In the Constitutional Court of South Africa s3
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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 First Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Second Respondent
SEVENTEEN OTHERS Third to Nineteenth Respondents
APPLICANT'S WRITTEN ARGUMENT
1. INTRODUCTION
2. 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. 3. 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.
4. This written argument is structured as follows:
5. PARTIES
6. 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.
7. 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.
8. 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 3
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.
9. 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.1
10. ISSUES
11. 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?
12. 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
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. 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.
13. 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.
2 Speaker's Affidavit, pp 37-38, paras 74.2-4. 5
14. 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,3 which forms the foundation of Parliament's entire response to this
application:
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.
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.
15. The applicants in IDASA made a fundamentally different case. They had
issued requests under PAIA to specific political parties for records of
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). 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
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.
16. 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
6 IDASA, para 8 (original emphasis).
7 IDASA, para 52.
8 IDASA, para 58 (our emphasis). 7
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: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 post- election special favors that may be given in return. …
17. The relief sought in the present application is fundamentally different from
that sought in IDASA. The present applicant does not seek disclosure from
9 Buckley v Valeo [1976] USSC 24; 424 US 1 (1976), pp 67-68 (our emphasis). 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.
18. PARLIAMENT'S CONSTITUTIONAL OBLIGATION
19. 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.
20. 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 9
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.
21. 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
22. 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
10 Ingonyama Trust v eThekwini Municipality 2013 (1) SA 564 (SCA), paras [6] to [11].
11 Cf eThekwini Municipality v Ingonyama Trust 2014 (3) SA 240 (CC), paras [36] and [37]. donations to political parties "is required for the exercise or protection of
any rights" in terms of section 32(1)(b).
23. Following a steady march of judgments interpreting identical language in
section 23 of the interim Constitution,12 the test for determining the
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.
24. 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.
25. In Unitas, where the Supreme Court of Appeal (per Brand JA, with Harms,
Conradie and Cloete JJA concurring) denied a request for information from
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. 11
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 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.
26. 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
14 Unitas, para 40 (our emphasis); see also paras 31 and 42.
15 Company Secretary of ArcelorMittal South Africa v Vaal Environmental Justice Alliance [2014] ZASCA 184, Case No 69/2014, 26 November 2014 ("ArcelorMittal"). 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 Rights to juristic persons "to the extent required by the nature of the rights and the nature of those juristic persons".
27. 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.
28. THE NATURE OF POLITICAL PARTIES
29. 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
16 ArcelorMittal, para 52.
17 ArcelorMittal, para 78.
18 IDASA, para 42. 13
centrality of political parties has been recognised by this Court and cannot
be gainsaid.19
30. 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
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.
31. The Speaker strongly denies that political parties bear any obligations
towards the voting public:22
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.
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.
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.
32. 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".
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
33. 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,
23 ArcelorMittal, para 78.
24 IDASA, paras 20-32 (our emphasis). 15
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".
34. 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.
35. 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. 36. 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; …
37. 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
38. 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.
25 PAIA, preamble (our emphasis).
26 Speaker's Affidavit, p 35 para 71.4.
27 Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC) ("First Certification"), para 186. 17
39. 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 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
28 Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) ("Ramakatsa"), paras 65-68 (our emphasis). political parties are indispensable conduits for the enjoyment of the right given by section 19(3)(a) to vote in elections.
40. 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'.
41. 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 23 October 1997,
Parliament's Portfolio Committee on Constitutional Affairs heralded the
Promotion of Multiparty Democracy Bill as follows:30
29 Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC), paras 42-43 (our emphasis).
30 Speaker's Affidavit, annex "BM1", p 58. 19
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.
42. 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.
43. 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
and participatory democracy".33 To this end, while "recognising the role,
31 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. 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
44. 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.
45. EFFECTIVE EXERCISE OF THE RIGHT TO VOTE
46. 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.
47. 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.
48. 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.
49. 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. their elected representatives accountable if they are sufficiently informed
of the relative merits of issues".38
50. 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.
51. 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.
52. 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
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
democratic South African nation; that our destinies are intertwined in a single interactive polity.
53. 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
54. 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
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). 55. More recently, in Richter, O'Regan J brought these elements together,
holding as follows for a unanimous Court:44
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.
56. 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
44 Richter v Minister for Home Affairs and Others 2009 (3) SA 615 (CC), paras 52-53 (our emphasis).
45 Speaker's Affidavit, p 13 paras 26-27. 25
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.
57. 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,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.
