About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2018
>>
[2018] ZACC 17
|
|
My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17) [2018] ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 249/17
In the matter between:
MY VOTE COUNTS NPC
Applicant
and
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
First Respondent
DEMOCRATIC
ALLIANCE
Second Respondent
Neutral citation:
My Vote Counts NPC v Minister of Justice and Correctional Services
and Another
[2018] ZACC 17
Coram:
Mogoeng CJ, Zondo
DCJ, Cachalia AJ, Dlodlo AJ, Froneman J,
Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J.
Judgments:
Mogoeng CJ majority: [1] to [91]
Froneman J concurring: [92] to [97]
Heard on:
13 March 2018
Decided on:
21 June 2018
Summary:
Constitutionality of
Promotion of Access to Information Act 2 of
2000
— Act constitutionally deficient for failure to provide
for recordal, preservation and disclosure of information on private
funding of political parties and independent candidates
Sections 32, 7(2), 19 of the
Constitution — State’s duty to enable or facilitate
exercise of right to an informed vote
— transparency,
accountability, openness
ORDER
On an application for confirmation of
the order of the High Court of South Africa, Western Cape Division,
Cape Town (Meer J):
1. The order of
constitutional invalidity made by the Western Cape Division of the
High
Court, Cape Town is confirmed, in these terms:
1.1 It is declared that
information on the private funding of political parties and
independent
candidates is essential for the effective exercise of the
right to make political choices and to participate in the elections.
1.2 It is declared that
information on private funding of political parties and independent
candidates must be recorded, preserved and made reasonably
accessible.
1.3 It is also declared that the
Promotion of Access to Information Act 2 of 2000 (PAIA)
is
invalid to the extent of its inconsistency with the Constitution by
failing to provide for the recordal, preservation and reasonable
disclosure of information on the private funding of political parties
and independent candidates.
1.4 Parliament must amend PAIA
and take any other measure it deems appropriate to provide for
the
recordal, preservation and facilitation of reasonable access to
information on the private funding of political parties and
independent candidates within a period of 18 months.
2. Leave to appeal against
the exclusion of the words “continuous and systematic”
from the High Court order is granted but the appeal is dismissed.
3. The Minister of Justice
and Correctional Services must pay costs to My Vote Counts
NPC,
including the costs of two counsel.
JUDGMENT
MOGOENG CJ
(Zondo DCJ, Dlodlo AJ, Goliath AJ, Jafta J, Khampepe J, Madlanga J,
Petse AJ and Theron J concurring):
Introduction
[1]
A true and vibrant constitutional democracy owes its essence
to the existence of three functionally independent arms of the State
– the Executive, Parliament and the Judiciary. That in
turn assumes adherence to high ethical standards and unwavering
commitment to the affirmation or oath of office by a critical mass of
constitutional office-bearers.
[2]
Two of these arms are political in character or orientation.
Consistent with this reality, the architectural design of our
constitutional democracy requires that leaders in these arms first be
elected by the populace
[1]
before any of them, including the Head of State, may be elected by
fellow members in the different legislative bodies to become
a
leading constitutional office-bearer.
[2]
Here, the constitutionally-prescribed instrumentalities for rising to
public office are political parties and independent
candidates.
But it does seem to require a lot of money to run a successful
campaign for public office.
[3]
That said, not all public office-seekers are
adequately-resourced to mount a meaningful campaign for office
without external funding.
Although the State does provide some
financial assistance to political parties for their activities which
include campaigns,
[3]
it appears to be a far cry from what is in fact needed to meet the
demands of running a proper political machinery or electoral
campaign. That inadequacy underscores the need for substantial
monetary aid from the private sector or individuals. And
that
need seems to have birthed another need – the facilitation of
the electorate’s access to information on private
funding.
For, that access—
“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 [public] 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.”
[4]
[4]
Public and private sector corruption is a matter of grave
concern around the world. And it appears that the political
landscape
and by extension governance has not been left untouched.
The need for efficiency and effectiveness in the prevention,
containment
and elimination of corruption linked to the private
funding of political parties and independent candidates seems to cry
out for
urgent intervention. For, corruption that flows from
secret private funding could otherwise stealthily creep into our
political
and governance space, toxify it and fossilise itself to our
detriment, if it has not already done so.
[5]
Several issues thus arise for determination here: (i) the need
to minimise the risk of voters putting into office or even electing
into government a political party or independent candidate who is
corrupt or somehow compromised; (ii) whether a citizen’s
constitutional right to vote necessarily entails the right to cast an
informed vote; (iii) if so, whether that informed vote includes
the
obligatory recordal, preservation and simplified yet effective access
to information on the private funding of political parties
and
independent candidates; and (iv) whether the existing regulatory
framework for the exercise of the right of access to
information enables a voter to enjoy real access to that critical
information.
Background
[6]
My Vote Counts NPC brought an application in the Western Cape
Division of the High Court, Cape Town.
[5]
It essentially challenged the constitutional validity of the
Promotion to Access to Information Act
[6]
(PAIA) on several grounds.
[7]
One of them was that, although PAIA is indeed the national
legislation envisaged by section 32 of the Constitution to give
effect
to a citizen’s right of access to information, it has
failed to do so. This deficiency is however confined to access
to information on the private funding of political parties and
independent candidates. And it flows from, among other things,
the definition of a juristic person or public body
[7]
and a private body
[8]
as well as the onerous requirements for access to information, in
general and in particular on private funding which include the
payment of a fee.
[9]
[8]
To buttress the need for access to information on private
funding, My Vote Counts also relies on both sections 7(2)
and
19 of the Constitution.
[10]
In this regard, it broadly contends that the State is under an
obligation to respect, protect, fulfil and promote the right
to vote
by ensuring that it is exercised meaningfully or with understanding.
And when it is known who is funded by whom,
the likelihood or reality
of political players being inappropriately influenced by those who
fund them, at times to the detriment
of the nation, could be
detected, exposed, minimised or prevented.
[9]
The High Court concluded that PAIA neither applies to
political parties nor to independent candidates nor to all records on
private
funding.
[11]
It in effect held that PAIA’s failure to provide for access to
information on private funding is a deficiency that
renders PAIA
inconsistent with the provisions of sections 32, 7(2) and 19 of the
Constitution,
[12]
read together. The Court however, dismissed the contention that
the order has to provide for a “continuous and systematic”
recordal and disclosure of information on private funding on the
ground that to do so would amount to prescribing to Parliament
how to
execute its constitutional mandate, thus encroaching on its exclusive
domain impermissibly.
[13]
[10]
Because that order of constitutional invalidity is required to
be confirmed by this Court before it can have any force, this Court
is seized with the matter.
[14]
But, My Vote Counts has also sought leave to appeal against the
High Court’s refusal to include the words “continuous
and systematic” in the order.
[11]
None of the political parties opposes the confirmatory
proceedings or the application for leave to appeal. Although
the Democratic
Alliance is cited as the second respondent, it too did
not participate in these proceedings.
[12]
The Minister of Justice and Correctional Services, however,
opposes the confirmation of the order and the application for leave
to appeal. He does so on the grounds that PAIA makes adequate
provision for the recordal and disclosure of information on
the
private funding of political parties and independent candidates.
