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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

(1)     REPORTABLE: YES/NO

(2)     OF INTEREST TO OTHER JUDGES: YES/ NO

(3)     REVISED.

2/12/2021

CASE NO:  55578/19

 

 

 

In the matter between:

AMABHUNGANE CENTRE FOR                                                                                  Applicant

INVESTIGATIVE JOURNALISM NPC

and

THE PRESIDENT OF THE REPUBLIC                                                                      Respondent

OF SOUTH AFRICA

 

J U D G M E N T

 

Constitutional challenge to Executive Members’ Code of Ethics – duty of Members of the Executive to make disclosure of donations to campaigns to be elected to hold office in political parties – Code unconstitutional insofar as it does not require Members to make disclosure of campaign funding in all instances

 

THE COURT:

INTRODUCTION

1.                 This judgment is a sequel to this Court’s judgment in The President of the Republic of South Africa and Another v The Public Protector and Others,^[1] and the judgment of the Constitutional Court in the appeal that followed.^[2]  The main application before both Courts concerned a review by the President of the Republic of South Africa (the President) of the Public Protector’s report entitled: Report on an investigation into a violation of the Executives Ethics Code through an improper relationship between the President and African Global Operations (AGO), formerly known as Bosasa^[3] (the Report).

2.                 One of the findings of the Public Protector in her Report was that the President had breached his duties under the Executives Ethics Code (the Code) in that, among other things, he had failed to disclose donations that had been made to an internal party-political campaign that had supported his election as President of the African National Congress (the ANC).  That campaign was more commonly known as the CR17 campaign.

3.                 The present applicant, amaBhungane Centre for Investigative Journalism (amaBhungane) was granted leave to intervene in the review application and to institute a conditional counter-application concerning the constitutional validity of the Code.  As we discuss shortly, the counter-application was conditional on the interpretation placed on the Code and more particularly, whether the Code required Members of the Executive (Members) to make disclosure of donations made to internal party-political campaigns. The conditionality that would trigger the constitutional challenge was a finding that the Code did not require such disclosure.

4.                 We granted the President’s application to review the findings in the Report, including the finding that he had breached the Code by failing to disclose donations to the CR17 campaign.  However, we dismissed amaBhungane’s counter-application on technical grounds, without entering the merits. The Public Protector, together with other parties, sought leave to appeal to the Constitutional Court against our findings in the main application.  AmaBhungane sought leave to appeal our dismissal of its counter-application.  Leave was granted to all parties who sought it.  While the Constitutional Court upheld our findings on the main application, it overturned those on amaBhungane’s counter-application.  The Constitutional Court found that we had erred in failing to determine the merits of the counter-application and referred the matter back to us.^[4]

5.                 This judgment, then, is on the merits of amaBhungane’s constitutional challenge to the Code.  Save for the President and amaBhungane, none of the parties who were part of the original application and the appeal before the Constitutional Court played an active role in this second round of litigation before us.

 

 

STATUTORY FRAMEWORK

6.                 The Executive Members’ Ethics Act^[5] (the Members’ Act) is aimed at providing for a code of ethics to govern the conduct of members of Cabinet, Deputy Ministers and Members of Executive Councils.^[6]  Section 2(1) obliges the President, after consulting Parliament, to publish “a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government.”  Section 2(2)(b)(iii) prescribes that that the code must forbid Members of the Executive from, among others, “exposing themselves to a conflict of interest between their official responsibilities and private interests”.

7.                 Under s 2(2)(c), the code “must”:

“(c)  require Cabinet members and Deputy Ministers to disclose to an official in the office of the President designated for this purpose, and MECs to disclose to an official in the office of the Premier concerned designated for this purpose-

(i)           all their financial interests when assuming office; and

(ii)          any financial interests acquired after their assumption of office, including any flights, sponsored foreign travel, pensions, hospitality and other benefits of a material nature received by them or by such persons having a family or other relationship with them as may be determined in the code of ethics; …” (our emphasis)

 

8.                 As to the Code, s 2(2)(b)(iii) is echoed in paragraph 2.3(g).  Paragraph 6 of the Code specifies the financial interests to be disclosed.  They include:

