IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: CCT 121/14
In the matter between:
MY VOTE COUNTS NPC
Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY
CHAIRPERSON OF THE
NATIONAL COUNCIL OF PROVINCES
SEVENTEEN OTHERS
First Respondent
Second Respondent
Third to Nineteenth Respondents
APPLICANT'S WRITTEN ARGUMENT
INTRODUCTION
1.
1.1.
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
1.2.
directing Parliament to do so within a reasonable time.
2
2.
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.
3.
This written argument is structured as follows:
Introduction ................................................................................................... 1
Parties............................................................................................................ 3
Issues ............................................................................................................. 4
Parliament's constitutional obligation .......................................................... 9
The nature of political parties ............................................................ 13
Effective exercise of the right to vote.................................................. 20
Effective protection from corruption .................................................. 27
Parliament's failure to fulfil its obligation .................................................. 35
PAIA does not require disclosure of donations to political parties ... 36
Parliament does not have a discretion to decide whether to fulfil a
constitutional obligation ..................................................................... 41
Parliament has not justified its failure to enact disclosure
legislation ........................................................................................... 43
Appropriate remedy ..................................................................................... 48
Jurisdiction .................................................................................................. 48
Costs ............................................................................................................ 49
Conclusion ................................................................................................... 50
3
PARTIES
4.
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.
5.
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.
6.
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.
7.
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
4
is sought against any of them, and no opposition to the application has been
advanced by any of them.1
ISSUES
8.
This matter raises three questions:
8.1.
Does Parliament bear a constitutional obligation to enact disclosure
legislation?
8.2.
If so, has Parliament failed to fulfil that obligation?
8.3.
If so, what will be an appropriate remedy for that failure?
9.
We address each of these questions in turn. We seek to show that:
9.1.
having regard to the unique nature of political parties, disclosure of
donations to political parties is reasonably required for the:
9.1.1.
effective exercise of the right to vote; and
9.1.2.
effective protection of all constitutional rights from corruption.
9.2.
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.
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.
5
9.3.
Parliament has presented no justification for its failure to enact such
disclosure legislation.
9.4.
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.
10. The Speaker summarises Parliament's opposition to this application as
follows:2
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.
11. 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
2
Speaker's Affidavit, pp 37-38, paras 74.2-4.
6
IDASA,3 which forms the foundation of Parliament's entire response to this
application:
11.1.
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".4 This is not so.
11.2.
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".5 This,
too, is patently not the case.
12. 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:6
3
Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5)
SA 39 (C) ("IDASA").
4
Speaker's Affidavit, p 29 para 66.5.
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).
6
IDASA, para 8 (original emphasis).
7
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 s 32 of the
Constitution and ss 11 or 50 of PAIA), to the specific records claimed from
the present respondents in respect of the specified period.
13. 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".7 Griesel J
took considerable care, however, to contextualise the narrow import of his
judgment, as follows:8
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
7
8
IDASA, para 52.
IDASA, para 58 (our emphasis).
8
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:9
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
candidate’s 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. This exposure may discourage
those who would use money for improper purposes either before or
after the election.
A public armed with information about a
candidate's most generous supporters is better able to detect any postelection special favors that may be given in return. …
14. 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
9
Buckley v Valeo [1976] USSC 24; 424 US 1 (1976), pp 67-68 (our emphasis).
9
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
15. 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.
16. 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,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].
10
17. 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.11
18. 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 section 32(1)(b).
19. Following a steady march of judgments interpreting identical language in
section 23 of the interim Constitution,12 the test for determining the
11
Cf eThekwini Municipality v Ingonyama Trust 2014 (3) SA 240 (CC), paras [36] and [37].
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.
12
11
meaning of "reasonably required" has been most authoritatively
approximated by Comrie AJA in Clutchco:13
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.
20. 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.
21. 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, Cameron JA stated
forcefully as follows in a lone dissent:14
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 factbound. 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
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.
14
Unitas, para 40 (our emphasis); see also paras 31 and 42.
12
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.
