_
50
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICACase No: CCT
121/14
In the matter between:
MY VOTE COUNTS NPCApplicant
and
SPEAKER OF THE NATIONAL ASSEMBLYFirst Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCESSecond
Respondent
SEVENTEEN OTHERSThird to Nineteenth Respondents
APPLICANT'S WRITTEN ARGUMENTIntroduction
This is an application for an order:
declaring that Parliament has failed to fulfil a constitutional
obligation to enact national legislation requiring and regulating
the recordal and disclosure of donations to political parties
("disclosure legislation"); and
directing Parliament to do so within a reasonable time.
The basis of the application is that disclosure legislation is
constitutionally imperative to give effect to the right of citizens
to access information which is required for the effective exercise
of their right to vote, as well as for the effective protection of
all constitutional rights from corruption.
This written argument is structured as follows:
Introduction1
Parties3
Issues4
Parliament's constitutional obligation9
The nature of political parties13
Effective exercise of the right to vote20
Effective protection from corruption27
Parliament's failure to fulfil its obligation35
PAIA does not require disclosure of donations to political
parties36
Parliament does not have a discretion to decide whether to
fulfil a constitutional obligation41
Parliament has not justified its failure to enact disclosure
legislation43
Appropriate remedy48
Jurisdiction48
Costs49
Conclusion50
Parties
The applicant is My Vote Counts NPC, a non-profit company
founded with the aim of campaigning for a more inclusive,
transparent and accountable political and electoral system in South
Africa, with a particular focus on civic, legal and political
education of citizens.
The applicant approaches this Court in pursuit of this aim, both
in its own interest under section 38(a) of the Constitution of the
Republic of South Africa, 1996 ("the Constitution"), and in the
public interest under section 38(d) of the Constitution.
The relief sought by the applicant is directed at Parliament,
cited under the titles of the Speaker of the National Assembly
("the Speaker") and the Chairperson of the National Council of
Provinces, the presiding officers of the two Houses of Parliament,
as the first and second respondents (together referred to as
"Parliament"). Parliament opposes this application, for reasons set
out in an affidavit by the Speaker.
The other respondents in this application (certain members of
the national executive and all political parties represented in
Parliament) have been cited only by virtue of the interest they may
have in its outcome. No relief is sought against any of them, and
no opposition to the application has been advanced by any of
them.[footnoteRef:1] [1: Although the fifth, seventh and eighth
respondents initially gave notice of intention to oppose the
application, the fifth and seventh respondents have failed to file
opposing affidavits. The eighth respondent withdrew its notice of
intention to oppose.]
Issues
This matter raises three questions:
Does Parliament bear a constitutional obligation to enact
disclosure legislation?
If so, has Parliament failed to fulfil that obligation?
If so, what will be an appropriate remedy for that failure?
We address each of these questions in turn. We seek to show
that:
having regard to the unique nature of political parties,
disclosure of donations to political parties is reasonably required
for the:
effective exercise of the right to vote; and
effective protection of all constitutional rights from
corruption.
In breach of the right to access this information, Parliament
has failed to enact disclosure legislation, considering that
neither the Promotion of Access to Information Act, 2000 ("PAIA")
nor any other legislation requires the recordal and disclosure of
such information.
Parliament has presented no justification for its failure to
enact such disclosure legislation.
It is appropriate in the circumstances to direct Parliament to
take steps to enact disclosure legislation within 18 months and to
report on those steps every three months within that period.
The Speaker summarises Parliament's opposition to this
application as follows:[footnoteRef:2] [2: Speaker's Affidavit, pp
37-38, paras 74.2-4.]
The High Court in IDASA has already found that s 19 of the
Constitution does not entitle the voting public to a right of
access to political parties' private funding records for purposes
of exercising their right to vote.
In any event, PAIA is an adequate constitutional tool by which
accurate information of the sort identified by the applicant can
legitimately be obtained. There is no need for new legislation.
The applicant cannot and does not prove that access to political
parties' private donations records is a reasonable requirement for
the exercise of the right in s 19 of the Constitution.
Before we begin setting out the source and substance of
Parliament's constitutional obligation to enact disclosure
legislation, it is necessary for us to dispel the Speaker's false
comparison between the present case and IDASA,[footnoteRef:3] which
forms the foundation of Parliament's entire response to this
application: [3: Institute for Democracy in South Africa and Others
v African National Congress and Others 2005 (5) SA 39 (C)
("IDASA").]
First, the Speaker insists that the issues in the two cases are
identical and that the present applicant, "perhaps lamenting that
IDASA did not proceed on appeal, seeks to raise the same argument
by a back door".[footnoteRef:4] This is not so. [4: Speaker's
Affidavit, p 29 para 66.5.]
Second, the Speaker ritually relies on IDASA as authority
(apparently her only authority) to refute the applicant's argument
in this case, and in the process mischaracterises the court's
findings in IDASA, saying it "rightly found that political parties
are not obliged to disclose their private funding for the purpose
advanced by the applicant in this case - namely, for the effective
exercise of the right to vote".[footnoteRef:5] This, too, is
patently not the case. [5: Speaker's Affidavit, p 52 para 82.5
(also p 6 para 10, p 13 para 26, p 29 para 66.5, p 30 para 67.2, p
54 para 84.4).]
The applicants in IDASA made a fundamentally different case.
They had issued requests under PAIA to specific political parties
for records of donations above a specified sum within a specified
period in the past. They went to court when these requests were
refused. Griesel J thus framed the matter as
follows:[footnoteRef:6] [6: IDASA, para 8 (original emphasis).]
To my mind, the issue is not whether all South African citizens
are in principle entitled to particulars of all substantial
donations received by political parties represented in the
legislature. The true issues, as defined by the pleadings, are
rather whether or not the present applicants are entitled, in terms
of the statutory provisions relied on (viz s32 of the Constitution
and ss11 or 50 of PAIA), to the specific records claimed from the
present respondents in respect of the specified period.
Griesel J had "not been persuaded by the applicants, on the
facts of this case, that they reasonably require any of the records
in question for the exercise or protection of any of the rights
claimed by them".[footnoteRef:7] Griesel J took considerable care,
however, to contextualise the narrow import of his judgment, as
follows:[footnoteRef:8] [7: IDASA, para 52.] [8: IDASA, para 58
(our emphasis).]
The above-mentioned conclusion does not mean that political
parties should not, as a matter of principle, be compelled to
disclose details of private donations made to their coffers. It
merely means that, on my interpretation of existing legislation,
the respondents are not obliged to disclose such records.
This said, the applicants have nevertheless made out a
compelling case with reference both to principle and to comparative
law that private donations to political parties ought to be
regulated by way of specific legislation in the interest of greater
openness and transparency. In the United States, for example, the
first federal disclosure law was enacted as long ago as 1910. It
required political parties and organisations operating to influence
congressional elections in two or more States to disclose names of
all contributors of $100 or more. The rationale was stated as
follows in the judgment of the US Supreme Court in Buckley v
Valeo:[footnoteRef:9] [9: Buckley v Valeo [1976] USSC 24; 424 US 1
(1976), pp 67-68 (our emphasis).]
The governmental interests sought to be vindicated by the
disclosure requirements are of this magnitude. They fall into three
categories. First, disclosure provides the electorate with
information 'as to where political campaign money comes from and
how it is spent by the candidate' in order to aid the voters in
evaluating those who seek federal office. It allows the voters to
place each candidate in the political spectrum more precisely than
is often possible solely than on the basis of party labels and
campaign speeches. The sources of a candidates financial support
also alert the voter to the interests to which a candidate is more
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. Thisexposure 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 favors that may be given in return.
The relief sought in the present application is fundamentally
different from that sought in IDASA. The present applicant does not
seek disclosure from any specific parties of records of donations
above any specified sum within any specified period. On the
contrary, the applicant acknowledges that this relief can never be
sought in the absence of national legislation regulating the
creation of such records, as well as the conditions of their
disclosure. It is for this reason that the applicant seeks an order
compelling Parliament to enact such national legislation, as it is
constitutionally obliged to do.
Parliament's constitutional obligation
Section 32 of the Constitution enshrines the right of access to
information in the following terms:
(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.