8.1.           Shares and other financial interests in companies and other corporate entities (paragraph 6.1);

8.2.           The source and description of “direct financial sponsorship or assistance from any source other than the member’s party which benefits the member in his or her personal and private capacity” and the value of that sponsorship or assistance (paragraph 6.2);

8.3.           Any gifts or hospitality intended as a gift with a value of more than R350 (paragraph 6.3);

8.4.           The nature, source and value of “any other benefit of a material nature”.

9.                 Also relevant to amaBhungane’s application are those provisions of the Constitution on which it relies for its constitutional challenge to the Code.  These are:

9.1.           Section 1, which lays down, as one of the founding values of our democracy, “accountability, responsiveness and openness”.

9.2.           Section 7(2), which obliges the state to take measures to “respect, protect, promote and fulfil the rights in the Bill of Rights”.

9.3.           Section 19, which guarantees the right to make political choices, including the right to participate in the activities of a political party, and the right to free and fair elections for any legislative body.

9.4.           Section 32, being the right of access to information, including any information that is held by another person and that is required for the exercise or protection of any rights.

9.5.           Section 96, which obliges Members of the Executive to act in accordance with a code of ethics prescribed by national legislation, and to refrain from acting in a manner exposing themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.  It is this section that provides the constitutional foundation for both the Members’ Act and the Code.

9.6.           Section 195, which lays down the basic values and principles governing public administration.  These principles apply to administration in every sphere of government.  They include the principle of promoting and maintaining a high standard of professional ethics; the impartial, fair and equitable provision of services, without bias; accountability; and transparency.

10.             It is amaBhungane’s case that the disclosure requirements of the Code breach the constitutional principles of accountability, openness and transparency outlined above and that, in doing so, the Code breaches the identified fundamental rights guaranteed by the Constitution.  It says that the Code is also inconsistent with the Members’ Act.

THE CONDITIONAL NATURE OF THE COUNTER-APPLICATION

11.             In its Notice of Motion in the counter-application amaBhungane states the relief it seeks in the following terms:

“1.In the event that the Executive Ethics Code, 2000 (the Code) is held not to require the disclosure of donations made to campaigns for positions within political parties:

1.1         It is declared that the Code is unconstitutional, unlawful and invalid to this extant; and

1.2         The declaration of invalidity shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be remedied.”

 

12.             It is important to appreciate that the conditionality of amaBhungane’s constitutional challenge to the Code lies not in the finding of whether the President had a duty to disclose CR17 campaign funding under the Code.  Both this Court and the Constitutional Court have held that the Public Protector’s finding that the President was so required could not rationally be supported on the facts before her.  This is not an issue that falls to be revisited in this judgment.

13.             Instead, amaBhungane’s constitutional challenge to the Code is a principled one: it is premised on the question of whether, on a proper interpretation of the Code, any Member is required to make disclosure of funding received in support of any campaign by him or her to be elected to hold office within the political party of which she or he is a member.  If the answer is that the Code does require such disclosure, then the constitutional challenge does not arise.  It is only if the Code is interpreted not to require the disclosure by members of the Executive of funding to internal party-political campaigns that the constitutional challenge is triggered.

14.             Consequently, before dealing with the merits of amaBhungane’s constitutional challenge, we need to make a finding on whether this conditional trigger is activated.  To do so, we must analyse the Constitutional Court’s judgment insofar as it engages in an interpretation of the Code, as it is that Court’s interpretation that ultimately is determinative.

ISSUES

15.             The following issues arise for determination:

15.1.        According to the Constitutional Court, does the Code impose a duty to disclose private internal party-political funding for Members of the Executive?

15.2.        If there is a partial duty to disclose, is amaBhungane’s constitutional challenge triggered, or is it non-suited in view of the nature of the condition upon which the challenge is based?

15.3.        If amaBhungane is not non-suited, and the constitutional challenge is properly before us, is the Code, as interpreted by the Constitutional Court, unconstitutional?

