MOGOENG CJ
[87]
What needs to be done, though, is to ensure that Parliament does not take
inordinately long to cure the exposed defect. But that does not require a suspension.
It requires an order that directs Parliament to cure the deficiency within whatever
period we deem appropriate.
[88]
A concern might well arise that the failure to suspend would leave access to
information unregulated by PAIA, thus leaving it to be exercisable only in terms of
the Constitution. Well, PAIA does not regulate or regulate appropriately, access to
information on the private funding of political parties and independent candidates,
which this case is about. There is thus no difference in effect between the position
before and after the declaration of invalidity. In the interim, it is open to those seeking
access to information on private funding to do so in terms of section 32(1)(b) of the
Constitution or the relevant provisions of PAIA as understood within the context of
this judgment. All they would have to do is state that they require information for the
exercise or protection of the right to vote. For the correct position is indeed that those
who require information for the exercise or protection of the right to vote, reasonable
access would no doubt have to be facilitated by this judgment. The only challenge
might be that it had never before been known to be obligatory to record and preserve
it. As a result, some of it might not have been recorded or might have been destroyed
and could therefore be “unheld” and unavailable.
[89]
In conclusion, declarations of constitutional invalidity are often accompanied
by a suspension. But the underlying reason is that a failure to do so would otherwise
yield consequences adverse to the rights or interests hitherto enjoyed or advanced. It
should never be done without a purpose. If that were ever done by this Court before,
it would have been an oversight we dare not shy away from correcting. We are not to
follow our judgments or aspects of them even when they are demonstrably incorrect.
It should be right to acknowledge and correct our errors. Remedies given by our
courts must after all be effective.61
61
See Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851(CC)
at para 69.
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