Having regard to the central role that political parties play in
constitutional and governmental discourse in South Africa, the
applicant submits that political parties are properly part of the
state, for the purposes of disclosure of private funding
information in terms of section 32(1)(a). The concept of the
"state" does not admit of a universal definition,[footnoteRef:10]
and much depends on the context within which it is used and the
purpose of the reference to the "state" in the specific provision
of the Constitution. Sometimes, it may be necessary to opt for a
limited conception of the term, and at other times a broader one,
depending on a nuanced analysis of the objects which the
Constitution seeks to achieve. [10: Ingonyama Trust v eThekwini
Municipality 2013 (1) SA 564 (SCA), paras [6] to [11].]
The applicant submits that there is no good reason to restrict
the meaning of the state in the context of section 32(1)(a),
especially having regard to the fundamental constitutional values
which would be promoted by enhanced openness and transparency.
Also, the information disclosures in question relate to the
political parties' public roles in elections and the allocation and
management of political power and their functions under the
Constitution and the Electoral Act as the conduits and
representatives of our democratic system of governance. We
elaborate on this below. As such, in the context of section
32(1)(a), the reference to "the state" should properly encompass
political parties in their public role and all organs of state as
they are defined in the Constitution.[footnoteRef:11] [11: Cf
eThekwini Municipality v Ingonyama Trust 2014 (3) SA 240 (CC),
paras [36] and [37].]
Even if, despite the above, political parties are deemed to fall
outside "the state" as contemplated in section 32(1)(a), it is
clear that information about donations to political parties "is
required for the exercise or protection of any rights" in terms of
section32(1)(b).
Following a steady march of judgments interpreting identical
language in section 23 of the interim Constitution,[footnoteRef:12]
the test for determining the meaning of "reasonably required" has
been most authoritatively approximated by ComrieAJA in
Clutchco:[footnoteRef:13] [12: Shabalala v Attorney-General,
Transvaal, and Another; Gumede and Others v Attorney-General,
Transvaal 1995 (1) SA 608 (T), 624C; Nortje and Another v
Attorney-General, Cape, and Another 1995 (2) SA 460 (C), 474G; Van
Niekerk v Pretoria City Council 1997 (3) SA 839 (T), 848G; Le Roux
v Direkteur-Generaal van Handel en Nywerheid 1997 (4) SA 174 (T);
Cape Metropolitan Council v Metro Inspection Services (Western
Cape) CC and Others 2001 (3) SA 1013 (SCA), paras 28-29.] [13:
Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) ("Clutchco"), para
13. This was also applied in Unitas Hospital v Van Wyk and Another
2006 (4) SA 436 (SCA) ("Unitas"), para 17. Both judgments concerned
section 50(1)(a) of PAIA, which replicates the language used in
section 32(1)(b) of the Constitution and section 23 of the interim
Constitution.]
I think that 'reasonably required' in the circumstances is about
as precise a formulation as can be achieved, provided that it is
understood to connote a substantial advantage or an element of
need.
It is trite that the circumstances of each case will determine
whether particular information is "reasonably required" by one
person from another for the exercise or protection of any rights.
We submit that the relevant circumstances include, crucially, the
objective features and functions of the parties, as well as the
relationship between them.
In Unitas, where the Supreme Court of Appeal (per Brand JA, with
Harms, Conradie and Cloete JJA concurring) denied a request for
information from a private hospital by a deceased patient's widow,
CameronJA stated forcefully as follows in a lone
dissent:[footnoteRef:14] [14: Unitas, para 40 (our emphasis); see
also paras 31 and 42.]
Following the distinction the Bill of Rights draws between
information held by the State and that held by other persons, PAIA
distinguishes between public and private bodies, each of which it
defines. In the case of the former, there is a general right of
access. In the case of the latter, access must be required for the
exercise or protection of rights. But, as Brand JA explains,
'required' is a flexible term and its application must be
fact-bound. And, in applying it to any particular case, we must, in
my view, consider the extent to which it is appropriate, in the
case of any private body, to further the express statutory object
of promoting 'transparency, accountability and effective
governance' in private bodies. This statutory purpose suggests that
it is appropriate to differentiate between different kinds of
private bodies. Some will be very private, like the small family
enterprise in Clutchco. Effective governance and accountability,
while important, will be of less public significance. Other
entities, like the listed public companies that dominate the
country's economic production and distribution, though not 'public
bodies' under PAIA, should be treated as more amenable to the
statutory purpose of promoting transparency, accountability and
effective governance.
We submit, with respect, that the above reasoning is clearly
correct. Indeed, it has recently been implicitly affirmed by a
unanimous Supreme Court of Appeal in ArcelorMittal.[footnoteRef:15]
Upholding a request for information from a major steel producer
(AM) by an environmental advocacy group, Navsa ADP emphasised that
"AM's activities and the effects thereof are matters of public
importance and interest. Put differently, the nature and effect of
AM's activities are crucially important."[footnoteRef:16] Navsa ADP
echoed the argument of CameronJA in Unitas, as
follows:[footnoteRef:17] [15: Company Secretary of ArcelorMittal
South Africa v Vaal Environmental Justice Alliance [2014] ZASCA
184, Case No 69/2014, 26 November 2014 ("ArcelorMittal").] [16:
ArcelorMittal, para 52.] [17: ArcelorMittal, para 78.]
PAIA, in its preamble, recognises that the system of government
in South Africa, before the advent of a constitutional democracy,
"resulted in a secretive and unresponsive culture in public and
private bodies which often led to an abuse of power and human
rights violations". Furthermore, it also expressly recognises the
horizontal application of rights in the Bill of Rights to juristic
persons "to the extent required by the nature of the rights and the
nature of those juristic persons".
The present case concerns information held by political parties,
whose unique institutional features and functions bear
significantly on whether disclosure of their donations is
"reasonably required" for the effective exercise or protection of
any rights.
The nature of political parties
Political parties occupy a unique and critical role in our
constitutional democracy. Like the national and provincial
legislatures, the executive and the judiciary, they are
institutionalised within the legal system.[footnoteRef:18] The
centrality of political parties has been recognised by this Court
and cannot be gainsaid.[footnoteRef:19] [18: IDASA, para 42. ] [19:
For a general discussion see Lisa Thornton, The Constitutional
Right to Just Administrative Action - Are Political Parties Bound?
(1999) 15 SAJHR 351, p 358. ]
First, the entire electoral system is dependent on political
parties contesting elections, and therefore, determining which
persons are allocated to legislative bodies and the
executive;[footnoteRef:20] second, members of political parties (in
their capacity as members of the national and provincial
legislature and executive) determine the laws and policies of the
country; third, under the Constitution, membership of the
legislature and the executive is inextricably linked to party
membership;[footnoteRef:21] fourth, broadly in terms of section
236, but also in terms of sections 57(c) and (d) and section
116(2), the Constitution envisages the provision of public funding
of political parties; and fifth, political parties, through their
congresses and think tanks, shape and often define policies and
legislation. [20: Part 3 of the Electoral Act, 1998 ("Electoral
Act"); schedule 3 item 1(1).] [21: Section 47(3)(c) of the
Constitution specifies that a person loses membership of the
National Assembly if that person "ceases to be a member of the
party that nominated that person as a member of the Assembly,
unless that member has become a member of another party in
accordance with Schedule 6A". Section 62(4)(d) of the Constitution
provides that a person ceases to be a permanent delegate to the
National Council of Provinces if that person ceases to belong to a
particular party.]
The Speaker strongly denies that political parties bear any
obligations towards the voting public:[footnoteRef:22] [22:
Speaker's Affidavit, p 12 para 22 and pp 35-36 paras 71.1-5.]
There is no warrant for supposing that political parties owe a
constitutional duty to the voting public in general. Each party's
affairs and relationships with its members are governed by its
constitution. Whatever duties that a political party may owe, it
owes to its members, not outsiders even if such outsiders vote for
that political party.
As the Western Cape High Court found in IDASA, political parties
are private organisations. As such, they are answerable to their
members through their constitutions and not to the electorate in
general.
I invite the applicant to point to any provision of the
Constitution that imposes upon political parties the duty to
advance the political rights of the voting public in general.