THE DUTY TO DISCLOSE AS DETERMINED BY THE CONSTITUTIONAL COURT

16.             The manner in which the Constitutional Court approached its interpretation of the Code was shaped by the findings of the Public Protector in her report, which were the subject-matter of the review.  She found, among other things, that:

16.1.        “In light of the evidence before me, it can be safely concluded that the campaign pledges towards the CR17 campaign were some form of sponsorship, and that they were direct financial sponsorship or assistance from non-party sources other than a family member or permanent companion, and were therefore benefits of a material nature to President Ramaphosa.”

16.2.        “President Ramaphosa as a presidential candidate for the ANC political party, received campaign contributions which benefitted him in his personal capacity.  He was therefore duty bound to declare such financial benefit accruing to him from the campaign pledges.  Failure to disclose the said material benefits, including a donation from AGO constitutes a breach of the Code.”

16.3.        “I therefore find President Ramaphosa’s failure to disclose financial interest (sic) which accrued to him, as a result of the donations received towards the CR17 campaign to be in violation of paragraph 2 of the Executive Ethics Code. …”^[7] (our emphasis)

 

17.             The underlined portions of these findings demonstrate that the Public Protector had concluded that the CR17 campaign donations were in the nature of direct, personal financial benefits to the President, and for this reason, according to her, he was bound under the Code to disclose them.  It is not surprising, therefore, that much of the Constitutional Court judgment on what disclosure is required under the Code deals with the question of personal benefit.  The Constitutional Court found in this regard that:

“The Public Protector reached the conclusion that the President, as then Deputy President of the country, had personally benefitted from donations made to the CR17 campaign.  But her own report which contains the summary of the evidence she heard during the investigation, does not support this conclusion.  Nowhere in the report has the Public Protector recorded evidence that shows that the President had personally benefitted.”^[8]

 

18.             Having reviewed the facts upon which the Public Protector relied, the Constitutional Court concluded that:

“On the basis of the uncontroverted facts, he did not personally benefit from the donations made to the CR17 campaign.   Under the Code, the duty to disclose is activated once a benefit is given to the member of Cabinet in his or her personal capacity.”^[9] (our emphasis)

 

19.             The underlined portion of this paragraph lays down the basic interpretational marker determined by the Constitutional Court: any benefit, including that derived from campaign funding for a Member’s internal party-political campaign, is disclosable under the Code, if it is given to her or him in her or his personal capacity.

20.             There is one line in the Court’s judgment that, read in isolation, appears to contradict this dictum.  In rejecting the EFF’s contention that the President benefited politically from the campaign donations, because as potential President of the ANC, he would be in line to be President of the Republic, the Court said: “In the first place, the Code does not apply to matters which are not state affairs, like internal party elections.”

21.             Obviously, one must read this dictum in its context, and not in isolation.  It was a specific response to the EFF’s submissions regarding political benefit.  It was clearly not intended to be a general pronouncement on the question of whether disclosure of financial benefit from internal party-political campaign funding is required under the Code.  If it had been so intended, it would have run counter to all the other pronouncements elsewhere in the judgment finding that such a benefit, if personal, is disclosable.  If it had been intended that the Court was laying down a general and absolute exemption from disclosure of internal party-political funding, one wonders why the Court felt that it was necessary to go into the question of personal benefit requiring disclosure at all: it would have been unnecessary for it to have done so if it was satisfied that all internal party-political campaign funding is exempt from disclosure under the Code.

22.             Indeed, neither of the parties read this dictum as supporting an interpretation of the Code exempting, per se, all internal party-political funding.  AmaBhungane suggested that it meant that that type of campaign funding is not generally disclosable.  For the reasons set out above, we do not read it in this manner.  We understand the judgment of the Constitutional Court, when read as a whole, to support a duty on the part of a Member to disclose party-political campaign funding, provided it constitutes a personal benefit of a financial nature to her or him.  The duty is, as counsel for the President submitted, benefit-driven, rather than source-driven: if there is a personal benefit, then disclosure is required under the Code, regardless of whether the source of the benefit is linked to internal party-political campaign funding.

