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[2015] ZACC 31
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My Vote Counts NPC v Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30 September 2015)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 121/14
In the matter between:
MY VOTE COUNTS
NPC
Applicant
and
SPEAKER OF THE
NATIONAL
ASSEMBLY
First Respondent
CHAIRPERSON OF THE
NATIONAL COUNCIL
OF
PROVINCES
Second Respondent
PRESIDENT OF THE
REPUBLIC OF SOUTH
AFRICA
Third Respondent
DEPUTY PRESIDENT OF THE
REPUBLIC OF
SOUTH
AFRICA
Fourth Respondent
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
Fifth Respondent
MINISTER OF HOME
AFFAIRS
Sixth Respondent
AFRICAN NATIONAL
CONGRESS
Seventh Respondent
DEMOCRATIC
ALLIANCE
Eighth Respondent
ECONOMIC FREEDOM
FIGHTERS
Ninth Respondent
INKATHA FREEDOM
PARTY
Tenth Respondent
NATIONAL FREEDOM
PARTY
Eleventh Respondent
UNITED DEMOCRATIC
MOVEMENT
Twelfth Respondent
FREEDOM FRONT
PLUS
Thirteenth Respondent
CONGRESS OF THE
PEOPLE
Fourteenth Respondent
AFRICAN CHRISTIAN
DEMOCRATIC PARTY
Fifteenth Respondent
AFRICAN
INDEPENDENT
CONGRESS
Sixteenth Respondent
AGANG
SA
Seventeenth Respondent
PAN AFRICANIST
CONGRESS
Eighteenth Respondent
AFRICAN PEOPLE'S
CONVENTION
Nineteenth Respondent
Neutral
citation:
My
Vote Counts NPC v Speaker of the National Assembly and Others
[2015] ZACC 31
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J,
Theron AJ and
Tshiqi AJ.
Judgments:
Cameron J (minority): [1] to [120]
Khampepe J, Madlanga J, Nkabinde J, Theron AJ (majority): [121] to
[194] Order: [195]
Heard on:
10 February 2015
Decided on:
30 September 2015
Summary:
Section 167(4)(e) of the Constitution —
exclusive jurisdiction
Section 32(2) of the
Constitution — Parliament required to enact national
legislation — Parliament has enacted legislation
—
Promotion of Access to Information Act 2 of 2000
— principle of
constitutional subsidiarity applied
Section 32 of the
Constitution — right of access to information — private
funding of political parties — information
required for the
exercise or the protection of any right — section 19(3) of the
Constitution — right to vote
ORDER
The application is
dismissed.
JUDGMENT
CAMERON J (Moseneke
DCJ, Froneman J and Jappie AJ concurring):
Introduction
[1]
At issue is whether Parliament has
failed to fulfil an obligation the Constitution imposes on it.
The specific question is
whether information on private funding of
political parties is information that is required to exercise the
right to vote.
If it is, the further question is whether
Parliament has passed legislation that gives effect to the right of
access to this information.
If not, Parliament is in breach of
its constitutional obligation, and the applicant asks this Court to
require Parliament
to remedy the breach.
[2]
The applicant, represented by its
director, Mr Axolile Notywala, is My Vote Counts NPC (My
Vote Counts). It is a
non-profit company campaigning for a more
inclusive, transparent and accountable political system in South
Africa. It invokes
the Court’s exclusive jurisdiction
under section 167(4)(e) of the Constitution
[1]
–
or, in the alternative, direct access to this Court
[2]
– to compel Parliament to pass legislation that obliges
political parties to disclose the sources of their private funding.
The core of its case is that information about political parties’
private funding is essential to an informed exercise of
the right to
vote that section 19(3) of the Bill of Rights confers on all
citizens.
[3]
It relies on section 32, “Access to information”,
to give proper effect to section 19(3).
[4]
[3]
The first and second respondents,
the Speaker of the National Assembly and the Chairperson of the
National Council of Provinces,
representing Parliament, make common
cause in opposing the application. They recognise the
obligation section 32(2)
imposes, but say Parliament has
fulfilled it by enacting the
Promotion of Access to Information Act
(PAIA
).
[5]
They argue that the application should be dismissed.
[4]
The third, fourth, fifth and sixth
respondents are the President, Deputy President and the
Ministers of Justice and Correctional
Services and of Home Affairs.
The remaining 12 respondents are all the political parties currently
represented in Parliament.
Though the Minister of Justice and
Correctional Services (fifth respondent) and the Democratic Alliance
(eighth respondent) initially
filed notices to oppose the
application, both were withdrawn. Hence the two houses of
Parliament are the sole respondents
participating in the proceedings;
I refer to them collectively as “Parliament”.
[5]
I have had the benefit of reading
the judgment by Khampepe J, Madlanga J, Nkabinde J and Theron AJ
(majority judgment). We
agree that only this Court has
jurisdiction to determine the matter. But beyond that we part.
The differences between
us concern whether form should prevail over
substance when a litigant enforces a constitutional right. More
importantly,
they concern the extent to which this Court is
duty-bound to exercise an adjudicative power the Constitution
explicitly confers
on it.
[6]
The fundamental difference between
the two judgments lies in the distinction between the constitutional
process for finding a statute
constitutionally invalid and for
holding that Parliament has failed to meet a constitutional
obligation.
[6]
This Court has exclusive jurisdiction under section 167(4)(e)
of the Constitution to determine whether Parliament has “failed
to fulfil a constitutional obligation”. Section 2 of the
Constitution requires that all constitutional obligations
“must
be fulfilled”. It would be wrong, and would impoverish
our existing case law, to step back from exercising
a power the
Constitution imposes on this Court.
[7]
It is correct to emphasise that
ordinary challenges to statutory provisions must go through the
“usual procedural hoops”.
[7]
But it does not follow that this Court is precluded from
exercising the jurisdiction section 167(4)(e) specifically confers
on
it. This requires the Court to evaluate the extent to which an
obligation has been fulfilled. A proper appreciation
of this
Court’s task entails a broader embrace of the range of remedies
and procedural routes the Constitution affords litigants,
and
requires this Court to adjudicate.
Previous efforts to
secure transparency on private party political funding
[8]
Political
parties
receive money from public and private sources. The law deals
differently with the two types. No legislation
requires
systematic and proactive disclosure of private funding of political
parties. Consequently, political parties are
under no express
legal obligation to disclose the sources of their private funding, at
elections or other times. The applicant
seeks a change to that.
[9]
Public funding, by contrast, has
already been dealt with in legislation. Section 236 of the
Constitution provides that
to “enhance multi-party democracy,
national legislation must provide for the funding of political
parties participating in
national and provincial legislatures”.
[8]
Parliament passed this legislation in 1997 when it enacted the
Public Funding of Represented Political Parties Act.
[9]
[10]
In doing so, Parliament had also
considered the issue of private funding. The Speaker, Ms Baleka
Mbete, details this history
in her answering affidavit on behalf of
Parliament. She describes the question whether political
parties’ private funding
should be made accessible and, if so,
how and to whom, as “a complex policy matter which has been
discussed in Parliament
since 1997”. She relates that in
August 1997, the Promotion of Multi-Party Democracy Bill was
introduced.
[10]
On 31 October 1997, the Portfolio Committee on Constitutional Affairs
reported that the passing of the Bill “represents
a very
significant step in the ongoing process of consolidating and
entrenching a multi-party democracy in South Africa”.
The
key to the success of our new emerging democracy, it reported, “is
the role of strong, resilient, democratically elected
political
parties”.
[11]
[11]
The Bill was to be seen, the Report
recorded, “as the first stage of the process”.
There are, it stated, “other
issues relating to the funding of
political parties that will have to be addressed in the near
future”. The main one
was “the need for public
disclosure of the private funding received by political parties, and
the form and scope of this
disclosure.” On 27 November
1997, Parliament adopted the Bill. It came into force on
1 April 1998.
The Speaker emphasised that the Act was not
intended to “deal with all questions that may arise in regard
to the funding
of political parties”. Hence it remained
for Parliament “as a follow up” to consider “whether
or
not there is a need to regulate other aspects of political party
funding” – including the disclosure of parties’
private funding.
[12]
The issue of private funding arose
again later – in litigation rather than Parliamentary
discussions. In 2003, the Institute
for Democracy in South
Africa (Institute) requested the five political parties with the
largest representation in Parliament to
disclose records of donations
they had received in the run-up to the 2004 general elections.
Save for the African Christian
Democratic Party, all refused.
The Institute then applied to the then
Cape
Provincial Division of the High Court
(High Court) for an order declaring that PAIA and section 32(1) of
the Constitution obliged political parties to disclose the requested
records.
[12]
The Institute contended that it enjoyed an unqualified right to
access the records of their donations on the basis that they
were
public bodies under section 11 of PAIA.
[13]
Alternatively, if they were private bodies, the Institute sought the
information under section 50 of PAIA
[14]
read with sections 19(1) and 19(2) of the Constitution.
[15]
[13]
All the political parties cited in
IDASA
initially resisted.
[16]
While none accepted that they could be characterised as “public
bodies” under PAIA,
[17]
they supported public debate on the question and took the view that
the regulation of private funding of political parties would
be best
achieved through legislation, rather than piecemeal litigation.
[18]
The governing party, the African National Congress (ANC), through its
deponent, then Secretary-General Kgalema Motlanthe,
sought the
dismissal of the application or a stay of the proceedings. He
said this would “allow the political and legislative
process to
follow the proper course necessary for the adoption of a national
policy through legislation regulating the funding
of political
parties”.
[19]
[14]
On
20 April 2005,
the
High Court dismissed the application. Griesel J held that,
under PAIA, political parties are private bodies for purposes
of
their “fundraising activities”.
[20]
Hence the Institute had to link the donation records it sought
to the exercise or protection of a right, in particular to
section
19(1) and (2) of the Constitution.
[21]
The Institute had not adequately explained how and why the
donations records would assist them in exercising those rights.
[22]
There was no appeal.
[15]
Before the
IDASA
litigation, the United Nations (UN) General Assembly adopted the UN
Convention against Corruption on 31 October 2003.
[23]
Article 7(3) requires each State Party to consider taking appropriate
legislative and administrative measures “to enhance
transparency in the funding of candidatures for elected public office
and, where applicable, the funding of political parties”.
[24]
The African Union Convention on Preventing and Combating Corruption
is more specific.
[25]
It was adopted at a session of the African Union in Maputo,
Mozambique, on 11 July 2003. Unlike the UN Convention,
it
contains a provision separately and expressly addressing the funding
of political parties.
[26]
And, while the UN Convention requires state parties to “consider”
certain measures, the AU Convention uses imperative
language.
[27]
Parliament ratified the UN Convention, without material reservation,
on 22 November 2004.
[28]
Parliament ratified the AU Convention, again without material
reservation, on 11 November 2005, after the High
Court
dismissed the Institute’s application.
[29]
[16]
The proposal for the regulation of
private funding to political parties lay dormant until 8 November
2012 when the applicant wrote
to Parliament. It claimed that—
“
appropriate
legislation ensuring transparency and accountability in the funding
of political parties is a constitutional imperative,
as required by
sections 1, 7, 32, 33 and 195 of the Constitution . . . [and] that
each of these provisions imposes a specific obligation
on Parliament
to enact national legislation to give effect to these duties, rights
and principles.”
[17]
Parliament took the stance that
those provisions of the Constitution do not create justiciable
rights, but are general obligations.
On 10 December 2012,
Parliament responded to the letter of 8 November 2012. It
stated that it had given effect
to its obligation in section 236 of
the Constitution by enacting the Public Funding of Represented
Political Parties Act,
and that the matter of private funding had
been referred to the Chief Whips’ Forum in Parliament.
After a six-month
silence, the applicant’s attorneys wrote to
Parliament requesting a timetable for the parliamentary process for
passing the
legislation, which the letter called “a constitutional
imperative”. In the alternative, the applicant asked
for
reasons justifying Parliament’s decision not to enact the
legislation.
[18]
Now, the Speaker took the view that
the enactment of legislation regulating the private funding of
political parties was “a
party-political matter” and that
the Speaker and the Chairperson of the National Council of Provinces
do not “play
a role in the initiation of such legislation”.
The Speaker suggested that the applicant take the matter up with the
Executive or any member of Parliament. The Speaker also records
that the proposed disclosure legislation was deemed “not
feasible” and was “not to be proceeded with”.
She declined to make any undertakings to enact the legislation.
Unique nature of this
application
[19]
This application differs from that
dismissed in
IDASA
.
Far from requesting political parties to grant access to private
funding records under PAIA, the applicant says the problem
is
precisely that PAIA does not require disclosure of party political
funding. Since the relief the applicant seeks is not
contemplated at all in PAIA, this Court is called upon to interpret
the ambit of the section 32(1) right and the extent to which
Parliament has fulfilled its obligation under section 32(2).
[30]
As in
IDASA
,
the applicant claims that the information is required for the
exercise and protection of the rights in section 19 of the Bill
of
Rights.
[31]
But it relies more specifically on the right to vote in section
19(3). It does not seek
ad hoc
information from any or each political party. Rather, it seeks
an order requiring Parliament to enact national legislation
regulating the disclosure of private funding records as a matter of
continuous course, rather than once-off upon request.
Exclusive jurisdiction
[20]
The first question is jurisdiction.
The applicant seeks to bring directly before this Court its assertion
that Parliament
has failed to fulfil a constitutional obligation by
not passing legislation the Constitution obliges it to enact in terms
of section
32(2). Does this Court have competence under section
167(4)(e) of the Constitution to consider the claim? On 30
September
2014, the Chief Justice issued directions inviting written
argument on this. In response, both the applicant and
Parliament
submitted that the Court has exclusive jurisdiction to
determine the claim.
[21]
The applicant’s approach
reiterated the core components of its case. It submitted that
section 32(2) of the Constitution
imposes an obligation on Parliament
to enact legislation that provides for access to information
pertaining to the private funding
held by political parties that is
required for the right to vote. Parliament has not enacted this
legislation. It has
failed to fulfil a constitutional
obligation. Since the validity of existing legislation is not
challenged, lower courts
do not have jurisdiction.
[32]
This Court’s exclusive jurisdiction under section 167(4)(e) is
engaged.
[22]
Parliament’s response reached
the same conclusion by a sparser route. It pointed out that
jurisdiction is not determined
by the merits of a claim, by whether
it must succeed or not, but by how the claimant pleads it. The
pleadings contain the
legal basis of the claim under which the
applicant seeks to invoke the Court’s competence. As the
applicant’s
claim is based solely on the averment that
Parliament has failed to fulfil a constitutional obligation, the
application falls within
this Court’s exclusive jurisdiction.
[23]
The parties are right (and the
majority judgment agrees).
[33]
This Court’s exclusive jurisdiction is engaged. But,
exclusive jurisdiction is too important to be resolved by
concession,
as here, by consensus.
[34]
The Court’s competence, which springs from the sensitive
political nature of the separation of powers, must be
scrutinised.
[35]
Previous decisions establish that, despite their broad wording, the
exclusive jurisdiction provisions must be narrowly construed.
[36]
This is because a broad construction of exclusive jurisdiction
under section 167(4)(e) may “negate or improperly attenuate
the
jurisdiction of the Supreme Court of Appeal and the High Court”.
[37]
[24]
An over-broad interpretation of
exclusive jurisdiction would obviate the need for section 172.
So for harmonious interpretation
we ought to make “a clear
distinction between law and conduct on the one hand and obligations
on the other”.
[38]
More pertinently, we have held that the jurisdictional competence
conferred by the words “fulfil a constitutional obligation”
[39]
must be narrowly read,
[40]
both in relation to the President
[41]
and to Parliament.
[42]
[25]
In
Women’s
Legal Centre Trust
, the applicant
asserted that the President and Parliament had failed to fulfil an
obligation the Constitution imposed on them by
failing to prepare,
initiate, enact and implement a statute providing for the recognition
of all Muslim marriages.
[43]
The Court held that, if there was a constitutional duty to enact the
legislation the applicant sought, it was one the Bill
of Rights
required the state and its organs – including the national
Executive, Chapter 9 institutions, Parliament and the
President –
to perform collaboratively or jointly.
[44]
The obligation did not fall within the ambit of section 167(4)(e).
The provision envisages only constitutional obligations
imposed
specifically and exclusively on the President and on Parliament, and
on them alone. It does not embrace the President
when he or she
acts as part of the national Executive, nor Parliament when it is
required not to act alone, but as part of other
constituent elements
of the state.
[45]
[26]
The pleaded claim here rests on the
specific obligation created by section 32(2) only. This
requires that “national
legislation must be enacted” to
give effect to the right of access to information. This wording
contrasts with the
language the Bill of Rights uses
elsewhere to impose duties. There, “the state” is
required to fulfil
a range of constitutional obligations, either by
passing legislation or by other means.
[46]
More tellingly, the Bill of Rights requires “the state”
to take
reasonable legislative and other
measures
to fulfil a range of social
and economic rights. These include the duty to foster
conditions enabling access to land,
[47]
as well as to achieve the progressive realisation of the rights to
adequate housing,
[48]
to health care services,
[49]
sufficient food and water
[50]
and social security.
[51]
In addition, the Bill of Rights requires the state to take
“reasonable measures” to make further education
progressively
available and accessible.
[52]
[27]
These formulations contrast with
four other provisions of the Bill of Rights. Section 9(4),
[53]
section 32(2)
[54]
and section 33(3)
[55]
specify that “national legislation must be enacted” in
relation to a particular right. This formulation is akin
to
that of the fourth, section 25(9), which provides that “Parliament
must enact the legislation referred to in subsection
(6)”.
[56]
The formulation of these provisions contrasts with that of
those requiring “the state” to take certain actions,
or
to realise rights through legislative and other measures.
[28]
These four provisions are distinct,
in two ways, from those rights requiring progressive realisation
through a range of unspecified
measures that include legislation.
First, they all require the enactment of legislation as an express
minimum, although of
course the Constitution does not preclude other
measures that enhance access to and enjoyment of these rights.
Second, the
Bill of Rights specifically identifies the
legislation to be enacted. While section 32(2) and section
33(3) are cast in passive
grammatical form – unlike section
25(9), they do not specify the agent that must enact the legislation
– this carries
little moment because the obligation is to enact
“national legislation”.
[57]
The enacting agent is necessarily Parliament, which the Constitution
makes the sole repository of national legislative power.
[58]
The grammatical form does not detract from the responsibility placed
solely on Parliament to fulfil the obligation.
[29]
In fulfilling the obligations
sections 9(4), 25(9), 32(2) and 33(3) create, Parliament will of
necessity enlist the participation
and assistance of other state
organs and institutions that are obliged to fulfil the rights in the
Bill of Rights.
[59]
But that does not diminish the sole responsibility the Bill of Rights
places on it. It follows that the applicant’s
claim under
section 32(2) implicates an obligation on Parliament alone, and
engages the exclusive jurisdiction of this Court.
[30]
It is apparent from the provision
that “national legislation must be enacted” that section
32(2) creates an obligation.
Identifying Parliament as the sole
bearer of the constitutional obligation means this Court has
exclusive jurisdiction.
But the question of the interrelation
between section 167(4)(e), which grants jurisdiction to this Court
alone, and section 172(1)(a),
which empowers the Supreme Court of
Appeal and the High Court, subject to this Court’s
confirmation, to make orders “concerning
the validity of an Act
of Parliament”, remains.
Is information on
political parties’ private funding “required” for
the exercise and protection of the right to
vote?
[31]
The foundation of the applicant’s
case is that the right to vote requires, for its exercise, access to
information about political
parties’ private sources of
funding.
[60]
Is this so? “Required” in the context of section
32(1)(b) does not denote absolute necessity. It
means
“reasonably required”.
[61]
The person seeking access to the information must establish a
substantial advantage or element of need.
[62]
The standard is accommodating, flexible and in its application
fact-bound.
[63]
The section 19(3) right to vote is among the rights contemplated by
section 32(1)(b). So the question is whether information
about
political parties’ private funding is reasonably required for
citizens to be able to exercise their right to vote.
[32]
The founding premise of the
applicant’s argument is the unique role of political parties in
our constitutional democracy.
This is difficult to dispute.
The electoral system the Constitution creates pivots on political
parties and whom they admit
as members. In the
First
Certification judgment
, this Court
noted that, “[u]nder a list system of proportional
representation, it is parties that the electorate votes for,
and
parties which must be accountable to the electorate.”