That invitation is readily accepted and easily answered. Section
8(2) of the Constitution provides that "the Bill of Rights binds a
natural or a juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right and the
nature of any duty imposed by the right". InArcelorMittal, Navsa
ADP gave this provision primary interpretive significance in the
determination of whether a private body's information is reasonably
required for the exercise or protection of any particular
rights.[footnoteRef:23] [23: ArcelorMittal, para 78.]
It is also important to point out that the Court in IDASA did
not find that "political parties are private organisations", but
rather "that, for purposes of their donations records, the
respondents are not 'public bodies', as defined by PAIA, but that
they are indeed 'private bodies'."[footnoteRef:24] In any event,
the question of whether political parties are public or private
bodies, for the purposes of PAIA, does not arise in the present
application. This case concerns the proper interpretation of
section 32 of the Constitution, which distinguishes between "the
state" and "another person". [24: IDASA, paras 20-32 (our
emphasis).]
Of course, the fact that political parties have important public
functions augments the submission that they are part of the state
for the purposes of section 32(1)(a). Moreover, and in any event,
to the extent that IDASA holds that political parties are simply
private bodies, it is simply wrong. Political parties under our
electoral system remain the key institutional device by which
parliamentary representation is constituted, and in respect of the
winning party, how the executive is comprised. The public character
of political parties is thus clear.
More to the point, PAIA's distinction between public and private
bodies does not at all assist the Speaker in shielding political
parties from public accountability, regardless of whether they are,
strictly speaking, "the state". On the contrary, PAIA also applies
to private bodies precisely because section 32 of the Constitution
dictates that not only the state but "another person" is, in
principle, accountable to "everyone", to the extent that their
information is required for the exercise or protection of any
rights.
In pursuit of this constitutional imperative, PAIA explicitly
acknowledges the need to "foster a culture of transparency and
accountability in public and private bodies", considering
that:[footnoteRef:25] [25: PAIA, preamble (our emphasis).]
the system of government in South Africa before 27 April 1994,
amongst others, resulted in a secretive and unresponsive culture in
public and private bodies which often led to an abuse of power and
human rights violations;
section 8 of the Constitution provides for the horizontal
application of the rights in the Bill of Rights to juristic persons
to the extent required by the nature of the rights and the nature
of those juristic persons;
There is thus no basis for the Speaker's submission that
political parties are only "answerable to their members through
their constitutions and not to the electorate in
general".[footnoteRef:26] [26: Speaker's Affidavit, p 35 para
71.4.]
In the First Certification judgment, this Court sketched the
constitutional place of political parties briefly as
follows:[footnoteRef:27] [27: Certification of the Constitution of
the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744
(CC) ("First Certification"), para 186.]
Under a list system of proportional representation, it is
parties that the electorate votes for, and parties which must be
accountable to the electorate.
More recently, in Ramakatsa this Court robustly affirmed the
special role of political parties in our constitutional project.
Writing for the majority, Moseneke DCJ held as
follows:[footnoteRef:28] [28: Ramakatsa and Others v Magashule and
Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) ("Ramakatsa"), paras
65-68 (our emphasis).]
In our system of democracy political parties occupy the centre
stage and play a vital part in facilitating the exercise of
political rights. This fact is affirmed by section 1 of the
Constitution which proclaims that "[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" are some of the values on which our
state is founded.
In order to enhance multi-party democracy, the Constitution has
enjoined Parliament to enact national legislation that provides for
funding of political parties represented in national and provincial
legislatures. Public resources are directed at political parties
for the very reason that they are the veritable vehicles the
Constitution has chosen for facilitating and entrenching
democracy.
Our democracy is founded on a multi-party system of government.
Unlike the past electoral system that was based on geographic
voting constituencies, the present electoral system for electing
members of the national assembly and of the provincial legislatures
must "result, in general, in proportional representation". This
means a person who intends to vote in national or provincial
elections must vote for a political party registered for the
purpose of contesting the elections and not for a candidate. It is
the registered party that nominates candidates for the election on
regional and national party lists. The Constitution itself obliges
every citizen to exercise the franchise through a political party.
Therefore political parties are indispensable conduits for the
enjoyment of the right given by section 19(3)(a) to vote in
elections.
A decade earlier this Court made it patently clear in Masondo
that political parties are not only conduits of constitutional
power, but are essential to the achievement of our Constitutions
most sacred goals:[footnoteRef:29] [29: Democratic Alliance and
Another v Masondo NO and Another 2003 (2) SA 413 (CC), paras 42-43
(our emphasis).]
The open and deliberative nature of the process [of our
democracy] goes further than providing a dignified and meaningful
role for all participants. It is calculated to produce better
outcomes through subjecting laws and governmental action to the
test of critical debate, rather than basing them on unilateral
decision-making. It should be underlined that the responsibility
for serious and meaningful deliberation and decision-making rests
not only on the majority, but on minority groups as well. In the
end, the endeavours of both majority and minority parties should be
directed not towards exercising (or blocking the exercise) of power
for its own sake, but at achieving a just society where, in the
words of the Preamble, 'South Africa belongs to all who live in
it'.
The Speaker's denial of these constitutional tenets is
astounding in its own right. But it is troubling for another
reason: it contradicts the evidence the Speaker has herself
adduced. In its report dated 23October1997, Parliament's Portfolio
Committee on Constitutional Affairs heralded the Promotion of
Multiparty Democracy Bill as follows:[footnoteRef:30] [30:
Speaker's Affidavit, annex "BM1", p 58.]
The key to the success of our new emerging democracy is the role
of strong, resilient, democratically elected political parties -
and this Bill makes a vital contribution towards this.
Introducing the above Bill for its second reading in the
National Assembly on 3 November 1997, the Minister of Provincial
Affairs and Constitutional Development, Mr Valli Moosa, exhorted
the House as follows:[footnoteRef:31] [31: Speaker's Affidavit,
annex "BM2", p 59 (our emphasis).]
The rationale behind the Bill before us and section 236 of the
Constitution is that a multiparty system of democratic government
cannot be real unless one has real and viable political parties. It
raises questions about the very fundamental nature and theory of
political parties themselves.
We need to ask ourselves whether political parties are merely
private clubs or voluntary associations with no responsibility to
the public. The view which the Constitution advances and which this
Bill acknowledges is that political parties are, in fact, public
organisations. They are not private organisations. They are not
private clubs. Therefore, political parties have a responsibility
not only to their members, but also to the public at large.
This fact also finds expression in international law. The
African Charter on Democracy, Elections and Governance was ratified
by our Parliament on 24 December 2010.[footnoteRef:32] It aims,
inter alia, to: "promote and strengthen good governance through the
institutionalization of transparency, accountability and
participatory democracy".[footnoteRef:33] To this end, while
"recognising the role, rights and responsibilities of legally
constituted political parties",[footnoteRef:34] the Charter obliges
South Africa to "take measures to ensure and maintain public trust
and transparency between political leaders and the
people".[footnoteRef:35] [32: Adopted in Addis Ababa on 30 January
2007, it has been signed by 46 and ratified by 23 of the 54 member
states of the African Union, and it entered into force on 15
February 2012.] [33: African Charter on Democracy, Elections and
Governance ("African Charter on Democracy"), preamble. According to
article 2(10), its objectives include to "promote the establishment
of the necessary conditions to foster citizen participation,
transparency, access to information, freedom of the press and
accountability in the management of public affairs".] [34: African
Charter on Democracy, article 3(11). See also article 17(4), which
obliges states to put in place "a binding code of conduct governing
legally recognized political stakeholders, government and other
political actors prior, during and after elections".] [35: African
Charter on Democracy, article 13. The importance of transparency,
not only in the conduct of elections but also in the management of
public affairs generally, is emphasised throughout the Charter: see
articles 2(10), 3(4), 3(8), 12(1), 17, 20, 33(2) and 33(13).]
In view of all of the above, we submit that the unique nature of
political parties and their integral role in the success of the
democratic project bear undeniable significance for the
determination of whether, and to what extent, their funding
information is reasonably required for the effective exercise of
the right to vote and the effective protection of all
constitutional rights from corruption. We address each of these
advantages in turn.
