CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 385/21
In the matter between:
AMABHUNGANE CENTRE FOR INVESTIGATIVE
JOURNALISM NPC Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Respondent
and
JOHANNESBURG SOCIETY OF ADVOCATES Amicus Curiae
Neutral citation: AmaBhungane Centre f or Investigative Journalism NPC v
President of the Republic of South Africa [2022] ZACC 31
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Theron J, Tshiqi J and Unterhalter AJ
Judgment: Majiedt J (unanimous)
Heard on: 31 May 2022
Decided on: 20 September 2022
Summary: Executive Ethics Code, Proclamation No. R41 of 2000 —
constitutionality of the Code — order of constitutional invalidity
confirmed
2
Executive Members’ Ethics Act 82 of 1998 — section 2(2)(c) —
transparency — access to information — meaning of “any
financial interest”
ORDER
On application for confirmation of the order of the High Court of South Africa,
Gauteng Division, Pretoria (Mlambo JP, Keightley J and Matojane J):
1. The order of the High Court of South Africa, Gauteng Division, Pretoria,
declaring the Executive Ethics Code published under Proclamation
No. R41 of 2000, to be inconsistent with the Constitution and invalid to
the extent that it does not require the disclosure of donations made to
campaigns for positions within political parties, is confirmed.
2. The operation of the order is suspended for a period of 12 months t o
enable the respondent to remedy the defect.
3. The respondent must pay the applicant’s costs, including costs of two
counsel, in this Court.
JUDGMENT
MAJIEDT J (Kollapen J, Madlanga J , Mathopo J, Mhlantla J, Theron J, Tshiqi J and
Unterhalter AJ):
[1] Politics and money make disquieting bedfellows. This case is about money in
politics, more particularly money donated to election campaigns for positions within
political parties. The central question for determination is whether there ought to be a
duty in law to disclose those donations. In this regard, we must determine whether the
MAJIEDT J
3
Executive Ethics Code ( the Code), enacted in 2000 by the then President of the
Republic of South Africa in terms o f sec tion 96(1) of the Constitution ,1 passes
constitutional muster.
[2] The Full Court of the Gauteng Division, Pretoria (Full Court), declared that
the Code was unconstitutional and unlawful to the extent that it did not require the
disclosure of donations m ade to campaigns for positions within political parties. The
declaration of unconstitutionality was suspended for 12 months. The matter is before
this Court for confirmation of the declaration of invalidity. As will appear, the matter
has travelled a circuitous route to end up here.
Parties
[3] The applicant is amaBhungane Centre for Investigative Journalism NPC
(amaBhungane), a non -profit company incorporated under the Companies Act. 2 The
respondent is the President of the Republic of South Africa. The P resident has filed a
notice of intention to abide these proceedings. That prompted this Court to request the
Johannesburg Society of Advocates (the Society) to appoint counsel to assist us by
preparing written submissions and presenting oral argument in t he confirmation
proceedings. The Society graciously acceded to this request and counsel who appeared
have been of commendable assistance to this Court, for which we are indebted. Before
the Full Court, the President elected not to file answering papers, but confined his
participation to the advancement of oral submissions by counsel in opposition to
amaBhungane’s constitutional challenge.
1 Section 96(1) deals with the conduct of Cabinet members and Deputy Ministers. It states that “[m] embers of
the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.”
2 71 of 2008.
MAJIEDT J
4
Litigation history
High Court: initial review application and constitutional challenge
[4] On 31 July 2019, the President applied to the Gauteng Provincial Division of the
High Court, Pretoria (High Court) , for extensive relief against the Public Protector,
including reviewing and setting aside findings and remedial actions the Public Protector
made in a report she rendered against the President. That report, number 37
of 2019/2020 and bearing the title “Report on an investigation into a violation of the
Executive Ethics Code through an improper relationship between the President and
African Global Operations (AGO), formerly known as BOSASA” (the Report), was
released by the Public Protector on 19 July 2019. One of the key findings in the Report
was that the President had breached his duties under the Code, in that, among other
things, he had fa iled to disclose donations that had been made to an internal
party-political campaign that supported his election as President of the African National
Congress (ANC), commonly known as “the CR17 campaign”.
[5] The Speaker of the National Assembly and the Nati onal Director of Public
Prosecutions joined as applicants in that review application, while the Public Protector
and the Economic Freedom Fighters (the EFF) , a political party represented in the
National Assembly, opposed the relief sought.
[6] On 6 November 2019, amaBhungane applied to intervene as a party or to be
admitted as amicus curiae in the review application. It indicated in its intervention
application that, if permitted to intervene, the following relief would be sought:
“1. In the event that the Executive Ethics Code, 2000 ( ‘the Code’) is held not to
require the disclosure of donations made to campaigns for positions within
political parties:
1.1 It is declared that the Code is unconstitutional, unlawful and invalid to
this extent.”
MAJIEDT J
5
[7] The basis for this relief, contended amaBhungane, was that “the Code . . . fails
to meet the obligations imposed by the Constitution and the [Ethics Act] and/or is
unconstitutionally and impermissibly vague” . AmaBhungane thus brought a
constitutional challenge to the Code by way of a conditional counter -application
through an application to intervene in the review proceedings. The application was
conditional on the interpretation placed on the Code and, more particularly, whether
the Code required members of the e xecutive to make disclosure of donations made to
internal party-political campaigns.
[8] The High Court granted amaBhungane leave to intervene; and any party wishing
to file an affidavit in answer to the relief sought by amaBhungane in the review
application, was granted leave to file such affidavit. The President elected not to file an
answering affidavit in response to the conditional constitutional challenge.
[9] The High Court granted the President’s application to review the findings in the
Report, includin g the finding that he had breached the Code by failing to disclose
donations to the CR17 campaign. The High Court, however, dismissed amaBhungane’s
conditional counter -application on the basis that its constitutional challenge had not
been properly raised and without determining the merits of that challenge. 3 Strangely
though, nothing was said in the High Court’s order about the relief sought by
amaBhungane, but in its judgment, after describing amaBhungane’s case as compelling,
that Court dismissed the challenge as not having been properly raised.
This Court: initial review and constitutional challenge
[10] Having granted leave, on appeal , this Court dismissed the Public Protector’s
appeal and remitted amaBhungane’s constitutional challenge to the High Court.4
This Court held that the High Court ought to have considered the constitutional
challenge on its merits as it was properly before th at Court. This Court refrained from
3 President of the Republic of South Africa v Public Protector 2020 (5) BCLR 513 (GP) (High Court judgment).
4 Public Protector v President of the Republic of South Africa [2021] ZACC 19; 2021 (6) SA 37 (CC); 2021 (9)
BCLR 929 (CC) (review judgment).
MAJIEDT J
6
saying anything at all about the constitutional validity of the Code, mindful that this
issue would still have to be decided by the High Court upon remittal.
Full Court: constitutional challenge to the Code
[11] At the directive of the Judge President of the Gauteng Provincial Division, a
Full Court was constituted to hear amaBhungane’s cha llenge to the constitutional
validity of the Code.5 The President again did not file any answering papers in response
to this constitutional challenge. Legal argument was, however, presented on his behalf
in opposition to the constitutional challenge. None of the other parties who were part
of the review application in the High Court and the subsequent appeal to this Court
played an active role in this second round of litigation on remittal to the High Court.
[12] The Full Court upheld the constitutional challenge and declared the Code
unconstitutional and invalid. It granted an order as follows:
“1. It is declared that the Executive Ethics Code, published under Proclamation
No. R41 of 2000, is unconstitutional, unlawful and invalid insofar as it does
not require the disclosure by Members who are subject to the Code of donations
made to campaigns for their election to positions within political parties.