[64]
[33]
Our constitutional order places the
key to elective office and executive power in the hands of political
parties. Members
of the National Assembly and provincial
legislatures are not directly elected. Nor is the President or
the Deputy President.
The same applies to provincial and
national executives. Under the current electoral system, it is
political parties, and
parties alone, that determine which persons
are allocated to legislative bodies and to the executive. If
you cease to be
a member of the party that nominated you, you lose
your membership of that legislature.
[65]
The President is in turn elected from amongst the members of the
National Assembly
[66]
and the President appoints the Deputy President and the members of
the Cabinet bar a maximum of two, from among the members of
the
legislature.
[67]
[34]
These compelling considerations led
this Court in
Ramakatsa
[68]
to highlight the centrality of political parties. The
judgment’s key findings are that they are “the veritable
vehicles the Constitution has chosen for facilitating and entrenching
democracy”,
[69]
and that they are the “indispensible conduits for the enjoyment
of the right given by section 19(3)(a) to vote in elections”.
[70]
The joint majority judgment of Moseneke DCJ and Jafta J noted:
“
In
the main, elections are contested by political parties. It is
these parties which determine lists of candidates who get
elected to
legislative bodies. Even the number of seats in the National
Assembly and provincial legislatures are determined
‘[b]y
taking into account available scientifically based data and
representations by interested parties.’”
[71]
(Footnotes omitted.)
[35]
The Court explained:
“
Our
democracy is founded on a multi-party system of government.
Unlike the past electoral system that was based on geographic
voting
constituencies, the present electoral system for electing members of
the national assembly and of the provincial legislatures
must
‘result, in general, in proportional representation’.
This means a person who intends to vote in national
or provincial
elections must vote for a political party registered for the purpose
of contesting the elections and not for a candidate.
It is the
registered party that nominates candidates for the election on
regional and national party lists. The Constitution
itself
obliges every citizen to exercise the franchise through a political
party.”
[72]
(Footnotes omitted.)
[36]
Crucially,
Ramakatsa
’s
reasoning elucidates the link between the democratic role of
political parties and their funding. Participation in
parties’
activities, the judgment explains, is critical to social progress,
through the policies they adopt and put forward
to address problems
facing communities.
[73]
And it is to enhance multi-party democracy that the Constitution
enjoins Parliament to enact national legislation providing
for
funding of political parties represented in national and provincial
legislatures:
“
Public
resources are directed at political parties for the very reason that
they are the veritable vehicles the Constitution has
chosen for
facilitating and entrenching democracy.”
[74]
[37]
Ramakatsa
’
s
reasoning on the public funding of political parties applies
pointedly to the question whether information about parties’
private funding is required for the right to vote. Political
parties receive public resources because they are the vehicles
for
facilitating and entrenching democracy. This entails a
corollary: that the private funds they receive necessarily also
have
a distinctly public purpose, the enhancement and entrenchment of
democracy, as well as a public effect on whether democracy
is indeed
enhanced and entrenched. The flow of funds to political
parties, public or private, is inextricably tied to their
pivotal
role in our country’s democratic functioning. There is a
further corollary: given parties’ emphatically
public role, any
notion of privacy attaching to their private funding must be
significantly attenuated.
[75]
[38]
The applicant submitted that the
right to vote is a right to cast an informed vote. This must be
correct. The reason
was stated by Ngcobo CJ, on behalf of a
unanimous Court, in
M & G Media Ltd
:
“
In
a democratic society such as our own, the effective exercise of the
right to vote also depends on the right of access to information.
For without access to information, the ability of citizens to make
responsible political decisions and participate meaningfully
in
public life is undermined.”
[76]
(Footnote omitted.)
[39]
Section 19(1) of the Constitution
envisages that every citizen is “free to make political
choices”. This includes
forming a political party,
participating in a political party’s activities, and
campaigning for a political party or cause.
It also includes,
of course, the freedom to choose one’s leaders. But that
choice, like all others, is valuable only
if one knows what one is
choosing. It loses its value if it is based on insufficient
information or misinformation.
This the Constitution recognises
by insisting that government is not only democratic but openly
accessible. That is why its
Preamble speaks of a “democratic
and open” society; why its fundamental rights are to be
interpreted to promote the
values underlying an “open and
democratic” society,
[77]
and limited only on that same basis;
[78]
and why the founding values of universal suffrage and democratic
elections are tied to “openness” of government.
[79]
[40]
The Bill of Rights also confers the
right to freedom of expression.
[80]
This Court has held that this right is what “makes [the right
to vote] meaningful”:
[81]
only if information is freely imparted, and citizens are kept
informed, are their choices genuine.
[82]
As Mogoeng CJ has also noted on behalf of the Court, “the
public can only properly hold their elected representatives
accountable if they are sufficiently informed of the relative merits”
of the issues at stake.
[83]
The same is necessarily true when the public decides which
representatives to elect by exercising the right to vote.
[41]
So the right to vote does not exist
in a vacuum.
[84]
Nor does it consist merely of the entitlement to make a cross upon a
ballot paper. It is neither meagre nor formalistic.
It is
a rich right – one to vote knowingly for a party and its
principles and programmes. It is a right to vote for
a
political party, knowing how it will contribute to our constitutional
democracy and the attainment of our constitutional goals.
[42]
Does this include knowing the
private sources of political parties’ funding? It surely
does. Private contributions
to a political party are not made
thoughtlessly, or without motive. They are made in the
anticipation that the party will
advance a particular social
interest, policy or viewpoint. And political parties, in turn,
depend on contributors for the
very resources that allow them to
conduct their democratic activities. Those resources keep
flowing to the extent that they
meet their contributors’ and
funders’ expectations. There can be little doubt, then,
that the identity of those
contributors, and what they contribute,
provides important information about the parties’ likely
behaviour. As the
United States Supreme Court explained in
Buckley v Valeo
,
disclosure of political funding—
“
provides
the electorate with information ‘as to where political campaign
money comes from and how it is spent by the candidate’
in order
to aid the voters in evaluating those who seek federal office. It
allows the voters to place each candidate in the
political spectrum
more precisely than is often possible solely on the basis of party
labels and campaign speeches. The sources
of a candidate’s
financial support also alert the voter to the interests to which a
candidate is most likely to be responsive
and thus facilitate
predictions of future performance in office.
Second,
disclosure requirements deter actual corruption and avoid the
appearance of corruption by exposing large contributions and
expenditures to the light of publicity. This exposure may
discourage those who would use money for improper purposes either
before or after the election. A public armed with information
about a candidate's most generous supporters is better able
to detect
any post-election special favours that may be given in return.”
[85]
(Footnotes omitted.)
[43]
For the reasons
Ramakatsa
sets out, the first two considerations noted in
Buckley
v Valeo
have particular edge in our
democracy. This is because political parties hold the key to
elective and executive office.
They are the indispensable
conduits through which the Constitution’s vision of our
democratic functioning is to be attained.
It follows that
information about political parties’ private funding is
required for the exercise of the right to vote.
Constitutional
subsidiarity
[44]
The applicant claims that PAIA does
not confer the right of access to information about political
parties’ private funding
to which the Constitution entitles
voters. Since the Constitution obliges Parliament to create
that right of access, the
applicant argues, this Court has the power
to, and should, order Parliament to do so. Parliament’s
response is that
this approach is wrong-directional. The
correct starting point is not the Constitution, but PAIA, since
Parliament
enacted it expressly to give
effect to the constitutional obligation in section 32(2). The
result, Parliament contends, is
that the applicant must first seek
the right of access it asserts in PAIA.
[45]
Parliament argues that PAIA in fact
confers that
right
–
in
which case, there is no breach of its constitutional obligation.
But, if PAIA doesn’t, Parliament
says
the applicant
’
s remedy is to
challenge the constitutionality of PAIA in the
High Court. It may not circumvent PAIA by relying directly on
the constitutional
provision the legislation seeks to embody.
So the applicant
must start again in the
High Court.
Parliament says the
applicant finds itself in a logical trap: whether it is right or
wrong about PAIA, the application must be dismissed.
[46]
Parliament’s argument brings
to the fore the principle of subsidiarity in our constitutional law.
Subsidiarity denotes
a hierarchical ordering of institutions,
of norms, of principles, or of remedies, and signifies that the
central institution, or
higher norm, should be invoked only where the
more local institution, or concrete norm, or detailed principle or
remedy, does not
avail.
[86]
The word has been given a range of meanings in our constitutional
law. It is useful in considering the scope of subsidiarity,
and
Parliament’s reliance on it – to have them all in mind.
[47]
“
Subsidiarity” has been
used, in assessing the constitutional validity of a statutory
provision licensing the use of reasonably
necessary force in
effecting an arrest, to indicate the necessity for tempering the
amount of force. Force is permitted only
where there are no
lesser means of achieving the arrest. Using force is, in other
words, subsidiary to all other means.
[87]
[48]
In international law, subsidiarity
is employed to resolve a clash of jurisdictions. It determines
which state should act when
multiple states have jurisdiction over
the same events constituting an international crime.
[88]
Under our Constitution, it signifies that the duty
of the South African Police Service to investigate international
crimes, including
crimes against humanity, is subsidiary to that of
the foreign state in which the crimes were committed.
[89]
[49]
“
Subsidiarity” has also
been used to describe the principle that overlap in functional areas
of concurrent constitutional competence
should be resolved by
assigning the power to the sphere of government where the specific
function is most appropriate.
[90]
Within the Bill of Rights, subsidiarity entails
that where the Constitution contains both a specific right, like the
right of access
to housing, and a more general right, like the right
to human dignity, which informs the right to housing, the litigant
must first
invoke the specific right.
[91]
The more general right is subsidiary.
[50]
But the most frequent invocation of
subsidiarity has been to describe the principle that limits the way
in which litigants may invoke
the Constitution to secure enforcement
of a right. Under the interim Constitution, where the Appellate
Division had no constitutional
jurisdiction,
[92]
and this Court had constitutional jurisdiction only,
[93]
this Court laid down as a general principle that, where it was
possible to decide a case, civil or criminal, without reaching a
constitutional issue, that should be done.
[94]
This entailed the subsidiarity of the interim Constitution to other
judicial approaches to rights enforcement.
[95]
[51]
Of course, this approach
has
long since been abandoned under the final Constitution
in
favour of its
opposite, namely the primacy
of constitutional approaches to rights determination.
[96]
Far from avoiding constitutional issues whenever
possible, the Court has emphasised that virtually all issues –
including
the interpretation and application of legislation
[97]
and the development and application of the common law
[98]
– are, ultimately, constitutional. This is because the
Constitution’s rights and values give shape and colour
to all
law.
[99]
[52]
But it does not follow that resort
to constitutional rights and values may be freewheeling or
haphazard. The Constitution
is primary, but its influence is
mostly indirect. It is perceived through its effects on the
legislation and the common law
– to which one must look first.
[53]
These considerations yield the norm
that a
litigant cannot directly invoke the
Constitution to extract a right he or she seeks to enforce without
first relying on, or attacking
the constitutionality of, legislation
enacted to give effect to that right.
[100]
This is the form
of constitutional
subsidiarity Parliament invokes here. Once legislation to
fulfil a constitutional right exists, the Constitution’s
embodiment of that right is no longer the prime mechanism for its
enforcement. The legislation is primary. The right
in the
Constitution plays only a subsidiary or supporting
role.
[54]
Over the past 10 years, this Court
has often affirmed this. It has done so in a range of cases.
First, in cases involving
social and economic rights, which the
Bill of Rights obliges the state to take reasonable
legislative and other measures,
within its available resources, to
progressively realise, the Court has emphasised the need for
litigants to premise their claims
on, or challenge, legislation
Parliament has enacted. In
Mazibuko
,
[101]
the right to have access to sufficient water guaranteed by section
27(1)(b) was in issue.
[102]
The applicant sought a declaration that a local authority’s
water policy was unreasonable. But it did so without
challenging a regulation, issued in terms of the Water Services
Act,
[103]
that specified a minimum standard for basic water supply services.
This, the Court said, raised “the difficult question
of the
principle of constitutional subsidiarity”.
[104]
O’Regan J, on behalf of the Court, pointed out that the Court
had repeatedly held “that where legislation has
been enacted to
give effect to a right, a litigant should rely on that legislation in
order to give effect to the right or alternatively
challenge the
legislation as being inconsistent with the Constitution”.
[105]
The litigant could not invoke the constitutional entitlement to
access to water
[106]
without attacking the regulation and, if necessary, the statute.
[107]
[55]
Second, the Court has applied the
principle to legislation Parliament adopts with the clear design of
codifying a right afforded
by the Bill of Rights. After
Parliament enacted the Labour Relations Act (LRA),
[108]
the High Court in
NAPTOSA
refused to allow a litigant to rely directly on the fair labour
practices provision in the Bill of Rights.
[109]
It had to rely instead on the unfair labour practice provisions in
the statute, or challenge the statute itself. Conradie
J said
he could not “conceive that it is permissible for an applicant,
save by attacking the constitutionality of the LRA,
to go beyond the
regulatory framework which it establishes”.
[110]
He also stated that it was inappropriate, in a highly regulated
statutory environment like labour law, to ask a court to
fashion a
remedy “which the legislature has not seen fit to
provide”.
[111]
[56]
This approach was first quoted with
approval in this Court in a context unrelated to employment
rights,
[112]
then adopted and endorsed unanimously in a case about labour
relations,
SANDU
.
[113]
Even though national regulations had been enacted providing for
collective bargaining, the applicant sought to rely directly
on the
provisions of section 23(5) of the Bill of Rights to found a more
encompassing duty to bargain.
[114]
The Court disallowed this. It held that where legislation has
been enacted to give effect to a constitutional right,
“a
litigant may not bypass that legislation and rely directly on the
Constitution without challenging that legislation as
falling short of
the constitutional standard”.
[115]
If the legislation is wanting in its protection of the right,
then that legislation “should be challenged
constitutionally”.
[116]
[57]
Third, the Court has applied the
principle of subsidiarity to those provisions of the Bill of Rights
that specifically oblige Parliament
to enact legislation: sections
9(4), 25(9), 33(3), and 32(2) – the lattermost section at issue
in this case. The Court
has held that unfair discrimination
cases must be brought “within the four corners” of the
Promotion of Equality and
Prevention of Unfair Discrimination
Act,
[117]
rather than under the Bill of Rights. In
Pillay
,
Langa CJ, on behalf of the majority, citing
New Clicks
,
[118]
SANDU
[119]
and
NAPTOSA
,
[120]
held that “
a litigant cannot
circumvent legislation enacted to give effect to a constitutional
right by attempting to rely directly on the
constitutional
right
”
.
[121]
[58]
In
Bato
Star
,
[122]
the application of the Promotion of Administrative Justice Act
[123]
was at issue. Neither the High Court nor the Supreme Court of
Appeal considered the applicant’s claim to administrative
review in the context of PAJA. This Court held that they had
erred.
[124]
The Court held that “[t]he provisions of section 6 divulge
a clear purpose to codify the grounds of judicial review
of
administrative action as defined in PAJA”.
[125]
The cause of action for the judicial review of administrative action
now ordinarily arises from PAJA, not from the common
law as in the
past. And the authority of PAJA to ground such causes of action
rests squarely on the Constitution.
[126]
[59]
In
New
Clicks
, the applicability of PAJA was
also at issue, though the Court was divided on whether it applied to
the regulations in issue.
[127]
Chaskalson CJ affirmed that a litigant “cannot avoid the
provisions of PAJA by going behind it, and seeking to rely
on section
33(1) of the Constitution or the common law”.
[128]
Ngcobo J, expressly endorsing the High Court’s approach
in
NAPTOSA
,
said that our Constitution “contemplates a single system of law
which is shaped by the Constitution. To rely directly
on
section 33(1) of the Constitution and on common law when PAJA, which
was enacted to give effect to section 33 is applicable,
is in my view
inappropriate”.
[129]
He proceeded:
“
Where,
as here, the Constitution requires Parliament to enact legislation to
give effect to the constitutional rights guaranteed
in the
Constitution, and Parliament enacts such legislation, it will
ordinarily be impermissible for a litigant to found a cause
of action
directly on the Constitution without alleging that the statute in
question is deficient in the remedies that it provides.”
[130]
[60]
In
PFE
International
, the “heart of the
matter” was “the determination of the legislative regime
regulating the exercise of the right
of access to information held by
the state after the commencement of legal proceedings”.
[131]
Jafta J, on behalf of a unanimous Court, said—
“
PAIA
is the national legislation contemplated in section 32(2) of the
Constitution. In accordance with the obligation imposed
by this
provision, PAIA was enacted to give effect to the right of access to
information, regardless of whether that information
is in the hands
of a public body or a private person. Ordinarily, and according
to the principle of constitutional subsidiarity,
claims for enforcing
the right of access to information must be based on PAIA.”
[132]
[61]
These instances explain the
powerful, inter-related reasons from which the notion of subsidiarity
springs. The principle is
concerned in the first place with the
programmatic scheme and significance of the Constitution. In
New Clicks
,
Chaskalson CJ said that allowing a litigant to rely on section
33(1) of the Constitution, rather than on PAJA, “would
defeat
the purpose of the Constitution in requiring the rights contained in
section 33 to be given effect by means of national
legislation”.
[133]
[62]
A second concern is Parliament’s
indispensable role in fulfilling constitutional rights. Ngcobo
J in
New Clicks
pointed out that “[l]egislation enacted by Parliament to give
effect to a constitutional right ought not to be ignored”.
[134]
The Constitution’s delegation of tasks to the legislature must
be respected, and comity between the arms of government
requires
respect for a cooperative partnership between the various
institutions and arms tasked with fulfilling constitutional
rights.
As this Court has said, “the courts and the legislature act in
partnership to give life to constitutional rights”.
[135]
The respective duties of the various partners and their associates
must be valued and respected if the partnership is to
thrive.
In
SANDU
,
the Court pointed out that not to apply the principle “would be
to fail to recognise the important task conferred on the
legislature
by the Constitution to respect, protect, promote and fulfil the
rights in the Bill of Rights”.
[136]
[63]
A third interest the principle
protects is the development of a consistent and integrated rights
jurisprudence. Our Courts
have held that allowing reliance
directly on constitutional rights, in defiance of their statutory
embodiment, would encourage
the development of “two parallel
systems” of law.
[137]
In other words, coherence in developing and applying rights within a
unitary system of norms is a further reason for requiring
litigants
to rely on, or challenge, legislation that gives effect to a
provision in the Bill of Rights.
[64]
This approach prevailed in
IDASA
.
There, the applicant sought to rely directly on section 32 of the
Constitution, but failed to challenge PAIA. The
High Court held
that it could not proceed in that way. It found that section 32
was “subsumed” by PAIA, which
regulates the right of
access to information. Hence, in the absence of a challenge to
the constitutional validity of PAIA,
the provision in the
Constitution could not serve as an independent legal basis or cause
of action to enforce rights of access
to information.
[138]
The applicants accordingly had
to seek their remedy “within the four corners” of the
statute, for to hold otherwise
would encourage the development of two
systems of law.
[139]
[65]
Parliament contends that the
approach in
IDASA
is correct. The applicant cannot invoke section 32 for its
claim. It must challenge the constitutionality of PAIA first.
Otherwise, Parliament says, the application thwarts the principle of
subsidiarity. The application seeks direct resort to the
Constitution, even in the face of legislation that is designed to
give effect to a fundamental right which the application ignores
or
subverts.
[66]
The test the Court must apply,
Parliament says, is to ask whether PAIA was designed or purports to
give effect to the right of access
to information in section 32(1).
The question is not whether PAIA in fact gives proper effect to that
provision.
It is precisely when legislation purports to give
effect to a right, but fails to do so properly, that subsidiarity
requires a
constitutional challenge to the deficient legislation.
Parliament did not enact PAIA in mere partial fulfilment of the
obligation
in section 32(2). The statute purports to fulfil the
obligation completely. It “covers the field”.
Here, Parliament acknowledges, of course, that the applicant’s
complaint is precisely that PAIA does not provide the remedy
it
claims should exist. But, Parliament contends, because PAIA purports
to cover the field, subsidiarity prescribes that the applicant
must
go to the High Court first to challenge PAIA’s constitutional
validity in the ordinary way.
Subsidiarity does not
apply
[67]
The majority judgment contends that
the principle of subsidiarity applies and that the application should
be dismissed. I
do not agree. Subsidiarity does not apply
for a potent reason: the validity of legislation is not at
issue. The
question is not whether PAIA is valid legislation,
but whether Parliament has adequately fulfilled its section 32
obligation.