Effective exercise of the right to vote
In M&G Media, NgcoboCJ, for a majority of this Court,
emphasised the importance of access to information as
follows:[footnoteRef:36] [36: President of the Republic of South
Africa and Others v M&G Media Ltd 2012 (2) SA 50 (CC), para 10
(our emphasis).]
The constitutional guarantee of the right of access to
information held by the state gives effect to "accountability,
responsiveness and openness" as founding values of our
constitutional democracy. It is impossible to hold accountable a
government that operates in secrecy. The right of access to
information is also crucial to the realisation of other rights in
the Bill of Rights. The right to receive or impart information or
ideas, for example, is dependent on it. 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.
We submit that the right to vote is the right to cast an
informed vote. As political parties are "indispensable conduits"
for the exercise of the right,[footnoteRef:37] it is vital that
voters are equally entitled to be informed about the interests that
are vested in those political parties. [37: Ramakatsa, para
68.]
Secrecy of donations to political parties (whether by wealthier
citizens, or even by non-citizens, such as local corporations,
foreign individuals or corporations, or even foreign governments)
distorts and devalues the accuracy of the information that is
available to citizens exercising their electoral and political
choices. Having equal access to accurate information regarding by
whom a political party is funded, and thus to whom it is likely to
owe political loyalty, is critical for all citizens to make equally
informed political choices, particularly when they cast their
votes.
As this Court held in Ambrosini, the imperative is to cultivate
an "active, informed and engaged citizenry", since "the public can
only properly hold their elected representatives accountable if
they are sufficiently informed of the relative merits of
issues".[footnoteRef:38] [38: Oriani-Ambrosini, MP v Sisulu, MP
Speaker of the National Assembly 2012 (6) SA 588 (CC)
("Ambrosini"), para 64, citing Roux Democracy in Stuart Woolman et
al (eds) Constitutional Law of South Africa (Juta & Co Ltd,
Cape Town, 2011), p 10-25.]
Our Constitution's notion of citizenship is conceived with an
emphasis on equality: "[a]ll citizens are equally entitled to the
rights, privileges and benefits of citizenship".[footnoteRef:39]
Among those rights, privileges and benefits is the right to vote.
[39: Constitution, section 3(2)(a) (our emphasis).]
Ensuring equal access to material information about each
political party is an important part of ensuring equal exercise of
the right to vote, which is impressed into the founding values of
our democratic state:[footnoteRef:40] [40: Constitution, section
1(d) (our emphasis). ]
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.
This founding value was accorded considerable significance by
SachsJ, writing for a unanimous Court in August:[footnoteRef:41]
[41: August and Another v Electoral Commission and Others 1999 (3)
SA 1 (CC), para 17.]
The universality of the franchise is important not only for
nationhood and democracy. The vote of each and every citizen is a
badge of dignity and of personhood. Quite literally, it says that
everybody counts. In a country of great disparities of wealth and
power it declares that whoever we are, whether rich or poor,
exalted or disgraced, we all belong to the same democratic South
African nation; that our destinies are intertwined in a single
interactive polity.
The Preamble to the Constitution reiterates that the South
African constitutional project is founded on establishing an open
and transparent society where the state operates in accordance with
the will of the people and strives to eliminate any obstacles to
the proper realisation of fundamental human rights. In this light,
it emphasises the centrality of "democratic values, social justice
and fundamental human rights" and cites as one of the
Constitution's key purposes the need to "[l]ay the foundations for
a democratic and open society in which government is based on the
will of the people".[footnoteRef:42] [42: As this Court pointed out
in First Certification (at para 48), the framers of the
Constitution were "avowedly determined" to "create a new order in
which all South Africans will be entitled to a common South African
citizenship in a sovereign and democratic constitutional state in
which there is equality between men and women and people of all
races so that all citizens shall be able to enjoy and exercise
their fundamental rights and freedoms".]
The equal exercise of the right to vote is, of course, not only
a symbol but a constitutional imperative, requiring practical and
positive steps to be taken towards its realisation. In New National
Party, Yacoob J explained that the right to vote "is fundamental to
a democracy for without it there can be no democracy. But the mere
existence of the right to vote without proper arrangements for its
effective exercise does nothing for a democracy; it is both empty
and useless".[footnoteRef:43] [43: New National Party v Government
of the Republic of South Africa and Others 1999 (3) SA 191 (CC),
para 11 (our emphasis).]
More recently, in Richter, O'Regan J brought these elements
together, holding as follows for a unanimous Court:[footnoteRef:44]
[44: Richter v Minister for Home Affairs and Others 2009 (3) SA 615
(CC), paras 52-53 (our emphasis).]
Each vote strengthens and invigorates our democracy. In marking
their ballots, citizens remind those elected that their position is
based on the will of the people and will remain subject to that
will. The moment of voting reminds us that both electors and the
elected bear civic responsibilities arising out of our democratic
Constitution and its values. We should accordingly approach any
case concerning the right to vote mindful of the bright, symbolic
value of the right to vote as well as the deep, democratic value
that lies in a citizenry conscious of its civic responsibilities
and willing to take the trouble that exercising the right to vote
entails.
Unlike many other civil and political guarantees, as this Court
has remarked on previous occasions, the right to vote imposes an
obligation upon the state not merely to refrain from interfering
with the exercise of the right, but to take positive steps to
ensure that it can be exercised.
The Speaker's only answer to the above authorities is to point
out that citizens have in fact been voting in elections despite
being deprived of access to information about how political parties
are privately funded:[footnoteRef:45] [45: Speaker's Affidavit, p
13 paras 26-27.]
The complete answer to the applicant's application, as the Court
said in IDASA at para [47], is that s 19 of the Constitution does
not afford citizens a right to gain access to political parties'
donations records.
I deny that access to political parties' private donations
records is necessary for the exercise of the right in s 19 of the
Constitution. Thatproposition can be tested by reference to voter
turnout since 1994 until 2014. One would expect that a "conscious
voting citizenry" which feels its "deep, democratic value
diminished" by not knowing who funds its political party would be
so disaffected as to stay away from the polls. Voter turnout since
1994 has in fact remained relatively steady and very high by
international standards, and the total number of votes cast in the
latest national general election was the second highest since
1994.
The Speaker's reliance on IDASA is wholly misplaced, for several
reasons:
First, Griesel J did not say what the Speaker attributes to him.
In the cited paragraph,[footnoteRef:46] Griesel J observed that the
applicants in that case [46: IDASA, para 47.]
[did] not explain how the respondents' donation records would
assist them in exercising or protecting any of the rights on which
they rely or why, in the absence of those donation records, they
are unable to exercise those rights. On the face of it, s 19(1)
prevents any restrictions being imposed on a citizen's right of
making political choices, such as forming a political party,
participating in the activities of and recruiting members for a
party, and campaigning for a political cause. Similarly, the right
to 'free, fair and regular elections', enshrined in s 19(2), does
not impose a duty on political parties to disclose funding sources,
nor does it afford citizens a right to gain access to such records.
The emphasis in s 19(2) lies upon the elections and the nature of
the electoral process and not so much upon the persons or parties
participating in those elections.
Second, as we have pointed out already,[footnoteRef:47] the
application in IDASA was fundamentally different from the present
matter. It concerned a set of narrow requests under PAIA for
records of donations above a specified sum within a specified
period to specific political parties. The relief was refused on the
fact-bound basis that the applicants had failed to offer sufficient
evidence that they required such records. That is a far cry from a
finding that the Constitution does not entitle citizens to such
information at all. [47: Supra, paras 11-13.]
Third, the applicants in IDASA, for reasons unknown, did not
rely on section 19(3)(a) of the Constitution, which enshrines the
right to vote. Contrary to the Speaker's repeated
misrepresentations,[footnoteRef:48] the judgment by Griesel J thus
did not at any stage address whether political parties' donation
information is reasonably required for the exercise of the right to
vote. It also did not address section 32(2) of the Constitution,
let alone the anti-corruption import of section 7(2). Those are the
issues raised in this application, and IDASA provides no answer to
them, let alone the "complete answer" imagined by the Speaker. [48:
Speaker's Affidavit, p 29 para 66.5, p 37 para 74.2, p 52 para
82.5, p 53 para 84.4.]