22. 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.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."16 Navsa ADP echoed the
argument of Cameron JA in Unitas, as follows:17
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
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.
13
Rights to juristic persons "to the extent required by the nature of the rights
and the nature of those juristic persons".
23. 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
24. 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.18
The
centrality of political parties has been recognised by this Court and cannot
be gainsaid.19
25. 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;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
18
IDASA, para 42.
For a general discussion see Lisa Thornton, “The Constitutional Right to Just Administrative Action - Are
Political Parties Bound?” (1999) 15 SAJHR 351, p 358.
20
Part 3 of the Electoral Act, 1998 ("Electoral Act"); schedule 3 item 1(1).
19
14
inextricably linked to party membership;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.
26. The Speaker strongly denies that political parties bear any obligations
towards the voting public:22
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.
27. 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
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.
22
Speaker's Affidavit, p 12 para 22 and pp 35-36 paras 71.1-5.
15
nature of the right and the nature of any duty imposed by the right".
In ArcelorMittal, 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.23
28. 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'."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".
29. 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.
23
24
ArcelorMittal, para 78.
IDASA, paras 20-32 (our emphasis).
16
30. 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.
31. 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:25
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; …
32. 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".26
25
26
PAIA, preamble (our emphasis).
Speaker's Affidavit, p 35 para 71.4.
17
33. In the First Certification judgment, this Court sketched the constitutional
place of political parties briefly as follows:27
Under a list system of proportional representation, it is parties that the
electorate votes for, and parties which must be accountable to the
electorate.
34. 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:28
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
27
Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA
744 (CC) ("First Certification"), para 186.
28
Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC)
("Ramakatsa"), paras 65-68 (our emphasis).
18
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.
35. 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 Constitution’s most sacred goals:29
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'.
36. 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.
29
In its report dated 23 October 1997,
Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC), paras 42-43 (our
emphasis).
19
Parliament's Portfolio Committee on Constitutional Affairs heralded the
Promotion of Multiparty Democracy Bill as follows:30
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.
37. 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:31
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.
38. This fact also finds expression in international law. The African Charter on
Democracy, Elections and Governance was ratified by our Parliament on
24 December 2010.32 It aims, inter alia, to: "promote and strengthen good
governance through the institutionalization of transparency, accountability
30
Speaker's Affidavit, annex "BM1", p 58.
Speaker's Affidavit, annex "BM2", p 59 (our emphasis).
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.
31
20
and participatory democracy".33 To this end, while "recognising the role,
rights and responsibilities of legally constituted political parties",34 the
Charter obliges South Africa to "take measures to ensure and maintain …
public trust and transparency between political leaders and the people".35
39. 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
40. In M&G Media, Ngcobo CJ, for a majority of this Court, emphasised the
importance of access to information as follows:36
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
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).
36
President of the Republic of South Africa and Others v M&G Media Ltd 2012 (2) SA 50 (CC), para 10
(our emphasis).
21
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.
41. 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,37
it is vital that voters are equally entitled to be informed about the interests
that are vested in those political parties.
42. 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.
43. As this Court held in Ambrosini, the imperative is to cultivate an "active,
informed and engaged citizenry", since "the public can only properly hold
37
Ramakatsa, para 68.
22
their elected representatives accountable if they are sufficiently informed of
the relative merits of issues".38
44. 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".39 Among those rights, privileges and benefits is the
right to vote.
45. 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:40
Universal adult suffrage, a national common voters roll, regular elections
and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness.
46. This founding value was accorded considerable significance by Sachs J,
writing for a unanimous Court in August:41
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.
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.
39
Constitution, section 3(2)(a) (our emphasis).
40
Constitution, section 1(d) (our emphasis).
41
August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC), para 17.
23
47. 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".42
48. 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".43
49. More recently, in Richter, O'Regan J brought these elements together,
holding as follows for a unanimous Court:44
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".
43
New National Party v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC),
para 11 (our emphasis).
44
Richter v Minister for Home Affairs and Others 2009 (3) SA 615 (CC), paras 52-53 (our emphasis).
24
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.
