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FRONEMAN J FRONEMAN J (Cachalia AJ concurring): [92] In his characteristically vibrant manner the Chief Justice concludes in the main judgment that information on the 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 elections and that information on this private funding must be recorded, preserved and made reasonably accessible. I agree with this and the order made to give effect to this legal holding. Why a separate concurrence? Only because on certain aspects I arrive at that conclusion from a somewhat different perspective [93] The first aspect relates to the new legislation in terms of which the recordal and disclosure of information on the private funding of political parties would be regulated. PAIA acts only as a mechanism for gaining access to recorded information. The only issue before us is whether the record-creation and record-keeping duties required by the Constitution can be accessed under PAIA. If there are any implications for the new legislation flowing from the Court’s judgment they will have to be dealt with in future. [94] The holding in the main judgment that information on the 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 elections and that information on this private funding must be recorded, preserved and made reasonably accessible gives judicial content to the fundamental political rights of every citizen.62 It does not intrude on the separation of powers in any way. It is difficult to conceive that the constitutional obligation to record, preserve and make information on private political funding reasonably accessible can ever be an unsystematic, sporadic, one-off, or intermittent obligation, as opposed to a systematic and continuous one. So, whilst I agree that there is no necessity for the order to explicitly record the constitutional obligation as being systematic and continuous, I am not compelled to do so by 62 Section 19 of the Constitution above n 10. 36

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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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