This includes not only PAIA, but any and all of the
range of legislation it has enacted in fulfilment of section 32. The
applicant says Parliament has not done enough. So this Court’s
job is to determine the extent to which Parliament has
met its
obligation to enact legislation that gives effect to section 19(3)
read with section 32(2). That clearly requires
an assessment of
the reach of existing legislation, though not its validity.
[68]
Parliament’s argument is
mistaken. It misconceives the nature of the applicant’s
challenge to PAIA. Subsidiarity
is inapplicable because PAIA’s
constitutional validity is not in question. The principle of
subsidiarity does not assist
Parliament, for it simply has no
application:
(a)
Subsidiary applies only when a statute’s validity is at stake.
Here, validity
is not at stake.
(b)
PAIA is not circumvented because there is no attempt to bypass the
provisions of PAIA by
invoking the Constitution.
[69]
The principle provides that one may
not rely directly on the Constitution in the face of legislation
designed to give effect to
it; one must treat the Constitution as
subsidiary to the legislation. But the crucial point is that
the principle operates
only if the legislation is
not
under constitutional attack. This Court has already noted, in
Doctors for Life,
that validity of legislation can only be impugned in two
circumstances: when the content or substance of the legislation
does not comply with the Constitution, or because there is a
procedural defect in its enactment.
[140]
By contrast, when a litigant does attack the legislation, as
here, saying that it falls short of a standard embodied in the
Constitution itself, then they are free to invoke the Constitution
directly. That, indeed, is the essence of constitutionalism:
it allows all legislation to be subjected to constitutional
scrutiny. So a litigant may invoke the Constitution to gauge
the extent to which legislation meets a constitutional obligation –
but the litigant may not evade addressing that legislation.
[70]
The principle of subsidiarity puts
litigants to a choice. It says that, “where legislation
has been enacted to give
effect to a right, a litigant should rely on
that legislation in order to give effect to the right, or,
alternatively challenge
the legislation as being inconsistent with
the Constitution”.
[141]
But where the legislation is challenged for not meeting a
constitutional obligation, the principle does not apply.
[71]
This reflects the principle’s
rationale, which is the cooperation the courts, under the separation
of powers, owe a fellow
actor that is striving to give life to
constitutional obligations. Because the courts act in
partnership with Parliament
in fulfilling the Bill of Rights, comity
between the arms of government requires, if the relationship is to be
successful, a measure
of respect for what the other partner is trying
to achieve.
[142]
Parliament’s role in operationalising constitutional
rights by enacting legislation must be respected – and the
courts should not, therefore, allow litigants to “circumvent”
or “bypass” that legislation.
[143]
[72]
But these considerations do not
apply where the litigant relies on the restricted ambit of the
legislation. Where the litigant
does this, there can be no
complaint that Parliament’s legislation is being ignored.
On the contrary, Parliament is
afforded a full and formal opportunity
to defend its fulfilment of its legislative obligation, and to show
that it has done all
that the Constitution requires. The
decisions show that in every case where this Court has applied the
subsidiarity principle,
the litigant has entirely omitted or failed
to challenge the constitutionality of legislation enacted to fulfil
the right the litigant
seeks to enforce by invoking the Constitution
directly. It is this that subsidiarity precludes.
[73]
Here, by contrast with
IDASA
,
and in contradistinction to every case where this Court has applied
subsidiarity, the applicant says the ambit and purport of
PAIA is
insufficient.
[144]
It is not seeking to evade or circumvent PAIA. It is not
ignoring PAIA. It is confronting it. Its central
contention, in its affidavits and arguments, is that PAIA does not
reach the right, because Parliament, in breach of an obligation,
has
failed to enact legislation embodying the right of access to
information it seeks to enforce, namely information about political
parties’ private funding. This afforded Parliament the
opportunity to defend its legislation – which it fully
did.
The Speaker’s opposing affidavit strenuously contends for the
constitutional adequacy of PAIA. It claims
from the outset that
PAIA “fully satisfies the requirements of section 32(2)”.
Thereafter, Parliament’s
response seeks to substantiate
this claim in detail.
[74]
So the constitutional reach of PAIA
has always been squarely on the table. Far from bypassing or
ignoring the legislation,
the applicant has confronted it head-on,
and invoked the Constitution only as a means to show that PAIA’s
reach falls short
of fulfilling the obligations of Parliament under
section 32(2). The principle of constitutional subsidiarity
finds no application
here. Subsidiarity cannot be a barrier to
a challenge of the kind the applicant brings when its complaint is
precisely that
there is simply no appropriate legislative
regulation. Simply put, subsidiarity does not work in a
vacuum. Parliament’s
invocation of subsidiarity is
therefore fundamentally misconceived.
The application is not a
constitutional challenge under section 172
[75]
Parliament contended, and the
majority judgment agrees, that the applicant must be sent to the High
Court to start again. This
misconceives the application.
It seeks to recast the application as a constitutional challenge to
PAIA under section 172(2)(a),
[145]
over which the High Court has jurisdiction. That sets up a
misplaced procedural bar to the applicant’s claim.
In
fact, the application is brought under section 167(4)(e) of the
Constitution; this Court alone has jurisdiction.
[76]
The distinction is subtle but
fundamental. In
Doctors for Life
,
this Court recognised and underscored the difference between a
constitutionally invalid statute and an unmet constitutional
obligation.
[146]
[77]
The applicant does not challenge a
statute under section 172(2)(a) on the basis that its provisions are
in conflict with the Bill
of Rights or because it was adopted in a
manner inconsistent with the Constitution.
[147]
The section 172 route affords procedural safeguards for determining
the validity of legislation. These include allowing
the member
of the Executive responsible for implementing the legislation to
justify any limitation under section 36.
[78]
But section 36 applies only where a
right in the Bill of Rights is limited by a law of general
application. The applicant’s
complaint is that there is
no legislation, nor legislative provision, that requires political
parties to disclose the sources of
their private funding. It is
in precisely this absence of legislation that the applicant locates
Parliament’s failure
to give effect to a right in the Bill of
Rights. Had Parliament in fact enacted legislation that
required disclosure of political
parties’ private funding, and
had the applicant’s complaint been that the provisions were
under or over-broad, or in
some other way deficient, the courts’
inquiry would indeed fall within section 172.
[79]
The applicant chose deliberately not
to proceed via section 172(2)(a) because that route was not suited to
its case. The question
the application raises is whether this
Court has jurisdiction. If the Court does, it is not for this
Court to bar a litigant
from a pathway the Constitution provides to
it.
[80]
Moreover, the applicant clearly
affirmed that it does not seek an order declaring that PAIA or any of
its provisions are invalid.
Parliament was never called upon to
meet that case. What is before us is the content and scope of
Parliament’s obligation.
That is what the applicant
pleaded, and what Parliament accepted. That poses a different
question. And Parliament sought
to answer by invoking PAIA.
It said, Yes, we agree we have this obligation, but we have fulfilled
it: look at PAIA.
So we must look at PAIA, though only for the
purpose of assessing the extent of Parliament’s constitutional
obligation and
its fulfilment.
[81]
The majority judgment concludes
that, because of subsidiarity, this Court is precluded from
evaluating the extent to which Parliament
has met the
obligation.
[148]
But this runs against the express powers the Constitution confers
under section 167(4)(e). The Constitution deliberately
affords litigants both options, though the section 167(4)(e)
route is available only in the limited instance where the
Constitution
prescribes that a constitutional obligation must be
fulfilled.
[82]
The two options should not be
conflated. Nor should either be squeezed out. To shut
down the route the applicant has
chosen to enforce its right to
information risks impoverishing the Constitution and this Court’s
jurisdiction to interpret
it. Our decisions on subsidiarity
have not had to address this distinction, since, in each of them, the
legislation at issue
was not challenged at all. This was
because the litigant sought to derive a right directly from the
Constitution without
addressing the extent to which the legislation
that applied in fact provided for the claimed entitlement.
[83]
It is true that the applicant
contends that PAIA alone is insufficient to fulfil Parliament’s
section 32 obligation.
But it does not follow that the
application is simply an application for the judicial review of
legislation. The applicant
has no complaint about PAIA on that
statute’s own terms. It does not demand that the statute
be amended (though Parliament,
of course, will be free to amend PAIA
in response to the applicant’s challenge). This it
emphasised in its heads of
argument:
“
The
applicant thus raises no constitutional challenge against PAIA, and
seeks no reading in, reading down or striking down of any
of its
provisions.”
[84]
The question whether Parliament has
fulfilled the section 32(2) obligation is not contingent upon the
validity of PAIA.
[149]
Nor is
Democratic Party
on
point, for that case did not pivot on the content of a constitutional
obligation, nor was it brought within this Court’s
exclusive
jurisdiction.
[150]
Rather, it concerned the validity of a statute and was thus
plainly a section 172 challenge.
[151]
A finding that Parliament has failed to fulfil an obligation
does not impact on the constitutional validity of PAIA.
That is
a different question. The question is only whether Parliament
has fulfilled an obligation the Constitution obliges
it to fulfil.
Once it chose this way of formulating its case, the only route
available to it lies through this Court, invoking
section 32(2)
directly.
[85]
The applicant’s position was,
indeed, that PAIA pursues a “constitutional imperative”;
and that its provisions,
and the requirements and processes that they
embody, “are logical and legitimate for PAIA to serve its
purpose”. And
rightly so. Everything in PAIA is, in
the absence of a challenge to its
validity
,
consistent with section 32. Indeed, PAIA does not stand alone
here. It is like many other legislative provisions Parliament
has enacted in fulfilment of section 32.
[152]
It, together with the other legislation, constitutes an
indispensable measure to fulfil the provision’s promise.
The applicant’s point is that PAIA is not
all
that section 32 requires; it fails to
exhaust the obligation the provision creates. Other legislation
is needed too.
PAIA is constitutionally necessary, but not
sufficient.
[153]
[86]
In the face of this, Parliament now
insists, and the majority judgment accepts, that the applicant’s
case actually is to test
the constitutional validity of PAIA in the
High Court. But that is not the applicant’s case.
It contends that
legislation must be enacted, in addition to PAIA
(and in addition to all other legislation purported to give effect to
section 32).
The additional legislation must deal
specifically with the disclosure of political parties’ private
funding. So the
question is not whether PAIA is the legislation
envisaged in section 32(2).
[154]
Both Parliament and the applicant agree that it is. The
question is whether Parliament has adequately fulfilled the
obligation that provision imposes.
[87]
In this way, the applicant confronts
PAIA, but does so only to the extent that Parliament claimed that
enacting PAIA meets its constitutional
obligation under section 32(2)
read with section 19(3).
[88]
And only this Court can make the
order the applicant seeks. Were the High Court to be
approached, the only competent
order it could grant would be one
declaring PAIA inconsistent with the Constitution. But that is
not what the applicant seeks.
It takes no issue with the rights
PAIA and the other specialised access to information legislation
Parliament has enacted under
section 32(2) confer. Its
complaint is that all this legislation, together, is not enough.
Parliament leaves an unconstitutional
void in regard to political
parties’ private funding. Hence the applicant
seeks
a more powerful, direct and trenchant remedy: an order in terms of
section 32(2), read with section 167(4)(e). Once
this
Court’s exclusive jurisdiction is engaged, as it is, only it
has power to grant that remedy – and should we conclude,
in
what follows, that PAIA does not afford access to the information the
applicant seeks, then the applicant has established that
it is
entitled to the relief it seeks.
[89]
What is more, if a court granted the
applicant a declaration of constitutional invalidity of PAIA under
section 172, that would
imply that Parliament erred in enacting PAIA,
and hence that Parliament must amend PAIA. But this is not so.
PAIA’s
enactment was constitutionally necessary. The
majority judgment endorses this point.
[155]
The question is whether it was enough. To portray the
applicant’s argument as saying Parliament was wrong to
enact
PAIA misconceives it.
[90]
It is also at odds with the
separation of powers. The applicant’s case is that the
scheme and operation of PAIA –
though perhaps suited to their
current task, of requiring the
ad hoc
disclosure of specified records upon
application by an interested party – are entirely inapposite
for the comprehensive disclosure
to the public at large of all
political parties’ funding. The Court’s order
should not prescribe to Parliament
that it must amend PAIA.
Parliament should be free to meet its obligations under section 32
however it chooses – whether
by amending PAIA, or by enacting
new legislation, additional to PAIA, that specially targets the
disclosure of political parties’
private funds.
[91]
So sending the applicant back to
start again in the High Court would force that court to adjudicate a
case the applicant does not
make, and to grant an order the applicant
has never sought. The applicant does not ask Parliament to
amend its existing legislation.
Its argument is deeper-going:
it is the richness of section 32’s promise that requires a
manifold legislative response, of
which PAIA is only part.
[92]
It is precisely the kind of
argument, one going beyond a critique of existing legislative
provisions, and invoking the true depth
of the Constitution’s
vision, that section 167(4)(e) gives this Court special jurisdiction
to hear.
[93]
In summary: Parliament’s
argument misconceives the applicant’s case, and does not take
into account the reach and complexity
of the rights and remedies
section 32 and section 167 of the Constitution afford.
Parliament’s formal defence
should not impede this Court from
reaching the questions of substance. The central issue is
whether PAIA adequately fulfils
the promise of section 32.
Parliament claims it does. It has had full opportunity in these
proceedings to make its
case on the merits. Nevertheless, it
now asks this Court to avoid determining the merits, and instead to
send the case to
the High Court on technical grounds. That
Court has no jurisdiction to grant the order the applicant seeks, but
can only
make, in its stead, an inapposite order – one that
would have to come to this Court anyhow for confirmation.
[156]
It would be futile, and circuitous, to
require the applicant to re-start in the High Court. This
Court’s powers are
properly invoked, and the applicant’s
claim to relief must be determined.
Does PAIA afford a right
of access to information about political parties’ private
funding?
[94]
As we have seen, the fundamental
right to vote, read with section 32, requires that political parties’
private funding be
disclosed. The question now is whether PAIA
does this. The answer is No. The reasons are two.
The first
is that PAIA’s mechanisms and processes are
inherently limited. They serve a valuable purpose, but that
purpose is
narrow. Second, they are not capable of affording
citizens their right to be properly informed about political parties’
funding.
[95]
First, PAIA operates pairwise.
It requires one “requester” of information to address a
request to another entity.
[157]
PAIA compels disclosure only upon application.
[158]
Moreover, that application must provide sufficient particulars to
identify the record the requester seeks.
[159]
In sum, as the applicant rightly contended, PAIA affords only the
right to gain access, upon specific request, to specific
records held
by specific bodies at specific times.
[160]
[96]
That right of access to information
is important. But it is not capable of affording the electoral
citizenry the information
to which they are entitled about the way
political parties vying for their votes are funded. That is a
context with unique
demands, to which PAIA does not address itself.
Most obviously, the relationship is not pairwise. It is a
relationship
between dozens of political parties and many millions of
voters. The right of individuals to apply to receive individual
records, furnished on request, could never keep the electorate as a
whole meaningfully informed. For that to be achieved,
records
must be made publicly available to all. And this would have to
be done systematically and regularly, not only upon
application.
It is not possible for each voter to apply to each political party at
each election to obtain the specified
records he or she seeks.
The difficulty reveals the disjunct between the purpose PAIA is
designed to serve and the purpose
of the legislation the applicant
seeks to have enacted.
[97]
In addition, PAIA cannot guarantee
that political parties’ private contributions would be
available for request at all.
It would not require that these
be documented. PAIA affords a right of access to “records”.
It does not
define “information”.
[161]
It contains only a definition of “record”.
[162]
This limits the operation of the statute to information that is
recorded in some form or medium. Oral communications
containing
or constituting information are excluded. Also not contemplated
are situations that may require physical access
to a place in order
to obtain information that is yet to be reduced to material form,
such as a meeting of a parliamentary portfolio
committee, a court
hearing or inspecting the site of past happenings.
[98]
Are these omissions serious? It
would appear so. Depending on the nature of the information,
and the possible disincentives
to preserving it, the absence of an
encompassing definition, underscores PAIA’s limited ambit.
This is because a contract,
undertaking, understanding, agreement or
donation may all be orally concluded. In that event, as far as
PAIA is concerned,
there is no “record” – and hence
no right of access to that information. This limited ambit
creates obvious
risks that some deal-doers will want to keep their
transactions spoken, so that they are not “recorded”.
[99]
PAIA also imposes no obligation on a
record-holder to preserve recorded information until a formal
application is made.
[163]
This fits logically with the nature of the obligation PAIA creates.
That is to provide access to
records
,
after a request for them has been made. A body, private or
public, can wipe out records as they are created, without falling
foul of PAIA. Subject, of course, to any specifically
applicable legislation, it could even design its systems so that
records
are methodically wiped out. There will be no breach of
PAIA. The statute creates no proactive duty to preserve or
disclose
any category of records: the obligation is to provide access
only once an information-seeker asks. Its obligations are
entirely
reactive.
[100]
It is correct that the statute,
while not defining “information”, extensively uses the
concept.
[164]
From short title to Schedules, PAIA uses the word “information”
over 250 times. Most pivotally, the word
“information”
is used within the definition of “record”, which means
“any recorded information”.
But the proliferation
of the word “information” makes the absence of a
definition, together with the sharply limited
definition of “record”,
only the more striking. The impact is both conceptual and
operational. The statute
confines its operation and effect to
recorded information in the form of “records” only.
[101]
The upshot is that private
contributions, and their amount and provenance, could be left
unrecorded – and therefore incapable
of being requested in
terms of PAIA. This, together with the narrow pairwise
relationship PAIA envisages, between individual
requesters and
individual entities holding the records, whose disclosure is
compelled only upon application, means that it cannot
fulfil the
demand of section 19(3), or the promise of section 32.
[102]
But there is a second, even more
obtrusive reason for concluding that PAIA does not afford access to
the information the applicant
seeks and that it consequently does not
meet the constitutional obligation section 32(2) imposes. This
springs from the bodies
to whose records it provides access.
They fall within two categories only – public bodies, and
private bodies.
Both are defined. Subject, as is usual,
to contra-textual indicators, a “public body” in PAIA
means—
“
(a)
any department of state or administration in the national or
provincial sphere of government or
any municipality in the local
sphere of government; or
(b)
any other functionary or institution when—
(i)
exercising a power or performing a duty in terms of the Constitution
or a
provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation.”
[165]
[103]
This closely echoes the
Constitution, which contains no definition of “the state”,
[166]
but defines “organ of state”, in terms PAIA’s
definition of “public body” appropriates.
[167]
PAIA defines “private body” in section 1 as meaning:
“
(a)
a natural person who carries or has carried on any trade, business or
profession, but only in
such capacity;
(b)
a partnership which carries or has carried on any trade, business or
profession; or
(c)
any former or existing juristic person, but excludes a public body”.
[104]
These two definitions create a
dichotomy that appears to leave a large gap.
[168]
Section 32(1) confers a right of access to any information held “by
the state”, plus to any information held
“by another
person”, provided it is “required for the exercise”
and “protection of any rights”.
Although neither
“the state” nor “person” is defined in the
Constitution, section 32 creates a single,
all-encompassing,
dichotomous category within which the right applies. The wide
definition of “organ of state”
in the Constitution means
that in the first instance section 32(1) of the Bill of Rights gives
a right of access to all information
held by departments of state at
any level of government, as well as by any other functionary or
institution that exercises a power
or performs a function under the
national or a provincial constitution or that exercises a public
power or public function in terms
of any other legislation.
This PAIA closely reflects.
[105]
But that right is residually
conferred in respect of information held by “any person”,
if required for the exercise
or protection of any rights.
Despite the absence of a definition, the word “person” is
plainly very wide.
It is not limited to natural persons, for
the Bill of Rights binds also a juristic person if, and to the extent
that, it is applicable,
taking into account the nature of the right
and the nature of any duty imposed by the right.
[169]
What is more, the Bill of Rights specifies which “persons”
may enforce the rights it confers.
[170]
This Court has repeatedly held that the ambit of the standing
provision is very wide.
[171]
So “person” includes any individual or association or
community or group.
[172]
It would certainly include a political party.
[106]
Hence the right section 32 confers
operates within a wide and potently encompassing field – the
anvil on which its hammer
falls is the entire state, and, outside the
state,
any person
who holds information that is required for the exercise or protection
of any rights.