2. The declaration of invalidity shall have no retrospective effect and shall be
suspended for a period of 12 months to allow for the defect to be remedied.
3. The respondent is directed to pay the applicant’s costs, which are to include
those of two counsel, one being Senior Counsel.”
This Court: constitutional challenge to the Code
AmaBhungane’s submissions
[13] According to amaBhungane, the legal question is whether the Code is
constitutionally compliant in the manner in which it deals with the disclosure of
donations to campaigns for positions within political parties. AmaBhungane explains
5 AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa [2022] 1
All SA 706 (GP) (Full Court judgment).
MAJIEDT J
7
that the relief is forward-looking and emphasises that its challenge is whether in future
Ministers, Deputy Ministers and Members of the Executive Council ( MECs) will be
required to make public disclosure of donations made to campaigns for their election to
internal party positions. The relief does not seek to reach into the past and will thus not
prejudice any of the Ministers, Deputy Ministers or MECs who made disclosures in
terms of the current Code, as they did so in accordance with the then extant Code.
[14] AmaBhungane contends that the provisions of the Executive Members’
Ethics Act6 (Ethics Act ) require that the Code must ensure that members of the
executive do not place themselves in positions that may compromise their ability to
discharge their duties without any undue influence – including accepting undisclosed
financial contributions. It is further submitted that section 2(2)(c) of the Ethics Act
plainly requires that the Code cast a wide net in relation to the financial interests that a
member of the e xecutive may possibly have. It does this by providing that the Code
must require members of the e xecutive to disclose all of their financial inter ests on
assumption of office and any financial interests after assumption of office. That section
enumerates the type of financial interests that the disclosure should include. Consistent
with the wide net the section seeks to cast, it provides that disc losure should not only
be of the member concerned, but it should also be of persons within their family or
others who may have a familial or close connection with that member. AmaBhungane
contends that the breadth of these duties is confirmed when one con siders
South Africa’s international law obligations with reference to Article 18 of the
United Nations Convention Against Corruption.7
6 82 of 1998.
7 South Africa ratified the United Nations Convention Against Corruption on 2 2 November 2004. Article 18 of
that Convention provides:
“Each State Party shall consider adopting such legislative and other measures as may be
necessary to establish as criminal offences, when committed intentionally:
(a) The promise, offering or giving to a public official or any other person, directly or
indirectly, of an undue advantage in order that the public official or the person abuse
his or her real or supposed influence with a view to obtaining from an administration
or public authority of the State Party an undue advantage for the original instigator of
the act or for any other person;
(b) The solicitation or acceptance by a public offi cial or any other person, directly or
indirectly, of an undue advantage for himself or herself or for another person in order
MAJIEDT J
8
[15] AmaBhungane further submits that the very point of the disclosure required in
paragraphs 5 and 6 of the Code is to allow political parties, the media and the public to
know which persons or entities are providing private financial support or benefits to
those who hold public office. AmaBhungane stresses that this transparency is essential
in order to guard against potential corruption, conflicts of interest and the like. It further
contends that, to the extent that the Code does not require the disclosure of all donations
made to campaigns for positions within political parties for the benefi t of members of
the executive, this breaches sections 1, 7(2), 19, 32, 96 and 195 of the Constitution; and
it breaches the Ethics Act.
[16] AmaBhungane also submit s that t he imperative of section 7(2) of
the Constitution, that requires the state to “respect, p rotect, promote and fulfil the
rights” contained in the Bill of Rights, starkly illustrates the obligations on the state.
The provisions of section 96, read with section 2(1) of the Ethics Act, and taking into
account the provisions of Article 7(3) of the United Nations Convention Against
Corruption,8 confirm these obligations. Furthermore, amaBhungane submits that there
are two added dimensions in the present case: the right to make political choices and to
vote (section 19 of the Constitution); and the right of access to information (section 32
of the Constitution). As held by this Court in the review judgment, the Code only
requires disclosure where there is a personal benefit to the Minister, Deputy Minister or
MEC. This partial disclosure obligation , contends amaBhungane, is manifestly
insufficient to meet the relevant constitutional and statu tory obligations as it permits
members of the e xecutive to avoid having to make disclosure by structuring their
campaign funding in such a way that it falls outside the personal benefit requirement.
that the public official or the person abuse his or her real or supposed influence with a
view to obtaining from an administration or public authority of the State Party an undue
advantage.”
8 Article 7(3) of the Convention requires states to—
“consider taking appropriate legislative and administrative measures , consistent with the
objectives of this Convention and in accordance with the fundamental principles of its domestic
law, to enhance transparency in the funding of candidatures for elected public office and, where
applicable, the funding of political parties.”
MAJIEDT J
9
[17] In invoking My Vote Counts II,9 amaBhungane contends that this Court has made
plain that the reasons for requiring mandatory disclosure of party political funding
donations are to enable members of the public to properly and meaningfully exercise
their constitutional rights , and to act as a bulwark against corruption. AmaBhungane
submits that neither of these aims can be achieved when members of the executive can
structure their campaigns to avoid disclosure. It further submits that if the Code is to
meet the obligation set by section 2(1) of the Ethics Act, to prescribe rules “promoting
open, democratic and accountable government”, it must require disclosure of all
donations, whether personally beneficial or oth erwise, made to internal campaigns
within political parties.
[18] AmaBhungane submits that the Code is vague as it is extraordinarily difficult to
know in advance when a m ember of the e xecutive will have to disclose donations. It
submits that this is a seriou s problem, not only for Parliament as it seeks to enforce
the Code against Ministers, but also for the public media as they try to hold Ministers
to account. AmaBhungane further submits that the vagueness of the Code in dealing
with internal campaign donations assists no-one at all and undermines the very purpose
of the Code. Additionally, amaBhungane points to the arbitrary manner in which
the Code deals with campaign donations. It furnishes hypothetical examples of that
arbitrariness.
[19] AmaBhungane emph asises that it should not matter whether the Minister,
Deputy Minister or MEC ultimately wins or loses the internal party election and it also
should not matter whether or not a win in the internal party election ultimately translates
into more impressive executive office. AmaBhungane submits that what matters
instead is that a private company is using its funds to contribute to a campaign to
promote the candidacy of a particular person within party-political elections. Once that
person becomes a m ember o f the e xecutive, the donation must be disclosed to the
9 My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17; 2018 (5) SA 380 (CC);
2018 (8) BCLR 893 (CC).
MAJIEDT J
10
public. It is only with this disclosure that the public will be “better able to detect any
post-election special favours that may be given in return”. And only with that disclosure
will Ministers, Deputy Ministers and MECs be inclined to steer clear of “characters or
entities that could influence them negatively, for the advancement of personal or
sectoral interests” and thus be left “free to honour their declared priorities and
constitutional obligations”.
[20] Ultimately, amaBhungane submits that the Code fails to comply with
the Ethics Act and the Constitution to the extent that it fails to require disclosure of all
donations to internal campaigns within political parties. To this extent, the Code is
unlawful, unconstitutional and invalid, as the Full Court rightly found.
[21] On the issue of an appropriate remedy, amaBhungane submits that in the
circumstances, this Court is required to confirm the declaration of constitutional
invalidity to the extent that the Code fails to require the disclosure of all donations made
to campaigns for positions within political parties. AmaBhungane accepts that such a
declaration of invalidity should have no retrospective effect. This is because national
and provincial members of the executive took the Code as they found it. Therefore, it
would be unfair to criticise them for not having made these disclosures under the Code
as it currently stands. It also accepts that the declaration of invalidity should be
suspended for 12 months to allow the President to remedy the defect, as he may deem
appropriate.