He also argues that the provision that deals with the
funding of
political parties is not section 32 read with sections 7(2) and
19, but section 236 of the Constitution.
Does this judgment undermine the
Bill?
[13]
We have become aware that Parliament has already embarked on
the process of passing legislation in terms of which the recordal and
disclosure of information on the private funding of political parties
would be regulated.
[15]
And a question has arisen whether the legislative process should
perhaps be left to run its full course before this judgment
could be
produced and delivered. The potential problem being anticipated
is, in other words, whether this judgment could
interfere in some way
with the ongoing parliamentary process and cause confusion that we
should seek to avoid.
[14]
After proper reflection, the production and delivery of this
judgment seems to be appropriate and inevitable. The High Court
has made an order that PAIA is constitutionally invalid to the extent
of its failure to provide for the recordal and disclosure
of
information on the private funding of political parties and
independent candidates. That “order has no force unless
it is confirmed by the Constitutional Court”.
[16]
For this reason, the High Court order cannot be left hanging.
Its merits were debated in this Court so that we may
do what the
Constitution requires of us to do – confirm or set aside the
order.
[15]
In any event, the content of the Bill and its possible impact
on the issues before us was not part of the case that culminated in
the High Court order. The case that was presented to the High
Court, that we are grappling with in these confirmatory proceedings,
has to do with a frontal attack that was launched on the
constitutional validity of PAIA. That is so because, in a
previous
case, this Court correctly ruled that PAIA is the
legislation envisaged by section 32(2) of the Constitution to
regulate access
to information.
[17]
And the long title of PAIA makes this abundantly
clear. It refers to the right of access to information and that
PAIA is the national legislation “enacted to give effect to
this right”.
[18]
It was for that reason, that this Court held that
PAIA’s constitutional validity had to be attacked
frontally.
[19]
And this is what My Vote Counts did successfully in the
High Court. The case was about the need to regulate the
recordal
and disclosure of information on the private funding of
political parties and independent candidates and was specifically
grounded
on section 32 read with sections 7(2) and 19 of the
Constitution as well as PAIA.
[16]
The ongoing law-making process may comfortably run parallel to
this judgment without the one being undermined by the other in any
way. This is so because the Bill is intended to provide
exclusively and uniquely for the recordal and disclosure of
information
on the private funding of political parties – not
to give effect to the High Court order sought to be confirmed
here.
[17]
Parliament enjoys functional independence in the discharge of
its law-making obligations even in relation to the regulation of
private
funding. Whether it does so through one, two or more
pieces of legislation falls squarely within its discretionary
powers.
It may for example meet that obligation through an
appropriately recalibrated PAIA alone, PAIA and another legislation
or a different
mechanism altogether.
The right of access to information
[18]
My Vote Counts sought information relating to private funding
from some political parties. It did so in terms of section 32
of the Constitution read with the relevant provisions of PAIA.
[20]
Some of them successfully took cover under the provisions of PAIA
[21]
to avoid disclosing that information. This then triggered the
need to challenge the constitutional validity of aspects of
PAIA in
the public interest
[22]
based on, among others, section 32 of the Constitution.
[19]
Section 32 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.”
[20]
The word “everyone” is wide enough to accommodate
both a juristic and a natural person. Similarly, “another
person” in this context suggests a person other than the State
and is on the face of it wide enough to apply to a natural
and
juristic person, including a political party or an independent
candidate.
[21]
The word “held” is broad. It connotes
control over information captured or “held” in written
form,
in human memory, in some electronic or audio-visual contraption
or any other form capable of holding information. The noun
“record” in PAIA is thus meant to connote nothing more
than a mechanism or consequence or product of capturing or keeping
whatever information might be needed or required.
[23]
This meaning is wide enough to apply to “held”
in any portion of section 32.
[22]
“Any information” includes information about the
private funding of political parties or independent candidates.
[23]
And when access is sought to information in the possession of
the State, then it must be readily availed. A challenge is,
generally speaking, likely to arise when information is “held
by another person”. There, information is accessible
only
when “required”. And “required” implies
the need to demonstrate that there is a legitimate reason
to grant
access to that information. That ostensibly serves the purpose
of ruling out unnecessary or spurious requests.
For, some
information might indeed be such as to render it necessary for a
requester to explain why it is really said to be required.
That
is an internal qualifier. Information would thus be accessible
only if the requester is able to demonstrate that
it is reasonably
needed or required “for the exercise or protection of any
rights”. To meet this requirement,
it would be necessary
to disclose the right(s) that the requester seeks to exercise or
protect. Only when so satisfied would
the custodian of that
information have to give it to the requester.
[24]
What then is the reasonable or best form in which certain
information must be held? Should it be discretionary or
obligatory
that all or some information be held? How best
should information be “held” to facilitate disclosure
when required?
For example, funding is generally given to a
political party for the benefit of the collective membership not an
individual.
Such information must be held or recorded.
Similarly, the use of funding for independent candidates would
ordinarily have
to be accounted for. To do so requires
record-keeping and the preservation of that record. But that
still begs the
question which Parliament might wish to reflect on.
And that is a possible need for a rights-sensitive approach to
holding
and disclosing information. Who should hold and
disclose which information? Must it necessarily or ideally be
held
by the one who first received it and about whom enlightenment
might be required? Is the State best placed to hold certain
information to facilitate reasonable access to it by all who need it
for the exercise and protection of certain fundamental rights
as a
way of honouring its section 7(2) constitutional obligations, as is
the case with Judges, Parliamentarians and Members of
the Executive?
[25]
Broadly speaking, the nature, importance and purpose of
certain constitutional rights or information that relates to them,
could
necessitate that information be kept and recorded for the sake
of, among other things, transparency and accountability. It
is
conceivable that Parliament might be more permissive in this
connection. It might for example identify rights in relation
to
which information ought to be readily or reasonably accessible.
The Constitution might, in relation to certain provisions,
like the
right to vote, have to be read as requiring of all persons to record
or hold and preserve information in a way that would
render it
capable of being reasonably accessible or disclosable.
The right to vote
[26]
The citizens’ right to express their “will”,
[24]
on which government is based, is provided for in section 19 of the
Constitution in these terms:
“(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.”
[27]
The section highlights the right every citizen has to “make
political choices”. Choice is of its own a loaded
concept. And much more is required of a choice-maker if the
choice to be made is political in character and affects important
national interests. The gravity of the choice is more
pronounced in relation to the right of an adult citizen to
participate
or vote in the elections for “any legislative
body”. This is because of the centrality of elections in
the functioning,
preservation and effectiveness of our constitutional
democracy.
[28]
To recruit members or supporters and campaign for a political
party or a political cause, information would be needed. To be
able to distinguish one’s party or cause from others would
likewise require access to information about them. One also
needs to know more about one’s competitors to be able to
appreciate their strengths, expose their weaknesses or wrongdoing
and
magnify one’s strengths and make an informed comparison between
her presumably more progressive policies and objectives
and theirs.
[29]
Finally, the section addresses the fundamental right every
adult citizen has “to stand for public office and, if elected,
to hold office”. Our Constitution does not itself limit
the enjoyment of this right to local government elections.
The
right to stand for public office is tied up to the right to “vote
in elections for any legislative body” that is
constitutionally
established. Meaning, every adult citizen may in terms of the
Constitution stand as an independent candidate
to be elected to
municipalities, Provincial Legislatures or the National Assembly.