[173]
The obligation section 32(2) imposed on Parliament was
therefore to enact legislation to give effect to the right of access
to information held by anyone else (“another person”)
that is required for the exercise or protection of any rights.
[107]
But PAIA instead created a different
dichotomy – that between public and private bodies, though the
statute itself recognises
that the dichotomy cannot be
absolute.
[174]
The statute defines “person” as meaning “a natural
person or a juristic person”.
[175]
While its definition of “public body” closely replicates
that of “organ of state” in the Constitution,
its
definition of “private body” is far narrower than the
concept of “person” that informs the Bill of
Rights.
The definition encompasses any former or existing juristic person.
But as far as natural persons are concerned,
it is confined to those
who carry on, or who have carried on any trade, business or
profession, “but only in such capacity”.
Its
application to partnerships is similarly confined. In the case
of all private bodies, access is of course, in accordance
with the
Bill of Rights, restricted to records required for the exercise or
protection of any rights.
[176]
[108]
There are two problems with this.
First, what if a natural person has records that are needed for the
exercise or protection
of any rights – but is not engaged in
any trade, business or profession? PAIA does not give access.
The field
of natural persons is plainly not covered. But the
omission does not stand on its own. There is a second, more
telling
difficulty with PAIA’s definition of “private
body”. What if a body is neither public nor private?
What if it straddles PAIA’s definition of public and private
bodies, and falls in-between? While it is true that PAIA
gives
access to the records of juristic bodies, insofar as they are
“private bodies”, political parties appear to fall
within
a category of political actors who may or may not be “juristic
persons” for the purposes of PAIA. They
fall into a very
singular category of “persons”, envisaged in the Bill of
Rights, but for whom PAIA doesn’t appear
to cater at all.
Political parties and
PAIA
[109]
Political parties are neither public
bodies nor private. In argument, Parliament contended that the
records of political parties
are accessible under PAIA, since they
fall within the definition of private bodies. But the
submission is overbroad.
PAIA offers access to the records only
of political parties that are juristic persons (or, conceivably,
partnerships). What
is more, the right of access it affords
excludes from regulation all non-juristic persons not carrying on a
trade, business or
profession.
[110]
Two implications flow from PAIA’s
limited definition. First, it is not clear that political
parties are in fact all
“juristic persons”. It is
impossible to say that the constitutions of all political parties
constitute them as
juristic persons. And whether a body that
has capacity to sue and be sued in its own name is also a juristic
person depends
on its constitution. The mere capacity to sue
and be sued does not necessarily entail juristic personhood.
Although
difficult to proceed in practical terms, the possibility
that a political party may not be a common law
universitas
and hence not a juristic person cannot be excluded.
[177]
[111]
There is a second more telling
point. This is that our law does not require that political
parties be juristic persons.
A political party can be simply an
organisation or movement, and not a juristic person. Under the
Electoral Commission Act,
[178]
“party” means a party registered under the Act, and
includes—
“
any
organisation or movement of a political nature which publicly
supports or opposes the policy, candidates or cause of any registered
party, or which propagates non-participation in any election”.
[179]
[112]
The Electoral Commission Act
requires the chief electoral officer, on the fulfilment of certain
prescribed conditions, to register
any party.
[180]
There is conspicuously no requirement in the statute that a political
party be a juristic person.
[181]
It could be any organisation or movement of a political nature,
juristic or non-juristic.
[182]
And, indeed, section 19(1) of the Bill of Rights, which gives every
citizen the right to form a political party, lays down
no requirement
that the party formed must be a juristic person. Whether a
requirement that a political party must be a juristic
person, if it
were imposed, would be constitutionally valid is not in issue now.
The point is that PAIA does not cover political
parties –
whether big or small, predominant or minor – if they are not
juristic persons.
[113]
The applicant submitted in its
written argument that political parties are properly to be considered
part of “the state”,
for purposes of disclosure of
private funding information under section 32(1)(a). But this
contention was pursued only faintly
during oral argument.
Rightly so. Political parties do not sit comfortably within the
Constitution’s definition
of “organ of state”, or
PAIA’s definition of “public body”.
[183]
The reason is that, while in certain of their functions they may
perform statutory duties (such as when they constitute the
national
and provincial bodies that elect the members of executive
government), it is simply constitutionally inappropriate to
call them
organs of state. They are not the state, nor are they part of
it, even though on occasion they perform statutory
functions.
Thus, while it is possible to shoe-horn political parties into the
definition of “public body”, they
cannot sit comfortably
there.
[114]
On the other hand, political parties
are quite plainly not private bodies, and, as already shown, if not
juristic persons, they
are not covered by PAIA at all. Even
where a political party is a juristic person, and thus falls inside
PAIA, the term “private”
ill befits it. The reason
lies in the nature of political parties, and the critical importance
of their functioning to the
success of the country’s
constitutional project.
[115]
This emerges from this Court’s
decision in
Ramakatsa
,
where the appellants sought to set aside as invalid a provincial
conference of the ANC and all its outcomes on the basis that
there
were irregularities in many of the branch meetings that elected
delegates to the conference.
[184]
This Court exercised a robust jurisdiction. The whole Court,
minority and majority, concluded that fundamental constitutional
rights were implicated. This was because of their importance to
the fulfilment of the right to vote. The judgment of
Yacoob J
explained, on behalf of the Court, that the right to participate in
the activities of a political party
[185]
obliges every political party to act lawfully and in accordance with
its own constitution, and, correlatively, every member of
a political
party has “the right to exact compliance with the constitution
of a political party by the leadership of that
party”.
[186]
[116]
Both the unanimous conclusions of
the
Ramakatsa
Court,
[187]
and its majority judgment, are antithetical to the notion that
political parties are merely private entities. In short, the
public/private disjunct in PAIA appears to have been created without
having political parties in mind at all.
[188]
They are a category of “persons”, outside the state, for
whom PAIA has failed to make express or any provision.
Where
political parties should be, there is a gaping hole. This, the
applicant submits, was because Parliament had been deliberating
whether to regulate political parties separately. But there is
no need to speculate; the practical upshot, and the meaning
and
application of PAIA, are clear.
Parliament has failed to
meet its section 32(2) obligation
[117]
PAIA, in other words, does not
provide at all for access to the information about political parties’
private funding required
for the exercise of the right to vote.
It, like the other statutes the legislature has enacted in fulfilment
of the right
of access to information, constitutes, at best, only a
partial fulfilment of Parliament’s obligation.
[189]
[118]
Without specific legislation
requiring political parties registered for elections to legislative
bodies established under the Constitution
to disclose their private
funding, it follows that the applicant’s attack cannot be
repulsed. It has established the
constitutional insufficiency
of PAIA, and hence that Parliament has not fulfilled its obligation
under section 32 to enact legislation
to afford access to the
information reasonably required to exercise the right to vote. The
supremacy clause, in section 2
of the Constitution, requires that an
“obligation [which is] imposed by [the Constitution] must be
fulfilled”.
[190]
[119]
An order granting the applicant the
relief it seeks should issue. We should acknowledge, as in
Doctors for Life
,
that—
“
[a]n
order declaring that Parliament has failed to fulfil its
constitutional obligation … and directing Parliament to comply
with that obligation constitutes judicial intrusion into the domain
of the principle legislative organ of the state. Such
an order
will inevitably have important political consequences. Only
this Court has this power.”
[191]
Where a
constitutional obligation is impugned, as here, the Constitution
itself mandates the intrusion. But Parliament has
considerable
discretion to determine how best to fulfil its duty.
[192]
This Court does not seek to prescribe to Parliament that it
ought to legislate in a particular manner, as the majority judgment
suggests, but Parliament must legislate in a way that gives effect it
to its constitutional obligation.
Order
[120]
The applicant asked for an order
directing Parliament to enact the required legislation within
eighteen months, and to require Parliament
to lodge a report on the
steps it has taken every three months. Because this is a
minority judgment, it is unnecessary to
consider further the form of
the order, save to say that I would have declared that Parliament has
failed to fulfil its constitutional
obligation to enact national
legislation to give effect to the right of access to information as
required by section 32(2) of the
Constitution, to the extent that—
(a)
information about the private funding of political parties registered
for elections for
any legislative body established under the
Constitution is
reasonably
required for the effective exercise of the right to vote in those
elections; and
(b)
no national legislation currently requires that this information be
publicly accessible.
KHAMPEPE J, MADLANGA J,
NKABINDE J and THERON AJ (Mogoeng CJ, Molemela AJ and Tshiqi AJ
concurring):
Introduction
[121]
We have had the benefit of reading
the judgment penned by our brother, Cameron J (minority judgment).
We agree, for different
reasons, with his finding regarding this
Court’s exclusive jurisdiction. We further agree with the
minority judgment’s
exposition of the history behind the
principle of constitutional subsidiarity.
[122]
Our disagreement with the minority
judgment lies in its conclusion that Parliament has failed to fulfil
its constitutional obligation
to enact the legislation envisaged in
section 32(2) of the Constitution.
[193]
Summarising it, our difficulty with the minority judgment is
two-fold. First, insofar as it seeks to have Parliament
legislate in a manner preferred by the applicant, the minority
judgment violates the doctrine of separation of powers. We
elaborate on this below. Second, the minority judgment’s
conclusion that “the validity of [PAIA] is not at issue”
[194]
does not bear scrutiny. The suggestion that PAIA has certain
shortcomings is, in fact, an attack on its validity. Because
–
in that sense – the validity of PAIA is challenged and PAIA is
the legislation envisaged in section 32(2), the principle
of
subsidiarity applies. On these alleged shortcomings,
[195]
the applicant ought to have challenged the constitutional validity of
PAIA frontally in terms of section 172 of the Constitution
in the
High Court (frontal challenge).
[123]
The points of difference on the
merits lead us to a different outcome: a dismissal of the
application.
[124]
Our approach makes it unnecessary
for us to pronounce on whether information on the private funding of
political parties is required
for the exercise of the right to vote.
[125]
The minority judgment sets out the
background to this application and the parties’ submissions in
great detail. We will
only deal with the submissions to the
extent necessary for our conclusions.
Submissions
[126]
The applicant accepts that
Parliament did enact national legislation to give effect to the right
of access to information in the
form of PAIA. It contends,
however, that the principle of subsidiarity does not apply because
PAIA does not cover nor purport
to “cover the entire field of
legislation [giving] full effect to section 32(2)”, and that
“Parliament’s
obligation under section 32(2) of the
Constitution did not begin and end with the enactment of PAIA”.
It argues that
PAIA gives effect “only” to one aspect of
the right of access to information, namely the right to gain access
to specific
records held by specific bodies at specific times.
The applicant submits that this is not an ordinary case of enforcing
the
right of access to information, but rather a case of enforcing
the
duty
to enact national legislation required to give effect to the right
under section 32(1) of the Constitution.
[127]
In addition, the applicant argues
that even though political parties are not “organs of state”,
they are a special species
of “private actors” with
constitutional responsibilities to the voting public. It
contends that political parties
are part of the state for the
purposes of section 32(1)(a).
[196]
Consequently, everyone is entitled to information regarding the
private funding of political parties as information “held
by
the state”. In the alternative, the applicant contends
that citizens are entitled to information on the private
funding of
political parties as information that is required for the exercise or
protection of their right contained in section
19(3) of the
Constitution. This entitlement stems from section 32(1)(b).
[128]
Notably, the applicant steadfastly
asserts that it is not challenging the constitutional validity of
PAIA, even if it was legislation
enacted pursuant to section 32(2).
Even so, according to it, the legislation required is fundamentally
different from
PAIA in its nature and purpose as it would require the
disclosure of private funding information as a matter of “continuous
course, rather than once-off upon request”. The ability
to access information pertaining to the private funding of
political
parties on an ongoing basis, the applicant contends, is necessary if
the right to vote is to have meaningful content.
[129]
In essence, Parliament contends:
the principle of subsidiarity applies; Parliament met its
constitutional obligation by enacting
PAIA; in accordance with the
principle of subsidiarity, the applicant ought to have challenged the
constitutional validity of PAIA
in the High Court; and –
because it has not done so – the matter ought to be dismissed.
In amplification, Parliament
maintains that the principle of
subsidiarity precludes the applicant from having direct recourse to
the section 32(1) right
itself. The question is whether
PAIA “purports to be the legislation required by section
32(2)”. And if
it does, then the applicant is obliged to
challenge it directly for failing to give effect to the right in the
manner that the
applicant contends is constitutionally compliant.
What the applicant is not permitted to do, continues the contention,
is
to demand the enactment of a different piece of legislation that
would deal with a matter for which PAIA was enacted.
Issues
[130]
Issues that we are going to deal
with are:
(a)
exclusive jurisdiction;
(b)
whether PAIA is the legislation envisaged
in section 32(2) of the Constitution;
(c)
separation of powers;
(d)
circumstances in which the principle of
subsidiarity applies and the need for it; and
(e)
whether the applicant has challenged the
constitutional validity of PAIA.
Exclusive jurisdiction
[131]
On this aspect, our discomfort with
the minority judgment lies in the fact that its conclusion is
coloured by the finding it ultimately
reaches on the nature of this
application and the principle of subsidiarity. For that reason,
we prefer a shorter route.
[197]
And it is this.
[132]
A court’s jurisdiction is
determined on the basis of the claim in the pleadings. In
Chirwa
,
Langa CJ held that—
“
a
court must assess its jurisdiction in the light of the pleadings.
To hold otherwise would mean that the correctness of an
assertion
determines jurisdiction, a proposition that this Court has rejected.
It would also have the absurd practical result
that whether or not
the High Court has jurisdiction will depend on the answer to a
question that the court could only consider
if it had that
jurisdiction in the first place. Such a result is obviously
untenable.”
[198]
[133]
In a unanimous judgment, this Court
confirmed
Chirwa
and held that—
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. . . . In the event
of the court’s jurisdiction being challenged at the
outset (
in
limine
), the applicant’s
pleadings are the determining factor. They contain the legal
basis of the claim under which the applicant
has chosen to invoke the
court’s competence. While the pleadings – including
in motion proceedings, not only
the formal terminology of the notice
of motion, but also the contents of the supporting affidavits –
must be interpreted
to establish what the legal basis of the
applicant’s claim is, it is not for the court to say that the
facts asserted by
the applicant would also sustain another claim,
cognisable only in another court.”
[199]
(Footnote omitted.)
[134]
It follows that “the
substantive merits of a claim cannot determine whether a court has
jurisdiction to hear it”.
[200]
We do realise that in certain instances claims of exclusive
jurisdiction may be palpably contrived. Needless to say,
those
will not succeed.
[135]
We conclude thus: the applicant
alleges that Parliament has failed to fulfil the obligation imposed
by section 32(2) of the Constitution
to enact legislation that gives
effect to the right contained in section 32(1) of the Constitution.
In terms of section 167(4)(e)
of the Constitution, only this
Court has jurisdiction to answer that question.
Is PAIA the legislation
envisaged in section 32(2) of the Constitution?
[136]
The applicant contends that the
“required legislation” in terms of section 32(2) has
not been enacted and there
is “simply no Act of Parliament”
to be tested by the Supreme Court of Appeal or the High Court in
terms of section
172(2)(a) of the Constitution. In the same
breath, it attempts to show the insufficiency of PAIA in regard to
the right for
which it contends.
[137
Section 32 of the Constitution
provides:
“
(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.”
[138]
The long title says PAIA was enacted
to—
“
give
effect to the constitutional right of access to any information held
by the state and any information that is held by another
person and
that is required for the exercise or protection of any rights”.
This mirrors the wording of section 32(1) of the Constitution.
[139]
In relevant part, the preamble to
PAIA provides that it was enacted to—
“
(a)
foster a culture of transparency and accountability in public and
private bodies
by giving effect to the
right of access to information
;
[and]
(b)
actively promote a society in which the people of South Africa have
effective access
to information to enable them to more fully exercise
and protect
all of their rights
.”
(Emphasis added.)
This relates to the
exercise and protection of “all rights”, and not merely
some.
[140]
Section 9 of PAIA contains the
objects of the Act, which include the following:
“
(a)
[T]o give effect to the constitutional right of access to—
(i)
any information held by
the state; and
(ii)
any information that is held by
another person and that is required for the exercise or
protection of
any rights.”
This too adopts the exact
wording of section 32(1) of the Constitution.
[141]
Having regard to all this, one can
hardly think of any other indications and more plain language to
evince the purpose for which
PAIA was enacted.
[142]
Indeed, in
Independent
Newspapers
, Moseneke DCJ, writing for
the majority, observed:
“
At
a general level, the right of access to information is entrenched, in
the first instance, by the Constitution itself. Section
32 of
the Constitution confers on everyone the right of access to any
information held by the state or by another person that is
required
for the exercise or the protection of any rights.
That
right of access to information is given effect to and regulated
through legislation in the form of the
[
PAIA
].”
[201]
(Footnotes omitted and emphasis added.)
[143]
In the same case, Sachs J wrote:
“
It
is the right in section 32 of everyone to have access to
information. [PAIA], adopted on 3 February 2000, gives effect
to this right.”
[202]
(Footnote omitted.)
[144]
In
Brümmer
v Minister for Social Development and Others
,
writing for a unanimous Court, Ngcobo J says:
“
Section
32(1) of the Constitution guarantees the right of access to
information ‘that is required for the exercise or protection
of
any rights’. And the declared purpose of PAIA is to give
effect to this constitutional right.”
[203]
[145]
In a unanimous decision in
PFE
International
, Jafta J held that “PAIA
is the national legislation contemplated in section 32(2) of the
Constitution”.
[204]
Later in a dissent in
Agri SA
,
Froneman J reasoned, on a point to which the disagreement did not
relate:
“
The
[Mineral and Petroleum Resources Development Act] is not legislation
that explicitly seeks to give effect to and circumscribe
a
fundamental right in the manner of, for example, [PAJA], [PAIA] or
the Labour Relations Act, but in my view its provisions need
to be
interpreted in a manner that is best consistent with
section 25.”
[205]
(Footnotes omitted.)
[146]
Even the High Court has considered
PAIA to be the legislation enacted to give effect to section 32.
[206]
[147]
These authorities brook no
possibility that PAIA is not the legislation enacted to give effect
to the section 32(1) right.
That it may have shortcomings in
its protection of the right and possibly even be constitutionally
invalid does not alter this
legal reality.
[207]
[148]
Notably, PAIA shares a similar
history with PAJA, which gives effect to the section 33(1) and (2)
rights.
[208]
As this Court held in
Bato Star
,
[209]
PAJA was enacted to give effect to the right to administrative
justice contained in section 33(1) and (2) of the Constitution.
Likewise, as we have concluded, PAIA was passed in compliance with
section 32(2) of the Constitution. Schedule 6 of the
Constitution contained transitional provisions that applied to
sections 32 and 33. The Schedule required that national
legislation
be enacted within three years of the Constitution coming
into effect.
[210]
The President assented to PAIA on 2 February 2000 and to PAJA a day
later.
[211]
Both dates are within three years of the Constitution coming into
effect and just shy of missing the deadline. If the
legislation
had not been enacted, sections 32(2) and 33(3) would have fallen
away.
[212]
It would be ludicrous for anyone to suggest that section 32(2) has
lapsed for lack of enactment of the legislation envisaged
in that
section. Indeed, it is not surprising that no one – to
our knowledge – has ever made a suggestion of
the sort.
This buttresses our view that PAIA is the legislation enacted to give
effect to the section 32(1) right.
[149]
The minority judgment makes the
point that PAIA is not the only legislation that gives effect to
section 32. In this regard,
it refers to various other pieces
of legislation that make provision for access to information.
[213]
However, even though those pieces of legislation do make this
provision, they are distinguishable from PAIA. The main
focus
of each is some other subject; not access to information in terms of
section 32(1) of the Constitution.
[214]
That this is so is reinforced by the sparse manner in which the
content of each touches on the right of access to information.
In each, provision for the right is merely incidental to the
legislation’s main focus. On the contrary, PAIA’s
focus is one subject: the provision of information in terms of
section 32(1) of the Constitution. In short, that there is
out
there a plethora of other pieces of legislation providing for access
to information does not mean all those pieces of legislation
are
the
legislation envisaged in section 32(2) of the Constitution.
Separation of powers
[150]
This
Court has expressed itself thus:
“
The
principle of separation of powers, on the one hand, recognises the
functional independence of branches of government. On
the other
hand, the principle of checks and balances focuses on the
desirability of ensuring that the constitutional order, as
a
totality, prevents the branches of government from usurping power
from one another. In this sense it anticipates the necessary
or
unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation
of powers:
the scheme is always one of partial separation.”
