Amabhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa.

Facts of the case:

This case concerns the role of money in political parties, specifically the funds donated to election campaigns for internal positions within these parties. The case involved transparency in political party funding. In this case, the central question for determination is whether there must be an obligation or duty in law to disclose those donations. In this regard, the court had to determine whether the Executive Ethics Code (the Code), obtained in 2000 by the then President of the Republic of South Africa in terms of section 96(1) of the Constitution, passes constitutional muster.

The Full Court of the Gauteng Division, Pretoria (Full Court), declared that the Code was unconstitutional and unlawful to the extent that it did not require the disclosure of donations made to campaigns for positions within political parties. The declaration of unconstitutionality was suspended for 12 months. The matter is before this Court for confirmation of the declaration of invalidity. As will appear, the matter has travelled a circuitous route to end up here. AmaBhungane challenged laws that allowed political donations to remain undisclosed, arguing that this violated democratic principles.

According to Amabhungane, the legal question is whether the Code is in line with the constitution in the manner in which it deals with the disclosure of donations to campaigns for positions within different political parties. Amabhungane further explains that the relief is forward-looking and emphasises that its challenge is whether, in future, Ministers, Deputy Ministers and Members of the Executive Council (MECs) will be required to make public disclosure of donations made to campaigns for their election to internal party positions. The relief does not seek to reach into the past and will thus not prejudice any of the Ministers, Deputy Ministers or MECs who made disclosures in terms of the current Code, as they did so by the then extant Code. This case is more concerned with the disclosure required in paragraphs 5 and 6 of the Code, which is to allow political parties, the media and the public to know which persons or entities are providing private financial support or benefits to those who hold public office. Amabhungane stresses that this transparency is essential to guard against potential corruption, conflicts of interest and the like.

Legal issue/question: Should political parties and candidates be required to disclose private funding sources?

Reasons for the court’s decision:

Amabhungane challenged laws that allowed political donations to remain undisclosed, arguing that this violated democratic principles. The court held that transparency in funding can create a more level playing field for all political parties, preventing wealthy individuals or groups from gaining an unfair advantage. In addition, the court made an inference from My Vote Counts NPC v Minister of Justice and Correctional Services and Another (2018) case, which challenged political party funding secrecy, and they argued that voters had a right to know who financed political campaigns. The dispute pertained to transparency, asking whether political parties should be legally required to disclose their private donors. The Constitutional Court ruled in favour of transparency in this case. Furthermore, the court declared that the Promotion of Access to Information Act (PAIA) was unconstitutional for failing to provide access to political funding records. In addition, the court emphasised the importance of transparency in political financial campaigns.

Amabhungane further contends that the provisions of the Executive Members’ Ethics Act (Ethics Act) require that the Code must ensure that members of the executive do not place themselves in positions that may compromise their ability to discharge their duties without any undue influence, including accepting undisclosed financial contributions. It is further submitted that section 2(2)(c) of the Ethics Act requires that the Code cast a wide net about the financial interests that a member of the executive may have. It does this by providing that the Code must require members of the executive to disclose all their financial interests on assumption of office and any financial interests after assumption of office. That section enumerates the type of financial interests that the disclosure should include. Consistent with the wide net the section seeks to cast, it provides that disclosure should not only be of the member concerned, but it should also be of persons within their family or others who may have a familial or close connection with that member. Amabhungane contends that the breadth of these duties is confirmed when one considers South Africa’s international law obligations concerning Article 18 of the United Nations Convention Against Corruption.

Amabhungane case in par 15 further submits that the very imperative point of the disclosure required in paragraphs 5 and 6 of the Code is to allow political parties, the media and the public to know which persons or entities are providing private financial support or benefits to those who hold public office in inter-party activities. The Amabhungane case also states that this transparency is needed in order to guard against potential corruption, conflicts of interest, and to make sure that political parties comply with the right of access to information of all people in a country. Moreover it further contends to the extent that the Code does not require the disclosure of all donations made to campaigns for positions within political parties for the benefit of members of the executive, this breaches sections 1, 7(2), 19, 32, 96 and 195 of the Constitution; and it breaches the Ethics Act but it for the benefits of public and media for transparency as held by court.

The court in favour of Amabhungane in paragraph 16 held that section 7(2) of the Constitution is very significant as it requires the state to “respect, protect, promote and fulfil the rights” contained in the Bill of Rights, starkly illustrating the duties on the state to oblige accordingly. The provisions of section 96, read together with section 2(1) of the Ethics Act, and taking into account the provisions of Article 7(3) of the United Nations Convention Against Corruption, confirm these obligations. Furthermore, Amabhungane submits that there are two added dimensions in the present case, namely the right to make political choices and to vote, section 19 of the Constitution and the right of access to information in section 32 of the Constitution. As held by this Court in the review judgment, the Code only requires disclosure where there is a personal benefit to the Minister, Deputy Minister or MEC. This partial disclosure obligation, contends Amabhungane, is manifestly insufficient to meet the relevant constitutional and statutory obligations as it permits members of the executive to avoid having to disclose by structuring their campaign funding in such a way that ultimately, the question is mostly about the source of the money and the party who benefits, personally or otherwise.

The structures through which the money flows and the walls that may be erected hardly matter. In the fight against corruption, it is the connection between the source and the beneficiary that matters, and the optics are just as important; therefore, disclosure of funding is essential. Broadly speaking, the court held that Amabhungane’s constitutional challenge before the Full Court was founded on the following central premises emerging from the Constitution that section 1(d) recognises that accountability, responsiveness and openness are the important core values of our democracy. The related constitutional need for ethical government is recognised in section 96, which requires the adoption of a code of ethics and which prohibits members of the executive arm of Government from exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.

In summary, the Constitutional Court held that the Code falls short of constitutional and statutory dictates of transparency, accountability and openness. The exclusion from disclosure of donations for internal party elections undermines, or rather does not comply with, the Ethics Act and the conflict-of-interest regime that is essential to promote transparency and to deal with the pervasive corruption within different political parties.

Court’s Decision:

In this case, the constitutional Court ruled in favour of transparency. The court further stated that voters have a right to know who funds the political parties to prevent corruption and undue influence and bring a good sense of accountability among political parties. Therefore, political parties and candidates should be required to disclose private funding sources. The court was in favour of the laws which stated that political parties must disclose financial gifts and donations they have received from all internal campaigns. These laws stated that not disclosing financial information or sources of funding by political parties will result in being inconsistent with the right of access to information of the South African people.

Bibliography

Case law:

• Centre for Investigative Journalism NPC v President of the Republic of South Africa 2023 (5) BCLR 499 (CC) (20 September 2022)
• My Vote Counts NPC v Minister of Justice and Correctional Services and Another 2018 (5) SA 380 CC.

Acts:

• The Constitution of the Republic of South Africa, 1996.