23.             The Court did not extrapolate directly on when campaign funding would amount to a personal benefit.  However, it gave some indication elsewhere in its judgment of what sorts of factors would not be indicative of a personal benefit, based on the facts before the Court:

23.1.        The Court said that the President’s involvement in the affairs of the CR17 campaign “is not the same as receiving personal benefits”.^[10]

23.2.        The Court rejected the EFF’s contention that the President could not avoid the duty to disclose by wilfully remaining ignorant of donations that were made to the CR17 campaign.  Without evidence of a personal benefit, it was irrelevant whether or not the President knew of the donations.^[11]

23.3.        The fact that there was no evidence that the President had received the donations, and that he had no “claim or say” over the monies was fatal to the conclusion that he had derived a disclosable personal benefit.  The evidence showed that it was the CR17 campaign and not the President which had received the donations.^[12]

23.4.        The CR17 campaign existed separately from the President, and there was no evidence “that it was appointed to act as his agent”.  For this reason, it could not be concluded that the donations to the campaign were personal benefits to the President.^[13]

23.5.        The Court also rejected the EFF’s contention that the President derived a personal benefit from donations made to the CR17 campaign because one of its objectives was to promote his candidacy as President of the ANC, which was a step towards becoming President of the country.^[14]

24.             If one turns these findings around, it seems that the Constitutional Court recognised that benefits would be personal to a Member, and attract a duty to disclose under the Code where:

24.1.        the benefits are financial, rather than politically beneficial;

24.2.        the benefits are given to, or held or used by the member directly;

24.3.        alternatively, even if not given to, or held or used directly by the Member, she or he has control over, or a claim to the funding;

24.4.        further alternatively, the campaign structure receiving the funding acts as the Member’s agent.

25.             This means that financial donations to a campaign in support of a Member’s election to a position in his or her own party are not per se disclosable under the Code.  Equally, however, they are not per se exempt from disclosure.  If, on a consideration of factors such as those highlighted in the Constitutional Court’s judgment, the donations can be categorised as a personal benefit, there is a duty on a Member to make disclosure of them under the Code.  The reason why the CR17 donations did not attract a duty to disclose under the Code is that, on the facts before the Court, they lacked the characteristics necessary to establish them as personal benefits.

IS THE CONDITION FOR THE CONSTITUTIONAL CHALLENGE TRIGGERED?

26.             The President contends, based on the Constitutional Court’s interpretation of the Code, discussed above, that the condition identified by amaBhunagane in its Notice of Motion to launch the constitutional challenge to the Code has not been met.  This is because the condition was clearly stated in absolute terms.  That is, the constitutional challenge was conditional on the Court finding that the Code does not: “require the disclosure of donations made to campaigns for positions within political parties”.

27.             The President submits that the condition stipulated by amaBhungane was predicated on an unqualified finding by the Court that disclosure of donations to campaigns for positions within political parties are not, under any circumstances, disclosable under the Code.  The argument proceeds that because the Constitutional Court interpreted the Code to impose a qualified obligation to disclose internal campaign funding, based on whether it involved personal benefit for a Member, the condition set by amaBhungane for its constitutional challenge has not been satisfied.  For this reason, says the President, we should not consider the merits of the challenge.

28.             We decline the invitation to refuse to consider the application on this basis.  In the first instance, the Order of the Constitutional Court requires us to adjudicate the merits of the claim.  This was in circumstances where that Court was aware that amaBhungane’s claim was conditional, albeit that the Court erred in its description of the contingency.^[15]  In overturning our previous decision to refuse to consider the merits of the challenge, the Court reminded us that: “A court is obliged to declare any law or conduct that is inconsistent with the Constitution to be invalid.  It follows that the High Court erred in concluding that the challenge by amaBhungane was impermissible.”^[16]  In the face of this injunction, we would be failing in our constitutional duty if we were, once again, to refuse to consider the merits of amaBhungane’s constitutional challenge.

29.             Moreover, on our analysis of the Court’s judgment, it is clear that the Court did not find that Members are under a duty per se to disclose all internal party-political campaign funding linked to them.  This means, as we discuss in more detail below,  that there will be instances where such funding will not give rise to a duty to disclose.  To this extent, at least, a question arises as to the constitutionality of the inherent limitations in the Code, and the condition set by amaBhungane for its application is satisfied.