[215]
[151]
Why do we have this principle?
Langa CJ explains in
Glenister I
:
“
The
principle of checks and balances focuses on the desirability that the
constitutional order, as a totality, prevents the branches
of
government from usurping power from one another. The system of
checks and balances operates as a safeguard to ensure that
each
branch of government performs its constitutionally allocated function
and that it does so consistently with the Constitution.”
[216]
[152]
We are mindful that it is this Court
that is the final arbiter on adherence to the Constitution and its
values. On this, in
Doctors for
Life,
Ngcobo J says:
“
But
under our constitutional democracy, the Constitution is the supreme
law. It is binding on all branches of government and
no less on
Parliament. When it exercises its legislative authority,
Parliament ‘must act in accordance with, and within
the limits
of, the Constitution’, and the supremacy of the Constitution
requires that ‘the obligations imposed by it
must be
fulfilled’. Courts are required by the Constitution ‘to
ensure that all branches of government act within
the law’ and
fulfil their constitutional obligations. This Court ‘has
been given the responsibility of being
the ultimate guardian of the
Constitution and its values’. Section 167(4)(e), in
particular, entrusts this Court with
the power to ensure that
Parliament fulfils its constitutional obligations. This section
gives meaning to the supremacy clause,
which requires that ‘the
obligations imposed by [the Constitution] must be fulfilled’.
It would therefore require
clear language of the Constitution to
deprive this Court of its jurisdiction to enforce the
Constitution.”
[217]
(Footnotes omitted.)
[153]
With all this in mind, we proceed to
have a close look at what the applicant seeks.
[154]
The true complaint by the applicant
is the manner in which Parliament – exercising a power that
vests solely in it –
has chosen to legislate. Let us
demonstrate this in the following manner. Assuming that –
besides this complaint
– there was no basis for raising the
shortcomings that the minority judgment deals with,
[218]
there would be no question that PAIA does not afford interested
voters access to information on the private funding of political
parties. The only complaint would be that this information can
only be made available at the request of an individual and
only to
that individual.
[219]
But would it still be open to that individual to say legislation
envisaged in section 32(2) has not been passed? Definitely
not. Why do we say so?
[155]
The applicant wants information on
the private funding of political parties to be made available in a
manner preferred by it.
It prefers that the legislation should
require the disclosure of the information as a matter of “continuous
course, rather
than once-off upon request”. According to
the minority judgment, what South Africa must have is systematic
disclosure.
It may well be that this is ideal; who knows?
But that is not the issue. It is for Parliament to make
legislative
choices as long as they are rational and otherwise
constitutionally compliant. Crucially, lack of rationality is
not an issue
in these proceedings.
[156]
Despite its protestation to the
contrary, what the applicant wants is but a thinly veiled attempt at
prescribing to Parliament to
legislate in a particular manner.
By what dint of right can the applicant do so? None, in the
present circumstances.
That attempt impermissibly trenches on
Parliament’s terrain; and that is proscribed by the doctrine of
separation of powers.
[220]
[157]
To the extent that the minority
judgment suggests that individual requests would present interested
voters with insurmountable problems,
this is difficult to grapple
with, and indeed, inappropriate to raise in the absence of an
irrationality challenge on the choice
made by Parliament.
[158]
We must highlight that the minority
judgment proceeds from an assumption that all voters require
information on the private funding
of political parties.
[221]
The basis for that assumption is not explained. And the
minority judgment’s conclusion, on the importance of
this
information to the exercise of the right to vote, does not give a
basis for the assumption. On what basis does the minority
judgment discount the possibility that – even if the
information were readily available – some people would not have
recourse to it before exercising their right to vote? We do not
know. We should not be understood to say access to
this
information may not reasonably be required for the exercise of the
right to vote. That is a matter we need not reach.
What
we take issue with is the unexplained assumption from which the
minority judgment proceeds.
[159]
We are mindful that the applicant
does complain of, and the minority judgment also points to, other
shortcomings in PAIA.
[222]
Those shortcomings are best dealt with in a frontal challenge.
Based on the applicant’s own say so and the minority
judgment’s
conclusion, this application is not a frontal challenge.
[223]
For the reasons we give shortly, the application has been brought in
breach of the principle of subsidiarity.
Circumstances in which
the principle of subsidiarity applies and the need for it
[160]
Contrary to the suggestion in the
minority judgment that our insistence on compliance with the
principle puts form ahead of substance,
[224]
this principle plays an important role. The minority judgment
correctly identifies the “inter-related reasons from
which the
notion of subsidiarity springs”.
[225]
First, allowing a litigant to rely directly on a fundamental right
contained in the Constitution, rather than on legislation
enacted in
terms of the Constitution to give effect to that right, “would
defeat the purpose of the Constitution in requiring
the right to be
given effect by means of national legislation.”
[226]
Second, comity between the arms of government enjoins courts to
respect the efforts of other arms of government in fulfilling
constitutional rights.
[227]
Third, “allowing reliance directly on constitutional rights, in
defiance of their statutory embodiment, would encourage
the
development of ‘two parallel systems of law’”.
[228]
[161]
The principle of subsidiarity is a
well-established doctrine within this Court’s
jurisprudence.
[229]
The essence of the principle was captured by O’Regan J in
Mazibuko
,
where she held that—
“
where
legislation has been enacted to give effect to a right, a litigant
should rely on that legislation in order to give effect
to the right
or alternatively challenge the legislation as being inconsistent with
the Constitution.”
[230]
[162]
The minority judgment says that
subsidiarity does not apply because the validity of PAIA is not in
issue. This is difficult
to follow. If legislation fails
to provide sufficiently for the protection of the right contained in
section 32(1) of the
Constitution, surely it must be invalid to the
extent of the insufficiency. Therefore, the assertion of
insufficiency puts
PAIA’s validity in issue. The two are
indistinguishable. For that reason, we say – on this
Court’s
jurisprudence – subsidiarity must apply.
[163]
Essentially, the applicant’s
complaint is that PAIA suffers from certain shortcomings.
[231]
In that context, this Court has held that the principle of
subsidiarity enjoins an applicant to challenge the legislation
exactly for its shortcomings. In
SANDU
,
which concerned the right to collective bargaining, this Court
remarked:
“
If
. . . legislation is wanting in its protection
of the section 23(5) right
in the
litigant’s view, then that
legislation should be challenged constitutionally
.
To permit the litigant to ignore the legislation and rely directly on
the constitutional provision would be to fail to recognise
the
important task conferred upon the Legislature by the Constitution to
respect, protect, promote and fulfil the rights in the
Bill of
Rights.”
[232]
(Footnote omitted and emphasis added.)
[164]
The deficient legislation must be
challenged “as falling short of the constitutional
standard”.
[233]
[165]
According to Ngcobo J, in
New
Clicks
:
“
Where,
as here, the Constitution requires Parliament to enact legislation to
give effect to the constitutional rights guaranteed
in the
Constitution, and Parliament enacts such legislation, it will
ordinarily be impermissible for a litigant to found a cause
of action
directly on the Constitution without alleging that the statute in
question is deficient in the remedies that it provides.”
[234]
[166]
Axiomatically, it cannot be that the
principle of subsidiarity applies only where the legislation does
exactly that which is constitutionally
required. If that were
the case, there could hardly ever be any meritorious challenges based
on constitutional deficiencies
or other bases of constitutional
invalidity. Unsurprisingly, Parliament argues that – in
accordance with the principle
of subsidiarity – a frontal
challenge is indicated where legislation that seeks to give effect to
a constitutional right
is believed to fall short of doing so.
Van der Walt aptly says:
“
In
view of the Constitutional Court’s justification of the first
two subsidiarity principles, the question is not whether
legislation
in fact
gives effect to a right in the Bill of Rights, but whether it was
enacted to do so
.
In other words, the focus is on the intention of the post-1994
democratic legislature to honour its constitutional obligations
and
promote the spirit, purport and object of the Bill of Rights through
exercise of its legislative powers.”
[235]
(Emphasis added.)
[167]
Let us make the point that, in
context, the authorities referred to in this and the minority
judgment on the principle of subsidiarity
envisage a frontal
challenge.
[168]
The strong reservations expressed by
this Court in the comparable case of
Democratic
Party
underscore this.
[236]
In that case the appellant contended that section 16(5) of the Local
Government Transition Act
[237]
(Transition Act) was inconsistent with section 160(3)(b) read
with section 160(2)(b) of the Constitution.
[238]
The inconsistency relied upon purportedly stemmed from the fact that
section 16(5) of the Transition Act required a two-thirds
majority of
members of council for the approval of a council’s
budget.
[239]
On the other hand, section 160(3)(b) read with section 160(2)(b)
of the Constitution provides for the approval of a
council’s
budget by a simple majority of members of the council. After
engaging in an interpretative exercise that,
inter
alia
, involved a consideration of
section 16(5) of the Transition Act, the two sections of the
Constitution and item 26(2) of Schedule
6 of the Constitution,
[240]
the Court concluded that there was no merit in the appeal. It
then bemoaned the fact that the appellant “did not apply
for an
order declaring section 16(5) invalid” and that the appellant
had instead “relied on the invalidity of the section
as the
foundation for the relief claimed”.
[241]
[169]
The appellant had sought to justify
the procedure it had adopted thus. It was interested only in
relief that was consequent
upon the constitutional invalidity of the
Transition Act. It was inconvenient, expensive and time
consuming first to engage
in the lengthy process that would culminate
in a confirmation by this Court in terms of section 172(2) of the
Constitution.
[242]
To subject the appellant to this served no purpose. The Court
noted that the adverse conclusion it had reached against
the
appellant “render[ed] it both unnecessary and undesirable to
adjudicate on a preliminary issue which would have otherwise
been of
some relevance”.
[243]
[170]
Unimpressed by the appellant’s
attempt at justifying the procedure followed, Yacoob J, writing for a
unanimous Court, cautioned:
“
[C]onsiderable
difficulties stand in the way of the adoption of a procedure which
allows a party to obtain relief which is in effect
consequent upon
the invalidity of a provision of an Act of Parliament without any
formal declaration of the invalidity of that
provision.
Firstly,
such a procedure appears to be incompatible with the Constitution.
Section 172(1)
obliges a Court to declare a statutory
provision which is inconsistent with the Constitution invalid to the
extent of the inconsistency.
It was conceded by counsel for the
appellant that the course chosen is at least inconsistent with the
literal meaning of section
172(2)(a) of the Constitution, which
provides that a declaration of invalidity of an Act of Parliament by
a High Court has ‘no
force’ unless it is confirmed by
this Court. The grant of any order by a High Court premised on
a finding of invalidity
of a provision of an Act of Parliament (other
than temporary relief contemplated by section 172(2)(b) of the
Constitution) is tantamount
to that finding being infused with
‘force’ contrary to section 172(2)(a) of the
Constitution.
Secondly,
the suggested procedure is likely to be a source of uncertainty and
confusion about the status of a provision of an Act
of Parliament.
The purpose of section 172(2) is to provide certainty by requiring
confirmation of an order of invalidity
of a provision of an Act of
Parliament by this Court as a prerequisite for any finding of
invalidity being of force. Sanctioning
the suggested procedure could
nullify that purpose.
Thirdly,
the practice that has been urged upon this Court carries with it the
distinct danger that Courts may restrict their enquiry
into the
constitutionality of an Act of Parliament and concentrate on the
position of a particular litigant. This might mean that
a provision
of an Act of Parliament may be held valid for one set of
circumstances and invalid for another. As Ackermann
J said:
‘
The
consequence of such a (subjective) approach would be to recognise the
validity of a statute in respect of one litigant, only
to deny it to
another. Besides resulting in a denial of equal protection of the
law, considerations of legal certainty, being a
central consideration
in a constitutional state, militate against the adoption of the
subjective approach.’”
[244]
(Footnotes omitted.)
[171]
The present application is
comparable because in it too the relief sought by the applicant
“
is in effect
consequent upon the invalidity of . . . an Act of Parliament”,
[245]
PAIA in this instance.
The essence of the
applicant’s assertion that PAIA is deficient in its protection
of the section 32(1) right is that PAIA
is constitutionally invalid
to the extent of the deficiency. No amount of disavowal of that
– something we deal with
later – can change this
reality.
As in
Democratic
Party
, here too the applicant similarly
is seeking the relief
without
any formal declaration of the invalidity of PAIA.
[246]
In criticising our reliance on this case, the minority judgment
proceeds from the premise that the instant application is
not about
the invalidity of PAIA. That premise is mistaken. The
shortcomings complained of suggest that PAIA is invalid.
[172]
Also, we have
demonstrated that the other basis of distinction, which is that the
applicant is seeking relief of a special kind,
cannot succeed for the
simple reason that what the applicant is asking for flouts the
separation of powers doctrine.
[173]
Democratic Party
did
not concern rights protected in the Bill of Rights. It was
about testing the validity of a statutory provision against
a
non-Bill of Rights provision of the Constitution. The
application before us is about a right in the Bill of Rights.
In this context, the difficulties of an applicant who – in
essence – relies for relief on the constitutional invalidity
of
an Act of Parliament without seeking a declaratory order to that
effect are exacerbated. This is so because of the procedure
followed in determining whether an Act of Parliament is inconsistent
with a right in the Bill of Rights. That procedure entails:
an
enquiry whether the impugned legislation – including a
deficiency in it – does, in fact, limit a right in the Bill
of
Rights; if it does, whether the limitation is justified under section
36(1) of the Constitution; and, if it is not justified,
a declaration
that it is constitutionally invalid. In that process, evidence
– especially on the section 36(1)
justification analysis –
plays a crucial role.
[247]
Because of the form the application has taken, the evidence that has
been proffered is not of a nature that could address
all these.
[174]
Or, does none of this matter?
Of course it matters. Here lies the fundament of our problem:
we cannot bring ourselves
to hold that there has been non compliance
with a constitutional obligation in circumstances where the
shortcomings complained
of by the applicant – and amplified by
the minority judgment – may well prove to be constitutionally
compliant.
The issue is not whether they are indeed compliant.
Whether they are, is something that may be tested properly in what we
have tagged a frontal challenge. Therein lies the
jurisprudential value of the principle of subsidiarity.
[175]
On the procedure resorted to by the
applicant and the approach adopted by the minority judgment, the
usual procedural hoops in a
frontal challenge that invokes
inconsistency with a right in the Bill of Rights are bypassed.
[248]
It may well be that Parliament might have been able to demonstrate
that what shortcomings there may be are justified in terms
of section
36(1) of the Constitution. How do we then reach a conclusion
that Parliament has failed to comply with a constitutional
obligation? Or, do we simply say, quite plainly, Parliament
could never have been able to show justification? How can
we
say that when – as we seek to demonstrate below – that
was not a case that Parliament had to meet and, therefore,
not an
issue before us? That cannot be so.
[176]
Authority tells us that even in an
apparent “open and shut” case, an affected party must be
given an opportunity to
meet the case advanced by an adversary.
Parliament has been denied that opportunity. We cannot resist
the eloquence
of Megarry J in
John v
Rees
:
“
As
everybody who has anything to do with the law well knows, the path of
the law is strewn with examples of open and shut cases
which,
somehow, were not; of unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which
was fully
explained; of fixed and unalterable determinations that, by
discussion, suffered a change.”
[249]
[177]
Some of the contentions made by the
applicant rather belatedly – in written and oral argument –
also illustrate the
inherent problem with the procedure adopted by
it. Two examples are the “challenge” on PAIA’s
limitation
as to the definition of “record”
[250]
and its exemptions on confidentiality.
[251]
Parliament was never called upon to meet a case of that
nature. We have no idea what it might have said on the
constitutional
validity of these issues. It is, in any event,
imperative that a litigant should make out its case in its founding
affidavit,
[252]
and certainly not belatedly in argument. The exception, of
course, is that a point that has not been raised in the affidavits
may only be argued or determined by a court if it is legal in nature,
foreshadowed in the pleaded case and does not cause prejudice
to the
other party.
[253]
[178]
As we see them, the authorities we
cite on the principle of subsidiarity in [161] to [167] and
Democratic Party
[254]
are not about a tangential challenge that does not frontally seek a
declaration of constitutional invalidity. The challenge
they
refer to is one that seeks a declaration of constitutional
invalidity. The applicant’s case is not a challenge
of
this nature.
[179]
Apparently, the applicant seeks to
distinguish this case from those that insist on the principle of
subsidiarity purely on the basis
that here the applicant is not
seeking to enforce a right in the Bill of Rights; it is rather
seeking a
mandamus
for Parliament to fulfil a constitutional obligation. We cannot
agree. The applicant, by the simple stratagem of crying
a
failure to comply with a constitutional obligation to enact the
requisite legislation, seeks to extricate itself from what the
principle of subsidiarity demands. Surely, that cannot be. As
we have sought to demonstrate above,
[255]
an insistence on compliance with the principle of subsidiarity in an
instance like the present is not idle. It serves a useful
jurisprudential and practical purpose. The minority judgment’s
approach presents us with a conceptual, if not jurisprudential,
difficulty.
[180]
What also reinforces the need to
respect the principle of subsidiarity in the context of this
application is the minority judgment’s
recognition of the
multiplicity of other persons or entities – besides just
political parties – that are excluded by
the definition of
“private body” in PAIA.
[256]
That means PAIA has failed to provide for the enjoyment of an
unimaginable number of rights by countless categories of entities
and
persons. The approach in the minority judgment lends itself to
the possibility of multiple and varied complaints that
Parliament has
failed to legislate for access to information of one type or another
from this or the other type of non-public person
or entity that does
not fit within the definition of “private body”. An
approach that is susceptible to these
ad
hoc
and possibly nit-picking
individualised claims is problematic. This points us in one
direction, and one direction only:
if PAIA is the legislation
envisaged in section 32(2) of the Constitution, the principle of
subsidiarity must definitely apply
to this matter. We have
already concluded that PAIA is the envisaged legislation.
[181]
For all the above reasons, there is
absolutely no reason for the principle of subsidiarity not to apply
in this matter.
[182]
We should not be understood to
suggest that the principle of constitutional subsidiarity applies as
a hard and fast rule.
There are decisions in which this Court
has said that the principle may not apply.
[257]
This Court is yet to develop the principle to a point where the
inner and outer contours of its reach are clearly delineated.
It is not necessary to do that in this case.
[183]
Having concluded that PAIA is the
required legislation under section 32(2) of the Constitution, the
next question is whether it
has been challenged. If it has not
been, the applicant is in breach of the principle of subsidiarity.
Has PAIA been
challenged?
[184]
The applicant disavows any challenge
to the validity of PAIA. It says it “does not direct any
challenge against the
inherent constraints on the application of
PAIA. These constraints are logical and legitimate for PAIA to
serve its purpose,
which is a deliberately limited one”.
We accept that this is not a frontal challenge to the validity of
PAIA.
If anything, it is an attempt to avoid dealing with PAIA.
[185]
The applicant refers to certain
constraints in PAIA that, in its view, make it impossible for anyone
to access the sort of information
it seeks at the intervals that the
applicant would prefer. In its written submissions, the
applicant makes clear that—
“
the
question of whether political parties are public or private bodies,
for the purposes of PAIA, does not arise in the present
application
.
This case concerns the proper interpretation of section 32 of the
Constitution, which distinguishes between ‘the state’
and
‘another person’.” (Emphasis added.)
Curiously, the
minority judgment relies heavily on the very issue the applicant
disavows.
[258]
That is, whether political parties are public or private bodies.
[186]
It is exactly because there has been
no frontal challenge to the constitutional validity of PAIA that one
sees
Parliament’s refrain, said
almost
ad nauseam
and
without much more, which is that PAIA is the requisite legislation
for the protection of the section 32(1) right. In the
circumstances, that refrain is understandable. The challenge is
too tangential to expect more of Parliament. What else
could it
have said? It could not have been expected to answer the
oblique suggestion of constitutional invalidity by following
the
usual steps when a Bill of Rights-based frontal challenge has been
brought.
[187]
The time-honoured practice in
frontal constitutional challenges is for the Minister responsible for
the administration of the impugned
Act to be cited so as to make the
necessary input expected of her or him on the constitutional
validity, or lack of it, of the
Act. In
Tongoane
,
[259]
this Court reiterated:
“
On
a number of occasions this Court has emphasised that when the
constitutional validity of an Act of Parliament is impugned, the
Minister responsible for its administration must be a party to the
proceedings inasmuch as his or her views and evidence tendered
ought
to be heard and considered.”