Amicus Curiae: Johannesburg Society of Advocates’ submissions
[22] In broad outline, the amicus submits that our Constitution contains no obligation
for the public disclosure of donations made to campaigns for election to internal party
positions. As a result, a failure to provide for such a requirement in legislation or
subordinate legislation such as the Code does not violate the Constitution. In analysing
section 2(2)(c), read with section 2(2)(b)(iv) of the Ethics Act, the amicus submits that
they limit the disclosure of a m ember of the e xecutive’s financial interest.
Section 2(2)(c) is limited to donations or financial support that is for the member of the
MAJIEDT J
11
executive’s personal interest in line with the values of transparency and in order to
mitigate against the risk of corruption (as contemplated in section 2(2)(b)(iv)) and
members of the e xecutive seeking to improperly benefit their donors. This risk does
not arise in instances when the member of the executive or their relatives do not benefit
personally. The risk of c orruption only arises when the m ember of the e xecutive is
aware of the persons from whom any donations and fi nancial support is made to the
member’s political campaign. This can appropriately be addressed in the Code. The
limitation that a discl osure need only be made when a m ember of the e xecutive
personally benefits from the funding of their campaign for a political party position
ensures that donors or contributors are aware that their financial support would not be
known to the persons they support and accordingly that they cannot ultimately
improperly benefit.
[23] According to the amicus, a blanket requirem ent of disclosure, even when a
member of the e xecutive has prudently had their campaign run in a manner that does
not allow them access to the information about specific donors and contributors to the
campaign, creates an unnecessary risk of corruption because that member would end up
knowing such detail, thus defeating the very purpose of the Code. A blanket disclosure
exposes all m embers, regardless of whether they benefit personally, to a risk of
improperly benefiting their private interests or the interests of their donors and such
exposure is not in line with section 96 of the Constitution. This approach also
safeguards the constitutional privacy rights of third parties who donate to campaigns in
respect of which the member of the executive is completely unaware.
[24] On the basis of this explication of the Ethics Act, the amicus contends that
the Code does not breach the Ethics Act. The ambit and purport of the disclosure
requirement in the Code falls within the context, language and purpose of
the Ethics Act, generally, and section 2(2)(c), read with 2(2)(b)(iv), specifically. Since
the Ethics Act’s constitutionality has not been challenged, that brings an end to
amaBhungane’s case.
MAJIEDT J
12
[25] The amicus further subjects to close scrutiny each one of the various sections of
the Constitution which amaBhungane contends is violated by the partial disclosure
requirement under the Code (that is sections 1, 7(2), 19, 32, 96 and 195 of
the Constitution), and submits that the challenge is devoid of merit in respect of all of
them. In sum, this is because these sections do not provide for the constitutional
obligation that requires public disclosure of donations made in an internal party
election; and the Code does not breach the obligations set out in the respective sections.
[26] The amicus further contends t hat, even if a constitutional obligation exists as
postulated by amaBhungane, the constitutional challenge against the Code is
misdirected for the following reasons. First, the attack fails on the principle of
subsidiarity and, second, the Code is not the appropriate vehicle for giving effect to the
constitutional obligation. Furthermore, the amicus submits that there is no vagueness
in the Code’s provisions, and that its ambit and purport have been made clear by the
judgments of this Court and the Full Court as far as paragraphs 5 and 6 of the Code are
concerned. Those judgments have held that the Code only applies to campaign
donations that constitute personal benefits. In any event, so the amicus contends, if
there is a constitutional obligation for the disclosure of funding of an intra-party
campaign, the proper vehicle for regulating such disclosure would be the Political Party
Funding Act10 (the PPFA). The enquiry would then be whether the PPFA fails to give
effect to the constitutional obligation of disclosure. But the PPFA is not before
this Court. The amicus contends that the PPFA, with suitable amendments, would be a
more appropriate vehicle to cater for the regulation of disclosure as it is the legislation
that specifically regulates political party funding, including donations.
[27] As to vagueness, the amicus submits that this Court has already concluded that
it is not arbitrary or irrational that there is a distinction between donations mad e for a
party candidate’s personal benefit and those made for that candidate’s campaign. When
a donation is made without personally benefitting the candidate, and thus not creating a
10 6 of 2018.
MAJIEDT J
13
risk of a conflict of interest or of a candidate seeking to improperly benefit the donor, it
is not arbitrary for that donation to not be disclosed. The candidate would also not know
of the donation. It is thus not irrational that Ministers, Deputy Ministers and MECs
should not know who donates to their campaigns. Ensuring that they are not informed
of the details and the amounts of the donations they receive would avoid the risk of
conflict and patronage. To require disclosure in the manner sought by amaBhungane
would compel Ministers, Deputy Ministers and MECs to know who has supported them.
It is not arbitrary for the Code to seek to avoid this risk.
[28] According to the amicus, the wording of paragraphs 5 and 6 of the Code fits well
with this Court’s interpretation, as supported by the Full Court. The wording of the
provisions properly recognises and gives effect to the purport of section 2 of
the Ethics Act. The persons to whom the Code applies and for whose benefit it was
promulgated can reasonably ascertain the meaning of paragraphs 5 and 6 of the Code.
There is reasonable certainty about the meaning of the Code especially in the light of
this Court’s judgment; and it is plain when campaign donations will be exempt from
disclosure and when not. The Code is thus written in a clear and accessible manner and
is not in breach of the rule of law.
[29] In respect of jurisdiction, the amicus accepts that the matter is properly before
this Court for the confirmation of the Full Court’s order of constitutional invalidity. On
the merits, ultimately, the amicus submits that amaBhung ane’s application is
impermissible, unwarranted and unfounded and this Court ought to dismiss the
application for confirmation, set aside the Full Court’s order and substitute it with one
dismissing amaBhungane’s application.
Jurisdiction and leave to appeal
[30] These are proceedings for confirmation of a declaration by the High Court that
conduct of the erstwhile President is constitutionally invalid. The Code was published
under Proclamation No. R41 of 2000 by the then President in terms of section 2 of
the Ethics Act. Section 172(2)(a) of the Constitution provides that a declaration that
MAJIEDT J
14
conduct of the President is constitutionally invalid has no force unless confirmed by
this Court. Therefore, as the publication of the Code by the President is conduct of
the President, n o leave to appeal is required, given the peremptory wording of
the section. But it remains this Court’s decision whether confirmation should follow –
that is not a mere rubberstamping, mechanical exercise.11
Evaluation
The legislative framework
[31] A useful starting point is the legislation that finds application here, commencing
with the provisions of the Constitution. It is instructive that in respect of suffrage,
section 1(d) of the Constitution outlines as central founding values: “[u]ni versal adult
suffrage, a national common voters roll, regular elections and a multi -party system of
democratic government, to ensure accountability, responsiveness and openness ”.12
Section 7(2) of the Constitution refers to the state’s positive duty to “re spect, protect,
promote and fulfil the rights in the Bill of Rights”. Section 19 provides for citizen’s
11 In Phillips v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 1; 2003 (3) SA
345 (CC); 2003 (4) BCLR 357 (CC) at para 8, this Court held:
“Section 172(2) confirmation proceedings are not routine, for it does not follow that High Court
findings of constitutional invalidity will be confirmed as a matter of course. This Court is
empowered to confirm the High Court order of constitutional invalidity only if it is satisfied that
the provision is inconsistent with the Constitution. If not, there is no alternative but to decline
to confirm the order. It follows that a finding of constitutional i nvalidity by a High Court does
not relieve this Court of the duty to evaluate the provision of the provincial Act or Act of
Parliament in the light of the Constitution. A thorough investigation of the constitutional status
of a legislative provision is ob ligatory in confirmation proceedings. This is so even if the
proceedings are not opposed, or even if there is an outright concession that the section under
attack is invalid.”