DOES THE CODE PASS CONSTITUTIONAL MUSTER?

30.             AmaBhungane’s constitutional challenge to the Code is premised on the recognition in s 1(d) of the Constitution that accountability, responsiveness and openness are core values of our democracy.  The related constitutional need for ethical government is recognised in s 96, which requires the adoption of a code of ethics, and which also prohibits Members of the Executive arm of government from exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.  AmaBhungane points out that this is why Members are required, under the Members’ Act, and the Code, to make certain disclosures about their private interests.  The disclosure of such information facilitates transparency and openness, and is consistent with the right of access to information held by both public and private persons as outlined in s 32(1) of the Constitution.  It also enhances the right to make political choices, both for persons involved in the internal activities of their chosen political party, and, more broadly, for all members of the public who have the right to participate in national elections.  These rights are guaranteed under s 19 of the Constitution.

31.             From this basic Constitutional premise, amaBhungane draws the link with the constitutional imperative to guard against the corruption of our democracy.  In its founding affidavit it submitted that this threat to democracy is particularly dangerous when unaccountable members of the pubic bring influence to bear on the activities of elected public officials and other office bearers, such as Cabinet Ministers.  This influence may take the form of providing funding in support of an office bearer’s political campaign (whether public or internal to his or her party).  There is nothing inherently unlawful about giving support to a political campaign, and not everyone who gives such support is doing so in an effort to corrupt or unduly influence the political party or politician concerned.  The point that amaBhungane makes, though, is that funding for political causes carries the risk of undue influence, or at least the risk of a public perception of undue influence.  An effective way to avoid these risks is to require transparency in political funding.

32.             In support of its constitutional thesis, amaBhungane refers to the Constitutional Court decision in My Vote Counts 2^[17] in which that Court recognised the critical role of transparency in combatting corruption within the context of secret political funding.  The Court said:

“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 no already done so.”^[18]

33.             Further:

“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.  An environment must thus be created for the public to know more than what is said in manifestos, or doing campaign trails.

… 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.”^[19]

 

34.             These dicta were stated in the context of a constitutional challenge to the Promotion of Access to Information Act^[20] (PAIA).  However, there is no reason to suggest that the general constitutional principles laid down by the Court in MVC2 are not also relevant to amaBhungane’s challenge to the Code.  The President did not suggest otherwise, nor did he file an answering affidavit in AmaBhungane’s application challenging the averments made there.

35.             South Africa is also bound by article 7(3) of the United Nations Convention Against Corruption, which it ratified on 2 November 2004, which requires that each state must:

“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.”

 

36.             We must accept, therefore, that disclosure by government office bearers, including Members of the Executive, of funding in support of their private (i.e. intra-party) political campaigns is constitutionally required to protect fundamental rights.  The state is bound under s 7(2) to adopt measures to respect, protect, promote and fulfil those rights.  The Constitution requires a code of ethics as one of those measures, and the Members’ Act is the legal foundation for that Code.  In Glenister,^[21] the Constitutional Court noted that:

“Implicit in s 7(2) is the requirement that the steps the state takes to respect, protect, promote and fulfil constitutional rights must be reasonable and effective.”

37.             The question that arises is whether the disclosure requirements in the Code, as interpreted by the Constitutional Court, are a reasonable and effective means of ensuring the protection of the constitutional rights implicated, or do they fail to meet this bar?

38.             AmaBhungane initially premised its submissions on the basis that the Code does not require disclosure by Members of funding for internal party-political campaigns at all.  Obviously, if this interpretation of the Code was accepted, it would fall well short of the required constitutional bar.  The President accepted as much.  His counsel submitted that, on the basis of the Constitutional Court’s appeal judgment, disclosure is required if the funding constituted a personal benefit for the Member concerned.  We have accepted this as the correct interpretation.   However, amaBhungane’s contention is that even on this interpretation, the Code fails to satisfy what the Constitution, and s 2(1) of the Members’ Act, require of the state in order to meet its obligation to ensure accountability, transparency and openness in our democratic government, to guard against the corrosive effects of corruption, and to fulfil the other constitutional rights identified.

