parties (but are not leaders serving in government structures like parliament, provincial legislatures, or municipal council) have always been eligible for appointment as municipal officials. This has led to significant politicisation of municipalities, often with disastrous consequences for service delivery.

It plays out as follows: Political Party A wins the municipal election, becoming the  dominant party in the municipal council.  The council must then appoint leaders to manage the administration – that is, the senior officials responsible  for overseeing the day-to-day operations of the municipality.  The regional chairperson of Political Party A (or any other senior officeholder) may be paid a higher salary as a municipal offical than serving as a councillor. Through political pressure, they ensure their appointment. Alternatively,  political leaders who did not secure council seats are placed in the administration as more junior officials to guarantee a source of income.

One can see how this might cause challenges. The municipal manager, who is accountable to council, now has to manage the regional chairperson. Should the regional chairperson break the rules or bypass policies and procedures, it becomes very difficult for the municipal manager to discipline them. Councillors may also be subordinate to the chairperson within the party structures, making it unlikely they will hold him/her to account. In short, managers struggle to hold political party office bearers to account.

To address this issue, Parliament passed an amendment to the Local Government: Municipal Systems Act in 2022, which states: “a staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.”

The South African Municipal Workers Union (SAMWU) took the matter to the Labour Court, arguing that the restriction may apply to the municipal manager and managers directly accountable to the municipal manager, but not to ordinary staff.  They contended that this limitation infringes on certain political rights enshrined in section 19 of the Constitution. However, such limitation of rights is allowed by the Constitution, provided that it is ‘reasonable and justifiable’. SAMWU argued there was no proof that the limitation is rational.  The Labour Court ruled in their favour, and the matter went to the Constitutional Court, where the majority judgment was also in SAMWU’s favour.

As a result, the law is now limited to preventing municipal managers and those managers who report directly to municipal managers from holding office in political parties.  While this will undoubtedly go a long way addressing the politicisation of local government, one can see that the door for abuse unfortunately remains wide open.

A senior political leader (who is not a councillor) can still be appointed to become the Head of HR or the Head of Supply Chain Management. In many municipalities, these positions do not report directly to the Municipal Manager. It is precisely in these areas that corruption is rife and where policies are bypassed. Well-intentioned municipal managers will find it difficult to discipline senior political figures because of the power dynamics – and so, corruption will likely continue.

The Constitutional Court’s majority ruling states: “the respondents’ problems lie in their inability to implement legal remedies with regard to these infractions. … Depriving junior staff members of their hard-fought right, enshrined in section 19 of the Constitution, to hold positions in a political party, simply because managers cannot exercise or administer disciplinary measures, is irrational.”

What the ruling seems to ignore is that it is precisely the inability of managers to discipline politically connected staff that drives the need for such legislation in the first place. This is not a personal failure of individual managers, but a systemic failure.

The other reason given by the Constitutional Court for their judgement is that “there was insufficient evidence to establish that the impugned extension was rationally connected to the stated purpose of professionalising the municipal sector. The Court rejected the argument that every junior employee who holds a political position in a political party would necessarily wield undue influence in the workplace, stating that this amounted to no more than an assumption.”

In other words, the Court is saying, ‘Where is the proof? If we are going to limit rights, we need evidence’. While a considerable amount of evidence was presented in court, it was either disregarded or deemed insufficient by the majority judgment.  (The minority judgment, notably, found the evidence to be sufficient.)

Of course, the issue, is not that every junior employee will be destructive, but whether there is evidence that the broader practice of appointing political office bearers into municipal administrations causes harm — and that evidence does exist.

As part of the development of the Code for Ethical Leadership in Local Government, The Ethics Institute (TEI) conducted a nationwide survey of municipal staff. The findings revealed that the prevalence of ‘appointment of political party office bearers into the administration’ is significantly higher in municipalities with adverse or disclaimer audits than those with clean audits.

In fact, it is one of the main factors that set municipalities with clean audits apart from those with adverse or disclaimer audits — and from our interviews, it seems to be one of the causal factors of poor governance.

– Extract from research conducted as part of the Local Government Ethical Leadership Initiative.

One respondent — seemingly a senior administrator — left this comment on the survey:

“Some of the political decisions taken undermine us as administrative leaders. For example, on appointment of staff, there are clear criteria and credentials etc. Politicians then push people in their positions for political reasons. This creates a problem. So, in the administration you have people who are qualified to do their jobs and those who are there to push for a political agenda. Those who are there for an agenda, they don’t adhere to policies etc., they create chaos and they always have the upper hand in terms of politics — so things happen despite what you say is the policy/process. These people undermine the processes. They get away with it because they are ‘protected’.”

In our research, we also conducted interviews with numerous municipal leaders, many of whom expressed their frustration at the politicisation of municipalities through destructive deployment practices.

Based on this research, TEI, in partnership with the Department of Cooperative Governance (DCoG), the South African Local Government Association (SALGA), and the Moral Regeneration Movement (MRM) — developed the Code for Ethical Leadership in Local Government. This Code addresses issues of politicisation of local government, destructive deployment practices, and lack of consequence management. It is dependent on the presence of good and ethical municipal leaders who are trying to do the right thing.  The implementation of the Code is meant to strengthen their hand in a very difficult political environment.

This Constitutional Court ruling will come as a significant disappointment to the many committed municipal leaders striving to build more effective and better-governed municipalities, as it changes the power dynamics against them.

The legislation does not strip individuals of their right to vote or to join political parties – it simply bars them from holding office within such parties. This is a limitation that Constitutional Court judges have accepted for themselves; in fact, the Code of Judicial Conduct precludes members of the judiciary from even being members of political parties. It is therefore difficult to argue that this provision constitutes a serious infringement of human rights, especially when weighed against the reality facing millions of South Africans who are denied basic rights – including access to housing, clean water, healthcare, and a safe environment – because of dysfunctional municipalities. The law seeks to protect the system from abuse, ultimately to safeguard the very rights currently being denied to so many.

This is an unfortunate case of the rights of the few politically connected individuals being deemed more important than the rights of the many.  Balancing these rights is difficult in any country.  One cannot help but think that in South Africa, we often get the balance wrong.

Kris Dobie is Senior Manager: Organisational Ethics at The Ethics Institute.