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MOGOENG CJ The role of transparency and accountability, that are essential for rooting out the corruption that could be enabled by undisclosed private funding, reinforces the need to record, preserve and disclose. A reasonably accessible or disclosable record in this connection thus needs to be kept and not destroyed at the discretion of the holder. Transparency, accountability and corruption [45] Secrecy enables corruption and conduces more to a disposition by politicians that is favourable towards those who funded them privately once elected into public office. This is likely to flourish even where information on private funding is “held” at the discretion of the funded and unlikely to be exposed to “the light of publicity”.35 For this reason, information on private funding must be compulsorily “held”. PAIA captures “record” in sufficiently broad terms to ensure that as much information as possible in the envisaged categories is “held”.36 [46] Because the right of access to information cannot be exercised in a vacuum, section 32(1)(b) alludes to the need to explain that the purpose for seeking information “held” by another person is for the exercise or protection of any rights. If it were not an implicit constitutional requirement for information relating to the proper exercise of certain constitutional rights to be “recorded” and “held”, it is conceivable that “another person” could easily cave in to the temptation not to hold some sensitive and potentially revealing information, or having “held” it to destroy it, so that there would be nothing available to disclose. But, even apart from disclosure being an aid that could discourage corruption, information does help one to know more about an entity or person. [47] The loophole or leeway “not to hold” or not to preserve information and the consequential non-disclosure of information relating to private funding or quantifiable support in kind, constitutes fertile ground for undermining or even subverting the real 35 See Buckley above n 4 at para 67. 36 Section 1 of PAIA above n 23. 18

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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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