The enjoyment of this right is not and
has not been proscribed by the
Constitution. It is just not facilitated by legislation. But
that does not mean that
the right is not available to be enjoyed by
whoever might have lost confidence in political parties. It
does, in my view,
remain open to be exercised whenever so desired,
regardless of whatever logistical constraints might exist.
[30]
The issues before us must thus be addressed as they ought to
apply to political parties and independent candidates for any
constitutionally-recognised
legislative body. After all, the
need for the recordal and disclosure of information ought to be
fundamentally the same for
all political parties and independent
candidates regardless of whether or not they are registered or seek
to hold public office
at a local, provincial or national level.
And the parties in this matter have all grounded their contentions on
the Constitution.
It is to those constitutional provisions that
we must address ourselves.
[31]
Some of the values on which our democratic State is founded
are: “[u]niversal adult suffrage, a national common voters
roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and
openness”.
[25]
Citizens thus exercise their right to vote in terms
of the Constitution. They presumably want to vote into public
office people with the character, credentials and qualities necessary
to build a future that every responsible and patriotic citizen
yearns
for. And that is a future that would redound to the good of all
citizens.
[26]
Regular elections, accountability, responsiveness, openness and
public office-bearers who are committed to the core values
and
principles for good governance laid down in section 195 of the
Constitution are what would facilitate the attainment of
the South
Africa we all deserve.
[27]
[32]
The right to vote derives its fundamentality from the central
role voting plays in the establishment, functionality and vibrancy
of
a constitutional democracy. It is a pre-requisite for the very
existence of the Legislature and the Executive at all levels
of the
State. And the proper exercise of that right is so critical to
the coming into being of our political arms of the
State and the
effective and efficient functioning of the entire State machinery
that the need for transparency and accountability
from those seeking
public office is self-evidently more pronounced. The future of
the nation largely stands or falls on how
elections are conducted,
who gets elected into public office, how and why they get voted in.
Only when transparency and accountability
occupy centre stage before,
during and after the elections may hope for a better tomorrow be
realistically entertained.
[33]
This case is after all about establishing a principle-based
system that will objectively facilitate the meaningful exercise of
the
right to vote, regard being had to its veritable significance.
The system’s inbuilt capacity to sift the corrupt from
the
ethically upright is an indispensable requirement. For this
reason, any information that completes the picture of a political
party or an independent candidate in relation to who they really are
or could be influenced by, in what way and to what extent,
is
essential for the proper exercise of the voter’s “will”
on which our government is constitutionally required
to be based.
[28]
An environment must thus be created for the public to know more
than what is said in manifestos or during campaign trails.
As
will become apparent below, what is implicitly envisioned by section
19 is an informed exercise of the right to vote.
[34]
For every citizen to be truly free to make a political choice,
including which party to join and which not to vote for or which
political cause to campaign for or support, access to relevant or
empowering information must be facilitated. Not only must
the
information be “held” in one form or another, it must
also be reasonably accessible to potential voters.
They need it
to be able to make a quality decision to vote for a particular
political party or independent candidate.
[35]
For, there is a vital connection between a proper exercise of
the right to vote and the right of access to information. The
former is not to be exercised blindly or without proper reflection.
In this regard, Ngcobo CJ made the following observations:
“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.”
[29]
[36]
Public office is so important that it is only to be ascended
to by those who have been properly examined and found worthy to
represent
the electorate. And that may only be so with the
benefit of information. Without it, “the ability of
citizens
to make responsible political decisions and participate
meaningfully in public life is undermined”.
[37]
By its very nature, the proper exercise of the right to vote
is largely dependent on information. No wonder it takes months,
at times even a year or more, for political parties and independent
candidates to wage a campaign for public office. This
entails
imparting whatever information they consider necessary for the
electorate to know more about them. That information-sharing
process takes the form of many house-to-house visits, town-hall and
stadia meetings, radio and television interviews and newspaper
articles. Billboards and advertisements are routinely used for
the same purpose. There is wide coverage of electoral
campaigns
on all media platforms and they are fundamentally about sharing
information so that the electorate know more about those
public
office-seekers.
[38]
That information is generally calculated to have voters
believe that the candidate it relates to can be trusted and deserves
their
support because she is best-placed to serve citizens in the
public office being campaigned for. It seeks to demonstrate
their
abhorrence of corruption and all facets of unethical conduct.
It is also meant to assure the public of their commitment to
our
constitutional values
[30]
and good governance. The centrality of information to this
process cannot be over-emphasised.
[39]
This then means that political parties and independent
candidates should not be left to pick and choose what information
would be
“held”, preserved and disclosed to those who
depend on information to determine to whom to entrust their future,
that
of the nation and posterity. All information necessary to
enlighten the electorate about the capabilities and dependability
or
otherwise of those seeking public office must not only be
compulsorily captured and preserved but also made reasonably
accessible.
[40]
The reality is that private funders do not just thoughtlessly
throw their resources around. They do so for a reason and quite
strategically. Some pour in their resources because the
policies of a particular party or independent candidate resonate
with
their world-outlook or ideology. Others do so hoping to
influence the policy-direction of those they support to advance
personal or sectional interests. Money is the tool they use to
secure special favours or selfishly manipulate those who are
required
to serve and treat all citizens equally.
[41]
Unchecked or secret private funding from all, including other
nations, could undermine the fulfilment of constitutional obligations
by political parties or independent candidates so funded, and by
extension our nation’s strategic objectives, sovereignty
and
ability to secure a “rightful place”
[31]
in the family of nations. Our freely elected representatives
must thus be so free that they would be able to focus and deliver
on
their core constitutional mandate. They cannot help build a
free society if they are not themselves free of hidden potential
bondage or captivation.
[42]
The commitment to build “a united and democratic South
Africa” and to “improve the quality of life of all
citizens”
[32]
can only be honoured by public office-bearers whose character or
will-power is unencumbered. Only when there is a risk of
being
exposed for receiving funding from dubious characters or entities
that could influence them negatively, for the advancement
of personal
or sectoral interests, would all political parties and independent
candidates be constrained to steer clear of such
funders and be free
to honour their declared priorities and constitutional obligations.
And that risk would be enabled by
a regime that compels a disclosure
of information on the private funding of political players.
[43]
That said, it is probably correct that not every voting
citizen would necessarily seek information about the private funding
of
political parties and independent candidates. Blind loyalty,
ready access to information by reason of proximity to public
office-seekers, illiteracy or other factors could probably explain
why. But that is not the point. The State is under
an
obligation to do everything reasonably possible to give practical and
meaningful expression to the right of access to information
and the
right to vote. These two are human rights and freedoms.
And one of the foundational values of our State is
“the
advancement of human rights and freedoms.”
[33]
[44]
The cumulative effect of these responsibilities yields an
outcome that requires of the State
[34]
to pass legislation that provides for the recordal, preservation and
reasonable accessibility of information on private funding.
If
these principles were not infused into our constitutional
jurisprudence, it would be very difficult to give real meaning to
the
right of access to information within the context of the right to
vote. The role of transparency and accountability,
that are
essential for rooting out the corruption that could be enabled by
undisclosed private funding, reinforces the need to
record, preserve
and disclose. A reasonably accessible or disclosable record in
this connection thus needs to be kept and
not destroyed at the
discretion of the holder.