12 Emphasis added.
MAJIEDT J
15
political rights.13 Section 32 makes provision for the right of access to information.14
Section 96 regulates the conduct of Cabinet members and Deputy Ministers.15 Lastly,
section 195 deals with public administration.16 All these constitutional provisions have
an important bearing on the context and purpose of the Ethics Act and the Code.
13 Section 19 provides:
“(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 a nd 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.”
14 Section 32 reads:
“(1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the
exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the administrative and financial burden on the state .”
15 Section 96 provides:
“(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of
ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not—
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or exp ose themselves to
any situation involving the risk of a conflict between their official
responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves
or improperly benefit any other person.”
16 Section 195(1) and (2) read:
“(1) Public administration must be governed by the democratic values and principles
enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
(b) Efficient, economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and without bias.
(e) People’s needs must be responded to, and th e public must be encouraged to
participate in policy-making.
MAJIEDT J
16
[32] Due to its importance, the relevant provisions of the Ethic s Act bear close
scrutiny. The Ethics Act is the legislation contemplated in section 96(1) of
the Constitution. Section 2 reads:
“Code of Ethics
2(1) The President must, after consultation with Parliament, by proclamation in
the Gazette, publish a code of ethics prescribing standards and rules aimed at
promoting open, democratic and accountable government and with which
Cabinet members, Deputy Ministers and MEC s must comply in performing
their official responsibilities.
(2) The code of ethics must—
(a) include provisions requiring Cabinet members, Deputy Ministers and
MECs—
(i) at all times to act in good faith and in the best interest of good
governance; and
(ii) to meet all the obligations imposed on them by law; and
(b) include provisions prohibiting Cabinet members, Deputy Ministers
and MECs from—
(i) undertaking any other paid work;
(ii) acting in a way that is inconsistent with their office;
(iii) exposing themselves to any situation involving the risk of a
conflict between their official responsibilities and their private
interests;
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible
and accurate information.
(h) Good human -resource management and c areer-development practices, to
maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the South African
people, with employment and personnel management practices based on
ability, objectivity, fairness, and the need to redress the imbalances of the past
to achieve broad representation.
(2) The above principles apply to—
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.”
MAJIEDT J
17
(iv) using their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person; and
(v) acting in a way that may compromise the credibility or
integrity of their office or of the government.
(c) require Cabinet members and Deputy Ministers to disclose to an
official in the office of the President designated for this purpose, and
MECS to disclose to an official in the office of the Premier concerned
designated for this purpose—
(i) all their financial interests when assuming office; and
(ii) any financial interests acquired after their assumption of
office, including any gifts, sponsored foreign travel, pensions,
hospitality and other benefits of a material nature received by
them or by such persons having a family or other relationship
with them as may be determined in the code of ethics; and
(d) prescribe that the financial interests t o be disclosed in terms of
paragraph (c) must at least include the information, and be under the
same conditions of public access thereto, as is required by members of
the National Assembly as determined by that House from time to time,
but may prescribe the disclosure of additional information.
(3) The code of ethics may prescribe any matter that may be necessary for the
effective implementation of the code of ethics.”
[33] The Public Protector is empowered, in section 3 of the Ethics Act, to investigate
breaches of the Code when a complaint is made in terms of section 4. 17 When the
complaint relates to a Minister, Premier or a Deputy Minister, the Public Protector must
report on her investigation to the President and if it relates to an MEC, she must report
to the Premier concerned. 18 The President must submit a copy of the report on the
Minister or Deputy Minister and any comments thereon, together with a report on any
action to be taken in regard thereto, to the National Assembly. 19 The President must,
after receiving a report on a Premier, submit a copy of the report and any comments
17 Section 3(1) of the Ethics Act.
18 Section 3(2)(a) and (b) of the Ethics Act.
19 Section 3(5)(a) of the Ethics Act.
MAJIEDT J
18
thereon to the National Council of Provinces.20 The Premier must submit a copy of the
report on an MEC and any comments thereon, together with a report on any action taken
or to be taken in regard thereto, to the provincial legislature.21
[34] Paragraphs 5 and 6 of the Code are also of relevance here. Paragraph 5 reads:
“5.1 Every member must disclose to the Secretary particulars of all the financial
interests, as set out in paragraph 6, of—
(a) the member; and
(b) the member’s spouse, permanent companion or dependent children, to
the extent that the member is aware of those interests.
5.2 The first disclosure must be made within 60 days after the promulgation of
this Code or of a member’s assumption of office, or of a member becoming
aware of such interest, as the case may be.
5.3 After the first disclosure, members must annually disclose particulars of their
financial interests on or before a date determined by the Secretary.
5.4 Cabinet members and Deputy Ministers who are members of the
National Assembly and are required to disclose particulars of their financial
interests in terms of the Rules of Parliament, comply with paragraph 5.1—
(a) by submitting to the Secretary a copy of those particulars on the same
date as they are filed with the relevant parliamentary official; and
(b) insofar as those particulars do not meet the requirements of
paragraph 6 of this Code, by filing with the Secretary a statement
containing the necessary additional disclosure.
5.5 Where any doubt exists as to whether particular financial interests must be
disclosed, the member must consult the Secretary.
5.6 When a member makes a disclosure in terms of paragraph 5.1, the member
must confirm in writing to the Secretary that the member receives no
remuneration other than as a member of the Executive.”
[35] Paragraph 6 provides for the disclosure of financial interests in the following
terms:
20 Section 3(5)(b) of the Ethics Act.
21 Section 3(6) of the Ethics Act.
MAJIEDT J
19
“Members must disclose the following interests and details—
. . .
6.2 Sponsorships—
(a) The source and description of direct financial sponsorship or
assistance from any source other than the member’s party which
benefits the member in his or her personal and private capacity; and
(b) the amount or value of the sponsorship or assistance.
6.3 Gifts and hospitality other than that received from a spouse or permanent
companion or family member—
A description, including the value and source of—
(a) any gift with a value of more than R350;
(b) gifts received from a single source w hich cumulatively exceed the
value of R350 in any calendar year;
(c) hospitality intended as a personal gift and with a value of more than
R350; and
(d) hospitality intended as a gift and received from a single source, and
which cumulatively exceeds the value of R350 in any calendar year.
6.4 Benefits—
(a) The nature and source of any other benefit of a material nature; and
(b) the value of that benefit.
. . .
6.6 Land and immovable property, including land or property outside
South Africa—
(a) A description of and the extent of the land or property;
(b) area in which it is situated; and
(c) nature and value of interest in the land or property.”
[36] As always, in interpreting any statutory provision, one must start with the words,
affording them their ordinary meaning, bearing in mind that statutory provisions should
always be interpreted purposively, be properly contextualised and must be construed
consistently with the Constitution. 22 This is a unitary exercise. 23 The context may be
22 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) at para 28.
23 Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20; 2020 (6) SA 14 (CC); 2020 (10)
BCLR 1173 (CC) at para 52.
MAJIEDT J
20
determined by considering other subsections, sections or the chapter in which the
keyword, provision or expression to be interpreted is located .24 Context may also be
determined from the statutory instrument as a whole. A sensible interpretation should
be preferred to one that is absurd or leads to an unbusinesslike outcome.25
[37] The wide wording in section 2(2)(c) of the Ethics Act is telling, but not decisive.
The legislature employs the words “all their financial interests when assuming office”
in section 2(2)(c)(i), a nd “any financial interests acquired after their assumption of
office” in section 2(2)(c)(ii) , in relation to the duty upon m embers of the e xecutive to
disclose. This capacious ambit is extended further in the latter instance, after
enumerating various ty pes of financial interest by: first, adding the words “and other
benefits of a material nature received” ; and second, by including the recei pt of such
benefits beyond the m ember concerned (“or by such persons having a family or other
relationship with them as may be determined in the code of ethics” ). This wording
appears to denote an unquestionably wide reach; and it appears to do so calculatedly.