The Speaker's statistical argument is also misplaced and
misleading. Although the total number of ballots cast was higher in
2014 than 2009 (18,654,771, up from 17,919,966), the proportional
voter turnout dropped (from 77.3% to 73.48%).[footnoteRef:49] In
any event, this completely misses the point. The number of ballots
cast cannot indicate, one way or the other, whether Parliament
failed to fulfil its constitutional obligation. It is the ability
fully to exercise the right to vote that matters, that is, to
exercise the right on a properly informed basis. That the right to
vote may be exercised widely on an impoverished basis does not
answer the challenge here made. [49: Speaker's Affidavit, p 14 para
27.]
Significantly, the Speaker misunderstands the test for
determining whether information is "required" for the exercise of a
right. As Comrie AJA stated in Clutchco, "'required' does not mean
necessity, let alone dire necessity", but rather "'reasonably
required' in the circumstances", which must be "understood to
connote a substantial advantage or an element of
need".[footnoteRef:50] [50: Clutchco, para 13.]
Thus, we need not debate whether the secrecy surrounding party
funding violates the right to vote, as a discrete right. Rather,
the issue is whether citizens would, in exercising their right to
vote, derive "substantial advantage" from being informed about the
sources and sums of private funds channelled into political parties
seeking public power. For the reasons set out above, we submit that
they undoubtedly would.
For a separate and self-standing reason, citizens and the
country as a whole would also gain "substantial advantage" from
this information as a bulwark against corruption. It is to that
advantage that we turn next.
Effective protection from corruption
In Glenister II, Moseneke DCJ and Cameron J, writing for a
majority of this Court, held emphatically as
follows:[footnoteRef:51] [51: Glenister v President of the Republic
of South Africa and Others 2011 (3) SA 347 (CC) ("Glenister II"),
para 177. Glenister II was recently reaffirmed unanimously by this
Court in Helen Suzman Foundation v President of the Republic of
South Africa and Others; Glenister v President of the Republic of
South Africa and Others [2014] ZACC 32 ("Helen Suzman
Foundation").]
It is incontestable that corruption undermines the rights in the
Bill of Rights, and imperils democracy. To combat it requires an
integrated and comprehensive response. The states obligation to
"respect, protect, promote and fulfil" the rights in the Bill of
Rights thus inevitably, in the modern state, creates a duty to
create efficient anti-corruption mechanisms.
The essential import of Glenister II, we submit, is that the
Bill of Rights entitles everyone to protection from corruption.
This flows from the fact that "corruption in the polity corrodes
the rights to equality, human dignity, freedom, security of the
person and various socio-economic rights".[footnoteRef:52] We
submit that the public reasonably require information about the
sources and sums of donations to political parties for the
effective protection of these rights from corruption. [52:
Glenister, para 200.]
The Bill of Rights thus enjoins the state to take substantial
positive steps to protect the public from the effects of corruption
by eradicating the risks of corruption. This obligation is
reinforced by the scheme of the Constitution as a whole: section
1(d) firmly entrenches "accountability, responsiveness and
openness" among the founding values of our democratic state, while
sections 195, 215 and 217 require the promotion of transparency in
public administration, public finance and public procurement,
respectively.
This is not, as the Speaker suggests, an "inapposite" invocation
of these provisions as discrete justiciable rights.[footnoteRef:53]
Rather, it is the same contextual analysis in which this Court
engaged in Glenister II.[footnoteRef:54] The applicant does not
seek to contrive any cause of action from these provisions, but
only to have proper regard to them in interpreting the duties the
Constitution explicitly imposes on Parliament in the Bill of
Rights. [53: Speaker's Affidavit, p 10 para 18, p 30 para 67.3, p
38 para 75.2] [54: Glenister II, para 176.]
The prospect of a political party being beholden or grateful to
its donors especially substantial donors creates considerable scope
for corruption if indeed that party is elected into positions of
public power. For this reason, secret funding of political parties
creates the clear and compelling risk that elected public officials
may extend undue and undetected favouritism towards those that fund
their political progress. In this way, secret funding of political
parties threatens to encourage or at least to conceal corruption,
and thus to retard the realisation of fundamental rights.
In ascertaining whether disclosure of donations is reasonably
required for the effective protection of constitutional rights from
corruption, this Court is enjoined by section 39(1)(b) of the
Constitution to consider international law. In this regard,
Parliament has ratified (without reservation) three international
agreements that directly concern corruption:
on 15 May 2003, the Southern African Development Community
Protocol against Corruption ("the SADC Protocol");
on 22 November 2004, the United Nations Convention against
Corruption ("the UN Convention"); and
on 11 November 2005, the African Union Convention on Preventing
and Combating Corruption ("the AU Convention").[footnoteRef:55]
[55: Parliament reaffirmed its commitment to discharging its duties
under the AU Convention by ratifying the African Charter on
Democracy, specifically articles 2(9), 3(9) and 33(3).]
The SADC Protocol obliges South Africa "to adopt measures, which
will create, maintain and strengthen" mechanisms needed to prevent,
detect, punish and eradicate corruption in the public and private
sector.[footnoteRef:56] These must include "mechanisms to promote
access to information and to facilitate eradication and elimination
of opportunities for corruption",[footnoteRef:57] as well as
"mechanisms for promoting public education and awareness in the
fight against corruption".[footnoteRef:58] [56: SADC Protocol,
article 4.] [57: SADC Protocol, article 4(d).] [58: SADC Protocol,
article 4(j).]
The UN Convention likewise obliges South Africa to "develop and
implement or maintain effective, coordinated anti-corruption
policies that promote the participation of society and reflect the
principles of the rule of law, proper management of public affairs
and public property, integrity, transparency and
accountability".[footnoteRef:59] Specifically, it requires as
follows:[footnoteRef:60] [59: UN Convention, article 5(1) (our
emphasis).] [60: UN Convention, article 7(3) (our emphasis).]
Each State Party shall also consider taking appropriate
legislative and administrative measures, consistent with the
objectives of this Convention and in accordance with the
fundamental principles of its domestic law, to enhance transparency
in the funding of candidatures for elected public office and, where
applicable, the funding of political parties.
The AU Convention is much more robust, requiring explicitly as
follows:[footnoteRef:61] [61: AU Convention, article 10 (our
emphasis).]
Funding of Political Parties
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.
Significantly, this obligation is buttressed by an obligation to
"adopt such legislative and other measures to give effect to the
right of access to any information that is required to assist in
the fight against corruption and related offences".[footnoteRef:62]
This, we submit, corresponds squarely with the constitutional
obligation of Parliament to enact national legislation to give
effect to the right of everyone to access any information required
for the protection of fundamental rights from
corruption.[footnoteRef:63] [62: AU Convention, article 9.] [63:
Constitution, section 32(2) read with section 32(1)(b).]
Before addressing the constitutional import of these
obligations, however, it is necessary to correct the Speaker's
assertion that the AU Convention "has not yet obtained the
sufficient number of ratifications by African countries that is
required for it to come into force".[footnoteRef:64] This is not
so. The AU Convention entered into force on 5 August 2006, after it
had been ratified by the required fifteen states.[footnoteRef:65]
[64: Speaker's Affidavit, p 24 para 58.] [65: AU Convention,
article 23(2). To date, it has been signed by 48 and ratified by 35
of the AU's 54 member states (see
http://www.au.int/en/sites/default/files/Corruption_0.pdf).]
It is also necessary to address the Speaker's averment that, of
the 107 states party to the UN Convention, "61 countries (57%) do
not have formal disclosure requirements".[footnoteRef:66] Firstly,
the Speaker does not cite any source for this data. It is
presumably outdated, as there are, in fact, currently 173 states
party to the UN Convention.[footnoteRef:67] Secondly, and more
importantly, the degree of compliance or non-compliance with the UN
Convention by other states cannot detract at all from our own
Parliament's international and constitutional obligation to comply
with it diligently and without delay. The Speaker's insinuation to
the contrary falls to be firmly rejected. [66: Speaker's Affidavit,
p 24 para 57.] [67: See
https://www.unodc.org/unodc/en/treaties/CAC/signatories.html.]