Transparency, accountability and
corruption
[45]
Secrecy enables corruption and conduces more to a disposition
by politicians that is favourable towards those who funded them
privately
once elected into public office. This is likely to
flourish even where information on private funding is “held”
at the discretion of the funded and unlikely to be exposed to “the
light of publicity”.
[35]
For this reason, information on private funding must be
compulsorily “held”. PAIA captures “record”
in sufficiently broad terms to ensure that as much information as
possible in the envisaged categories is “held”.
[36]
[46]
Because the right of access to information cannot be exercised
in a vacuum, section 32(1)(b) alludes to the need to explain that
the
purpose for seeking information “held” by another person
is for the exercise or protection of any rights.
If it were not
an implicit constitutional requirement for information relating to
the proper exercise of certain constitutional
rights to be “recorded”
and “held”, it is conceivable that “another person”
could easily cave
in to the temptation not to hold some sensitive and
potentially revealing information, or having “held” it to
destroy
it, so that there would be nothing available to disclose.
But, even apart from disclosure being an aid that could discourage
corruption, information does help one to know more about an entity or
person.
[47]
The loophole or leeway “not to hold” or not to
preserve information and the consequential non-disclosure of
information
relating to private funding or quantifiable support in
kind, constitutes fertile ground for undermining or even subverting
the
real “will of the people” that is expressible through
voting. If the door is left open to potentially or actually
compromised political parties or independent candidates to be voted
into and hold public office, then the government birthed by
such
flawed political players could hardly be described as truly based on
the “will” of the people. That government
or
legislative body would not find it easy to implement the good
governance and efficiency-enhancing practices prescribed by section
195 of the Constitution.
[48]
The foundational values of our constitutional democracy like
openness, responsiveness, accountability and the realisation of the
constitutional vision of building a united nation and improving the
quality of life of all, could thus be at the mercy of unknown
and
even unscrupulous funders. For, there is indeed no free lunch.
This is not to say that all funders are, without
more, intent on
furthering selfish or sectional interests at the expense of national
interests. But some big political campaign
funders even in old
democracies have been exposed as being inclined
[37]
“to use money for improper purposes”.
[38]
They reportedly tend to determine or influence in a meaningful way,
the policy-direction to be pursued by those in whose
political life
or fortunes they “invested” their resources.
[39]
And when elected public office-bearers are illegitimately dictated
to, that is likely to poison the broader political landscape
and
governance, thus weakening or throttling our shared values and
constitutional vision. Lack of transparency on private
funding
provides fertile and well-watered ground for corruption or the
deception of voters.
[49]
Unsurprisingly, the United Nations Convention Against
Corruption, which our Parliament has duly ratified, enjoins State
Parties
to:
“consider
taking appropriate legislative and administrative measures consistent
with the objectives of this Convention and
in accordance with the
fundamental principles of its domestic law, to enhance transparency
in the funding of candidatures for elected
public office and, where
applicable, the funding of political parties.”
[40]
[50]
In the same vein, the African Union Convention on Preventing
and Combating Corruption, which we have also ratified, says:
“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.”
[41]
[51]
Transparency in the area of the private funding of political
parties and independent candidates helps in the detection or
discouragement
of improper influence and the fight against
corruption.
[42]
Both
the African Union and the United Nations
have come to this realisation and have taken appropriate steps to
help inject transparency
and root out corruption in relation to
private funding. Politicians who use public office in the
furtherance of the agendas
of benefactors, at the expense of the best
interests of all, are very likely to be found out where there is
transparency. The
recordal, preservation and disclosure of
information on the private funding of political players will thus
keep voters better-equipped
to make out the real interests these
politicians are likely to serve.
[52]
Access to this information helps voters and contestants to
speak against and expose the corrupt “pay-back-time”
political
practices. The known possibility of voters and
political rivals being able to make the necessary connection between
private
funding and the likely or actual stance of political parties
and independent candidates on policy matters of importance, does have
the predictable effect of discouraging the pursuit of corrupt or
selfish sectarian agendas. And, it also frees our public
representatives to do what they promise and are obliged to do,
unencumbered by potentially corrupt deals that could be enabled
by
undisclosable private funding. If secrecy thrives, then our
constitutional project would be at risk of being betrayed
or
shipwrecked.
The need for access by all key
players
[53]
It is now settled that information on private funding is vital
for the proper exercise of the right to vote. But, not all
voters appreciate the need to inform themselves and make an informed
political choice. Predictable hurdles to the free flow
of
information on private funding to the broader public, through as many
platforms as possible, must thus be removed. Failure
to ease
access to information for all those who could source and impart that
information to the broader public would reduce this
judgment to
nothing more than a pyrrhic victory for voters. To give
substance to access to this information, clarity is required
as to
just how reasonably accessible it is, even to those who do not need
it for voting, but for the education of the voting public.
[54]
Access to public office is a highly contested terrain.
Contestants ought therefore to have virtually unrestrained access to
information on the private funding of one another. This way
they would be able to use it to expose and eliminate corruption
or
the appearance of corruption tied up to funding. Similarly, the
extensive reliance on the media by those seeking public
office and
the voting public, demands that information on private funding also
be availed not only to political players but also
to the media.
And not to be left out is the academia. For, the latter are a
resource widely used to either provide
political advice or critical
political analysis on all forms of media platforms. To do that,
they too need reasonable access
to information on the funding of
political players.
[55]
But, a proper basis must be laid for that information to be
made just as accessible to them. It must thus be demonstrated
at the level of principle that they too require that information “for
the exercise or protection of any rights”.
It would be
disingenuous of a political party, a media outlet or an academic to
rely on section 19 when in fact the information
is required for the
exercise or protection of another right or other rights.
Integrity is key and must be facilitated here.
And section
16(1) of the Constitution lays a solid basis for political players,
non-governmental entities, the academia and the
media to have
reasonable access to it. It provides:
“Everyone has
the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information
or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific
research.”
[56]
The right to freedom of expression is available for the
enjoyment of “everyone”. “Everyone” here is
as all-encompassing
as “everyone” in section 32 (1) of
the Constitution. Non-profit organisations like My Vote Counts,
political parties, independent candidates, the media, the academia
and indeed “everyone” ought to be able to effectively
exercise or protect all facets of the right to freedom of
expression. We all therefore enjoy the right to freedom of
expression
in relation to information on private funding that is
essential for meaningful participation in the electoral process.
[57]
The media and the press are doubly covered by section 16(1)(a)
of the Constitution in their entitlement to information that could
help them exercise or protect “any rights”.
[43]
The academia is similarly-situated by reason of section 16(1)(d).
As for political parties, independent candidates
or the likes of
My Vote Counts, who do not necessarily need information for
the purpose of exercising or protecting their
right “to vote in
elections for any legislative body established in terms of the
Constitution”, this section provides
the basis for their access
to information on private funding.
[58]
Section 16(1)(b) guarantees “everyone” the right
to “freedom to receive or impart information or ideas”.
This is an omnibus provision so wide that it appears incapable of
leaving any willing passenger behind. In a political
environment
like elections, information on funding is needed by party
members or supporters of a political cause to recruit, campaign and
generally
impart information or ideas. All of them including
NGOs, the media and academia need to “receive”
information
relevant to voting to in turn be able to “impart”
and cause others to “receive” processed information from
them. These are rights open to them to exercise or protect.