39.             AmaBhungane submits that the constitutional objectives will only properly be met if there is mandatory disclosure required by all Members of all donations towards their internal party-political campaigns.  On the Constitutional Court’s interpretation of the Code, the duty to disclose is partial in effect: it only applies to campaign donations that constitute personal benefits.  AmaBhungane says that a partial disclosure obligation undermines the constitutional imperatives of accountability, openness and transparency in that it permits Members to avoid having to make disclosure by structuring their campaign funding in such a way that it falls outside the “personal benefit” markers laid down by the Constitutional Court.

40.             In other words, says amaBhungane, if a Member set up a separate entity to collect donations to support her campaign, and was careful to exercise no control over the funds, or to have them channeled to her directly, she would not have to make disclosure of any of the donations received, even if she knew who had made them.   In these circumstances, she could argue that the donations did not amount to a personal benefit.  This would deny members of the public access to information that is relevant to the exercise of their political rights.  It would also act as an obstacle to facilitating accountability, transparency and openness on an issue which is critical to combatting corruption.

41.             The President takes a contrary view.  He submitted that the standard of personal benefit adopted and applied by the Constitutional Court is broad enough to meet what the Constitution requires.  According to the President, actual money received is not necessary to constitute a benefit for purposes of triggering the duty to disclose.  Counsel for the President used the analogy of the concept of a “free lunch” to illustrate the point: if someone pays for your lunch after you have eaten it, you benefit no less than if they had given you the money to buy your own lunch.  The saving of having had to pay for your lunch is a personal benefit to you.  The President contends that by and large most campaign donations for internal party-political elections will be disclosable under the Code as it exists on this basis.  The vast majority of such donations, he suggests, will fall into the category of constituting a personal benefit for the Member concerned, and there is no need to change the Code to deal with what he described as “outliers”, as exemplified by the CR17 campaign.

42.             Implicit in this submission is the notion that the Code in its present form is a reasonable and effective measure for achieving accountable, transparent and open government and to guard against the risk of corruption.  It would be undesirable, he says, to force a change in the Code to deal with what are likely to be the very few cases that do not amount to disclosable campaign donations.

43.             One of the difficulties with the President’s approach is that it is not entirely clear  to Members or the public, when campaign donations will be exempt from disclosure and when they will not be exempt.  We know the kinds of factors that the Constitutional Court considered to be relevant in the case of the CR17 campaign, and we have dealt with these above.  However, these factors were based on what the Court had before it in that case.  The Court did not suggest that these would be the only factors to consider, nor could they possibly be:  as the President recognised, there may be many permutations of how campaign financing may be structured.  The Constitutional Court did not go so far as to say that the Code generally requires disclosure by Members of internal party-political funding, and that in only a few instances will the duty not arise.  Hence, it is somewhat speculative to assume that in most cases the Code will be read and applied by Members as if this is the general rule, and that almost all campaign donations will be disclosed.

44.             Certainty about what the law requires is a fundamental element of the rule of law.  As things stand at present, we know that the Code requires disclosure of internal party-political campaign funding by Members if this constitutes a personal benefit.  However, what Members and the public do not know with certainty, is what constitutes a personal benefit beyond the obvious case where money is given directly to, or placed at the disposal of, the Member herself.  In at least this respect, the Code is not an effective means of achieving accountability, transparency and openness, which is specified as an objective of the Constitution and the Members’ Act.

45.             Furthermore, s 96 of the Constitution expressly requires a code of ethics for Members of the Executive that prohibits them from exposing themselves to any risk of a conflict between their official responsibilities and their private interests.  One of the most effective means of achieving this objective, as the Constitutional Court noted in My Vote Counts 2, is the disclosure of campaign funding donations.  This objective cannot be achieved effectively if it is unclear under the Code when such donations will be disclosable and when they will not.

46.             Finally, the Constitutional Court has pronounced on the unconstitutionality of legal loopholes in similar circumstances in My Vote Counts 2.  In dealing with the problem of the potential loophole created by parties choosing not to “hold” (in the words of PAIA) information about political funding in order to avoid the obligation to disclose when facing a PAIA request, the Court noted that:

“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 not the ‘will’ of the people.”^[22]

 

47.             The Court ultimately held that PAIA was unconstitutional in that it did not provide that information on the private funding of political parties and independent candidates must be recorded and preserved.

