Case Summary and Outcome

The South African Constitutional Court held that the right to access information, read with the entitlement to exercise an informed right to vote, implicitly demanded that information on the private funding of political parties and independent candidates be recorded, preserved and made reasonably accessible to the public. The case had been brought after a non-profit organization called My Vote Counts had been unable to obtain information from certain political parties about their private funding. The Constitutional Court highlighted the centrality of information to the electoral process and warned against political candidates being able to pick and choose what information should be made available to voters. It also indicated that access to information on private funding could deter corruption and avoid the appearance of corruption in politics. The Constitutional Court declared that “information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and to participate in the elections”, and ordered that the Parliament of South Africa adopt legislative measures requiring political parties and independent candidates to record, preserve and facilitate reasonable access to such information.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

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Facts

My Vote Counts, a South African non-profit organization “founded to improve the accountability, transparency and inclusiveness of elections and politics in the Republic of South Africa”, had sought access to information held by political parties relating to their private funding. [para. 18] Some of the parties denied the request, responding that they were not obliged to provide that information under South Africa’s Promotion of Access to Information Act, 2 of 2000 (PAIA). My Vote Counts believed that “when it is known who is funded by whom, the likelihood or reality of political players being inappropriately influenced by those who fund them, at times to the detriment of the nation, could be detected, exposed, minimised or prevented.” [para. 8]

In July 2016, My Vote Counts brought an application in the High Court in Cape Town arguing that PAIA was constitutionally deficient with regard to how it regulated access to information on the private funding of political parties and independent candidates. They submitted that this deficiency infringed section 32 (the right of access to information), section 19 (the right to vote) and section 7(2) (which requires that the State “respect, protect, promote and fulfil the rights in the Bill of Rights”) of the South African Constitution.

The High Court held that PAIA did not extend to political parties and independent candidates, and did not cover records held on private funding. It went on to conclude that “PAIA’s failure to provide for access to information on private funding is a deficiency that renders PAIA inconsistent with the provisions of section 32, 7(2) and 19 of the Constitution”. [para. 9]

In South Africa, an order of constitutional invalidity handed down by a High Court has to be confirmed by the Constitutional Court before it can have any force. In light of this, the Constitutional Court was seized of the matter. My Vote Counts also sought to appeal against the High Court’s refusal to provide an order for the “continuous and systematic recordal and disclosure of information on private funding”. [para. 9] The Minister of Justice and Correction Services argued that “PAIA makes adequate provision for the recordal and disclosure of information on the private funding of political parties and independent candidates”. [para. 12]

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Decision Overview

Chief Justice Mogoeng delivered the majority judgment. He began by observing the practical need for private donors to help political candidates and noted that “[a]lthough the State does provide some financial assistance to political parties for their activities which include campaigns, it appears to be a far cry from what is in fact needed to meet the demands of running a proper political  machinery  or electoral campaign.” [para. 3] CJ Mogoeng tied this need for private funding to a corresponding need to access information on private funding. In doing so, he quoted from the US case of Buckley v. Valeo. The Court in Buckley had explained that access to information about funding allows voters to place candidates on the political spectrum, facilitates predictions of future performance, and deters actual corruption and avoids the appearance of corruption.

Throughout the judgment, Mogoeng clearly links accessing information about private funding to the goal of preventing corruption and the need for transparency and accountability in elections. He noted that “[t]he need for efficiency and effectiveness in the prevention, containment and elimination of corruption linked to the private funding of political parties and independent candidates seems to cry out for urgent intervention”. [para. 4] He stated that “[s]ecrecy enables corruption” and that a “lack of transparency on private funding provides fertile and well-watered ground for corruption or the deception of voters”. [para. 48]

CJ Mogoeng reiterated that the right to access information provides for the right of everyone to “any information that is held by another person and that is requested for the exercise or protection of any rights”. He clarified that “another person” is wide enough to include a political party or an independent candidate, and that “any information” includes information about the private funding of political parties or independent candidates. He also noted that the term “held” should be read widely, and include information recorded by the third party. The question remains whether the information requested is required for the exercise or protection of any right, as only then would it be accessible. CJ Mogoeng went on to observe that “the nature, importance and purpose of certain constitutional rights or information that relates to them, could necessitate that information be kept and recorded for the sake of, among other things, transparency and accountability.” [para. 25]

CJ Mogoeng then considered the right of every citizen to make political choices (section 19 of the South African Constitution). He noted the importance of information when exercising this right, and how the gravity of such a choice is particularly pronounced during elections. He concluded that implicit in this right is an informed exercise of the right to vote. In this context, he observed that “any information that completes the picture of a political party or an independent candidate in relation to who they really are or could be influenced by, in what way and to what extent, is essential for the proper exercise of the voter’s ‘will’ on which our government is constitutionally required to be based”. [para. 33]