The State’s constitutional obligation to ensure that
this
information is not deceptively or selectively recorded, is preserved
and reasonably accessible to voters, also extends to
all, especially
information-disseminating and public interest-advancing
establishments.
Is PAIA deficient?
[59]
My Vote Counts launched a frontal challenge to the
constitutional validity of PAIA. It contends that, properly
understood,
section 32 read with sections 19 and 7(2) of the
Constitution requires Parliament to pass legislation that provides
for the recordal
and disclosure of information on the private funding
of political parties and independent candidates. Also, that
PAIA being
the legislation passed in an attempt to fulfil this
obligation has failed to do so.
[60]
The High Court made the following order:
“1.
It is declared that information about the private funding of
political parties and
independent ward candidates (the latter concept
as contemplated in section 16 of the Local Government: Municipal
Electoral
Act 27 of 2000) (independent candidates) registered for
elections for any legislative body established under the Constitution
(private
funding information) is reasonably required for the
effective exercise of the right to vote in such elections and to make
political choices, in terms of sections 19(1), 19(3), 32 and 7(2) of
the Constitution of the Republic of South Africa, 1996 (the
Constitution).
2.
It is declared that the Promotion of Access to Information Act 2 of
2000 (PAIA)
is inconsistent with the Constitution and invalid insofar
as it does not allow for the recordal and disclosure of private
funding
information.
3.
The declaration of invalidity in para 2 above is suspended for 18
months in order
to allow Parliament to remedy the defects in PAIA and
to allow for the recordal and disclosure of private funding of
political
parties and independent candidates.
4.
The costs of this application, including the costs of two counsel,
shall be borne
jointly and severally by the second and sixth
respondents.
5.
The registrar of this court is directed in terms of section 172(2) of
the Constitution,
read with
section 15(1)(a)
of the
Superior Courts
Act 10 of 2013
, to refer this order within 15 days to the
Constitutional Court for confirmation.”
[44]
To confirm this order, we must first be
satisfied that it was correctly granted.
[61]
Section 32
contemplates two holders of potentially disclosable
information – the State and “another person”.
Although
“another person” is not defined by the
Constitution, it is the only category capable of accommodating
political parties
and independent candidates which obviously do not
fall under the category of “the State”. And the
definition
section of PAIA says “person means a natural person
or juristic person”.
[45]
We thus have to determine first, not only whether the
definitional section of PAIA includes political parties and
independent
candidates, but also whether “recorded” and
disclosable information includes that which is “held” by
them.
[62]
PAIA sets out circumstances under which a requester would be
entitled to information, which at times include the payment of a
fee.
[46]
And that is information held by what PAIA, among others, refers
to as a “private body”. For the purpose
of this
case, it is necessary to understand what a private body is.
Section 1 of PAIA defines a private body as—
“(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.”
[63]
It follows from this definition that, although an independent
candidate is indeed a natural person, he or she is one who is
excluded
from the meaning of a private body and the application of
PAIA. Only “a natural person who carries or has carried
on
any trade, business or profession but only in such a capacity”
could be requested to disclose information or a “record”
that relates to that activity. Even if an independent candidate
is a professional, trader or business person she would still
be
excluded. Since the information required from her would not be
about what she did or does in her capacity as a professional
or
trader or business person, but about the private funding of her
political activities, then access cannot be granted. An
independent candidate for public office is therefore doubly excluded.
To the extent that PAIA excludes the disclosure of
information
on the private funding of independent candidates that is required for
the exercise or protection of the right to vote
or impart information
or ideas, it is constitutionally defective.
[47]
[64]
The meaning of “private body” extends to “any
former or existing juristic person”. A juristic person
is
by the way an entity or association that possesses attributes such as
perpetual succession, the capacity to acquire certain
rights apart
from its members and to sue or be sued in its name or through its
institutional head. This legal personality
status is
conferrable either by legislation or the common law.
Legislation that creates an entity like a university or state-owned
enterprise ordinarily bestows legal personality upon that entity.
And it is a statutory precondition for the incorporation
or
registration of some entities that they be juristic persons with the
legal capacity to sue or be sued. Other entities
could derive
their legal personality from their constitutions.
[65]
Political parties are neither created by legislation nor
required by any legislation to be juristic persons. But, they
can
in terms of their constitutions clothe themselves with juristic
personality, including the capacity to sue or be sued. In
all
probability, most political parties are juristic persons. PAIA
therefore applies to them. However, since there
is no law that
requires political parties to be juristic persons, a real possibility
does exist that some have deliberately or
inadvertently not provided
for their legal personality in their constitutions. That this
probably applies to a small number
is neither here nor there.
It is an absolute necessity that all, not some, political parties be
required to record, preserve
and disclose information on their
private funding. After all, any of them has the possibility to
be elected into power aided
by private funders. For this
reason, to the extent that PAIA does not cover those political
parties that are not juristic
persons, it is constitutionally
deficient.
[66]
The real question is whether PAIA provides for the recordal,
preservation and disclosure of information on the private funding of
political parties and independent candidates. Sections 18 and
53 of PAIA do not pass muster. They prescribe a form
to be
completed with laborious particularity. And information on
private funding would have to be requested from a particular
political party for a specific purpose or as and when it is needed.
To have it, a fee must be paid and the record asked for
must
obviously be in existence. It is a cumbersome process that many
would not be able to follow. PAIA does not impose
any
obligation to record information on the private funding of political
parties and independent candidates, but even if it did,
provision was
not made for reasonable access.
[67]
Information might be withheld on the basis that it is likely
to harm the commercial or financial interests of say the private or
public body or would amount to a breach of a duty of confidence owed
to a “funder” in terms of an agreement.
[48]
Possible legal action for breach of a duty of confidence owed
to a third party in terms of an agreement could justify denial
of
access to information.
[49]
In some respects, PAIA offers mandatory protection of the
privacy of third parties.
[50]
[68]
All of the above highlight PAIA’s inconsistency with the
constitutional obligation to avail information on private funding
to
all who need it in a reasonable manner. In sum, PAIA is
deficient because it does not provide that: (i) information on
the
private funding of political parties and independent candidates be
recorded and preserved; (ii) it be made reasonably accessible
to the
public; and (iii) independent candidates and all political parties
are subject to its provisions. Additionally, it
suffices to say
that no compelling reasons exist to justify these limitations.
What is to be done?
[69]
The right of access to information read with the entitlement
to exercise or protect the informed right to vote, and the State’s
section 7(2) obligation to respect, promote and fulfil the rights in
the Bill of Rights, implicitly demands that information on
the
private funding of political parties and independent candidates be
recorded, preserved and made reasonably accessible to the
public.
[70]
Part of what stands in the way of making information
reasonably accessible to voters in terms of PAIA is the laborious
procedure
to be followed
[51]
and the fees actually or potentially payable by the requester of the
information.
[52]
It does not help much that this crucial information could only be
freely accessible at the discretion of the Minister.
[53]
Reasonable access should be institutionalised. It is not to be
subject to the benevolent exercise of a ministerial
discretion.
This is so because it ultimately helps to determine whether those
elected will handle the bread and butter issues
of the people well.
