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MOGOENG CJ [32] The right to vote derives its fundamentality from the central role voting plays in the establishment, functionality and vibrancy of a constitutional democracy. It is a pre-requisite for the very existence of the Legislature and the Executive at all levels of the State. And the proper exercise of that right is so critical to the coming into being of our political arms of the State and the effective and efficient functioning of the entire State machinery that the need for transparency and accountability from those seeking public office is self-evidently more pronounced. The future of the nation largely stands or falls on how elections are conducted, who gets elected into public office, how and why they get voted in. Only when transparency and accountability occupy centre stage before, during and after the elections may hope for a better tomorrow be realistically entertained. [33] This case is after all about establishing a principle-based system that will objectively facilitate the meaningful exercise of the right to vote, regard being had to its veritable significance. The system’s inbuilt capacity to sift the corrupt from the ethically upright is an indispensable requirement. For this reason, 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.28 An environment must thus be created for the public to know more than what is said in manifestos or during campaign trails. As will become apparent below, what is implicitly envisioned by section 19 is an informed exercise of the right to vote. [34] For every citizen to be truly free to make a political choice, including which party to join and which not to vote for or which political cause to campaign for or support, access to relevant or empowering information must be facilitated. Not only (g) Transparency must be fostered by providing the public with timely, accessible and accurate information.” 28 Preamble to the Constitution above n 26. 14

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My Vote Counts NPC v. Minister of Justice and Correctional Services

Judgment

Question Presented: Is the current Promotion of Access to Information Act unconstitutional?

Alleged Acts: The petitioner challenged the validity of the Promotion to Access to Information Act alleging it failed to properly provide access to information on private funding, rendering it inconsistent with the Constitution.

Procedural history: The petitioner brought an application to the Western Cape Division of the High Court, Cape Town challenging the constitutionality of the PAIA. The High Court held PAIA to be unconstitutional, yet did not order for a "continuous and systematic" disclosure of information, which the petitioner specifically appealed. The Constitutional Court affirmed the High Court's ruling.

Summary: The Court declared that the Promotion of Access to Information Act 2 of 2000 (PAIA) is invalid to the extent of its inconsistency with the Constitution by failing to provide for the record, preservation, and reasonable disclosure of information on the private funding of political parties and independent candidates. The Court stated that the information on 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 election, and declared that information on private funding of political parties and independent candidates must be recorded, preserved and made reasonably accessible as a fundamental principle. The court linked the constitutional right of access to information for every citizen to the right to vote, therefore creating an obligation to effectively record and disclose information on private funding during a campaign.

Conclusion: The Court declared that the Parliament must amend the Promotion of Access to Information Act 2 of 2000 (PAIA) and take any other measure it deems appropriate to provide for the recording, preservation, and facilitation of reasonable access to information on the private funding of political parties and independent candidates within a period of 18 months.

Legal Issue(s)

Campaign Finance

Applicable Law(s): Constitution; Promotion of Access to Information Act 2

Region: Africa

Country: South Africa

Language of Decision

English

Court: Constitutional Court

Election Type: Review of law

Date of decision: Jun 21, 2018

Geolocation

Latitude: -33.87375177

Longitude: 18.6816943

: Geolocation

Primary Documents

South Africa Constitutional Court 2018.pdf
English
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Election Judgments - IFES

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My Vote Counts NPC v. Minister of Justice and Correctional Services

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