[260]
(Emphasis added.)
[188]
The Minister responsible for the
administration of PAIA, then known as the Minister of Justice and
Constitutional Development
[261]
was cited as a respondent. It is worth noting that, although he
initially filed a notice to oppose the application, he has
remained
supine - not filing a piece of paper thereafter. We are certain
that this Court would have been most displeased
with that attitude
had this been a frontal challenge of PAIA. We are not aware
that a single member of this Court is in any
way concerned that the
Minister has not participated in these proceedings.
[189]
The Minister’s
non-participation does not surprise us. He was cited in
proceedings concerning an alleged failure by
Parliament to comply
with a constitutional obligation, not in proceedings challenging the
constitutional validity of an Act for
whose administration he was
responsible. The relief sought was a battle pre-eminently
between the applicant, Parliament and,
possibly, political parties.
We do not know, unless we were to speculate, what the Minister’s
attitude would have been
had the fray been one for him to enter.
[190]
Crucially, in written submissions
filed in response to directions issued by the Chief Justice on 30
September 2014, the applicant
says the relief sought is “directed
at Parliament alone”. It adds that the other respondents
have been cited
“only by virtue of the interest that they may
have in its outcome” and that “[n]o relief is sought
against them”.
That is the nature of application the
applicant knows itself to have brought. It is not a challenge
that would have required
the Minister or Parliament, for that matter,
to defend the constitutional validity of PAIA. The Minister and
Parliament were
not afforded an opportunity to oppose a challenge to
PAIA’s constitutional validity.
[191]
The “challenge” that the
minority judgment says has been launched exposes us to the risk that
we refer to in [174] above.
That is, the possibility of
conflicting findings: one that says there has been a failure to
comply with a constitutional obligation;
and another that says PAIA’s
shortcomings are constitutionally compliant.
[192]
In sum, the applicant does not
challenge the constitutional validity of PAIA, at least not
frontally, as envisaged in section 172
of the Constitution. The
principle of subsidiarity requires that it should have done so.
Conclusion
[193]
Although the application falls under
this Court’s exclusive jurisdiction, PAIA is the legislation
envisaged in section 32(2)
of the Constitution. The applicant
has not challenged it frontally for being constitutionally invalid.
In accordance
with the principle of subsidiarity, it ought to have
done so as that principle is applicable to this application.
The application
must fail.
Costs
[194]
Biowatch
applies.
[262]
There should be no order as to costs.
Order
[195]
Consequently, the following order is
made:
The
application is dismissed.
For the Applicant:
D Unterhalter SC and M du Plessis instructed by Webber Wentzel
Attorneys
For the First and Second
Respondents: W Trengove SC, V Ngalwana SC and F Karachi instructed by
the State Attorney
[1]
Section 167(4) of the Constitution provides for
matters that only this Court may decide:
“
Only the
Constitutional Court may—
(a)
decide disputes between organs of state in the national or
provincial
sphere concerning the constitutional status, powers or
functions of any of those organs of state;
(b)
decide on the constitutionality of any parliamentary or provincial
Bill, but may do so only in the circumstances anticipated in section
79 or 121;
(c)
decide applications envisaged in section 80 or 122;
(d)
decide on the constitutionality of any amendment to the
Constitution;
(e)
decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f)
certify a provincial constitution in terms of section 144.”
[2]
Section 167(6) of the Constitution provides:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and
with leave of the
Constitutional Court—
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other
court.”
[3]
Section 19 of the Bill of Rights is headed
“Political rights” and 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 and regular elections
for
any legislative body established in terms of the Constitution.
(3)
Every adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms
of the Constitution, and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
[4]
Section 32 of the Bill of Rights is headed
“Access to information” and provides:
“
(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.”
[5]
2 of 2000.
[6]
In
Doctors for Life
International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
(
Doctors for Life
)
at para 18, this Court noted that “the case of a law that
infringes a right in the Bill of Rights . . . concerns the validity
of the impugned law and not the failure to fulfil an obligation”.
[7]
Majority judgment at [175].
[8]
Section 236 of the Constitution provides in full:
“
Funding for
political parties.—To enhance multi-party democracy, national
legislation must provide for the funding of political
parties
participating in national and provincial legislatures on an
equitable and proportional basis.”
[9]
103 of 1997.
[10]
B 67-97 (Bill).
[11]
Annexed to the Speaker’s answering
affidavit is a document titled “Announcements, Tabling and
Committees Reports”
dated 31 October 1997 (Report).
[12]
Institute for Democracy in South Africa and
Others v African National Congress and
Others
[2005] ZAWCHC 30
;
2005 (5) SA 39
(C) (
IDASA
).
[13]
Section 11 of PAIA provides:
“
(1)
A requester must be given access to a record of a public body if—
(a)
that requester complies with all the procedural requirements in
this
Act relating to a request for access to that record; and
(b)
access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.
(2)
A request contemplated in subsection (1) includes a request
for
access to a record containing personal information about the
requester.
(3)
A requester’s right of access contemplated in subsection
(1) is, subject to this Act, not affected by—
(a)
any reasons the requester gives for requesting access; or
(b)
the information officer’s belief as to what the requester’s
reasons are for requesting access.”
[14]
Section 50 of PAIA provides:
“
(1)
A requester must be given access to any record of a private body if—
(a)
that record is required for the exercise or protection of any
rights;
(b)
that person complies with the procedural requirements in this Act
relating to a request for access to that record; and
(c)
access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.
(2)
In addition to the requirements referred to in subsection (1), when
a public body, referred to in paragraph (a) or (b)(i) of the
definition of “public body” in section 1, requests
access to a record of a private body for the exercise or protection
of any rights, other than its rights, it must be acting in
the
public interest.
(3)
A request contemplated in subsection (1) includes a request for
access to a record containing personal information about the
requester or the person on whose behalf the request is made.”
[15]
Above n 3.
[16]
IDASA
above n 12
at para 7. The Inkatha Freedom Party filed a notice to abide.
[17]
IDASA
above n 12
at para 25. See also
PAIA’s definitions of
“private body” and “public body” as set out
at [102] to [103] below.
[18]
IDASA
id.
[19]
In Mr Motlanthe’s answering affidavit in
IDASA
,
annexed to My Vote Counts’ founding affidavit in this Court,
he noted that South Africa is a signatory member of the African
Union and, in terms of Article 10 of the African Union Convention on
Preventing and Combating Corruption (see n 25 below), it
is obliged,
inter alia,
to adopt legislative and other measures to “incorporate the
principle of transparency into funding of political parties”.
He added: “Parliament will fulfil this obligation”.
[20]
IDASA
above n 12
at paras 30-2.
[21]
Id at para 42.
[22]
Id at para 52.
[23]
United Nations Convention against Corruption resolution 58/4 of 31
October 2003 (UN Convention).
[24]
Article 7(3) of the UN Convention provides:
“
Each State
Party
shall also 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.”
(Emphasis added.)
[25]
African Union Convention on Preventing and Combating Corruption of
11 July 2013 (AU Convention).
[26]
Article 10 of the
AU Convention
provides:
“
Each State
Party
shall adopt
legislative and other measures
to:
(a)
Proscribe the use of funds acquired through illegal and corrupt
practices to finance political parties; and
(b)
Incorporate the principle of transparency into funding of political
parties.”
(Emphasis added.)
[27]
Above n 24 and 26.
[28]
The applicant also relied on these international
conventions and section 7(2) of the Bill of Rights to show that
disclosure of
parties’ private funding is a constitutionally
required, corruption-fighting measure, but my conclusion makes it
unnecessary
to consider these further arguments.
[29]
In April 2010, then Independent Democrats Member
of Parliament Lance Greyling, successfully lobbied for Parliament’s
Joint
Rules Committee to establish an
ad
hoc
committee to draft legislation
regulating private political party funding. While the Chief
Whips’ Forum outright
rejected the legislative proposal, it
was nevertheless referred for consideration to the Committee on
Private Members’
Legislative Proposals and Special Petitions,
as well as to the Joint Committee on Ethics and the Presidency.
Both committees
concluded that the legislation should not
proceed, as it was “not feasible”. On 18 August
2011, the National
Assembly adopted a report deciding not to pursue
the legislative proposal.
[30]
Direct reliance on section 32 of the Constitution
may be possible where the basis of the attack on legislation giving
effect to
the right is “under inclusive” or “over
restrictive” and therefore limits the substance of the right.
Therefore, it is “consistent with constitutional democratic
theory to give Parliament the ability to flesh out the detail
of a
fundamental right, but not to construct the very meaning of the
right.” (Footnote omitted). Klaaren and Penfold
“Access
to Information” in Woolman et al (eds)
Constitutional
Law of South Africa
Service 3 (2011)
at 62-4 to 62-5.
[31]
IDASA
above n 12
at para 6.
[32]
Section 167(4)(e) at above n 1 read in contrast
with section 172(2)(a) of the Constitution below n 145.
[33]
Majority judgment at [121].
[34]
Doctors for Life
above n 6 at para 9.
[35]
King and Others v Attorneys Fidelity Fund
Board of Control and Another
[2005]
ZASCA 96
;
[2006] 1 All SA 458
(SCA) at paras 14-6, as approved in
Doctors for Life
id at para 21.
[36]
Minister of Police and Others v Premier of the
Western Cape and Others
[2013] ZACC
33
;
2014 (1) SA 1
(CC);
2013 (12) BCLR 1405
(CC) at para 20 and
Von
Abo v President of the Republic of South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at
para 33.
[37]
Doctors for Life
above n 6 at para 253.
[38]
Id at para 254.
[39]
Section 167(4)(e) above n 1.
[40]
Doctors for Life
above
n 6 at para 19.
[41]
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC) (
SARFU
)
at para 25.
[42]
Women’s Legal Centre Trust v President
of the Republic of South Africa and Others
[2009] ZACC 20
;
2009 (6) SA 94
(CC) (
Women’s
Legal Centre Trust
) at paras 11-25.
[43]
Id.
[44]
Id at para 21.
[45]
Id at para 20.
[46]
The Bill of Rights specifies that the state must
“respect, protect, promote and fulfil the rights” in it
(section 7(2));
it may not discriminate unfairly (section
9(3)); it must assign a legal practitioner in certain circumstances,
if substantial
injustice would otherwise result (section 28(1)(h)
[civil proceedings affecting a child], section 35(2)(c) and
section 35(3)(g)
[detained and accused persons]); and the state
bears specified duties in relation to those detained under a state
of emergency
(section 37(6)(h), (7) and (8)).
[47]
Id at section 25(5) reads: “The state must
take reasonable legislative and other measures, within its available
resources,
to foster conditions which enable citizens to gain access
to land on an equitable basis.”
[48]
Id at section 26(2).
[49]
Id at section 27(1)(a).
[50]
Id at section 27(1)(b).
[51]
Id at section 27(1)(c), read with section 27(2).
[52]
Id at section 29(1)(b).
[53]
Id at section 9(4) reads:
“
No person may
unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.”
[54]
Id at section 32 is set out in above n 4.
[55]
Id at section 33 provides in part:
“
(3)
National legislation must be enacted to give effect to these rights,
and must—
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections
(1) and (2); and
(c)
promote an efficient administration.”
[56]
Id at section 25(6) provides an entitlement to
legally secure tenure or to comparable redress for persons or
communities whose
tenure of land is legally insecure as a result of
past racially discriminatory laws or practices.
[57]
The grammatical form is the same as that in
section 23(5) of the Bill of Rights, which provides in part that
“[n]ational
legislation may be enacted to regulate collective
bargaining”. The provision is permissive, and creates no
obligation.
The full terms of section 23(5) are set out in n
114 below.
In a similar vein to
section 23(5) of the Bill of Rights, section 23(6) provides:
“
National
legislation may recognise union security arrangements contained in
collective agreements. To the extent that the
legislation may
limit a right in this Chapter the limitation must comply with
section 36(1).”
[58]
Section 43(a) of the Constitution provides that,
in the Republic, the legislative authority “is vested in
Parliament”,
as set out in section 44 of the Constitution.
While it is true that Parliament is also the enacting agent of the
“legislative
measures” that the Bill of Rights elsewhere
requires, those measures are enacted by Parliament as part of a
range of legislative
and non-legislative measures that the state, as
a whole, must take in fulfilment of the Bill of Rights.
[59]
Women’s Legal Centre
above
n 42 at para 21. See also section 7(2) of the Bill of Rights.
[60]
Section 19 of the Bill of Rights.
[61]
Clutchco (Pty) Ltd v Davis
[2005] ZASCA 16
;
2005 (3) SA 486
(SCA) at para 13.
[62]
Id.
[63]
Unitas Hospital v Van Wyk and Another
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) at para 30.
[64]
Ex parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa
[1996] ZACC 26
;
1996 (4)
SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
First
Certification judgment
) at para 186.
[65]
Section 47(3)(c) of the Constitution provides
(section 62(4)(d) being to the same effect in the case of the
National Council of
Provinces):
“
(3)
A person loses membership of the National Assembly if that person—
. . .
(c)
ceases to be a member of the party that nominated that person as
a
member of the Assembly, unless that member has become a member of
another party in accordance with Schedule 6A.”
In the case of the
National Council of Provinces, section 62(4)(d) of the
Constitution similarly provides:
“
(4)
A person ceases to be a permanent delegate if that person—
. . .
(d)
ceases to be a member of the party that nominated that person and
is
recalled by that party.”
In the case of provincial
legislatures, section 106(3)(c) similarly provides in relevant part:
“
(3)
A person loses membership of a provincial legislature if that
person—
. . .
(c)
ceases to be a member of the party that nominated that person as
a
member of the legislature, unless that member has become a member of
another party in accordance with Schedule 6A.”
[66]
Section 86(1) of the Constitution provides in
relevant part:
“
At its first
sitting after its election, and whenever necessary to fill a
vacancy, the National Assembly must elect a woman or
a man from
among its members to be the President.”
[67]
Section 91 of the Constitution provides in
relevant part:
“
(3)
The President—
(a)
must select the Deputy President from among the members of the
National Assembly;
(b)
may select any number of Ministers from among the members of the
Assembly; and
(c)
may select no more than two Ministers from outside the Assembly.”
[68]
Ramakatsa and Others v Magashule and Others
[2012] ZACC 31
;
2013 (2) BCLR 202
(CC) (
Ramakatsa
).
[69]
Id at para 67.
[70]
Id at para 68.
[71]
Id at para 66.
[72]
Id at para 68.
[73]
Id at para 66.
[74]
Id at para 67.
[75]
In
Bernstein and
Others v Bester and Others NNO
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 67,
this Court explained that an integrated approach to interpreting the
right to privacy eschews “an abstract
individualistic
approach”. Because no right is absolute, “each
right is always already limited by every other
right accruing to
another citizen”. Hence—
“
[p]rivacy is
acknowledged in the truly personal realm, but as a person moves into
communal relations and activities such as business
and social
interaction, the scope of personal space shrinks accordingly.”
[76]
President of the Republic of South Africa and
Others v M & G Media Ltd
[2011]
ZACC 32
;
2012 (2) SA 50
(CC);
2012 (2) BCLR 181
(CC) (
M
& G Media Ltd
) at para 10.
[77]
Section 39.
[78]
Section 36.
[79]
Section 1(d).
[80]
Section 16.
[81]
Democratic Alliance v African National
Congress and Another
[2015] ZACC 1
;
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC) at para 124.
[82]
Id at paras 122-3.
[83]
Oriani-Ambrosini v Sisulu, Speaker of the
National Assembly
[2012] ZACC 27
;
2012
(6) SA 588
(CC);
2013 (1) BCLR 14
(CC) at para 64.
[84]
In
New National
Party of South Africa v Government of the Republic of South Africa
and Others
[1999] ZACC 5
;
1999 (3) SA
191
(CC);
1999 (5) BCLR 489
(CC) at para 11, this Court observed
that “the mere existence of the right to vote without proper
arrangements for its
effective exercise does nothing for a
democracy; it is both empty and useless”.
[85]
424 US 1
(1976) at 66-7.
[86]
The principle of subsidiarity derives from Roman Catholic Canon Law,
dating back to the First Vatican Council in 1869-70, where
it
entails that human affairs are handled best at the lowest possible
level of management. See Murray “The Principle
of
Subsidiarity and the Church” (1995)
Australasian Catholic
Record
163 at 164-5 and 171. In
the
European Community, subsidiarity entails that Community organs
should act only where action cannot be more effectively taken
at
Member State level. Subsidiarity thus tries
to devolve as much
power as possible to the constituent states. The principle
seeks to recognise the diversity of national
traditions with Europe,
acknowledging that many matters are best dealt with below Community
level. See Critchley
Europe
and
Industry:
The Integration of the European Union
(e-book
1995 available at: http://mmu.academia.edu/PeterCritchley/Books) vol
1 at 117-34 and Sibanda “Beneath it all lies
the Principle of
Subsidiarity: The Principle of Subsidiarity in the African and
European Regional Human Rights Systems”
(2007) 40
Comparative
and International Law Journal of Southern Africa
425
at 425 and 431. It is in this sense that the word
“subsidiarity” is used in
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
[2008] ZAGPHC 30
;
2008 (4) SA 572
(W);
[2008] 2 All SA 298
(W)
(
Gauteng
Development Tribunal
)
at para 53 and fn 68 (recording the argument that the sphere of
government where the specific function would be most appropriate
must inform the understanding of functional areas of concurrent
constitutional competence).
[87]
See
Ex Parte
Minister of Safety & Security & Others: In Re: S v Walters &
Another
[2002] ZACC 6
;
2002 (4) SA
613
;
2002 (7) BCLR 663
(CC) at para 22 and
Govender
v Minister of Safety and Security
2000
(1) SA 959
(D) at 969C.
[88]
See section 4(3) of the Implementation of the
Rome Statute of the International Criminal Court Act 27 of 2002
providing for the
jurisdiction of South African courts in respect of
crimes committed under international criminal law as codified in the
Rome
Statute. See also the
Arrest
Warrant Case (Democratic Republic of the Congo v Belgium)
[2002] ICJ 3
at para 59, Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal, noting that a state contemplating
bringing criminal
charges based on universal jurisdiction “must
first offer to the national state of the prospective accused person
the opportunity
itself to act upon the charges concerned”.
See Langer “The Diplomacy of Universal Jurisdiction: The
Political
Branches and the Transnational Prosecution of
International Crimes” (2011) 105
American
Journal of International Law
1-49.
[89]
National Commissioner of the South African
Police Service v Southern African Litigation Centre and Another
[2014] ZACC 30
;
2015 (1) SA 315
(CC);
2015 (1) SACR 255
(CC) at
paras 61-4 and
National Commissioner of
the South African Police Service and Another v Southern African
Human Rights Litigation Centre and Another
[2013] ZASCA 168
;
2014 (2) SA 42
(SCA);
[2014] 1 All SA 435
(SCA) at
para 68. As this Court explained, o
rdinarily,
there must be a substantial and true connection
National
Commissioner of the South African Police Service v Southern African
Litigation Centre and Another
[2014]
ZACC 30
;
2015 (1) SA 315
(CC);
2015 (1) SACR 255
(CC) at paras
61-4
between the
subject-matter and the source of the jurisdiction. And once
jurisdiction is properly founded, investigating
international crimes
committed abroad is permissible only if the country with
jurisdiction is unwilling or unable to prosecute,
and only if the
investigation is confined to the territory of the investigating
state.
[90]
Schedule 4 of the Constitution, “Functional
areas of concurrent national and provincial legislative
competence”.
See also
Gauteng
Development Tribunal
above
n 86; on appeal neither the Supreme Court of Appeal (
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
[2009] ZASCA 106
;
2010 (2) SA 554
(SCA);
2010 (1) BCLR 157
(SCA))
nor this Court (
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
[2010] ZACC 11
;
2010 (6) SA 182
(CC)) used the term “subsidiarity”
.
[91]
Nokotyana and Others v Ekurhuleni Metropolitan
Municipality and Others
[2009] ZACC
33
;
2010 (4) BCLR 312
(CC) (
Nokotyana
)
at para 50 stating that “[w]here the Constitution contains
both a specific right, and a more general right, it is appropriate
first to invoke the specific right” which was quoted and
applied in
Grancy Property Limited v
Gihwala
[2014] ZAWCHC 97
; 2014 JDR
1292 (WCC) (
Grancy
)
at para 198. The label “subsidiarity” is not used
in
Nokotyana
,
but is used in
Grancy
.