48.             The Court addressed a further loophole in PAIA in the same judgment.  This was the provision that the obligation to provide information on request under that Act only extended to natural or juristic persons.  The court noted that if a political party was not a juristic person, it would not have an obligation under PAIA to provide information about campaign donations.  In this regard, the Court said:

“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 the 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.”^[23] (our emphasis)

 

49.             The underlying concerns that led to these findings of unconstitutionality apply  equally, in our view, to Members of the Executive who have been appointed to office.  There is a need in their respect, too, to ensure that loopholes do not exist under the Code to enable them to avoid (whether deliberately or not) disclosing information about donations they receive in support of their internal party-political election campaigns.

50.             The President accepts that on the Constitutional Court’s interpretation of the Code in its appeal judgment not all donations made to Members in support of their internal party elections will attract the duty to disclose.  As the Constitutional Court has said, even if we accept that most donations will be disclosable, and that only a small number of Members will not have to make disclosure, this is neither here nor there.  The only way in which effectively to meet the constitutional objectives of accountable, transparent and open government, and to ensure that Members are not put at risk of a conflict between their official responsibilities and their private interests is for the Code to make it clear that Members are obliged in all instances to make disclosure of internal election campaign donations received from members of the public.  It is through such required disclosure by Members that the public’s constitutional right to information and their right to engage in political activities is promoted and fulfilled.  We find the Code to be constitutionally deficient in this respect.

51.             The President did not file an answering affidavit in which he sought to make out a case to justify the limitations on constitutional rights effected by the Code in its present form, nor did counsel advance any arguments on his behalf in this regard at the hearing of the matter.  It follows that amaBhungane’s constitutional challenge must succeed.

REMEDY AND COSTS

52.             As the Constitutional Court reminded us, we are enjoined to declare the Code invalid if we find that it is inconsistent with the Constitution.  Insofar as a just and equitable remedy is concerned, as the Constitutional Court noted in Glenister, there are many ways in which the state can comply with its duty to take positive measures to respect, protect, promote and fulfil constitutional rights.  In this case, it would not be in accordance with the doctrine of the separation of powers for us to prescribe to the President what amendments must be made to the Code to render it constitutionally compliant.  It lies within his constitutional purview to determine how best to ensure that the obligation on Members to disclose funding related to their candidacy for election to party positions respects, protects, promotes and fulfils the constitutional rights and obligations implicated in this judgment.

53.             Having succeeded in its conditional application, there is no reason to deny amaBhungane its costs.

ORDER

54.             We make the following order:

1.    It is declared that the Executive Ethics Code, published under Proclamation No. R. 41 of 2000, is unconstitutional, unlawful and invalid insofar as it does not require the disclosure by Members who are subject to the Code of donations made to campaigns for their election to positions within political parties.

2.    The declaration of invalidity shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be remedied.

3.    The respondent is directed to pay the applicant’s costs, which are to include those of two counsel, one being Senior Counsel.

 

This judgement was prepared and authored by the Judges whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be ­­­­2 December 2021.

 

                                                                                                            D MLAMBO

                                                JUDGE PRESIDENT OF THE HIGH COURT

GAUTENG LOCAL DIVISION

 

 

                                                                                                            K MATOJANE

                                                JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

 

 

                                                                         

                                                                                                    R M KEIGHTLEY

                                                            JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

 

Date Heard (Microsoft Teams):                07 September 2021

Date of Judgment:                                     02 December 2021  

On behalf of the Applicant:                      Adv. Steven Budlender SC

                                                                   Adv. Tshidiso Ramogale               

Instructed by:                                             WEBBER WENTZEL

On behalf of the Respondent:                    Adv. Wim Trengrove SC                                       

                                                                   Adv. Tembeka Ngcukaitobi SC

                                                                   Adv. Ndumiso Luthuli

                                                                                            

Instructed by:                                              HARRIS NUPEN MOLEBATSI INC    

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