50. 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:45
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.
That proposition 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
45
Speaker's Affidavit, p 13 paras 26-27.
25
high by international standards, and the total number of votes cast in the
latest national general election was the second highest since 1994.
51. The Speaker's reliance on IDASA is wholly misplaced, for several reasons:
51.1.
First, Griesel J did not say what the Speaker attributes to him. In the
cited paragraph,46 Griesel J observed that the applicants in that case –
[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.
51.2.
Second, as we have pointed out already,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.
46
47
IDASA, para 47.
Supra, paras 11-13.
26
That is a far cry from a finding that the Constitution does not entitle
citizens to such information at all.
51.3.
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,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.
52. 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%).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.
48
49
Speaker's Affidavit, p 29 para 66.5, p 37 para 74.2, p 52 para 82.5, p 53 para 84.4.
Speaker's Affidavit, p 14 para 27.
27
53. 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".50
54. 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.
55. 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
56. In Glenister II, Moseneke DCJ and Cameron J, writing for a majority of
this Court, held emphatically as follows:51
It is incontestable that corruption undermines the rights in the Bill of
Rights, and imperils democracy. To combat it requires an integrated and
50
Clutchco, para 13.
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").
51
28
comprehensive response.
The state’s 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.
57. 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".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.
58. 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.
59. This is not, as the Speaker suggests, an "inapposite" invocation of these
provisions as discrete justiciable rights.53 Rather, it is the same contextual
analysis in which this Court engaged in Glenister II.54 The applicant does
52
53
54
Glenister, para 200.
Speaker's Affidavit, p 10 para 18, p 30 para 67.3, p 38 para 75.2
Glenister II, para 176.
29
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.
60. 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.
61. 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:
61.1.
on 15 May 2003, the Southern African Development Community
Protocol against Corruption ("the SADC Protocol");
61.2.
on 22 November 2004, the United Nations Convention against
Corruption ("the UN Convention"); and
30
61.3.
on 11 November 2005, the African Union Convention on Preventing
and Combating Corruption ("the AU Convention").55
62. 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.56 These
must include "mechanisms to promote access to information and to
facilitate eradication and elimination of opportunities for corruption",57 as
well as "mechanisms for promoting public education and awareness in the
fight against corruption".58
63. 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".59 Specifically, it requires as follows:60
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.
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).
56
SADC Protocol, article 4.
57
SADC Protocol, article 4(d).
58
SADC Protocol, article 4(j).
59
UN Convention, article 5(1) (our emphasis).
60
UN Convention, article 7(3) (our emphasis).
31
64. The AU Convention is much more robust, requiring explicitly as follows:61
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.
65. 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".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.63
66. 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".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.65
61
AU Convention, article 10 (our emphasis).
AU Convention, article 9.
63
Constitution, section 32(2) read with section 32(1)(b).
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).
62
32
67. 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".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.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.
68. 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".68
69. 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).
66
67
68
Speaker's Affidavit, p 24 para 57.
See https://www.unodc.org/unodc/en/treaties/CAC/signatories.html.
Glenister II, para 178.
33
70. 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.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.
71. 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".70 She ridicules the notion
that there is any nexus between corruption and secret political donations:71
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.
72. 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
69
70
71
Glenister II, para 194.
Speaker's Affidavit, p 56 paras 72.1 and 72.4.
Speaker's Affidavit, p 17 para 36.
34
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.
73. Most strikingly, the nexus between corruption and the private funding of
political parties emerges emphatically from the Speaker's own evidence.
74. Motivating the adoption of the Promotion of Multiparty Democracy Bill in
1997, Minister Valli Moosa argued as follows:72
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.
75. Mr Pravin Gordhan MP, as the Chairperson of the Portfolio Committee on
Constitutional Affairs, which had finalised the Bill, then stated as follows:73
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.
72
73
Speaker's Affidavit, annex "BM2", p 59.
Speaker's Affidavit, annex "BM2", p 60.
35
76. 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.
77. 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
78. 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".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.