[38] Placed in context, the purpose of the wide -ranging provisions of the Ethics Act
is to ensure that m embers of the executive do not place themselves in compromising
positions that may impair their ability to discharge their duties without any undue
influence, which includes the acceptance of undisclosed financial contributions.
Central to this objective is the fi ght against the endemic corruption that pervades our
body politic. For, as this Court cautioned in My Vote Counts II:
“Public- and private-sector corruption is a matter of grave concern around the world.
And it appears that the political landscape, and by extension governance, has not been
left untouched. . . . [C]orruption that flows from secret private funding could otherwise
24 AfriForum v University of the Free State [2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC)
at para 43.
25 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
at para18, cited with approval in, amongst others, University of Johannesburg v Auckland Park Theological
Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC); 2021 (8) BCLR 807 (CC) at para 64.
MAJIEDT J
21
stealthily creep into our political and governance space, toxify it and fossilise itself to
our detriment, if it has not already done so.”26
[39] That caveat must be understood against the backdrop of the requirement on the
state, including the President, to take reasonable measures to combat and prevent
corruption. That requirement is imposed by section 7(2) of the Constitution and
explained in Glenister II:
“Endemic corruption threatens the injunction that government must be accountable,
responsive and open; that public administration must not only be held to account , but
must also be governed by high standards of ethics, efficiency and must use public
resources in an economic and effective manner.”27 (Emphasis added.)
[40] The constitutional requirement in section 96 for the enactment of legislative
measures to establish a code of ethics for Cabinet members and Deputy Ministers that
regulate their conduct, assumes particular importance when considered against our
country’s international obligations. Those obligations relate to the need to comply with
Article 18 of the United Nations Convention Against Corruption, ratified here on 2 2
November 2004. 28 In addition, the African Union Convention on Preventing and
Combatting Corruption29 (AU Convention) pertinently acknowledges in its preamble
that “corruption undermines accountability and transparency in the management of
public affairs as well as socio-economic development on the continent”. The preamble
to the Southern African Development Community Protocol against Corruption (SADC
Corruption Protocol) refers to “ the adverse and destabilising effects of corruption
throughout the world on the culture, economic, social and political foundations of
society”, and recognises that “corruption undermines good governance which includes
26 My Vote Counts II above n 9 at para 4.
27 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR
651 (CC) at para 176.
28 Above n 8.
29 The AU Convention was adopted on 11 July 2003. South Africa signed the Convention on 16 March 2004,
ratified the Convention on 11 November 2005 and it entered into force on 5 August 2006.
MAJIEDT J
22
the principles of accountability and transparency”.30 Domestically, the preamble to the
Prevention and Combating of Corrupt Activities Act31 strikingly records that corruption
and related corrupt activities undermine rights; the credibility of governments; the
institutions and values of democracy; and ethical values and morality; and jeopardise
the rule of law. They endanger the stability and security of societies; jeopardise
sustainable development; and provide a breeding ground for organised crime. The
preamble notes further that corruption is a transnational phenomenon that crosses
national borders and affects all soc ieties and economies; that it is equally destructive
within both the public and private spheres of life; and that regional and international co-
operation is essential to prevent and control corruption and related crimes.
[41] In Glenister II, this Court extensively explicated on the state’s international
commitments and obligations in section 7(2) of the Constitution, to combat and prevent
corruption. It said, albeit in the context of the need to establish an independent
anti-corruption unit, but equally relevant here:
“The obligations in these Conventions are clear and they are unequivocal. They impose
on the Republic the duty in international law to create an anti -corruption unit that has
the necessary independence. That duty exists not only in the international sphere, and
is enforceable not only there. Our Constitution appropriates the obligation for itself,
and draws it deeply into its heart, by requiring the State to fulfil it in the domestic
sphere. In understa nding how it does so the starting point is s ection 7(2), which
requires the State to respect, protect, promote and fulfil the rights in the Bill of Rights.
This Court has held that in some circumstances this provision imposes a positive
obligation on the State and its organs ‘to provide appropriate protection to everyone
through laws and structures designed to afford such protection’. Implicit in section 7(2)
is the requirement that the steps the State takes to respect, protect, promote and fulfil
constitutional rights must be reasonable and effective.
And since in terms of s ection 8(1), the Bill of Rights ‘binds the legislature, the
executive, the judiciary and all organs of State’, it follows that the executive, when
30 The SADC Corruption Protocol was signed by the Heads of State of all 14 SADC member states on
14 August 2001. South Africa ratified the Protocol on 15 May 2003 and it entered into force on 6 July 2005.
31 12 of 2004.
MAJIEDT J
23
exercising the powers granted to it u nder the Constitution, including the power to
prepare and initiate legislation, and in some circumstances Parliament, when enacting
legislation, must give effect to the obligations section 7(2) imposes on the State.
Now plainly there are many ways in which the State can fulfil its duty to take positive
measures to respect, protect, promote and fulfil the rights in the Bill of Rights.
This Court will not be prescriptive as to what measures the State takes, as long as they
fall within the range of possible c onduct that a reasonable decision -maker in the
circumstances may adopt. A range of possible measures is therefore open to the State,
all of which will accord with the duty the Constitution imposes, so long as the measures
taken are reasonable.
. . .
[C]orruption in the polity corrodes the rights to equality, human dignity, freedom,
security of the person and various socio -economic rights. That corrosion necessarily
triggers the duties section 7(2) imposes on the State. We have also noted that it is open
to the state in fulfilling those duties to choose how best to combat corruption. That
choice must withstand constitutional scrutiny.”32
[42] Concomitant with the need to enact legislation to fight corruption, is the need to
regulate the funding of candidates a nd political parties by legislative means . This is
premised on both international and domestic obligations. Internationally, there is the
obligation imposed by Article 7(3) of the United Nations Convention Against
Corruption to enact legislative measures for enhanced transparency in respect of the
individual candidatures for public office and the funding of political parties.
Domestically, section 19 of the Constitution affords citizens the right to make political
choices, including the right to vote in elections. Those rights must be exercised
meaningfully on an informed basis. In My Vote Counts II, this Court explained:
“By its very nature, the proper exercise of the right to vote is largely dependent on
information. . . . There is wide coverage of electoral campaigns on all media platforms
and they are fundamentally about sharing information so that the electorate know more
about those public office seekers.
32 Glenister II above n 27 at paras 189-191 and para 200.
MAJIEDT J
24
That information is generally calculated to have voters believe that the candidate it
relates to can be trusted and deserves their support because she is best placed to serve
citizens in the public office being campaigned for. It seeks to demonstrate their
abhorrence of corruption and all facets of unethical conduct. It is also meant to assure
the public of their commitment to our constitutional values and good governance. The
centrality of information to this process cannot be over-emphasised.
This then means that political parties and independent candidates should not be left to
pick and choos e what information would be ‘held’, preserved and disclosed to those
who depend on information to determine to whom to entrust their future, that of the
nation and posterity. 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.
The reality is that private funders do not just thoughtlessly throw their resources
around. They do so for a reason and quite strategically. Some pour in their resources
because the policies of a particular party or independent candidate resonate with their
world outlook or ideology. Others do so hoping to influence the policy direction of
those they support to advance personal or sectional interests. Money is the tool they
use to secure special favours or selfishly manipulate those who are required to serve
and treat all citizens equally.
