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FRONEMAN J separation of powers concerns.63 It would simply be irrational not to do it systematically and on a continuous basis. [95] The main judgment links the citizen’s right to vote to the right to freedom of expression and academic freedom directly to the right of access to information. The judgment refers to the necessity of involving all key players in the democratic process.64 Another way of strengthening this conclusion is to recognise that the right to vote is that of every adult citizen.65 In a sense it is the whole citizenry’s right, and to view it only as an atomised individual right diminishes our concept of participatory democracy.66 Every citizen also has the right to free and fair elections.67 There can be no fair and free elections if the press or other institutions of our civil society are prevented from access to information about private political funding. When they seek that access they can also justify it on the ground that they are acting in the public interest on behalf of the country’s citizenry. [96] Finally, I am satisfied with the conclusion that PAIA is also deficient for failing to provide clarity whether political parties that are not natural or legal persons are subject to its provisions.68 [97] For these further reasons I concur in the main judgment. 63 See [77] to [80]. 64 See [53] to [58]. 65 August v Electoral Commission [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) at para 17. 66 Merafong Demarcation Forum v President of the Republic of South Africa [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 969 (CC) at para 26; Matatiele Municipality v President of the RSA (No 2) [2006] ZACC 12; 2007 (6) SA 477 (CC); 2007 (1) BCLR 47 (CC) at paras 57-60; Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at para 115. 67 Section 19(2) above n 10. 68 See My Vote Counts judgment above n 4 at paras 102-116. 37

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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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