79. The Speaker advances two contradictory propositions. She argues that
Parliament has already adequately discharged its obligation in relation to
disclosure legislation by:
74
Speaker's Affidavit, p 53 para 84.1 and 84.2.
36
79.1.
enacting PAIA, which is the only legislation required under section
32(2) of the Constitution,75 and which does indeed require disclosure
of donations to political parties;76 and
79.2.
deciding that disclosure legislation "should not be proceeded with" as
it was "not feasible".77
80. Parliament's position is summarised by the Speaker thus:78
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.
81. We respond to each prong of this argument in turn.
PAIA DOES NOT REQUIRE DISCLOSURE OF DONATIONS TO
POLITICAL PARTIES
82. 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
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 para 69.5, 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.
77
Speaker's Affidavit, pp 22-23 para 50, pp 45-46 para 82, pp 49-50 para 81.7.
78
Speaker's Affidavit, p 46 para 82.2.
37
does not permit such disclosure. By this self-destructive logic, the Speaker
seeks to have her cake and eat it. This she cannot do.
83. 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.
84. 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.
85. 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
38
upon request. Private donations to political parties are thus expected to
remain precisely that: private.
86. 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".79
87. 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.
88. The Speaker's reliance on the mandatory disclosure override provisions in
section 70 of PAIA is similarly misplaced,80 and merely highlights the
inappropriateness of PAIA in the context of access to information about
79
80
PAIA, section 65.
Speaker's Affidavit, p 16 para 34.
39
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.
89. 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,81 does not purport to codify or to cover the
full field of access to information. As Currie and De Waal explain:82
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
81
82
Promotion of Administrative Justice Act, 2000 ("PAJA").
Iain Currie and Johan de Waal, The Bill of Rights Handbook (5 ed), p 686 n 15.
40
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.
90. 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.
91. 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.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.
92. 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
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).
41
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".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.
PARLIAMENT DOES NOT HAVE A DISCRETION TO DECIDE
WHETHER TO FULFIL A CONSTITUTIONAL OBLIGATION
93. 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",85 and "[a]ll constitutional
obligations must be performed diligently and without delay".86
94. 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
84
AU Convention, article 10.
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.
85
42
constitutional obligations is not a matter of subjective official opinion, but
a matter of law ascertainable by objective legal enquiry.
95. 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.87
96. 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.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.
97. The Speaker erroneously suggests that Parliament, being obliged by the
Constitution to enact certain national legislation, has an open discretion to
87
88
Helen Suzman Foundation, particularly paras 10 and 107.
Speaker's Affidavit, p12-13 para 24, p 29 para 66.6, p 33 para 69.6, p 46-47 paras 83.1-3.
43
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.89
PARLIAMENT HAS NOT JUSTIFIED ITS FAILURE TO ENACT
DISCLOSURE LEGISLATION
98. Parliament recorded the following reasons for its decision that proposed
disclosure legislation "is not feasible and should not be proceeded with":90
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
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.
90
Speaker's Affidavit, pp 22-23 paras 50-53, p 71 annex "BM7".
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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.
99. 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 Court’s intervention to ensure that Parliament
be reminded of its duty no matter the perceived difficulty of doing it.
100. 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.
101. Parliament provided no explanation for disregarding the report of the
Committee which finalised the Promotion of Multiparty Democracy Bill,
45
let alone for failing to act on that report at all for fourteen years.91 It is as
though these words by the Bill's drafters were never written:
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.
102. 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".92
103. 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".
91
92
Speaker's Affidavit, annex "BM1", p 58 (our emphasis).
Founding Affidavit, annex "FA4", p 97 para 10.6.1.
46
104. 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:93
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.
105. 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.
106. 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.
93
Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC), para 67.
47
107. 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:94
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.
108. 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.95
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).
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)
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109. 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
110. 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.
111. 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
112. 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.
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113. 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.
114. 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
115. 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.
116. Consequently, we submit that, in accordance with the now trite Biowatch
principle,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).
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CONCLUSION
117. 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 SC
Max du Plessis
Chambers
6 January 2015