Unchecked or secret private funding from all, including other nations, could undermine
the fulfilment of constitutional obligations by political parties or independent
candidates so funded, and by extension our nation’s strategic objectives, sovereignty
and ability to secure a ‘rightful place’ in the family of nations. Our freely elected
representatives must thus be so free that they would be able to focus and deliver on
their core constitutional mandate. They cannot help build a free society if they are not
themselves free of hidden potential bondage or captivation.
The commitment to build ‘a united and democratic South Africa’ and to ‘improve the
quality of life of all citizens’ can only be honoured by public office bearers whose
character or willpower is unencumbered. Only when there is a risk of being exposed
for recei ving funding from dubious characters or entities that could influence them
negatively, for the advancement of personal or sectoral interests, would all political
parties and independent candidates be constrained to steer clear of such funders and be
free to honour their declared priorities and constitutional obligations. And that risk
MAJIEDT J
25
would be enabled by a regime that compels a disclosure of information on the private
funding of political players.”33 (Footnotes omitted.)
[43] Closely related to the rights cont ained in section 19 , is section 32(1)(b) of the
Constitution which provides that everyone has the right of access to any information
“that is held by another person and that is required for the exercise or protection of any
rights”. Informed decisions by voters as envisaged in My Vote Counts II must be based
on adequate information, including that gleaned in connection with internal political
party campaign funding. Before undertaking closer scrutiny of the relevant provisions
of the Ethics Act and the Code to explain this observation, it is necessary to have regard
to this Court’s judgment in the preceding litigation, the review judgment, as well as that
of the Full Court, pursuant to this Court’s review judgment.
This Court’s judgment in the review application
[44] This Court heard argument on two distinct issues in the main review
application.34 First, it had to interpret the Code to decide the issues on review as
between the President and the Public Protector. Second, this Court had to consider the
constitutionality of the Code, as raised by amaBhungane. It decided the first issue in
favour of the President. In light of its decision to remit that part of the case to the
High Court for hearing, this Court did not make any pronouncements on the
constitutionality of the Code. That is the issue now before us.
[45] The central feature of this Court’s judgment in interpreting the Code is that not
all donations made towards internal campaigns for election to political party positions
are disclosable under the Co de. This Court held that “ [u]nder the Code, the duty to
disclose is activated once a benefit is given to a member of Cabinet in his or her
personal capacity”.35 This finding was repeated several times throughout the judgment.
33 My Vote Counts II above n 9 at paras 37-42.
34 Review judgment above n 4 (emphasis added).
35 Id at para 80.
MAJIEDT J
26
[46] The Court dismissed , in no u ncertain terms , the EFF’s submissions that the
President could not avoid disclosure by wilfully remaining ignorant of donations made
to the CR17 campaign:
“The issue is not whether the President deliberately kept himself ignorant of matters he
was required to disclose. Instead, the question is whether there was proof that he
personally benefited from the CR17 campaign donations. The EFF did not point to any
evidence on record which established that the President benefitted in his personal
capacity because such evidence was not placed on record. It does not exist.
Without proof of that kind, it cannot be said that the President failed to disclose benefits
he was under a duty to disclose. It bears emphasis that there must first be a benefit to
a member of Cabinet for him or her to be obliged to make a disclosure in terms of
the Code. In the absence of proof of a personal benefit to the President, the High Court
concluded that he did not fail to make a disclosure.
In the entire report the Public Protector has not even once referred to any evidence that
indicates that the President benefitted personally from the CR17 campaign donations.
The absence of such evidence was expressly raised in the representations made by
the President in response to the interim report.” 36 (Emphasis added.)
[47] This Court pointed out:
“In the final paragraph of the Public Protector’s reasoning quoted above, she suggests
that the President received donations which he was obliged to disclose under the Code
and the [Ethics] Act. This is a finding made without a shred of evidence supporting it.
On the contrary, the evidence placed before the Public Protector which is also reflected
in the report, establishes that the President did not receive donations. Therefore, the
argument advanced by the President was in line with the evidence on record. On the
basis of the undisputed evidence, it was the CR17 campaign that received donations
and not the President.
It is a leap in logic to hold that the President personally benefitted from the donations
made to the CR17 campaign. That campaign, on the undisputed evidence, existed
separately from the President. And there was no evidence that it was appointed to act
36 Id at paras 81-83.
MAJIEDT J
27
as his agent. There is therefore no basis in law to regard donations to t he
CR17 campaign as personal benefits to the President.”37 (Emphasis added.)
[48] This Court rejected “the contention that the President personally benefitted from
donations made to the CR17 campaign because one of the campaign’s objectives was
to promote his candidacy to becoming President of the ANC, a step towards becoming
President of the country”, holding that “the contention rests on a number of assumptions
that are without factual and legal foundation”. 38 In sum, this Court’s review judgment
imposes only a pa rtial disclosure obligation on m embers of the e xecutive. That
obligation only arises when a member derives personal benefits from campaign
donations.
[49] To be clear, t he limited disclosure this Court referred to was based on the
interpretation it was required to give to the Code in its current form – this Court was not
called upon to test the constitutionality of the Code at all. This Court therefore was not
required to nor did it endorse the acceptance of this partial disclosure.
Full Court proceedings regarding the constitutional challenge to the Code
[50] The Full Court identified the issues before it as follows:
“15.1. According to the Constitutional Court, does the Code impose a duty to disclose
private internal party-political funding for Members of the Executive?
15.2. If there is a partial duty to disclose, is amaBhungane’s constitutional challenge
triggered, or is it non-suited in view of the nature of the condition upon which
the challenge is based?
15.3. If amaBhungane is not non-suited, and the constitutional challenge is properly
before the High Court, is the Code, as interpreted by the Constitutional Court,
unconstitutional?”39
37 Id at paras 87-88.
38 Id at para 90.
39 Id at para 15.
MAJIEDT J
28
[51] Broadly speaking, amaBhungane’s constitutional challenge before the
Full Court was founded on the following central pr emises emanating from the
Constitution – that section 1(d) recognises that accountability, responsiveness and
openness are core values of our democracy. The related constitutional need for ethical
government is recognised in section 96, which requires the adoption of a code of ethics,
and which prohibits members of the executive arm of Government from exposing
themselves to any situation involving the risk of a conflict between their official
responsibilities and their private interests. The disclosure of such information facilitates
transparency and openness, and is consistent with the right of access to information held
by both public and private persons as outlined in section 32(1) of the Constitution. It
also enhances the right to make political choic es, both for persons involved in the
internal activities of their chosen political party and, more broadly, for all members of
the public who have the right to participate in national elections, which rights are
guaranteed in section 19 of the Constitution.40
[52] AmaBhungane developed its argument before the Full Court by contending that,
on this Court’s interpretation of the Code in the review judgment, the duty to disclose
is partial in effect, applying only to campaign donations that constitute personal
benefits. AmaBhungane argued that a partial disclosure obligation to this limited extent
undermines the constitutional imperatives of accountability, openness and transparency,
in that it permits m embers of the executive to avoid having to make disclosure by
structuring their campaign funding in such a way that it falls outside the “personal
benefit” contours laid down by this Court.
[53] The President, on the other hand , contended that absent an unqualified finding
by this Court in the review judgment - that disclosure of donations to campaigns for
positions within political parties are not, under any circumstances, disclosable under the
Code - the conditionality of amaBhungane’s counter -application was not met. Thus,
the Full Court should not consider the merits of the constitutional challenge.
40 Full Court judgment above n 5 at para 30.
MAJIEDT J
29
[54] Regarding the merits, the President contended that the standard of personal
benefit adopted and applied by this Court in the review judgment is broad enough to
meet what the Constitution requires. According to the President, actual money received
is not necessary to constitute a benefit for purposes of triggering the duty to disclose.