It must, so to speak, be free-flowing.
[71]
There are some good and strong pointers in PAIA itself to what
could possibly be done to properly record and make information on
the
private funding of political parties or independent candidates easily
or reasonably accessible.
[54]
It cannot be emphasised enough that it would be erroneous to
construe section 32 as conferring an absolute or blanket entitlement
to seekers of any information required from whomsoever for the
exercise or protection of all rights. The ease with which
it is
made accessible ought to depend on the nature of the right whose
exercise or protection is sought to be facilitated.
If that
right self-evidently requires particular information to be properly
exercisable, then a person or entity in need of it
does not always
have to explain the need. The right to vote is one such
example. It is intrinsic to its proper enjoyment
and its
essentiality that all information, that could reveal the potential
disadvantage that private funding could bring about,
be recorded and
easily or reasonably accessible.
[72]
It is enough to lay down a principle that requires the State
to ensure that the information be recorded, preserved and disclosable
in a reasonably accessible manner and that it is not to be paid for.
Millions of voting South Africans are unemployed.
And even
those who are employed need every Rand they earn to meet their basic
necessities. Those who stand to benefit from
these people’s
vote or participation in the elections ought to be agreeable to a
regulatory framework that facilitates the
recordal, preservation and
reasonable access to information that could shed more light on who
they really are and whose favours
they might have to return.
That information is indeed essential for voting and imparting
information.
[73]
More importantly, it remains the primary duty of the State
[55]
to ensure that it facilitates access to information that would
enhance the enjoyment of fundamental rights. For this reason,
the nature of the information on private funding is such that
Parliament might, if so advised, impose on the State or any of its
organs the duty to hold, preserve and disclose that information, so
that voters may have ready or reasonable access, as envisaged
by
section 32(1)(a) of the Constitution. Be that as it may,
whatever Parliament might decide to do, the State is obligated
by a
proper reading of section 32 with sections 19 and 7(2) to make this
information reasonably accessible to the public.
[74]
The consequence of all this is that political parties and
independent candidates are constitutionally obliged to record,
preserve
and disclose information on private funding. But,
because section 7(2) imposes the obligation on the State to
facilitate
the enjoyment of rights in the Bill of Rights, and section
32(2) requires the enactment of national legislation to essentially
provide for the recordal or “holding” and disclosure of
required or needed information, it thus falls on the shoulders
of the
State to honour its section 7(2) obligations.
[75]
How best to fulfil that obligation should be left to
Parliament which bears the legislative authority of the Republic.
No
information on the private funding of political parties or
independent candidates may be “unheld” or “unrecorded”
or destroyed at the discretion of the holder and therefore
undisclosable. This must however not be understood to be a
definitive
pronouncement on whether it would be justifiable for
Parliament to include or exclude the recordal and disclosure of some
information
on say R10 contributions or the cleaning of offices or
premises for free by one or more people. It is arguably an
incredibly
tedious exercise to have to record and disclose every
quantifiable assistance or support given to a political party or
independent
candidate, however negligible. Jurisprudence in one
of the older democracies singles out for special attention “large
contributions and expenditures” and “most generous
supporters”.
[56]
That said, whether they should be required to record and disclose any
and every help, is a matter best left to Parliament
to reflect and
decide on.
[76]
It does not fall within the remit of this Court to prescribe
to Parliament whether the recordal, preservation and disclosure of
all information relating to private funding should be regulated in
terms of PAIA, or PAIA and another legislation or PAIA and other
measures. Again, that is a decision to be taken by Parliament
itself. Our duty is to articulate the unfulfilled obligation
in
broad terms, but with sufficient clarity to give Parliament a fair
sense of what is required of it. We are required to
provide
broad guidelines on what could be considered by Parliamentarians in
developing a fitting regulatory framework in this connection.
The fundamental principle that must be underscored here is that
information on the private funding of political parties and
independent
candidates must be “held” or “recorded”,
preserved and be reasonably accessible.
Leave to appeal
[77]
For the above reasons, the application for leave to appeal
against the High Court’s exclusion of the words “continuous
and systematic” recordal and disclosure in the order is
granted. This is done because there are indeed reasonable
prospects of success and it is in the interests of justice to do so.
But, the appeal must itself be dismissed. Voters
will get all
they need based on the appropriately modified order granted by the
High Court guided by the reasoning in this judgment.
The words
sought to be added are not only prescriptive but superfluous.
[78]
The contention that the order must stipulate that the recordal
and disclosure of information must be “continuous and
systematic”
was addressed by the majority in this Court in the
My Vote Counts
judgment as follows:
“Summarising
it, our difficulty with the minority judgment is twofold. 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.”
[57]
[79]
The majority went on to say:
“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.
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.”
[58]
[80]
It is not for this Court to insist on Parliament having to
provide for a “continuous and systematic” recordal and
disclosure
of information on private funding. It suffices to
require of Parliament to provide for the holding, preservation and
reasonable
disclosure of information on private funding.
Suspension of the declaration of
invalidity
[81]
The High Court suspended the declaration of invalidity “for
18 months in order to allow Parliament to remedy the defects in
PAIA
and to allow for the recordal and disclosure of private funding of
political parties and independent candidates”.
[59]
It is necessary to reflect more on the rationale for the suspension
of a declaration of invalidity and its legal implications.
[82]
The suspension of the declaration of invalidity draws its
force from the Constitution and has a purpose to serve. Section
172 provides for it in these terms:
“(1) When
deciding a constitutional matter within its power, a court—
. . .
(b)
may make an order that is just and equitable, including—
. . .
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions,
to allow the competent authority to correct the
defect.”
[83]
The suspension of the declaration of invalidity is meant “to
allow the competent authority to correct the defect”.
But, it is not merely about allowing for the correction of the
defect. There is a vital connection between the nature of
the
defect that lies at the heart of the declaration of invalidity and
the need to suspend the order of invalidity. The particular
nature of the defect is critical to the decision to suspend.
The overriding consideration should always be whether the nature
of
the defect is such that the enjoyment of benefits provided for by the
invalidated provision would cease to flow if the order
of invalidity
is not suspended. It would therefore be necessary to suspend an
order of invalidity in circumstances where
its continued operation
would otherwise have a detrimental effect on the rights or interests
whose enjoyment was facilitated by
the invalidated provision.
[84]
Meaning, absent harm or prejudice to the public or any
interests no suspension would be necessary. This is so because
logically
a suspension is triggered by negative or undesirable
consequences that would otherwise flow from a failure to suspend.
For
example, when provisions that regulate certain processes that
benefit the public like firearm or business licensing are declared
constitutionally invalid but licensing must go on, then the order of
invalidity must be suspended because failure to do so would
mean that
the mechanism for regulating licensing would immediately cease to
exist to the prejudice of the public.
[60]
And one of the conditions often attached to the suspension is a
period within which the defect must be corrected by the competent
authority. In appropriate circumstances, the operation of the
provision would, pending curative action, be subject to words
severed
from or read into that provision. The order of suspension is
not without purpose nor is it an automatic consequence
of a
declaration of invalidity.