[92]
Section 101(5) of the interim Constitution.
[93]
Section 98(2) of the interim Constitution.
[94]
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para
59 approved in
Zantsi v Council of
State, Ciskei and Others
[1995] ZACC
9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at para 3.
[95]
See Du Plessis “‘Subsidiarity’:
What’s in the Name for Constitutional Interpretation and
Adjudication?”
(
2006)
Stellenbosch
Law Review
207-31
, where Du Plessis
calls the use of the word in this context “adjudicative
subsidiarity”.
[96]
See
Carmichele v
Minister of Safety and Security
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras
33-49.
[97]
Section 39(2) of the Bill of Rights.
[98]
Id.
[99]
See Klare “Legal Subsidiarity and
Constitutional Rights: A response to AJ van der Walt” (2008)
Constitutional Court Review
Vol
1 2008 129 at 140, in which he aptly notes:
“
When
Parliament ‘gives effect’ to a constitutional right it
may task itself with giving the right an enforceable floor
of
protections and implementations. In practice, it may also
erect a ceiling and walls around the right. At a certain
point
‘giving effect’ to a constitutional right slides into
defining the right by setting out its metes and bounds.”
Thus, he continues:
“
The
constitutional adequacy of the relief afforded to an effect giving
statute is not, strictly speaking, a question subsidiarity
theory
addresses – it is a substantive problem of constitutional law
that must be decided by the courts.”
[100]
The doctrine’s emergence may be traced
through the decisions of this Court. In
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para
62, where the claimant relied on the invalidity of a statutory
provision as the basis for claiming relief, but omitted
to seek a
declaration that it was invalid, Yacoob J on behalf of the Court
pointed out that “considerable difficulties
stand in the way
of the adoption of a procedure which allows a party to obtain relief
which is in effect consequent upon the
invalidity of an Act of
Parliament without any formal declaration of invalidity of that
provision”.
Ingledew
v Financial Services Board
[2003]
ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) (
Ingledew
)
at para 22, noted this finding, but held that it was not directly on
point. More directly,
Ingledew
noted at paras 24 and 29 that
NAPTOSA
and Others v Minister of Education, Western Cape and Others
[2000] ZAWCHC 9
;
2001 (2) SA 112
(C) (
NAPTOSA
)
and other cases had “cast doubt on the correctness of the
proposition that a litigant can rely upon the Constitution,
where
there is a statutory provision dealing with the matter without
challenging the constitutionality of the provision concerned”
but left the question open.
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7)
BCLR 687
(CC) (
Bato Star
)
at paras 21-6 followed. It was the first decision to give
explicit recognition to the doctrine of subsidiarity, though
the
word was not used.
In
Minister of Health
and Another v New Clicks South Africa (Pty) Ltd and Others
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) (
New
Clicks
) the judgments of Chaskalson CJ and Ngcobo J alluded to
the principle. Ngcobo J now endorsed
NAPTOSA
at paras
436-7.
In
South African
National Defence Union v Minister of Defence and Others
[2007]
ZACC 10
;
2007 (5) SA 400
;
2007 (8) BCLR 863
(CC) (
SANDU
), a
unanimous Court held that the approach in
NAPTOSA
and
New
Clicks
was correct.
In
MEC for Education,
Kwa-Zulu Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA
474
(CC) (
Pillay
) at para 40, Langa CJ, on behalf of the
majority, citing
New Clicks
,
SANDU
and
NAPTOSA
,
upheld the principle.
In
Mbatha v University
of Zululand
[2013] ZACC 43
; (2014) 35 ILJ 349 (CC);
2014 (2)
BCLR 123
(CC) at para 172, Jafta J (Moseneke DCJ and Nkabinde J
concurring) alluded to “the principle of constitutional
subsidiarity”
in holding that a claim by an applicant, who
alleged he was employed by the respondent, engaged a constitutional
issue
because he asserted a breach of the duty to pay his salary, a
right enshrined in a statute, the
Basic Conditions of Employment Act
75 of 1997
, which was enacted to fulfil a constitutional right, the
right to fair labour practices.
In
Sali v National
Commissioner of the South African Police Service and Others
[2014] ZACC 19
; (2014) 35 ILJ 2727 (CC);
2014 (9) BCLR 997
(CC) at
para 2 and fn 2, Jafta J, in a minority judgment, pointed out that
“[w]here there is legislation giving effect
to a right in the
Bill of Rights, a claimant is not permitted to rely directly on the
Constitution” (footnoting that this
is known as the principle
of subsidiarity). Jafta J also pointed out that because
section 6(1)
of the
Employment Equity Act 55 of 1998
gives effect to
section 9(3)
of the Bill of Rights, the applicant was not permitted
to rely directly on the Constitution.
[101]
Mazibuko and Others v City of Johannesburg and
Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) (
Mazibuko
).
[102]
Section 27 of the Bill of Rights provides:
“
(1)
Everyone has the right to have access to—
(a)
health care services, including reproductive health care;
(b)
sufficient food and water; and
(c)
social security, including, if they are unable to support themselves
and their dependents, appropriate social assistance.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3)
No one may be refused emergency medical treatment.”
[103]
108 of 1997.
[104]
Mazibuko
above n
101 at para 73.
[105]
Id. Even though the applicants challenged
the City’s water policy as unreasonable, they omitted to
attack the regulation.
Since the Court found that the policy
was in any event not unreasonable, it did not have to decide whether
the principle applied.
[106]
Section 27(1)(b) of the Bill of Rights above n
102.
[107]
Mazibuko
is very
different from this case. First, there was no challenge to the
validity of existing legislation. Second, it
invoked no
express obligation on a specific organ of state – Parliament –
to enact national legislation. Section
27(1)(b) of the Bill of
Rights does not contain an obligation of this sort.
[108]
Act 66 of 1995.
[109]
Section 23(1) provides that “[e]veryone has
the right to fair labour practices”.
[110]
NAPTOSA
above n
100 at para 123.
[111]
Id at para 100.
[112]
New Clicks
above
n 100 at para 436.
[113]
SANDU
above n
100 at para 51.
[114]
Section 23(5) provides:
“
Every trade
union, employers' organisation and employer has the right to engage
in collective bargaining. National legislation
may be enacted
to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter,
the limitation must
comply with section 36(1).”
[115]
SANDU
above n
100 at para 51.
[116]
Id at para 52.
[117]
4 of 2000.
[118]
New Clicks
above
n 100.
[119]
SANDU
above n
100.
[120]
NAPTOSA
above n
100.
[121]
Pillay
above n
100 at para 40.
[122]
Bato Star
above
n 100.
[123]
3 of 2000 (PAJA).
[124]
In
Bato Star
above
n 100 at para 26, this Court wrote: “[t]o the extent,
therefore, that neither the High Court nor the SCA considered
the
claims made by the applicant in the context of PAJA, they erred”.
[125]
Id above n 100 at para 25.
[126]
Id. The Court added:
“
It is not
necessary to consider here causes of action for judicial review of
administrative action that do not fall within the
scope of PAJA.
As PAJA gives effect to section 33 of the Constitution, matters
relating to the interpretation and application
of PAJA will of
course be constitutional matters.”
[127]
New Clicks
above
n 100.
[128]
Id at para 96.
[129]
Id at para 436.
[130]
Id at para 437.
[131]
PFE International Inc (BVI) and Others v
Industrial Development Corporation of South Africa Ltd
[2012] ZACC 21
;
2013 (1) SA 1
(CC);
2013 (1) BCLR 55
(CC) (
PFE
International
) at para 1.
[132]
Id at para 4, citing
Mazibuko
,
Pillay
,
SANDU
and
Bato Star
above
n 100.
[133]
New Clicks
above
n 100 at paras 96. Hence Chaskalson CJ quoted Hoexter at para
97, relying on the constitutional scheme itself, where
it was
asserted that it “follows logically from the fact that the
PAJA gives effect to the constitutional rights”.
Therefore, PAJA cannot simply be circumvented by resorting directly
to section 33.
[134]
Id at para 437.
[135]
National Education Health & Allied Workers
Union (NEHAWU) v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para
14.
[136]
SANDU
above n
100 at para 52, which Langa CJ quoted with approval in
Pillay
above n 100 at para 40.
[137]
NAPTOSA
above
n 100 at 123B-C, endorsed by Ngcobo J in
New
Clicks
above n 100 at para 436.
[138]
IDASA
above n 12
at para 17.
[139]
Id at para 19.
[140]
Doctors for Life
above n 6 at para 16.
[141]
Mazibuko
above n
101 at para 73.
[142]
See [61] to [62] above. Subsidiarity finds
its clearest application in two groups of cases. The first is
when the
legislation evinces a purpose to codify a right in the Bill
of Rights. Instances already established in the jurisprudence
of this Court are administrative justice and PAJA, and fair
employment rights and the LRA. This Court has held that both
of these statutes must be resorted to first, and that, absent an
invalidity challenge, the litigant cannot invoke the Constitution.
The second clear instance
is where Parliament adopts legislation in fulfilment of social and
economic rights. The Bill of
Rights obliges the state to take
“reasonable legislative and other measures” to fulfil
these rights: see sections
24(b), 25(5), 26(2) and 27(2) of the
Constitution. In the foreground here is the institutional
deference the principle
accords to the state or Parliament and their
task in the scheme of the Constitution. The reason is plain.
Parliament,
as part of the state, has adopted a legislative measure
it considers reasonable in order to fulfil a social and economic
right.
The judicial branch owes it to Parliament to require a
litigant seeking to enforce the right to rely on the legislation
first,
or establish through constitutional attack that its
legislative measure is not reasonable. For this reason, unless
a litigant
successfully attacks Parliament’s judgment in
enacting the legislation, the legislation must stand as the basis
for enforcing
the right.
[143]
Pillay
and
SANDU
above n 100.
[144]
The applicant squarely attacks the constitutional
breadth of PAIA on the basis that Parliament has failed to fulfil
the section
32(2) obligation because it has not enacted national
legislation to require transparency in the private funding of
political
parties. It asserts that PAIA gives effect “only
to one aspect of the right of access to information, namely the
right to gain access, upon specific request, to specific records
held by specific bodies at specific times”. The
legislation Parliament has failed to enact is fundamentally
different from PAIA – it would replace unregulated secrecy
(which PAIA permits) with regulated transparency (which PAIA fails
to do). In applying alternatively for direct access, the
applicant points out that in
IDASA
the High Court held that PAIA does not enable citizens to access
parties’ private funding records.
In response to this
attack, the Speaker’s opposing affidavit squarely defends the
constitutional adequacy of PAIA.
From the outset, Parliament’s
defence is that PAIA “fully satisfies the requirements of
section 32(2)”.
The Speaker unequivocally supports the
finding in
IDASA
that PAIA does not give access to
information about the private funding of political parties, since
that information is not required
for the exercise or protection of
any right. But even if the applicant is correct that this
information is required for
rights-protection, the Speaker says,
this just means that PAIA in fact does afford the required access.
Under the heading
“PAIA is adequate”, the Speaker
asserts that “there already exists legislation that gives
effect to the very
right that the applicant claims to champion”,
namely PAIA. A central theme of the opposing affidavit is the
Speaker’s
insistence that the applicant is wrong that PAIA
“does not enable citizens to access the records of the private
funding
of political parties”. On the contrary,
legislation already exists, in the form of PAIA, for the purpose of
requiring
political parties to disclose who their private funders
are. PAIA is precisely the legislation that requires
disclosure
of parties’ private funding, though that
information is not “required” (as
IDASA
rightly
found) to effectively exercise the right to vote. PAIA is an
adequate constitutional tool by which accurate information
of the
sort the applicant seeks can be obtained.
IDASA
did not
dismiss the application on the basis that the relief sought was
incompatible with PAIA – it rejected the section
19 political
rights argument. The applicant has thus failed to show any
inadequacy in PAIA.
The core proposition of
the applicant’s written argument is that Parliament has failed
to fulfil its section 32(2) obligation
because PAIA does not require
disclosure of donations to political parties and without specific
legislation regulating the creation
and disclosure of such records,
the applicant can never obtain the relief it seeks. The
applicant attacks PAIA’s
distinction between public and
private bodies and the uses to which the Speaker puts it in
characterising political parties’
obligations. Under the
heading: “PAIA does not require disclosure of donations to
political parties,” the applicant
attacks PAIA’s ambit
in detail. It inveighs against PAIA’s limitations as to
“records”, its confidentiality
exemptions, its
confinement to records requested, and the impossible evidentiary
burden created by the mandatory disclosure override
provisions of
section 70. Parliament’s written argument relies on the
subsidiarity principle to characterise the
applicant’s reading
of PAIA as “conveniently self-defeatist” and insists
that PAIA gives “ample effect
to the right of access to
information”. If
IDASA
was wrong in finding
either that political parties are private, or that the information
sought is not required for the exercise
of the section 19 rights,
then the information is accessible under PAIA. Whether
political parties are private actors or
an extension of the state,
PAIA is the legislation Parliament enacted to give effect to the
right of access to political parties’
private funding for the
exercise of the right to vote. Nowhere in the answering
affidavit does the Speaker say that PAIA
does not permit disclosure
of parties’ private donations – she says only that
section 19 does not confer that right.
The applicant’s
argument on “records” under PAIA is incorrect, because
the applicant does not aver that political
parties do not keep
records of private funding.
[145]
Section 172(2)(a) provides:
“
The Supreme
Court of Appeal, the High Court of South Africa or a court of
similar status may make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of
the President, but an order of constitutional invalidity
has no
force unless it is confirmed by the Constitutional Court.”
[146]
Doctors for Life
above n 6 at para 18.
[147]
Id at para 16.
[148]
See the majority judgment at [122], [159] and
[181].
[149]
Majority judgment at [122] and [186].
[150]
MEC for Development Planning and Local
Government: Gauteng v Democratic Party and Others
[1998]
ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) (
Democratic
Party
) at paras 3 and 63.
[151]
Section 16(5)
of the
Local Government Transition
Act 209 of 1993
.
[152]
See
section 56
of the
Higher Education Act 101 of
1997
;
section 110
of the
Labour Relations Act 66 of 1995
;
sections 2
and
7
of the
Legal Deposit Act 54 of 1997
;
section 71
of the
Prevention of Organised Crime Act 121 of 1998
;
section 142
of the
National Water Act 36 of 1998;
section 31
of the
Nuclear Energy Act
46 of 1999
;
sections 21
,
28
and
30
of the
Mineral and Petroleum
Resources Development Act 28 of 2002
;
section 3
of the
Collective
Investment Schemes Control Act 45 of 2002
; section 2 of the Home
Loan and Mortgage Disclosure Act 63 of 2000 (whose Preamble
expressly alludes to section 32(1) of the
Bill of Rights);
section
72
of the
National Credit Act 34 of 2005
;
sections 31
and
187
of the
Companies Act 71 of 2008
; as well as
section 2
of the
Protection of
Personal Information Act 4 of 2013
.
[153]
This, again, the applicant made expressly clear
in its founding affidavit:
“
Parliament’s
obligation under section 32(2) of the Constitution did not begin and
end with the enactment of PAIA.
PAIA gives effect to only one
aspect of the right of access to information. . . . The
required legislation as set out in
this affidavit is fundamentally
different from PAIA in its nature and purpose.”
The applicant also quoted
approvingly
IDASA
’s finding at para 58 that “private
donations to political parties ought to be regulated by way of
specific legislation”.
Finally, it noted its application
in terms of section 167(4)(e) is entirely separate from one that
“test[s] ‘the
constitutional validity of an Act of
Parliament’” under section 172, as there is simply no
Act of Parliament to test.
[154]
Majority judgment at [122].
[155]
Majority judgment at [168] to [170].
[156]
See section 172(2)(a) of the Constitution above n
145.
[157]
See sections 1, 11 and 50 of PAIA.
[158]
Id at sections 11, 18 and 50. Section 15
allows for the “automatic” availability of certain
records, but this
is exceptional.
[159]
Id at section 18(2)(a)(i).
[160]
Section 15 of PAIA does provide for departments
to make categories of records automatically available.
[161]
By contrast, PAJA, which codifies the right to
just administrative action, purports to contain a full definition of
administrative
action. Section 1 of PAJA envisages an
exhaustive, careful and minutely detailed definition. In
addition, PAJA defines
“decision”. There is no
administrative action, and there are no administrative decisions, to
which PAJA doesn’t
apply.
[162]
Section 1 of PAIA provides that, unless the
context otherwise indicates, “record” of, or in relation
to a public or
private body, means—
“
any recorded
information—
(a)
regardless of form or medium;
(b)
in the possession of or under the control of that public or private
body, respectively; and
(c)
whether or not it was created by that public or private body,
respectively”.
[163]
Section 21 of PAIA, entitled “Preservation
of records until final decision on request” provides:
“
If
the information officer of a public body has received a request for
access to a record of the body, that information officer
must take
the steps that are reasonably necessary to preserve the record,
without deleting any information contained in it, until
the
information officer has notified the requester concerned of his or
her decision in terms of section 25 and—
(a)
the periods for lodging an internal appeal, an application with
a
court or an appeal against a decision of that court have expired;
or
(b)
that internal appeal, application or appeal against a decision of
that court or other legal proceedings in connection with the request
has been finally determined, whichever is the later.”
[164]
See, for instance, sections 1, 11(2), 16, 20(1),
21, 28(1) 34-5, 37, 39, 41-3, 59, 63, 64(1)(b) and (2), 65, 68(1)(b)
and (c),
69(1) and (2) and 83(1).
[165]
Id at section 1.
[166]
On the meaning of “the state”, see
Ingonyama Trust v Ethekwini
Municipality
[2012] ZASCA 104
;
2013
(1) SA 564
(SCA) at paras 5-7.
[167]
Unless the context indicates otherwise, “organ
of state” is defined in section 239 of the Constitution as—
“
(a)
any department of state or administration in the national,
provincial or local
sphere of government; or
(b)
any other functionary or institution—
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms
of any legislation,
but does not include
a court or a judicial officer
”
.
[168]
PAJA provides that, in certain circumstances,
private entities may also for its purposes be organs of state. See
Allpay Consolidated Investment Holdings
(Pty) Ltd and Others v Chief Executive Officer of the South African
Social Security Agency
and Others
[2014]
ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6) BCLR 641
(CC) (
Allpay No
2
) at paras 52-3. Section 32 of
the Bill of Rights, too, envisages overlaps between private and
public entities in a way
that PAIA’s definitions do not.
[169]
Section 8(2). See also section 8(3) which provides that:
“When applying a provision of the
Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
(a)
in
order
to give effect to a right in the
Bill, must apply, or if necessary develop, the common law to the
extent that legislation does
not give effect to that right; and
(b)
may develop rules of the common law to limit the right, provided
that the limitation is in accordance with section 36(1).”
Further, section 8(4) provides that:
“A juristic person is entitled to
the rights in the Bill of Rights to the extent required by the
nature of the rights and
the nature of that juristic person.”
[170]
Section 38, entitled “Enforcement of rights”, provides:
“
Anyone listed
in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened
, and the court may grant
appropriate relief, including a declaration of rights. The
persons who may approach a court are—
(a)
anyone acting in their own
interest
;
(b)
anyone acting on
behalf
of another person
who cannot act in their own name;
(c)
anyone acting as a
member
of, or in the
interest of, a group or class of persons;
(d)
anyone acting in
the
public interest; and
(e)
an
association
acting in the interest of
its members.
”
[171]
Giant Concerts
CC
v Rinaldo Investments (Pty) Ltd and Others
[2012]
ZACC 28
;
2013 (3) BCLR 251
(CC) at paras 36-7 and
Ferreira
v Levin NO and Others
;
Vryenhoek and Others v Powell NO and
Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 165.
[172]
See sections 25(6) and (7) and 31 of the Bill of Rights
(“community”) and section 38(c) (“group or
class”).
[173]
Above n 168. Section 32 thus acknowledges
overlaps between private and public in a way that PAIA’s
definitions do
not.
[174]
Thus, section 8 of PAIA, entitled “Part
applicable when performing functions as public or private body”,
provides:
“
(1)
For the purposes of this Act, a public body referred to in paragraph
(b) (ii)
of the definition of ‘public body’ in section 1
or a private body—
(a)
may
be either a public body or a private
body in relation to a record of that body; and
(b)
may in one instance be a public body and in another instance be
a
private body depending on whether that record relates to the
exercise
of a power or performance or a
function as a public body or as a private body.