This Court held in Glenister II that "our Constitution takes
into its very heart obligations to which the Republic, through the
solemn resolution of Parliament, has acceded, and which are binding
on the Republic in international law, and makes them the measure of
the state's conduct in fulfilling its obligations in relation to
the Bill of Rights".[footnoteRef:68] [68: Glenister II, para
178.]
In this way, while Parliament's obligation to enact disclosure
legislation is given confirmation, colour and content by the
international agreements it has ratified, that obligation remains
rooted firmly in the Constitution itself, both in section 32(2) and
independently in section 7(2).
Consistent with the reasoning of Moseneke DCJ and Cameron J, we
submit that South Africa's international commitments quoted above
bear "foremost interpretive significance" in determining whether
Parliament has fulfilled its constitutional
obligations.[footnoteRef:69] In particular, its obligation under
the AU Convention to "incorporate the principle of transparency
into funding of political parties" establishes beyond any doubt
that such transparency is 'reasonably required' by the public for
the protection of their fundamental rights from corruption. [69:
Glenister II, para 194.]
The Speaker takes umbrage with the suggestion that the private
funding of political parties raises any risk of corruption or undue
influence. She says that it is "nothing more than a conspiratorial
refrain", which "borders on calumny against an as yet unidentified
victim".[footnoteRef:70] She ridicules the notion that there is any
nexus between corruption and secret political
donations:[footnoteRef:71] [70: Speaker's Affidavit, p 56 paras
72.1 and 72.4.] [71: Speaker's Affidavit, p 17 para 36.]
It is simply not enough to dish out mournful platitudes about
the ills of corruption without mounting a proper case demonstrating
factually how free voter choice (based on every participating
political party's election manifesto and history of creditable (or
discreditable) performance) aids corruption in the absence of
access to records of political parties' funders.
However, this nexus has already been accepted by Parliament
through its unreserved ratification of the UN and AU Conventions,
each of which classifies disclosure of donations to political
parties as a "preventative measure" against corruption. It has also
been lucidly demonstrated by the US Supreme Court in Buckley v
Valeo, as a key rationale for a disclosure regime that has been on
the US statute books for over 100 years.
Most strikingly, the nexus between corruption and the private
funding of political parties emerges emphatically from the
Speaker's own evidence.
Motivating the adoption of the Promotion of Multiparty Democracy
Bill in 1997, Minister Valli Moosa argued as
follows:[footnoteRef:72] [72: Speaker's Affidavit, annex "BM2", p
59.]
For political parties to perform in terms of the Constitution,
that is to be democratic, to be accountable and to be responsive to
the people of this country, we need to ensure that parties do not
act merely as fronts for some or other powerful financial backer.
That is a danger which our democracy could face, as other
democracies have in other parts of the world. Therefore, this Bill
attempts to ensure that we reduce the dependency of political
parties on one or two powerful financial backers, and thereby
reduce the possibility of the subversion of political parties and
also the subversion of Parliament itself and of our democracy.
Mr Pravin Gordhan MP, as the Chairperson of the Portfolio
Committee on Constitutional Affairs, which had finalised the Bill,
then stated as follows:[footnoteRef:73] [73: Speaker's Affidavit,
annex "BM2", p 60.]
I would like to concur with the Hon. Minister that this is a
very important step in this Parliament's work in that it gives
meaning to a provision in the Constitution which was designed to
ensure that political parties in South Africa slowly become
autonomous public institutions which are outside the influence of
corruption and the influence of people in the private sector who
are would-be donors to political parties.
If these are "mournful platitudes", they are not those of the
applicant, but rather a concurrent and recurring refrain reflected
in international law, foreign law and the statements of Parliament
itself.
We accordingly submit that disclosure of donations to political
parties is, in accordance with the Clutchco test, reasonably
required by the public for the protection of their fundamental
rights from corruption, as it will confer a "substantial advantage"
to an informed public in the detection and deterrence of
corruption. Parliament is thus obliged under section 32(2) of the
Constitution (and, in any event, under section 7(2)) to give effect
to the right of access to this information by enacting disclosure
legislation.
Parliament's failure to fulfil its obligation
The next question is whether Parliament has failed to fulfil the
above constitutional obligation. This is not, as the Speaker
suggests, the subject of any "disputes of fact".[footnoteRef:74]
For all present purposes, the applicant accepts the accuracy of the
Speaker's recordal of Parliament's deliberations about disclosure
legislation. The dispute concerns the legal implications to be
attached to those facts. [74: Speaker's Affidavit, p 53 para 84.1
and 84.2.]
The Speaker advances two contradictory propositions. She argues
that Parliament has already adequately discharged its obligation in
relation to disclosure legislation by:
enacting PAIA, which is the only legislation required under
section 32(2) of the Constitution,[footnoteRef:75] and which does
indeed require disclosure of donations to political
parties;[footnoteRef:76] and [75: Speaker's Affidavit, p 6 para 9,
p 28 para 66.2, p 31 para 67.4, p 32 para 69.1, p 33 para69.5, p 34
para 70.3, p 46 paras 82.2 and 83.1, p 53 para 83.4, p 55 para
85.1.] [76: Speaker's Affidavit, p 7 para 12, p 18 para 38.]
deciding that disclosure legislation "should not be proceeded
with" as it was "not feasible".[footnoteRef:77] [77: Speaker's
Affidavit, pp 22-23 para 50, pp 45-46 para 82, pp 49-50 para
81.7.]
Parliament's position is summarised by the Speaker
thus:[footnoteRef:78] [78: Speaker's Affidavit, p 46 para
82.2.]
There is a difference between failure to fulfil a constitutional
obligation, on the one hand, and making a decision in the
fulfilment of that obligation but which does not carry favour with
a lobby group on the other. The facts of this case fit into the
latter scenario. Parliament has fulfilled its constitutional duty
of enacting legislation that gives effect to s 32(2) of the
Constitution. That legislation is PAIA. After considering a
Parliamentary Committee's report in August 2011, Parliament then
decided not to enact further legislation as it is entitled to do.
That cannot reasonably be described as failure to fulfil a
constitutional obligation.
We respond to each prong of this argument in turn.
PAIA does not require disclosure of donations to political
parties
The Speaker asserts, in one breath, that there is no need for
disclosure legislation because PAIA already provides for disclosure
of donations to political parties in section 50. But she argues, in
the next breath, that PAIA does not permit such disclosure. By this
self-destructive logic, the Speaker seeks to have her cake and eat
it. This she cannot do.
On the contrary, the Speaker's submission amounts to an
admission that no disclosure legislation currently exists. The
upshot of this is that, once it is demonstrated that there is an
obligation binding on Parliament to pass such legislation, which we
submit has been shown above, it may be accepted that Parliament has
manifestly failed to fulfil that obligation.
PAIA plainly does not provide for disclosure of donations to
political parties, for the very obvious reason that PAIA applies
only to "records", which are defined in section 1 as follows:
'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.
PAIA cannot apply to information that has not been "recorded".
There is currently no law, policy or practice directing political
parties to create and keep records of their donations (of whatever
value and in whatever form, whether in cash or in kind). Moreover,
there is also no law, policy or practice of making any donation
information public, whether proactively or upon request. Private
donations to political parties are thus expected to remain
precisely that: private.
Accordingly, any request under section 50 of PAIA for the
'record' of a particular donation or donations to a particular
political party could, and surely would, be met with refusal,
either on the grounds that no such record exists, or, if it does
exist, that its disclosure would breach an express, implied or
tacit "duty of confidence owed to a third party".[footnoteRef:79]
[79: PAIA, section 65.]
This touches the surface of PAIA's inherent inability to apply
generally and prospectively to donation information. Being confined
to "recorded" and "requested" information, it can only apply
specifically and retrospectively. If PAIA were to apply, it would
necessarily apply unequally and arbitrarily among political parties
and among donors, as it would depend on: the existence and form of
any records; the contents and cogency of a particular request
(targeting specific parties and specific donors or a specific
period); the contents and cogency of each political party's
response (and any third party notifications to donors); as well as
the unpredictability, in terms of time, cost and outcome, of any
resulting litigation.