[85]
In this case, no consequence would flow from a failure to
suspend the declaration of invalidity. No provision of PAIA was
declared invalid in the sense that it would, barring the suspension,
ordinarily be required not to apply to the extent of its
inconsistency
with the Constitution. Virtually all provisions
of PAIA stand as if nothing has happened. It is the omission to
provide
for the recordal and disclosure of private funding that is
inconsistent with the Constitution and invalid. This is so
because
the Constitution, properly construed, requires that this
should have been done. The bite of the declaration of
invalidity
thus falls on PAIA’s failure or omission. Meaning
that none of the consequential provisions of PAIA is itself nullified
by the order or inconsistent with the Constitution. It is the
incidence of what is not there that is. The extent of
the
inconsistency is nothing but a lamentation of the lacunae in PAIA.
[86]
It bears emphasis that there is no section of PAIA whose
application is tangibly or actually affected by the declaration of
invalidity.
The purpose of the declaration of invalidity is to
alert Parliament to its inadvertent dereliction of a constitutional
duty.
It must amend PAIA and, if so advised, pass another
legislation that would remedy the deficiency now detected and brought
to its
attention. There is thus no purpose that would be served
by suspending the declaration of invalidity.
[87]
What needs to be done, though, is to ensure that Parliament
does not take inordinately long to cure the exposed defect. But
that does not require a suspension. It requires an order that
directs Parliament to cure the deficiency within whatever period
we
deem appropriate.
[88]
A concern might well arise that the failure to suspend would
leave access to information unregulated by PAIA, thus leaving it to
be exercisable only in terms of the Constitution. Well, PAIA
does not regulate or regulate appropriately, access to information
on
the private funding of political parties and independent candidates,
which this case is about. There is thus no difference
in effect
between the position before and after the declaration of invalidity.
In the interim, it is open to those seeking
access to information on
private funding to do so in terms of section 32(1)(b) of the
Constitution or the relevant provisions of
PAIA as understood within
the context of this judgment. All they would have to do is
state that they require information
for the exercise or protection of
the right to vote. For the correct position is indeed that
those who require information
for the exercise or protection of the
right to vote, reasonable access would no doubt have to be
facilitated by this judgment.
The only challenge might be that
it had never before been known to be obligatory to record and
preserve it. As a result,
some of it might not have been
recorded or might have been destroyed and could therefore be “unheld”
and unavailable.
[89]
In conclusion, declarations of constitutional invalidity are
often accompanied by a suspension. But the underlying reason is
that a failure to do so would otherwise yield consequences adverse to
the rights or interests hitherto enjoyed or advanced. It
should
never be done without a purpose. If that were ever done by this
Court before, it would have been an oversight we dare
not shy away
from correcting. We are not to follow our judgments or aspects
of them even when they are demonstrably incorrect.
It should be
right to acknowledge and correct our errors. Remedies given by
our courts must after all be effective.
[61]
[90]
An order directing Parliament to address the deficiencies of
PAIA within a specified period would thus be made. The order of
the High Court will be confirmed in the terms set out below and costs
will follow the result.
Order
[91]
In the result, the following order is made:
1.
The order of constitutional invalidity made by the Western Cape
Division of the High
Court, Cape Town is confirmed, in these terms:
1.1
It is declared that information on the private funding of political
parties and independent
candidates is essential for the effective
exercise of the right to make political choices and to participate in
the elections.
1.2
It is declared that information on private funding of political
parties and independent
candidates must be recorded, preserved and
made reasonably accessible.
1.3
It is also declared that the Promotion of Access to Information Act
2 of 2000 (PAIA)
is invalid to the extent of its inconsistency
with the Constitution by failing to provide for the recordal,
preservation and reasonable
disclosure of information on the private
funding of political parties and independent candidates.
1.4
Parliament must amend PAIA and take any other measure it deems
appropriate to provide for
the recordal, preservation and
facilitation of reasonable access to information on the private
funding of political parties and
independent candidates within a
period of 18 months.
2.
Leave to appeal against the exclusion of the words “continuous
and systematic”
from the High Court order is granted but the
appeal is dismissed.
3.
The Minister of Justice and Correctional Services must pay costs to
My Vote Counts
NPC, including the costs of two counsel.
FRONEMAN
J (Cachalia AJ concurring):
[92]
In his characteristically vibrant manner the Chief Justice
concludes in the main judgment that information on the private
funding
of political parties and independent candidates is essential
for the effective exercise of the right to make political choices and
to participate in elections and that information on this private
funding must be recorded, preserved and made reasonably accessible.
I agree with this and the order made to give effect to this legal
holding. Why a separate concurrence? Only because
on
certain aspects I arrive at that conclusion from a somewhat different
perspective
[93]
The first aspect relates to the new legislation in terms of
which the recordal and disclosure of information on the private
funding
of political parties would be regulated. PAIA acts only
as a mechanism for gaining access to recorded information. The
only issue before us is whether the record-creation and
record-keeping duties required by the Constitution can be accessed
under
PAIA. If there are any implications for the new
legislation flowing from the Court’s judgment they will have to
be
dealt with in future.
[94]
The holding in the main judgment that information on the
private funding of political parties and independent candidates is
essential
for the effective exercise of the right to make political
choices and to participate in elections and that information on this
private funding must be recorded, preserved and made reasonably
accessible gives judicial content to the fundamental political rights
of every citizen.
[62]
It does not intrude on the separation of powers in any way. It
is difficult to conceive that the constitutional obligation
to
record, preserve and make information on private political funding
reasonably accessible can ever be an unsystematic, sporadic,
one-off,
or intermittent obligation, as opposed to a systematic and continuous
one. So, whilst I agree that there is no necessity
for the
order to explicitly record the constitutional obligation as being
systematic and continuous, I am not compelled to do so
by separation
of powers concerns.
[63]
It would simply be irrational not to do it systematically and on a
continuous basis.
[95]
The main judgment links the citizen’s right to vote to
the right to freedom of expression and academic freedom directly to
the right of access to information. The judgment refers to the
necessity of involving all key players in the democratic
process.
[64]
Another way of strengthening this conclusion is to recognise that the
right to vote is that of every adult citizen.
[65]
In a sense it is the whole citizenry’s right, and to view it
only as an atomised individual right diminishes our concept
of
participatory democracy.
[66]
Every citizen also has the right to free and fair elections.
[67]
There can be no fair and free elections if the press or other
institutions of our civil society are prevented from access
to
information about private political funding. When they seek
that access they can also justify it on the ground that they
are
acting in the public interest on behalf of the country’s
citizenry.
[96]
Finally, I am satisfied with the conclusion that PAIA is also
deficient for failing to provide clarity whether political parties
that are not natural or legal persons are subject to its
provisions.
[68]
[97]
For these further reasons I concur in the main judgment.
For the
Applicants:
M du Plessis and J Thobela-Mkhulisi
Instructed by Webber Wentzel
For the First Respondent:
T Masuku and L Dzai
Instructed by State Attorney, Cape Town
[1]
This is done in terms of section 19 of the Constitution.
[2]
The President, Speaker and Deputy Speaker of the National Assembly,
Chairperson and Deputy Chairpersons of the National Council
of
Provinces, Speaker and Deputy Speaker of the Provincial Legislature
and the Premier are elected in terms of sections 86, 52,
64, 111 and
128 of the Constitution respectively read with Schedule 3 to the
Constitution. The Deputy President and Ministers
must, in terms of
section 91(3) of the Constitution ordinarily be Members of the
National Assembly and section 93 of the Constitution
requires the
same in relation to Deputy Ministers.