He warned that a political campaign relies on candidates and parties imparting information to voters to demonstrate to the voters that “the candidate it relates to can be trusted and deserves their support because she is best placed to serve citizens in the public office being campaigned for”. [para. 38] With this in mind, he reasoned that “political parties and independent candidates should not be left to pick and choose what information would be ‘held’, preserved and disclosed” to voters. [para. 39] He went on to find that “[a]ll information necessary to enlighten the electorate about the capabilities and dependability or otherwise of those seeking public office must not only be compulsorily captured and preserved but also made reasonably accessible”. [para. 39]

CJ Mogoeng stated that unchecked or secret funding could undermine the fulfilment of constitutional obligations by political parties and independent candidates. He noted that “[o]nly when there is a risk of being exposed for receiving funding from dubious characters or entities … would all political parties and independent candidates be constrained to steer clear of such funders”. [para. 42]

In concluding the analysis of the interaction between the rights to vote and to access to information, CJ Mogoeng held that the State’s responsibility to ensure the realization of the rights to vote and to access to information required that the State “pass legislation that provides for the recordal, preservation and reasonable accessibility of information on private funding”. [para. 44]

He then went on to note the importance of requiring political parties and independent candidates to “record” or “hold” information on private funding. He stated that “[i]f it were not an implicit constitutional requirement for information relating to the proper exercise of certain constitutional rights to be ‘recorded’ and ‘held’, it is conceivable that ‘another person’ could easily cave in to the temptation not to hold some sensitive and potentially revealing information, or having ‘held’ it to destroy it, so that there would be nothing available to disclose.” [para. 46] He concluded that the recordal, preservation, and disclosure of information on private funding of political candidates would keep voters better-equipped to make out the real interests the politicians are likely to serve.

CJ Mogoeng then went on to note the importance of removing predictable hurdles to the free flow of information on private funding to the broader public. He warned that “[f]ailure to ease access to information for all those who could source and impart that information to the broader public would reduce this judgment to nothing more than pyrrhic victory for voters”. [para. 53] Therefore, he held that other political candidates, the media and academia should have reasonable access to this information. He found that it would be disingenuous of these stakeholders to rely on the right to make political choices (section 19 of the South African Constitution) when attempting to access the information, when they require the information for the exercise of another right. He then went on to note that the right to freedom of expression under section 16 of the South African Constitution would provide a solid basis for political candidates, the media and academia to have reasonable access to information on the private funding of political parties and independent candidates.

CJ Mogoeng then went on to examine whether PAIA was deficient. He concluded that PAIA was inconsistent with the constitutional obligation to avail information on private funding to all who need it in a reasonable manner. In particular, he found that PAIA was deficient because it did not provide that (i) information on the private funding of political parties and independent candidates be recorded and preserved, (ii) it be made reasonably accessible to the public, and (iii) independent candidates and all political parties be subject to its provisions. He also clarified that there were no compelling reasons justifying these limitations to the legislation. He concluded that reasonable access to this information be institutionalized, and that access not be subject to a laborious procedure.

CJ Mogoeng acknowledged that the right of access to information did not confer “an absolute or blanket entitlement to seekers of any information required from whomever for the exercise of protection of all rights”. [para. 71] Nonetheless, in respect of the right to vote, he clarified that “[i]t is intrinsic to its proper enjoyment and its essentiality that all information, that could reveal the potential disadvantage that private funding could bring about, be recorded and easily or reasonably accessible”. [para. 71]

In light of the above, CJ Mogoeng held that the constitutional framework placed an obligation on the State to “facilitate the enjoyment of rights in the Bill of Rights” and that the right to access information under section 32(2) of the South African Constitution required that legislation be enacted to provide for the recordal, holding and disclosure of information on private funding of political parties and independent candidates. [para. 74] However, he declined to stipulate what the legislation should contain, finding that “[h]ow best to fulfil that obligation should be left to Parliament”. [para. 75]

Finally, CJ Mogoeng confirmed the order of constitutional invalidity and declared that (i) “information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and to participate in the elections”, (ii) “information on private funding of political parties and independent candidates must be recorded, preserved and made reasonably accessible”, and (iii) PAIA is “invalid to the extent of its inconsistency with the Constitution by failing to provide for the recordal, preservation and reasonably disclosure of information on the private funding of political parties and independent candidates”. [para. 91] He ordered that Parliament “amend PAIA and take any other measure it deems appropriate to provide for the recordal, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates within a period of 18 months”. [para. 91]

Froneman J delivered a concurring judgment, which highlighted that “[t]here can be no free and fair elections if the press and other institutions of our civil society are prevented from access to information about private political funding”. [para. 95] He emphasised that these actors seek access to the information “on the ground that they are acting in the public interest on behalf of the country’s citizenry”. [para. 95] He concluded that the right of access should not be treated as an atomized individual right.

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