The Speaker's reliance on the mandatory disclosure override
provisions in section 70 of PAIA is similarly
misplaced,[footnoteRef:80] and merely highlights the
inappropriateness of PAIA in the context of access to information
about funding of political parties. That section places an onus on
the requester of a record to demonstrate, on a balance of
probabilities, that its disclosure would reveal a "substantial
contravention" of the law and that the public interest in its
disclosure "clearly outweighs" any harm in such disclosure. No
requester could conceivably meet this threshold. Political
donations do not, in themselves, contravene any law. Moreover, as
the public, under the current system of complete secrecy, cannot
even know who any political parties' financial patrons are, it is
impossible for any member of the public to meet the evidential
burden imposed by section 70 of PAIA. Logically, requests for
donation information would be generalised and would thus be, as in
the circumstances in IDASA, unfailingly refused. [80: Speaker's
Affidavit, p 16 para 34.]
The applicant does not direct any challenge against the inherent
constraints on the application of PAIA. These constraints are
logical and legitimate for PAIA to serve its purpose, which is a
deliberately limited one. PAIA, unlike its contemporary
PAJA,[footnoteRef:81] does not purport to codify or to cover the
full field of access to information. As Currie and De Waal
explain:[footnoteRef:82] [81: Promotion of Administrative Justice
Act, 2000 ("PAJA").] [82: Iain Currie and Johan de Waal, The Bill
of Rights Handbook (5 ed), p 686 n 15.]
It is important to note that PAIA is less ambitious than PAJA in
at least one significant respect. Unlike PAJA, [PAIA] does not set
out to regulate the constitutional right of access to information
comprehensively and generally. PAIA applies instead only to certain
'records' There is no parallel and comprehensive concept in PAIA to
define the scope of the application of the constitutional right of
access to information as there is a parallel and comprehensive
concept in PAJA to define the scope of s 33. The practical effect
is that PAIA leaves room for direct application of s 32 in
applications for access to information that is not covered by the
Act.
The Speaker's assertion that disclosure legislation need not be
enacted, because it already exists in the form of PAIA, is further
belied by the fact that Parliament, despite the enactment of PAIA,
engaged in "deliberations" (which ironically the Speaker seeks to
count to Parliament's credit) about whether disclosure legislation
should be enacted, and that, when it eventually decided that no
such legislation should be enacted, it did not cite the alleged
applicability of PAIA among its reasons.
Before addressing the reasons Parliament did advance for
deciding against disclosure legislation, it is necessary to answer
the doctrinal question of whether the enactment of PAIA exhausted
the operation of section 32(2) of the Constitution. We submit not.
As highlighted above, PAIA still leaves much space on the field for
other laws to govern access to information in specific spheres of
application.[footnoteRef:83] It does not codify the right of access
to information, and it does not purport to do so. The applicant
thus raises no constitutional challenge against PAIA, and seeks no
reading in, reading down or striking down of any of its provisions.
[83: An obvious example is the rules of court, as noted by this
Court in PFE International and Others v Industrial Development
Corporation of South Africa Ltd 2013 (1) SA 1 (CC).]
Moreover, even if it is found that section 32(2) has no meaning
beyond the enactment of PAIA, Parliament would still be obliged
under section 7(2) of the Constitution to "respect, protect,
promote and fulfil the rights in the Bill of Rights", inter alia,
by discharging its duty under the AU Convention to "adopt
legislative and other measures to [i]ncorporate the principle of
transparency into funding of political parties".[footnoteRef:84] In
accordance with this Court's reasoning in Glenister II, we submit
that this obligation requires the enactment of disclosure
legislation, and that Parliament has failed to fulfil that
obligation. [84: AU Convention, article 10.]
Parliament does not have a discretion to decide whether to
fulfil a constitutional obligation
The Speaker advances the unfortunate argument that, if there
remained an obligation to enact disclosure legislation apart from
PAIA, Parliament has indeed discharged that obligation by deciding
that such legislation should not be enacted. The Speaker alarmingly
misunderstands the meaning of the word "obligation", mistaking it
for an "option". The Constitution sets its face firmly against such
an attitude, proclaiming that, as "the supreme law", "the
obligations imposed by it must be fulfilled",[footnoteRef:85] and
"[a]ll constitutional obligations must be performed diligently and
without delay".[footnoteRef:86] [85: Constitution, section 2.] [86:
Constitution, section 237. See Minister of Health and Others v
Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC),
paras 96-114.]
It simply cannot be contended that a constitutional obligation
is discharged by no more than the mere effort of deliberating on it
and deciding that it need not or should not be discharged. Whether
Parliament has fulfilled its constitutional obligations is not a
matter of subjective official opinion, but a matter of law
ascertainable by objective legal enquiry.
This is clear from Mogoeng CJ's judgment in Helen Suzman
Foundation, where Parliament was held strictly to its obligation
even where it had gone to the effort of enacting legislation to
fulfil it and erroneously believed that it had adequately done
so.[footnoteRef:87] [87: Helen Suzman Foundation, particularly
paras 10 and 107.]
The Speaker appears to be under the misapprehension that the
Constitution cannot prescribe the substantive content of
legislation commanded by it and that the debate in this application
is about how precisely Parliament must formulate disclosure
legislation.[footnoteRef:88] On the contrary, the applicant
contends that Parliament may - and must - indeed formulate the
precise contents of the disclosure legislation (e.g. the thresholds
and mechanisms for recording and disclosing donations), but that
national legislation must be enacted to cover the field of
disclosure required under the Constitution. This field includes
general, pro-active and prospective disclosure of certain
information (because, by its very nature, it cannot be susceptible
to specific and retrospective disclosure upon request). That
important part of the field remains uncovered. [88: Speaker's
Affidavit, p12-13 para 24, p 29 para 66.6, p 33 para 69.6, p 46-47
paras 83.1-3.]
The Speaker erroneously suggests that Parliament, being obliged
by the Constitution to enact certain national legislation, has an
open discretion to determine the scope of such legislation, without
constitutional scrutiny, and thus that Parliament is entitled to
determine freely for itself the meaning and substance of its
constitutional obligations. This proposition is directly at odds
with the doctrine of constitutional supremacy and the jurisprudence
of this Court.[footnoteRef:89] [89: Constitution, sections 2 and
172(1)(a); see First Certification, para 149; Pharmaceutical
Manufacturers Association of South Africa and Another: in re Ex
Parte President of the Republic of South Africa and Others 2000 (2)
SA 674 (CC), para 40; Veldman v Director of Public Prosecutions
(Witwatersrand Local Division) 2007 (3) SA 210 (CC), para 71;
Centre for Child Law v Minister for Justice and Constitutional
Development and Others 2009 (2) SACR 477 (CC), para 106; Helen
Suzman Foundation, paras 10 and 107.]
Parliament has not justified its failure to enact disclosure
legislation
Parliament recorded the following reasons for its decision that
proposed disclosure legislation "is not feasible and should not be
proceeded with":[footnoteRef:90] [90: Speaker's Affidavit, pp 22-23
paras 50-53, p 71 annex "BM7".]
1.the legislative proposal has the potential to negatively
impact on the promotion of the constitutional values that underlie
a multi-party system of democratic government, as reflected in
section 1(d) of the [Constitution];
2. in terms of section 8(4) of the [Constitution], a juristic
person (such as a political party) is "entitled to the rights in
the Bill of Rights to the extent required by the nature of the
rights and the nature of that juristic person";
3. the proposal, if allowed to proceed, carries the potential to
limit the constitutional right to privacy (section 14), freedom of
expression (section 16), freedom of association (section 18) and
political rights (section 19) of both individuals and juristic
persons; and
4. the legislative proposal does not indicate to what extent the
potential limitations can be reasonably justified in a democratic
society in terms of the requirements contained in section 36 of the
[Constitution], and thus does not sufficiently illustrate that
affected rights can be balanced in a manner that still gives
sufficient expression to the spirit, purport and object of the
Constitution.