[3]
See section 236 of the Constitution which reads as follows:
“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.”
The
Public Funding of Represented
Political Parties Act 103 of 1997
is the legislation that was passed
to provide for the funding of political parties envisaged in
section
236.
[4]
Buckley v Valeo
424 US 1
(1976) (
Buckley
) at paras
66-7, which is also quoted in the minority judgment of
My Vote
Counts v Speaker of the National Assembly
[2015] ZACC 31
;
2016
(1) SA 132
(CC);
2015 (12) BCLR 1407
(CC) (
My Vote Counts
judgment) at para 42. I inserted the word “public”
in brackets to give the quotation a correct South African context.
The original word is “federal”.
[5]
My Vote Counts NPC v President of the Republic
of South Africa
2017 (6) SA 501
(WCC) (High Court
judgment).
[6]
2 of 2000.
[7]
Section 1
of PAIA.
[8]
Id.
[9]
Section 54
of PAIA.
[10]
Section 7(2)
of Constitution states: “The state must respect,
protect, promote and fulfil the rights in the Bill of Rights”.
Section 19 of the
Constitution states:
“(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.”
[11]
High Court judgment above n 5
at paras
52-9.
[12]
Id at para 75.
[13]
Id at paras 70-3.
[14]
Section 167(5) of the Constitution reads as follows:
“The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, the High Court of South Africa,
or a court
of similar status, before that order has any force.”
See also section 172(2)(a) of the
Constitution which states:
“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.”
[15]
Political Party Funding Bill (as introduced in the National Assembly
(section 75); prior notice of its introduction published
in
Government Gazette No. 41125 on 19 September 2017).
[16]
Section 172(2)(a) of the Constitution above n 14.
[17]
My Vote Counts
judgment above n 4 at paras 147-8.
[18]
The long title of PAIA reads as follows:
“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; and
to provide for matters connected therewith.”
[19]
My Vote Counts
judgment above n 4 at paras 122 and 155.
[20]
See
section 53(1) of PAIA.
See also
High Court judgment above n 5 at para 63.
[21]
Sections 50(1) and 63-5 of PAIA.
[22]
Section 38 of the Constitution states:
“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—
…
(d)
anyone acting in the public interest”.
[23]
No wonder section 1 of PAIA says—
“‘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 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.”
[24]
The Preamble to the Constitution says in relevant part that the
supreme law of the Republic is to lay the foundations “for
a
democratic and open society in which
government is based on the
will of the people
”.
[25]
Section 1(d) of the Constitution.
[26]
We all make that undertaking in the Preamble to the Constitution in
these terms:
“We, the
people of South Africa, . . . through our freely elected
representatives, adopt this Constitution as the supreme
law of the
Republic so as to— . . . [l]ay the foundations for a
democratic and open society in which government is based
on the will
of the people and every citizen is equally protected by law;
[i]mprove the quality of life of all citizens and free
the potential
of each person; and [b]uild a united and democratic South Africa
able to take its rightful place as a sovereign
state in the family
of nations.”
[27]
Section 195(1)(a)-(g) of the Constitution provides:
(1)
Public administration must be governed
by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a)
A high standard of professional
ethics must be promoted and
maintained.
(b)
Efficient, economic and effective
use of resources must be promoted.
(c)
Public administration must
be development-oriented.
(d)
Services must be provided impartially,
fairly, equitably and without
bias.
(e)
People’s needs must
be responded to, and the public must be
encouraged to participate in policy-making.
(f)
Public administration
must be accountable.
(g)
Transparency must be fostered by
providing the public with timely,
accessible and accurate information.”
[28]
Preamble to the Constitution above n 26.
[29]
President of the Republic of South Africa v M & G Media
Limited
[2011] ZACC 32
;
2012 (2) SA 50
(CC);
2012 (2) BCLR 181
(CC) at para 10.
[30]
See section 1 of the Constitution.
[31]
Preamble to the Constitution above n 26.
[32]
Id.
[33]
Section 1(a) of the Constitution.
[34]
See section 7(2) of the Constitution above n 10.
[35]
See
Buckley
above n 4 at para 67.
[36]
Section 1 of PAIA above n 23.
[37]
See Wilcox “Transparency and Disclosure in Political Finance:
Lessons from the United States” (conference paper presented
at
the Democracy Forum for East Asia Conference on Political Finance,
Sejong Institute, Seoul, 2001). See also Benton “Rethinking
Political Party Contribution Limits: A Roadmap to Reform”
(2017) 63
Loyola Law Review
257.
[38]
Buckley
above n 4 at para 67.
[39]
Id. See also Falguera (ed) et al
Funding of Political Parties and
Election Campaigns: A Handbook on Political Finance
(International
Institute for Democracy and Electoral Assistance, 2014), available
at
https://www.idea.int/publications/catalogue/funding-political-parties-and-election-campaigns-handbook-political-finance?lang=en
.
[40]
Article 7(3) of the United Nations Convention against Corruption, 11
October 2004.
[41]
Article 10 of the African Union Convention on Preventing and
Combating Corruption, 11 July 2003.
[42]
OECD
Financing Democracy: Funding of Political Parties and
Election Campaigns and the Risk of Policy Capture
(OECD
Publishing, Paris 2016), available at
http://transparenz-ja.ch/wp-content/uploads/sites/65/2016/04/Financing-Democracy-OECD.pdf
.
[43]
Section 32(1)(b) of the Constitution.
[44]
High Court judgment above n 5 at para 75.
[45]
Section 1 of PAIA.
[46]
See sections 50-70 of PAIA.
[47]
The category of a “partnership” clearly does not apply
to an independent candidate.
[48]
See sections 37(1)(a)-(b) and 68 of PAIA.
[49]
See section 65 of PAIA.
[50]
See sections 34 and 63 of PAIA.
[51]
See section 53 of PAIA.
[52]
Section 54 of PAIA.
[53]
See sections 51(4) and 54(8) of PAIA.
[54]
See sections 52 and 70 of PAIA.
[55]
See section 7(2) of the Constitution above n 10.
[56]
See
Buckley
above n 4 para 67.
[57]
My Vote Counts
judgment above n 4 at para 122.
[58]
Id at paras 155-6.
[59]
High Court judgment above n 5 at para 75.
[60]
National Society for the Prevention of Cruelty to Animals v
Minister of Agriculture, Forestry and Fisheries
[2013] ZACC 26
;
2013 (5) SA 571
(CC);
2013 (10) BCLR 1159
(CC) at para 41.
[61]
See
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851(CC)
at para 69.
[62]
Section 19 of the Constitution above n 10.
[63]
See [77] to [80].
[64]
See [53] to [58].
[65]
August v Electoral Commission
[1999] ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC) at para 17.
[66]
Merafong Demarcation Forum v President of the Republic of South
Africa
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008 (10) BCLR 969
(CC) at para 26;
Matatiele Municipality v President of the RSA
(No 2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) at paras 57-60;
Doctors for Life International v Speaker of
the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006
(12) BCLR 1399
(CC) at para 115.
[67]
Section 19(2) above n 10.
[68]
See
My Vote Counts
judgment above n 4 at paras 102-116.