Constitutional Court rules on disclosure of private funding of political parties
My Vote Counts v Minister of Justice and Correctional Services and Another [2018] ZACC 17
Court: Constitutional Court of South Africa
Date of judgment: 21 June 2018
On 21 June 2018, the Constitutional Court of South Africa (Constitution Court) declared the Promotion of Access to Information Act 2 of 2000 (PAIA) invalid to the extent of its inconsistency with the Constitution of the Republic of South Africa, 1996 (the Constitution), by failing to provide for the recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates. The Constitutional Court further declared that information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and to participate in the elections and that such information must be recorded, preserved and made reasonably accessible.
Background
In 2017, My Vote Counts NPC (MVC) successfully challenged the constitutional validity of PAIA on several grounds before the High Court of South Africa (Western Cape Division, Cape Town) (High Court). The High Court concluded that PAIA failed to apply to political parties, independent candidates or all records on private funding and that this deficiency rendered PAIA inconsistent with sections 19 (political rights) and 32 (access to information) of the Constitution.
However, the High Court dismissed the contention that the order should provide for a “continuous and systematic” recordal and disclosure of information on private funding, on the basis that this would intrude on the functions of Parliament.
In light of the finding of constitutional invalidity, the matter was referred to the Constitutional Court for confirmation proceedings in terms of section 167(5) of the Constitution. MVC also sought leave to appeal against the High Court’s refusal to include the words “continuous and systematic” in the order.
Before the Constitutional Court
Findings of the Constitutional Court (per Mogoeng CJ)
The Constitutional Court summarised the crux of the case as follows:
This case is a after all about establishing a principle-based system that will objectively facilitate the meaningful exercise of the right to vote, regard being had to its veritable significance. The system’s inbuilt capacity to sift the corrupt from the ethically upright is an indispensable requirement. For this reason, any information that completes the picture of a political party or an independent candidate in relation to who they really are or could be influenced by, in what way and to what extent, is essential for the proper exercise of the voter’s ‘will’ on which our government is constitutionally required to be based.
In this regard, the Constitutional Court noted that for every person to be free to make a political choice, access to relevant or empowering information must be facilitated. As stated, “[b]y its very nature, the proper exercise of the right to vote is largely dependent on information”. Furthermore, the Constitutional Court stated that all information necessary to enlighten the electorate about the capabilities and dependability or otherwise of those seeking public office must not only be compulsorily captured and preserved but also made reasonably accessible.
In respect of private funding, the Constitutional Court noted that “[u]nchecked or secret private funding from all, including foreign nations, could undermine the fulfilment of constitutional obligations by political parties or independent candidates so funded”. It was noted further that access to information helps voters and contestants to speak against and expose corrupt practices.
According to the Constitutional Court, the real question to be determined was whether PAIA provides for the recordal, preservation and disclosure of information on the private funding of political parties and independent candidates. In this regard, it held that sections 18 and 53 of PAIA failed not to pass muster, and found PAIA to be deficient for failing to provide for the following: (i) information on the private funding of political parties and independent candidates be recorded and preserved; (ii) it be made reasonably accessible to the public, and (iii) independent candidates and all political parties are subject to its provisions.
The Constitutional Court held that political parties and independent candidate s are constitutionally obliged to record, preserve and disclose information on private funding. However, because section 7(2) of the Constitution imposes the obligation on the State to facilitate the enjoyment of rights in the Bill of Rights, and section 32(2) requires the enactment of national legislation to essentially provide for the recordal or “holding” and disclosure of required or needed information, it thus falls on the shoulders of the State to honour its section 7(2) obligations.
As to the manner in which this should be done, the Constitutional Court stated that this was to be left to Parliament, including to determine whether the recordal, preservation and disclosure of all information relating to private funding should be regulated in terms of PAIA or other legislation, and how such disclosure should be made. To this end, the Constitutional Court ordered that Parliament be allowed a period of 18 months to amend PAIA and take any other measures it deems appropriate to provide for the recordal, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates
Separate concurrence (per Froneman J)
The first aspect of the separate concurrence related to the new legislation in terms of which the recordal and disclosure of information on the private funding of political parties would be regulated. In this regard, Froneman J noted that the only issue before the Constitutional Court was whether the record-creation and record-keeping duties required by the Constitution can be accessed under PAIA. As such, any implications for the new legislation flowing from the Constitutional Court’s judgment would have to be dealt with in future.
Furthermore, in respect of whether the requirement under PAIA should include systematic and continuous, Froneman J noted that it would be difficult to conceive that the constitutional obligation to record, preserve and make information on private political funding reasonably accessible could ever be an unsystematic, sporadic, one-off, or intermittent obligation, as opposed to a systematic and continuous one. As such, Froneman J stated that while he agreed that there was no necessity for the order to explicitly record the constitutional obligation as being systematic and continuous, he was not compelled to do so by separation of powers concerns – but rather because it would simply be irrational not to do it systematically and on a continuous basis.
Finally, Froneman J further noted that PAIA was deficient for failing to provide clarity on whether political parties that are not natural or legal persons are subject to its provisions.
Order of the Constitutional Court
The Constitutional Court therefore made the following order:
“1. The order of constitutional invalidity made by the Western Cape Division of the High Court, Cape Town is confirmed, in these terms:
1.1 It is declared that information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and to participate in the elections.
1.2 It is declared that information on private funding of political parties and independent candidates must be recorded, preserved and made reasonably accessible.
1.3 It is also declared that [PAIA] is invalid to the extent of its inconsistency with the Constitution by failing to provide for the recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates.
1.4 Parliament must amend PAIA and take any other measure it deems appropriate to provide for the recordal, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates within a period of 18 months.
2. Leave to appeal against the exclusion of the words “continuous and systematic” from the High Court order is granted but the appeal is dismissed.
3. The Minister of Justice and Correctional Services must pay costs to My Vote Counts NPC, including the costs of two counsel.”
The full judgment is accessible here.
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