Parliament did no more than sketch a cursory list of interests
which might be implicated by disclosure legislation, and then
summarily decided not to develop any disclosure legislation at all,
apparently deeming these interests either too consecrated or too
complicated for Parliament to handle. This is plainly not good
enough. It is Parliament's prime function to manage and mediate
potentially competing interests in the development of legislation.
The excuse that Parliament simply did not consider itself up to the
task is no justification for failing to fulfil its constitutional
obligation. If anything, it confirms the need for this Courts
intervention to ensure that Parliament be reminded of its duty no
matter the perceived difficulty of doing it.
Moreover, the above list of interests is woefully one-sided and
selective. Parliament made no mention of the right of access to
information, the right to vote, the state's duties under section
7(2) of the Constitution, or of South Africa's constitutional and
international obligations to prevent and combat corruption.
Parliament provided no explanation for disregarding the report
of the Committee which finalised the Promotion of Multiparty
Democracy Bill, let alone for failing to act on that report at all
for fourteen years.[footnoteRef:91] It is as though these words by
the Bill's drafters were never written: [91: Speaker's Affidavit,
annex "BM1", p 58 (our emphasis).]
The passing of this Bill represents a very significant step in
the ongoing process of consolidating and entrenching a multi-party
democracy in South Africa. However, the Bill has to be seen as the
first stage of the process of addressing the complex matter of the
funding of political parties. There are other issues relating to
the funding of political parties that will have to be addressed in
the near future, the main one being the need for public disclosure
of the private funding received by political parties, and the form
and scope of this disclosure.
Parliament also offered no reasons for going back on the solemn
promises made, under oath, by the four respondents in IDASA, most
notably those of the ANC's Mr Kgalema Motlanthe, who acknowledged
that South Africa bore an international obligation to enact
disclosure legislation, and assured the Court that "Parliament will
fulfil this obligation".[footnoteRef:92] [92: Founding Affidavit,
annex "FA4", p 97 para 10.6.1.]
In this Court, Parliament makes no mention of any of the above.
Instead, it casually cites some unsubstantiated "potential to
negatively impact on the promotion of the constitutional values
that underlie a multi-party system of democratic government",
without addressing the Portfolio Committee's polar opposite view
that meeting "the need for public disclosure" was "the main" part
of the "process of consolidating and entrenching a multi-party
democracy in South Africa".
Parliament's unsubstantiated appeal to the privacy and other
rights "of both individual and juristic persons" also have little
weight.. Firstly, these rights must yield to the right of access to
information if the Constitution commands it, and secondly, the
constitutional right to privacy is inherently inhibited by the
public interest, as this Court held in Bernstein v
Bester:[footnoteRef:93] [93: Bernstein and Others v Bester and
Others NNO 1996 (2) SA 751 (CC), para 67.]
Privacy is acknowledged in the truly personal realm, but as a
person moves into communal relations and activities such as
business and social interaction, the scope of personal space
shrinks accordingly.
It is up to Parliament to calibrate its legislation to balance
any affected rights in a manner that is reasonable and justifiable
in an open and democratic society. It cannot shirk or shrink from
that responsibility. Any apprehension of limiting one right is no
justification for denying another, as Parliament is entitled and
enjoined to limit rights appropriately in order to respect,
protect, promote and fulfil fundamental rights.
In any event, no competing interests can altogether excuse
Parliament from fulfilling a constitutional obligation, though it
must do so in a manner that is appropriately sensitive to such
interests. Whether the obligation exists at all, however, is
determined by the Constitution itself, not by the existence of any
competing interests, and it does not fall to be second-guessed by
the entity on which the obligation has been imposed.
It is necessary to note that South Africa's binding
international obligations will weigh heavily in any balancing of
interests. In BATSA, upholding a blanket ban on tobacco
advertising, Mthiyane DP for a unanimous Supreme Court of Appeal
held as follows:[footnoteRef:94] [94: British American Tobacco
South Africa (Pty) Ltd v Minister of Health (National Council
against Smoking as amicus curiae) [2012] 3 All SA 593 (SCA), paras
22-23 (our emphasis).]
South Africa also has international law obligations to ban
tobacco advertising and promotion I do not think that it was open
to the Minister and the Legislature to ignore the Framework
Convention when considering what steps to take to deal with the
risks posed by tobacco use. [I]n determining whether or not to
impose a ban on advertising and promotion of tobacco products the
Minister would have been obliged to have regard to the Framework
Convention. This Court is therefore obliged, under the
Constitution, to give weight to it in determining the question of
justification or the limitation of the right to freedom of
speech.
It is trite that where government is challenged for a failure to
perform a constitutional obligation - in this case to pass
legislation in compliance with constitutional and international
duties - then there is a duty on government to produce evidence to
justify that failure.[footnoteRef:95] [95: In Minister of Home
Affairs v National Institute for Crime Prevention (NICRO) and
Others 2004 (5) BCLR 445 (CC), para 34, Chaskalson CJ stressed that
the onus on the State in a limitation enquiry is 'an onus of a
special type' (referring to Moise v Greater Germiston Transitional
Local Council, Minister of Justice and Constitutional Development
intervening (Women's Legal Centre as Amicus Curiae) 2001 (4) SA 491
(CC), para 19; Phillips and Another v Director of Public
Prosecutions, Witwatersrand Local Division and others 2003 (3) SA
345 (CC), para 20). According to Chaskalson CJ (paras 34-36):It is
a burden to justify a limitation where that becomes an issue in a
section 36 analysis. This calls for a different enquiry to that
conducted when factual disputes have to be resolved. In a
justification analysis facts and policy are often intertwined.
Where justification depends on factual material, the party relying
on justification must establish the facts on which the
justification depends. Justification may, however, depend not on
disputed facts but on policies directed to legitimate governmental
concerns. If that be the case, the party relying on justification
should place sufficient information before the court as to the
policy that is be furthered, the reasons for that policy, and why
it is considered reasonable in pursuit of that policy to limit a
constitutional right. (our emphasis)]
We submit that the Speaker has not advanced any justification at
all, let alone adequate justification, for Parliament's failure to
enact disclosure legislation.
Appropriate remedy
We respectfully submit that this Court should, under sections
167(4)(e) and 172(1)(a) of the Constitution, declare that
Parliament has failed to fulfil its constitutional obligation to
enact disclosure legislation, framed in the terms set out in the
notice of motion or such other terms as the Court sees fit.
In addition, and particularly considering that 17 years have
elapsed - inexplicably - since Parliament first undertook to
develop disclosure legislation, it would be appropriate to direct
Parliament to do so within 18 months, and to report to this Court
on its progress every three months within that period.
Jurisdiction
By directions dated 30 September 2014, the parties were afforded
an opportunity to submit written argument on whether this
application falls within this Court's exclusive jurisdiction. We
respectfully refer the Court, in this regard, to our written
argument lodged on 20 October 2014.
If it is found that this application falls outside this Court's
exclusive jurisdiction, we respectfully submit that it is, in any
event, deserving of direct access to this Court. There are no
disputes of fact.
The legal and constitutional issues have been crisply defined
and comprehensively ventilated on the papers and now in further
written argument by the parties. Parliament does not oppose direct
access and is prepared to argue the merits of the matter in full,
as is the applicant. We respectfully submit that both Parliament
and the public would benefit from this Court serving as a court of
first and final instance in this matter.
Costs
The applicant is a non-profit organisation founded to conduct
research, analysis and advocacy concerning electoral issues. It has
approached this Court in good faith after exhaustive efforts to
engage Parliament on the subject matter of this application. The
issues it raises are, we submit, of great constitutional moment and
their ventilation is eminently in the public interest.
Consequently, we submit that, in accordance with the now trite
Biowatch principle,[footnoteRef:96] the applicant should be awarded
its costs, including the costs of two counsel, if the application
succeeds, but should not be burdened with Parliament's costs if the
application fails. [96: Biowatch Trust v Registrar Genetic
Resources and Others 2009 (6) SA 232 (CC).]
Conclusion
In all the circumstances, we submit that the applicant has
demonstrated that Parliament bears a constitutional obligation to
enact disclosure legislation, and that it has unjustifiably failed
to do so. It should now be ordered to do so within 18 months of
this Court's order.
David Unterhalter SCMax du Plessis
Chambers6 January 2015