The President contended that , by and large , most campaign donations for internal
party-political elections will be disclosable under the Code as it exists on this basis. The
vast majority of such donations, he suggested, will fall into the category of constituting
a personal benefit for the m ember concerned, and there is no need to change the Code
to deal with what he described as “ou tliers”, as exemplified by the CR17 campaign.
Implicit in this submission is the notion that the Code in its present form is a reasonable
and effective measure for achieving accountable, transparent and open government
required by the Constitution and to guard against the risk of corruption.
[55] The Full Court, in considering this Court’s review judgment, held that the
judgment established that the duty to disclose arises when any benefit, including that
derived from campaign funding for a m ember’s internal p arty-political campaign, is
given to her in her personal capacity. In terms of the Full Court’s analysis of this Court’s
review judgment, it is clear tha t this Court did not find that m embers are under an
automatic duty to disclose all internal party-political campaign funding linked to them.
This means that there will be instances where such f unding will not give rise to a duty
to disclose. To this extent, the question arises as to the constitutionality of the inherent
limitations o f the Code and whether the condition set by amaBhungane for its
application was satisfied. The President’s contention to the contrary was consequently
rejected.
[56] In a careful analysis of this Court’s findings in its review judgment, the
Full Court explained the effect of those findings on the Code’s meaning:
“24. If one turns these findings around, it seems that the Constitutional Court
recognised that benefits would be personal to a Member, and attract a duty to
disclose under the Code where:
MAJIEDT J
30
24.1. the benefits are financial, rather than politically beneficial;
24.2. the benefits are given to, or held or used by the Member directly;
24.3. alternatively, even if not given to, or held or used directly by the
Member, she or he has control over, or a claim to the funding;
24.4. further alternatively, the campaign structure receiving the funding acts
as the Member’s agent.
25. This means that financial donations to a campaign in support of a Member’s
election to a position in his or her own party are not per se disclosable under
the Code. Equally, however, they are not per se exempt from disclosure. If,
on a consideration of factors such as those highlighted in the
Constitutional Court’s judgment, the donations can be categorised as a
personal benefit, there is a duty on a Member to make disclosure of them under
the Code. The reason why the CR17 donations did not attract a duty to disclose
under the Code is that, on the facts before the Court, they lacked the
characteristics necessary to establish them as personal benefits.”41
[57] This leads me to an assessment of the impugned provisions and the central issue.
Is the Code constitutional?
[58] At the centre of the debate before us is the meaning and effect of section 2(2)(c)
of the Ethics Act and the obligation on m embers of the executive to disclose financial
interests. Section 2(2)(c) sets out two obligations. The first is to disclose “all their
financial interests when assuming office ”; and the second is to disclose “any financial
interests acquired after their assumption of office ”. A non-exhaustive list (denoted by
the word “including”) then follows. As stated, the use of the words “all” and “any”,
and their apparent wide reach, must not be overstated as if they provide a final,
definitive answer to the issue before us. Equally, nothing turns on the listing of types
of financial interest in section 2(2)(c)(ii) or differentiating the types of financial interest
that require disclosure before and after assuming office. That exposition simply
41 Full Court judgment above n 5 at paras 24-25.
MAJIEDT J
31
enumerates some of the types of interest that require disclosure after assuming office.
It does not purport to be a closed list.
[59] Answering the central question here requires an interpretation of “financial
interests” in section 2(2)(c). The question arises whether s uch interest s include
campaign contributions made on an arms-length basis to an entity that the office holder
neither controlled, ran nor had knowledge of the identities of contributors.
AmaBhungane says that it is wide enough; the amicus says it is not. In addition to those
submissions, it was questioned whether this Court has determined that question in its
review judgment. In respect of the latter, as stated, the answer must unequivocally be
in the negative. This Court, having decided the central issue before it, deliberately
refrained from making any finding at all about the constitutional validity of the Code,
mindful that this issue would still have to be decided by the High Court upon remittal.
This Court did not decide what the relevant provisions of the Eth ics Act mean and
whether the Code is consistent with the Ethics Act. Section 2(2)(c)(ii) of the Ethics Act
must plainly be interpreted to go further than the Code by its inclusion of the words
“any financial interest”. This aspect is fundamental to the central question before us.
[60] A close scrutiny of the legislation suggests that determining whether an office
holder has a financial interest in campaign funding raised to secure appointment to a
party office simply on the basis of whether the entity that ra ised the donations is a
separate entity from the office holder and the office holder does not control that entity ,
provides no answer to the central question . Drawing an analogy with a trust – where
the office holder is a beneficiary of that trust, a financial interest on the part of the office
holder arises, even though the trust and its assets are entirely separate from the office
holder who, as beneficiary, exercises no control over the trust. By parity of reasoning,
if funding is raised through an ent ity that is separate from the office holder but which
benefits the office holder by supporting her bid for party office, that benefit constitutes
a financial interest. This is akin to a stipulatio alteri (an agreement for the benefit of a
third party). The benefit flowing from that kind of agreement gives rise to a financial
interest that would be subject to disclosure. This is in essence what is meant by “other
MAJIEDT J
32
benefits of material nature receiv ed by them”. Thus, once the office holder had
knowledge of the campaign to raise funds and was willing to allow the entity involved
to do so, the office holder accepted the benefits of the campaign funding and the funding
then forms part of “their financial interest”.
[61] In the normal course of events, a candidate running for office requires funding
for her campaign. If that campaign is launched and run with the knowledge or blessing
of the candidate, then it can hardly be denied that she accepts the benefit of what is done
and that she receives the benefit of the funding for her campaign, thus a financial interest
arises. It matters not that the office holder’s funding campaign is run through a separate
entity and is not controlled by the office holder or that the office holder is ignorant as
to the identity of those who have given; so long as the benefit is accepted, it is a financial
interest that is subject to disclosure.
[62] During the hearing , the amicus raised the question whether third parties who
raised money to promote a candidate, without donating to the candidate or his campaign,
could be said to give rise to a financial interest. That would be a n exceptional,
borderline case that need not be decided on the facts before us. It is common cause that
an extensive campaign was run for the benefit of the Pr esident to raise funding for his
campaign to be elected President of the ANC. On the common cause or uncontroverted
facts, the campaign ran completely separately from the President, it did not act as his
agent, there was no evidence that he had himself re ceived any donations and he had
control over the funds. These factors weighed heavily with this Court in its ultimate
finding in the review judgment that the President did not receive a disclosable benefit.
That finding and its underlying reasoning will be discussed presently to consider their
effect on this case.
[63] I have alluded to the Full Court’s meticulous reasoning in its assessment of the
meaning of this Court’s primary findings in the review judgment. That line of reasoning
and consequent findings can hardly be faulted and are in my view unassailable. There
can be no quarrel with its conclusion that “financial donations to a campaign in support
MAJIEDT J
33
of a member’s election to a position in his or her own party are not per se disclosable
under the Code. Equally, however, they are not per se exempt from disclosure”.42
[64] The need for transparency in campaign donations must be understood against the
backdrop of and in the context of the pressing need to curb and strive towards
eradicating corruption. It is necessary to return briefly to My Vote Counts II. The
principles enunciated there are of importance in this case. T he vital role played by an
automatic requirement for disclosure in combatting corruption was highlighted.
This Court held that the right to access to information, read with the entitlement to
exercise an informed right to vote, implicitly demanded that information on the private
funding of political parties and independent candidates be recorded, preserved and made
reasonably accessible to the public. The Court highlighted the centrality of information
to the electoral process and warned against political candidates being able to decide
what information should be made available to voters.
[65] As I read My Vote Counts II, this Court plainly established the constitutional
standard of transparency, which the Code, in my view, in its current form fails to meet.
