MOGOENG CJ
make political choices, in terms of sections 19(1), 19(3), 32 and 7(2) of the
Constitution of the Republic of South Africa, 1996 (the Constitution).
2.
It is declared that the Promotion of Access to Information Act 2 of 2000
(PAIA) is inconsistent with the Constitution and invalid insofar as it does not
allow for the recordal and disclosure of private funding information.
3.
The declaration of invalidity in para 2 above is suspended for 18 months in
order to allow Parliament to remedy the defects in PAIA and to allow for the
recordal and disclosure of private funding of political parties and independent
candidates.
4.
The costs of this application, including the costs of two counsel, shall be
borne jointly and severally by the second and sixth respondents.
5.
The registrar of this court is directed in terms of section 172(2) of the
Constitution, read with section 15(1)(a) of the Superior Courts Act 10 of
2013, to refer this order within 15 days to the Constitutional Court for
confirmation.”44
To confirm this order, we must first be satisfied that it was correctly granted.
[61]
Section 32 contemplates two holders of potentially disclosable information –
the State and “another person”. Although “another person” is not defined by the
Constitution, it is the only category capable of accommodating political parties and
independent candidates which obviously do not fall under the category of “the State”.
And the definition section of PAIA says “person means a natural person or juristic
person”.45 We thus have to determine first, not only whether the definitional section
of PAIA includes political parties and independent candidates, but also whether
“recorded” and disclosable information includes that which is “held” by them.
[62]
PAIA sets out circumstances under which a requester would be entitled to
information, which at times include the payment of a fee.46 And that is information
held by what PAIA, among others, refers to as a “private body”. For the purpose of
44
High Court judgment above n 5 at para 75.
45
Section 1 of PAIA.
46
See sections 50-70 of PAIA.
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