(2)
A request for access to a record held for the purpose or with regard
to the exercise of a power or the performance of a function—
(a)
as a public
body must be made in terms of
section 11; or
(b)
as a private body, must be made in terms of section 50.
(3)
The provisions of Parts 1, 2, 4, 5, 6 and 7 apply to a request for
access to a record that relates to a power or function exercised or
performed as a public body.
(4)
The provisions of Parts 1, 3, 4, 5, 6 and 7 apply to a request for
access to a record that relates to a power or function exercised or
performed as a private body.”
[175]
Section 1 of PAIA.
[176]
Id at
section 50(1)(a).
[177]
There are three categories of juristic persons:
associations established by separate legislation; associations
incorporated in
terms of special or enabling legislation; and
associations that comply with the common law requirements for
establishment of
juristic persons. The common law requires
that the association remains in existence irrespective of a change
in membership,
functions as a bearer of rights, duties, and
capacities separate from its individual members, and its object is
not for the acquisition
of gain (if so, it must register as a
company). See Kruger and Skelton (eds)
The
Law of Persons in South Africa
(OUP,
Cape Town 2010) at 17-8.
All three categories of
juristic persons require the community, association, or party to
have rights and powers different from
the individuals that make the
community, association, or party. See
Wilken v Brebner
and Others
1935 AD 175
at 182.
This Court held that “[i]t
is trite that a company is a legal entity altogether separate and
distinct from its members,
that its continued existence is
independent of the continued existence of its members, and that its
assets are its exclusive
property.” (Footnote omitted).
See
First National Bank of SA Ltd t/a Wesbank v Commissioner,
South African Revenue Services and Another; First National Bank of
SA
Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
(CC);
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) at para 43.
In
Weare and Another v
Ndebele N.O and Others
[2008] ZACC 20
;
2009 (1) SA 600
(CC);
2009 (4) BCLR 370
(CC) at para 53 this Court held that “[t]he
most relevant characteristics of a juristic person are its separate
legal personality
and the limited liability of the natural persons
involved”.
See also
Webb v
Northern Rifles
1908 TS 462
and
Morrison v Standard Building
Society
1932 AD 229
at 238.
[178]
51 of 1996.
[179]
Id at section 1.
[180]
Id at section 15(1) reads:
“
The chief
electoral officer shall, upon application by a party in the
prescribed form, accompanied by the items mentioned in subsection
(3), register such party in accordance with this Chapter.”
[181]
Id at section 16 specifies the “prohibition
on registration of [a] party under certain circumstances”.
The legal
form and nature of the entity is not among them.
Section 16 reads:
“
(1)
The chief electoral officer may not register a party in terms of
section 15
or 15A, if—
(a)
fourteen days have not elapsed since the applicant has submitted
to
the chief electoral officer proof of publication of the prescribed
notice of application in the
Gazette
in the case of an
application referred to in section 15 or in a newspaper circulating
in the municipal area concerned in the
case of an application
referred to in section 15A.
(b)
a proposed name, abbreviated name, distinguishing mark or symbol
mentioned in the application resembles the name, abbreviated name,
distinguishing mark or symbol, as the case may be, of any
other
registered party to such an extent that it may deceive or confuse
voters; or
(c)
a proposed name, abbreviated name, distinguishing mark or symbol
mentioned in the application or the constitution of the party or the
deed of foundation mentioned in section 15 or 15A contains
anything—
(i)
which portrays the propagation or incitement of violence or
hatred
or which causes serious offence to any section of the population on
the grounds of race, gender, sex, ethnic origin, colour,
sexual
orientation, age, disability, religion, conscience, belief, culture
or language; or
(ii)
which indicates that persons will not be admitted to membership
of
the party or welcomed as supporters of the party on the grounds of
their race, ethnic origin or colour.
(2)
Any party which is aggrieved by a decision of the chief electoral
officer to register or not to register a party, may within 30 days
after the party has been notified of the decision, appeal
against
the decision to the Commission in the prescribed manner.
(3)
The Commission shall in the case of such an appeal enquire into
or
consider the matter and may, subject to subsection (4), confirm or
set aside the decision of the chief electoral officer.
(4)
In considering such an appeal against the refusal to register a
party in terms of subsection (1)(a) the Commission—
(a)
shall take into account the fact that the party which is associated
with the name, abbreviated name, distinguishing mark or symbol, as
the case may be, for the longest period, should prima facie
be
entitled thereto;
(b)
may, for the purposes of paragraph (a)—
(i)
afford the parties concerned an opportunity to offer such
proof,
including oral evidence or sworn or affirmed statements by any
person which, in the opinion of the Commission, could be
of
assistance in the expeditious determination of the matter; and
(ii)
administer an oath or affirmation to any person appearing to testify
orally before it.”
[182]
See
section 30
of the
Companies Act 71 of 2008
.
[183]
City Power (Pty) Ltd v
Grinpal
Energy Management Services (Pty) Ltd and
Others
[2015] ZACC 8
;
2015 (6) BCLR
660
(CC) at paras 22-3 and
Allpay No 2
above n 168 at paras 52-3.
[184]
Ramakatsa
above
n 68.
[185]
Section 19(1)(b) of the Constitution.
[186]
Ramakatsa
above
n 68 at paras 14-6 where Yacoob J states, with concurrence by all
members of the Court, that—
“
the
Constitution confers upon all citizens the right to participate in
the activities of a political party. The appellants
contended
in the application for leave to appeal that this right has been
denied to them or has been infringed because the irregularities
that
were complained of went so far as to prevent them from participating
in the activities of the ANC appropriately and properly.
Their
argument was that their right to participate in a political party
included a right to be governed by properly elected members
of the
ANC in the province.
The system of proportional
representation provided for in our Constitution means that a
political party is entitled to representation
in Parliament in
proportion to the number of votes it obtains in an election relative
to the total number of votes cast.
In other words, of the 400
members of the National Assembly, a political party that succeeds in
securing the vote of, say, 60%
of the electorate will have 240 of
400 seats in the National Assembly.
I do not think that the
Constitution could have contemplated political parties could act
unlawfully. On a broad purposive
construction, I would hold
that the right to participate in the activities of a political party
confers on every political party
the duty to act lawfully and in
accordance with its own constitution. This means that our
Constitution gives every member
of every political party the right
to exact compliance with the constitution of a political party by
the leadership of that party.”
[187]
Ramakatsa
above
n 68 at para 68.
[188]
IDASA
above n 12
at para 23 held that, for purposes of their donations records,
political parties are not “public bodies”,
but “private
bodies”, as defined in PAIA. To the extent that this
conclusion overlooks considerations set out
in the text, it appears
to me mistaken.
[189]
IDASA
id.
[190]
See above at [6].
[191]
Doctors for Life
above
n 6 at para 27.
[192]
Id at para 124.
[193]
The “failure” is, of course, said to
be in the limited sense that there is no legislation that makes it
possible for
citizens to have access to information on the private
funding of political parties for the purpose of exercising the right
to
vote contained in section 19(3) of the Constitution and that no
national legislation currently requires this information to be
publicly accessible.
[194]
Minority judgment at [67].
[195]
We use “alleged” consciously because
at this stage we have no idea what results a challenge of the
constitutional
validity of PAIA might yield.
[196]
Above n 4.
[197]
Our preference for what the minority judgment
terms, at [22], a “sparser” route is, in no way a
divergence from the
jurisprudence laid down by this Court on the
interplay between sections 172 and 167(4) of the Constitution.
In this regard,
see
Women’s Legal
Centre Trust
above n 42 at paras
11-20;
Doctors for Life
above n 6 at para 21 and
SARFU
above n 41.
[198]
Chirwa v Transnet Limited and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at para
169.
[199]
Gcaba v Minister for Safety and Security
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para
75.
[200]
Chirwa
above n
198 at para 155.
[201]
Independent Newspapers (Pty) Ltd v Minister
for Intelligence Services: In re: Masetlha v President of the
Republic of South Africa
and Another
[2008]
ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR 771
(CC) (
Independent
Newspapers
) at para 23.
[202]
Id at para 156.
[203]
Brümmer v Minister for Social Development
and Others
[2009] ZACC 21
;
2009 (6) SA
323
(CC);
2009 (11) BCLR 1075
(CC) at para 75.
[204]
PFE International
above n 131 at para 4.
[205]
Agri South Africa v Minister for Minerals and
Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC) (
Agri SA
)
at para 85.
[206]
For instance, see
Kerkhoff
v Minister of Justice and Constitutional Development and Others
[2010] ZAGPPHC 5;
2011 (2) SACR 109
(GNP) at para 17 where the High
Court said:
“
As far as
section 32 of the Constitution is concerned, the applicant’s
counsel did not provide any authority for the proposition
that the
applicant is entitled to simply rely on this section in the
Constitution, and ignore the provisions of PAIA –
which was
enacted to give effect to section 32 of the Constitution.”
And
Koalane and Another
v Senkhe and Others
[2012] ZAFSHC 165
at para 7 where the
High Court said:
“
The national
legislation envisaged in section 32(2) is [PAIA]. It is clear
from the long title, the preamble and section
9 of PAIA that the
object thereof is to give effect to the constitutional right to
access to information in terms of both section
32(1)(a) and (b).”
[207]
See majority judgment at [166] below.
[208]
Section 33 of the Constitution provides:
“
(1)
Everyone has the right to administrative action that is lawful,
reasonable
and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must—
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections
(1) and (2); and
(c)
promote an efficient administration.”
[209]
Bato Star
above
n 100.
[210]
In
First
Certification judgment
above n 64, the
transitional provisions were tested and this Court, at paras 83 and
86, held that—
“
[t]he
transitional measure is obviously a means of affording Parliament
time to provide the necessary legislative framework for
the
implementation of the right to information. Freedom of
information legislation usually involves detailed and complex
provisions defining the nature and limits of the right and the
requisite conditions for its enforcement.
. . .
The Legislature is far
better placed than courts to lay down the practical requirements for
the enforcement of the right and the
definition of its limits.”
(Footnotes omitted.)
[211]
PAIA was assented to on 2 February 2000
(Promotion of Access to Information Act 2 of 2000, GN 95
GG
20852,
3 February 2000) and PAJA was assented to on 3 February 2000
(Promotion of Administrative Justice Act 3 of 2000, GN 96
GG
20853, 3 February 2000).
[212]
See
First
Certification judgment
above n 64 at
paras 82-3 and 86. See also item 23(3) in Schedule 6 which
provides:
“
Sections
32(2) and 33(3) of the new Constitution lapse if the legislation
envisaged in those sections, respectively, is not enacted
within
three years of the date the new Constitution took effect.”
[213]
Minority judgment at [85].
[214]
We choose a few examples to illustrate this
point. In the main, the
Higher Education Act 101 of 1997
deals
with the regulation of higher education. The
National Water
Act 36 of 1998
principally concerns the reform of the law relating
to water resources. And the
Nuclear Energy Act 49 of 1999
regulates the acquisition, possession, importation, exportation and
the use of nuclear materials, the discarding of radioactive
waste
and the storage of irradiated nuclear fuel.
[215]
First Certification judgment
above n
64 at para 109.
[216]
Glenister v President of the Republic of South
Africa and Others
[2008] ZACC 19
;
2009
(1) SA 287
(CC);
2009 (2) BCLR 136
(CC) (
Glenister
I
) at para 35.
[217]
Doctors for
Life
above
n 6 at para 38.
[218]
Here, we are referring to—
(a)
the point that the definition of “record” is deficient
in certain specified respects and the related issue to the effect
that “information” is not defined (minority judgment
at
[97] to [98] and [100] to [102]);
(b)
the conclusion that there is a lack of a proactive duty to preserve
records (minority judgment at [99]); and
(c)
the deduction that the definitions of “private body”
and
“public body” do not accommodate political parties
(minority judgment at [102] to [116]).
[219]
This is what the minority judgment refers to as a
“pairwise” relationship (minority judgment at [95] to
[96] and [101]).
[220]
Compare
Women’s
Legal Centre Trust
above n 42 at para
24;
Doctors for Life
above
n 6 at para 37; and
First Certification
judgment
above n 64 at paras 106-13.
[221]
Minority judgment at [40] to [42] and [96].
[222]
See, for example, minority judgment at [97] to
[101], [104] and [107] to [108].
[223]
Id at [67] to [93].
[224]
Id at [5].
[225]
Id at [61].
[226]
Id.
New
Clicks
above n 100 at para 96.
[227]
Id at [62].
[228]
Id at [63].
NAPTOSA
above n 100 at para 123B-C.
[229]
See decisions of this Court referred to in the
minority judgment, above n 100.
[230]
Mazibuko
above n
101 at para 73. See also
Mbatha
above n 100 at para 173, where Jafta J
said:
“
[W]here
legislation has been passed to give effect to a right in the Bill of
Rights, a litigant is not permitted to rely directly
on the
Constitution for its cause of action.”
[231]
These being: as to the confinement of its
application to “records”; its confidentiality
exceptions; the fact that
it would apply unequally and arbitrarily;
and the impossible evidentiary burden imposed on a requester by
section 70 of
PAIA.
[232]
SANDU
above n
100 at para 52.
[233]
Id at para 51.
[234]
New Clicks
above
n 100 at para 437.
[235]
Van der Walt
Property
and Constitution
(Pretoria University
Law Press, Pretoria 2012) at 40.
[236]
Democratic Party
above
n 150. We render a lengthy summary of, and quote extensively
from, this judgment because we consider what it said
to be
instructive.
[237]
Above n 151, since repealed by the
Local
Government Laws Amendment Act 19 of 2008
, with effect from
13 October 2008.
[238]
Section 160(3)(b)
reads in part:
“
All questions
concerning matters mentioned in subsection (2) are determined by a
decision taken by a Municipal Council with a
supporting vote of a
majority of its members.”
Section 160(2)(b)
provides
in part:
“
The following
functions may not be delegated by a Municipal Council:
. . .
(b)
the approval of budgets”.
[239]
Section 16(5) of the Transition Act reads:
“
(a)
[A]ny resolution of any transitional council or transitional
metropolitan
substructure referred to in subsection (1) pertaining
to the budget of such transitional council or transitional
metropolitan
substructure shall be taken by a two-thirds majority of
the members of such council or substructure, and any resolution of
any
transitional council or transitional metropolitan substructure
pertaining to town planning shall be taken by a majority of the
members of such council or substructure: Provided that any such
transitional council or transitional metropolitan substructure
may
delegate the power to take any decision on any matter pertaining to
town planning to the committee referred to in subsection
(6) or to
any other committee appointed for this purpose; and
(b)
if such transitional council or transitional metropolitan
substructure—
(i)
on the last day of June in any financial year has failed to
approve
a budget for the subsequent financial year; or
(ii)
on the last day of April in any financial year has failed to take
steps to prepare a budget for the subsequent financial year,
the [MEC] may exercise any
power or perform any duty conferred or imposed upon such
transitional council or transitional metropolitan
substructure by
this Act or any other law in relation to the approval or preparation
of a budget, as the case may be.”
[240]
This Schedule provided:
“
Section
245(4) of the previous Constitution continues in force until the
application of that section lapses.
Section 16(5)
and (6) of
the
Local Government Transition Act, 1993
, may not be repealed
before 30 April 2000.”
[241]
Democratic Party
above
n 150 at para 60.
[242]
Id. Section 172(2) of the Constitution stipulates
in full:
“
(a)
The Supreme Court of Appeal, a High Court or a court of similar
status may
make an order concerning the constitutional validity of
an Act of Parliament, a provincial Act or any conduct of the
President,
but an order of constitutional invalidity has no force
unless it is confirmed by the Constitutional Court.
(b)
A court which makes an order of constitutional invalidity may grant
a temporary interdict or other temporary relief to a party, or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c)
National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest may appeal,
or apply, directly to the Constitutional Court to confirm or vary an
order of constitutional invalidity by a court in terms of
this
subsection.”
[243]
Democratic Party
above
n 150 at para 60.
[244]
Id at paras 61-4.
[245]
Id at para 61.
[246]
Compare id. In that matter, the applicant
was seeking relief
without
any formal declaration of the invalidity of section 16(5) of the
Transition Act.
[247]
See below at [187] to [190], when we deal with
the role played by a Minister responsible for the administration of
an Act that
is the subject of a frontal challenge.
[248]
Minority judgment at [19] to [22].
[249]
John v Rees and Others; Martin and Another v
Davis and Others; Rees and Another v John
[1970] Ch 345
at 402D, quoted with approval in
Administrator,
Transvaal and Others v Zenzile and Other
[1990]
ZASCA 108
;
1991 (1) SA 21
(A) (
Zenzile
)
at 37E-F.
Zenzile
was in turn quoted with approval by this Court in
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[2009]
ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) at para 154.
[250]
This complaint is founded on the definition of
“record”, which PAIA defines as—
“
of, or in
relation to, a public or private body, means any recorded
information—
(a)
regardless of form or medium;
(b)
in the possession or under the control of that public or private
body, respectively; and
(c)
whether or not it was created by that public or private body,
respectively.”
[251]
This complaint is based on section 65 of PAIA,
which provides:
“
The head of a
private body must refuse a request for access to a record of the
body if its disclosure would constitute an action
for breach of a
duty of confidence owed to a third party in terms of an agreement.”
[252]
SAPS v Solidarity obo Barnard
[2014] ZACC 23
;
2014 (6) SA 123
(CC);
2014 (10) BCLR 1195
(CC)
(
Barnard
)
at para 204. See also
Director of
Hospital Services v Mistry
1979 (1) SA
626
(A) at 635F-636A.
[253]
Barnard
id at
para 218;
Maphango and Others v Aengus
Lifestyle Properties (Pty) Ltd
[2012]
ZACC 2
;
2012 (3) SA 531
(CC);
2012 (5) BCLR 449
(CC) at para 109;
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at para
39;
Alexkor Ltd and Another v
Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at
para 43;
Carmichele v Minister of
Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 31;
Fischer
and Another v Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) at paras 13-8;
Cole
v Government of the Union of South Africa
1910 263 (A) at 272 and
Kannenberg v
Gird
1966 (4) SA 173
(C) at 182A.
[254]
Above n 150.
[255]
Majority judgment at [159] to [166].
[256]
Minority judgment at [102] to [108].
[257]
In
Mazibuko
above n 101 at paras 73-4, O’Regan J held that the
subsidiarity principle may not apply. This was so because the
constitutional obligation imposed on government by section 7(2) is
to take reasonable legislative and other measures to achieve
the
right. She nonetheless held that it was not necessary to
decide the question in the circumstances of the case.
[258]
Minority judgment at [87] to [101].
[259]
Tongoane and Others v National Minister for
Agriculture and Land Affairs and Others
[2010] ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC)
(
Tongoane
).
See also
Mabaso v Law Society of the
Northern Provinces
[2004] ZACC 8
;
2005
(2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 12.
[260]
Tongoane
id at
para 120. See also rule 5 of the Rules of this Court, which
provides:
“
(1)
In any matter, including any appeal, where there is a dispute over
the constitutionality
of any executive or administrative act or
conduct or threatened executive or administrative act or conduct, or
in any inquiry
into the constitutionality of any law, including any
Act of Parliament or that of a provincial legislature, and the
authority
responsible for the executive or administrative act or
conduct or the threatening thereof or for the administration of any
such
law is not cited as a party to the case, the party challenging
the constitutionality of such act or conduct or law shall, within
five days of lodging with the Registrar a document in which such
contention is raised for the first time in the proceedings before
the Court, take steps to join the authority concerned as a party to
the proceedings.
(2)
No order declaring such act, conduct or law to be unconstitutional
shall be made by the Court in such matter unless the provisions of
this rule have been complied with.”
[261]
Now the Minister of Justice and Correctional
Services. See Transfer of Administration and Powers and
Functions Entrusted
by Legislation To Certain Cabinet Members in
Terms of Section 97 of the Constitution, GN 47
GG
37839, 12 July 2014, signed by the President transferring the
administrative, powers and functions “entrusted by legislation
to certain cabinet members in terms of section 97 of the
Constitution.” This Proclamation also had the effect of
changing the names of certain government ministries.
[262]
Biowatch Trust v Registrar Genetic Resources
and Others
[2009] ZACC 14
;
2009 (6) SA
232
(CC);
2009 (10) BCLR 1014
(CC).