It appears to me that “any financial interest” must be interpreted broadly to include all
donations, not just those giving rise to a personal benefit. The requirement in
section 39(2) of the Constitution t hat “[w]hen interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bil l of Rights ” must lead to this
conclusion. In light of section 39(2) of the Constitution, sections 1(d), 7(2), 19, 32, 96
and 195 of the Constitution must, therefore, be relevant when interpreting
section 2(2)(c)(ii) of the Ethics Act. To interpret the Ethics Act narrowly in the way
advocated by the amicus, would go against con stitutional imperatives and undermine
transparency. The Ethics Act ought to be interpreted purposively. The amicus
conceded that transparency was frustrated by the Code. The amicus also accepted that
42 Full Court judgment above n 5 at para 25 (emphasis added).
MAJIEDT J
34
the Code would be constitutionally deficient if “any financial interest” were not to be
interpreted broadly by this Court as submitted by amaBhungane.
[66] The partial disclosure obligation imposed by this Court’s review judgment on
the basis of the Code as it stands, is clearly insufficient to meet the relevant
constitutional and statutory obligations. It permits Ministers and MECs to avoid having
to make disclosure by structuring their campaign funding in such a way that it falls
outside the “personal benefit” requirement outlined by this Court . On that appro ach,
the disclosure obligation can be easily evaded by the m ember of the executive through
the setting up of a separate legal entity to collect do nations to support her campaign,
and by an arms -length relationship with that entity by ensuring that she exercises no
control over the funds and does not receive it directly. This would plainly undermine
the constitutional and statutory obligations outlined. The amicus’ contention that the
ambit and purport of the disc losure requirement in the Code falls w ithin the context,
language and purpose of the Ethics Act, generally, and section 2(2)(c), read with
section 2(2)(b)(iv), specifically and that the Code does not breach the Ethics Act, cannot
be sustained. Furthermore, its submission that t here is no constitutional obligation for
public disclosure of donations made to campaigns for election to internal party positions
and that, a s a result of a failure to provide for such a requirement in legislation or
subordinate legislation such as the Code is not a violation of the Constitution, also falls
to be dismissed.
[67] Ultimately, the question is about the source of the mon ey and the party who
benefits, personally or otherwise. The structures through which the money flows and
the walls that may be erected hardly m atter. In the fight against corruption it is the
connection between the source and the beneficiary that matters and the optics are just
as important.
[68] In My Vote Counts II, this Court pointed out:
MAJIEDT J
35
“The loophole or leeway ‘not to hold ’ or not to preserve information, and the
consequential non-disclosure of information relating to private funding or quantifiable
support in kind, constitutes fertile ground for undermining or even subverting the real
‘will of the people’ that is expressible through voting.”43
[69] This is precisely the effect that the shortcomings of a partial disclosure obligation
would have.
[70] In summary – the Code falls short of constitutional and statutory dictates of
transparency, accountability and openness. The exclusion from disclosure of donations
for internal party elections undermines the Ethics Act and the conflict of interest regime
that is essential to promote transparency and to deal with the pervasive corruption
bedevilling us.
Other issues
[71] AmaBhungane raises the question of the Code’s impreciseness on disclosure.
The amicus, in turn, raises issues of subsidiarity, separation of powers, and recourse to
the PPFA instead of a challenge to the Code. In view of the conclusion reached on the
constitutionality of the Code, these issues need not be considered. But there is one last
important aspect on the merits that does bear consideration. That is the question
whether this Court’s review judgment has already interpreted the Code, in particular
whether it has interpreted clause 6.4 and the reference there to “any other benefit of a
material nature”,44 to mean that a duty to disclose only arises when a personal benefit
is received. Can it be said that “benefit of a material nature” in clause 6.4 of the Code
is broader than “any financial interest” in section 2(2)(c)(ii) of the Ethics Act?
[72] The essence of this enquiry is whether these are two pieces of legislation with
substantially similar wording, which leads to the question whether the outcome here is
reconcilable with that in the review judgment. Put differently: does the latter judgment
43 My Vote Counts II above n 9 at para 47.
44 Emphasis added.
MAJIEDT J
36
constrain our assessment of the meaning of clause 6.4? I think not. The earlier case
that culminated in the review judgment and this case are different. There is thus n o
danger here of interpreting like cases differently. I disagree with any suggestion that
“benefit of a material nature ” in clause 6.4 of the Code is broader than “any financial
interest” in section 2(2)(c)(ii) of the Ethics Act. The term “any financial interest” is
broad and unqualified. However, a “benefit of a material nature” needs to be a personal
benefit in order f or a duty to disclose to arise, as determined in the review judgment.
Furthermore, and of some significance, “any financial interest” in section 2(2)(c)(ii) of
the Ethics Act includes “other benefits of a material nature ” within its ambit, which
implies that “any financial interest ” is a broader concept than “benefit of a material
nature”.
[73] There is, in my view, no difficulty in interpreting “any financial interest” to be
broader than “benefit of a material nature ” and, as such, the interpretation in the
review judgment does not constrain us here. There is no inconsistency between these
two outcomes. They decide different issues in two differently worded pieces of
legislation with different meanings and purview. The CR17 campaign is a good
example. It can hardly be described as a “benefit of a material nature”, given the manner
in which it was structured. Great care was taken in setting the campaign up as a separate
entity to collect donations to support the President’s campaign and to ensure that he
exercised no control at all over the funds, or to have the funds channelled to him directly.
The President had no say and no knowledge at all over who donated what to the
campaign and how the monies raised were to be spent. That much is clear from this
Court’s review judgment and those findings have not been assailed before us. But the
funds raised through the CR17 campaign undoubtedly fall within the broad concept of
“any financial interest” in the Ethics Act.
Remedy
[74] This Court is duty bound by section 172(1)(a) of the Constitution to declare any
law or conduct unconstitutional and invalid to the extent of its inconsistency. In light
of the reasons given and conclusions reached, we are thus required to confirm the
MAJIEDT J
37
declaration of constitutional invalidity to the extent that the Code fails to require the
disclosure of all donations made to campaigns for positions within political parties . In
addition, as amaBhungane correctly submits, the interests of fairness and certainty
require that we do so prospectively. This declaration of invalidity should be suspended
for a period of 12 months to afford the President time to remedy the defect. The
President is best placed to decide how these corrective amendments should be effected,
in accordance with the separation of powers principle. Costs should follow the
outcome. Although the President did not oppose this confirmation application, and
sought in correspondence to this Court to avoid a costs order on this particular basis,
this Court has held to the contrary in Levenstein:
“It is the norm to award costs in favour of a successful applicant for a confirmation and
there is no reason why this principle should not apply in this matter. The fact that the
Minister has not opposed the confirmation proceedings does not in itself provide a
sufficient basis for this Court to deviate from this principle. In the circumstances the
Minister should pay the costs of the confirmation proceedings.”45
Order
[75] The following order is made:
1. The order of the High Court of South Africa, Gauteng Division, Pretoria,
declaring the Executive Ethics Code published under Proclamation
No. R41 of 2000, to be inconsistent with the Constitution and invalid to
the extent that it does not require the disclosure of donations made to
campaigns for positions within political parties, is confirmed.
2. The operation of the order is suspended for a period of 12 months t o
enable the respondent to remedy the defect.
3. The respondent must pay the applicant’s costs, including costs of two
counsel, in this Court.
45 Levenstein v Estate of the Late Sidney Lewis Frankel [2018] ZACC 16; 2018 (8) BCLR 921 (CC); 2018 (2)
SACR 283 (CC) at para 79.
For the Applicant:
For the Amicus Curiae:
S Budlender SC and T Ramogale
instructed by Webber Wentzel
A Hassim SC, M Salukazana and
S Wilson instructed by the
Johannesburg Society of Advocates