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MOGOENG CJ [38] That information is generally calculated to have voters believe that the candidate it relates to can be trusted and deserves their support because she is bestplaced to serve citizens in the public office being campaigned for. It seeks to demonstrate their abhorrence of corruption and all facets of unethical conduct. It is also meant to assure the public of their commitment to our constitutional values30 and good governance. The centrality of information to this process cannot be over- emphasised. [39] This then means that political parties and independent candidates should not be left to pick and choose what information would be “held”, preserved and disclosed to those who depend on information to determine to whom to entrust their future, that of the nation and posterity. All 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. [40] The reality is that private funders do not just thoughtlessly throw their resources around. They do so for a reason and quite strategically. Some pour in their resources because the policies of a particular party or independent candidate resonate with their world-outlook or ideology. Others do so hoping to influence the policydirection of those they support to advance personal or sectional interests. Money is the tool they use to secure special favours or selfishly manipulate those who are required to serve and treat all citizens equally. [41] Unchecked or secret private funding from all, including other nations, could undermine the fulfilment of constitutional obligations by political parties or independent candidates so funded, and by extension our nation’s strategic objectives, sovereignty and ability to secure a “rightful place”31 in the family of nations. Our freely elected representatives must thus be so free that they would be able to focus and 30 See section 1 of the Constitution. 31 Preamble to the Constitution above n 26. 16

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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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