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
46 IDASA, para 47.
47 Supra, paras 11-13. 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.
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.
58. 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
48 Speaker's Affidavit, p 29 para 66.5, p 37 para 74.2, p 52 para 82.5, p 53 para 84.4.
49 Speaker's Affidavit, p 14 para 27. 27
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.
59. 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
60. 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.
61. 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.
50 Clutchco, para 13. 62. EFFECTIVE PROTECTION FROM CORRUPTION
63. 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 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.
64. 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.
65. 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
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").
52 Glenister, para 200. 29
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.
66. 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
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.
67. 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.
68. In ascertaining whether disclosure of donations is reasonably required for
the effective protection of constitutional rights from corruption, this Court
53 Speaker's Affidavit, p 10 para 18, p 30 para 67.3, p 38 para 75.2
54 Glenister II, para 176. 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").55
69. 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
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). 31
70. 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.
71. 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.
72. 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
59 UN Convention, article 5(1) (our emphasis).
60 UN Convention, article 7(3) (our emphasis).
61 AU Convention, article 10 (our emphasis). 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
73. 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
74. 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
62 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).
66 Speaker's Affidavit, p 24 para 57.
67 See https://www.unodc.org/unodc/en/treaties/CAC/signatories.html. 33
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.
75. 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
76. 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).
77. 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
68 Glenister II, para 178.
69 Glenister II, para 194. 'reasonably required' by the public for the protection of their fundamental
rights from corruption.
78. 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.
79. 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.
80. Most strikingly, the nexus between corruption and the private funding of
political parties emerges emphatically from the Speaker's own evidence.
70 Speaker's Affidavit, p 56 paras 72.1 and 72.4.
71 Speaker's Affidavit, p 17 para 36. 35
81. 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.
82. 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.
83. 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.
72 Speaker's Affidavit, annex "BM2", p 59.
73 Speaker's Affidavit, annex "BM2", p 60. 84. 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.
85. PARLIAMENT'S FAILURE TO FULFIL ITS OBLIGATION
86. 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.
87. 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. 37 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 deciding that disclosure legislation "should not be proceeded with" as it was
"not feasible".77
88. 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.
89. We respond to each prong of this argument in turn.
90. PAIA DOES NOT REQUIRE DISCLOSURE OF DONATIONS TO POLITICAL PARTIES
91. The Speaker asserts, in one breath, that there is no need for disclosure
legislation because PAIA already provides for disclosure of donations to
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. 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.
92. 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.
93. 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.
94. 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, 39
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.
95. 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
96. 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.
79 PAIA, section 65. 97. 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
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.
98. 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
80 Speaker's Affidavit, p 16 para 34.
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. 41
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.
99. 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.
100. 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
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). constitutional challenge against PAIA, and seeks no reading in, reading
down or striking down of any of its provisions.
101. 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".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.
102. PARLIAMENT DOES NOT HAVE A DISCRETION TO DECIDE WHETHER TO FULFIL A CONSTITUTIONAL OBLIGATION
103. 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",
84 AU Convention, article 10. 43
"the obligations imposed by it must be fulfilled",85 and "[a]ll constitutional
obligations must be performed diligently and without delay".86
104. 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.
105. 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
106. 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
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.
87 Helen Suzman Foundation, particularly paras 10 and 107.
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. 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.
107. 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.89
108. PARLIAMENT HAS NOT JUSTIFIED ITS FAILURE TO ENACT DISCLOSURE LEGISLATION
109. Parliament recorded the following reasons for its decision that proposed
disclosure legislation "is not feasible and should not be proceeded with":90
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". 45
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.
110. 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.
111. 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.
112. 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.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.
113. 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
91 Speaker's Affidavit, annex "BM1", p 58 (our emphasis). 47
bore an international obligation to enact disclosure legislation, and assured
the Court that "Parliament will fulfil this obligation".92
114. 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".
115. 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.
116. 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
92 Founding Affidavit, annex "FA4", p 97 para 10.6.1.
93 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC), para 67. 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.
117. 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.
118. 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.
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). 49
119. 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
120. We submit that the Speaker has not advanced any justification at all, let
alone adequate justification, for Parliament's failure to enact disclosure
legislation.
121. APPROPRIATE REMEDY
122. 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.
123. 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
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) months, and to report to this Court on its progress every three months
within that period.
124. JURISDICTION
125. 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.
126. 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.
127. 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.
128. COSTS
129. 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 51
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.
130. 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.
131. CONCLUSION
132. 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
96 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC).