MOGOENG CJ
[73]
More importantly, it remains the primary duty of the State55 to ensure that it
facilitates access to information that would enhance the enjoyment of fundamental
rights. For this reason, the nature of the information on private funding is such that
Parliament might, if so advised, impose on the State or any of its organs the duty to
hold, preserve and disclose that information, so that voters may have ready or
reasonable access, as envisaged by section 32(1)(a) of the Constitution. Be that as it
may, whatever Parliament might decide to do, the State is obligated by a proper
reading of section 32 with sections 19 and 7(2) to make this information reasonably
accessible to the public.
[74]
The consequence of all this is that political parties and independent candidates
are constitutionally obliged to record, preserve and disclose information on private
funding. But, because section 7(2) imposes the obligation on the State to facilitate the
enjoyment of rights in the Bill of Rights, and section 32(2) requires the enactment of
national legislation to essentially provide for the recordal or “holding” and disclosure
of required or needed information, it thus falls on the shoulders of the State to honour
its section 7(2) obligations.
[75]
How best to fulfil that obligation should be left to Parliament which bears the
legislative authority of the Republic.
No information on the private funding of
political parties or independent candidates may be “unheld” or “unrecorded” or
destroyed at the discretion of the holder and therefore undisclosable. This must
however not be understood to be a definitive pronouncement on whether it would be
justifiable for Parliament to include or exclude the recordal and disclosure of some
information on say R10 contributions or the cleaning of offices or premises for free by
one or more people. It is arguably an incredibly tedious exercise to have to record and
disclose every quantifiable assistance or support given to a political party or
independent candidate, however negligible.
Jurisprudence in one of the older
democracies singles out for special attention “large contributions and expenditures”
55
See section 7(2) of the Constitution above n 10.
29