Case Summary and Outcome

The Western Cape High Court for South Africa held that access to information may only be pursued through the Promotion of Access to Information Act and not through Section 32 of the Constitution. Further, it reasoned that political parties are considered “private bodies” when access to information about private donations is sought.

This analysis was contributed by Right2info.org.

Facts

In August 2003, the Institute for Democracy in South Africa (IFDSA), a nonprofit, sent requests to four political parties asking for detailed information about each party’s private donations. After all requests were denied, IFDSA sought judicial review in the High Court of South Africa in the interests of all South African Citizens and in the public interest.

Decision Overview

The Court addressed three main issues: (i) whether IFDSA must seek relief under the Promotion of Access to Information Act (PAIA) as opposed to seeking relief directly under Section 32 of the Constitution, (ii) whether political parties are “public bodies” or “private bodies” under PAIA, and (iii) whether records relating to private fund-raising are “required for the exercise or protection of any rights.”

First, the Court concluded that Section 32 of the Constitution is not capable of serving as an independent cause of action for enforcement of access to information rights because to conclude otherwise would cause a confusing juxtaposition with PAIA by “encourag[ing] the development of ‘two parallel systems’, which would be ‘singularly inappropriate’.”  In reaching this conclusion, the Court noted that Section 32(2) of the Constitution merely provided a transitional provision to govern access to information rights for a three-year period until legislation envisaged by that section was enacted; and, because PAIA had since been enacted, the only possible cause of action that could be brought pursuant to Section 32 is a challenge to the constitutionality of PAIA itself.

Second, the Court concluded that political parties are not “public bodies” as defined by PAIA.  In reaching this conclusion, the Court first distinguished between two types of public bodies: (a) public bodies that are part of the State, and (b) public bodies that are not part of the State but which may, while engaging in certain activities, be subject to controls that would ordinarily apply to the State. Further, the court focused on the nature of the particular record at issue, noting that “entities may perform both private and public functions at various times and that they may hold records relating to both aspects of their existence” and that “in respect of a particular record, a body must be either a ‘public body’ or a ‘private body’; it cannot be both.” As applied to the case at hand, the Court concluded that insofar as one requests records that “relate to the private funding of political parties,” such political parties are not public bodies for the purposes of PAIA. The practical significance of the distinction between public and private body is that in the case of private bodies, the applicants must overcome the additional hurdle of establishing that the donation records are “required for the exercise or protection of any rights.”

Third, the Court concluded that various provisions of the Constitution cited by IFDSA (e.g. 1(d), 16, 18, 19(1)-(2), 41(1)(c), 152(1)(a), and195(1)) do not confer upon IFDSA any rights that they can exercise or protect by means of access to donation records. Specifically highlighting the rights to “make political choices” and to have “free, fair and regular elections,” the Court concluded that there is no “rational connection between these rights and access to donation records and that “disclosure of donor funding is not a prerequisite to free and fair elections.” On the contrary, the Court posited that what truly motivated IFDSA was, among other things, to “add impetus to a campaign aimed at lobbying the legislature to pass the necessary legislation.” IFSDA’s application was dismissed.