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MOGOENG CJ [4] Public and private sector corruption is a matter of grave concern around the world. And it appears that the political landscape and by extension governance has not been left untouched. The need for efficiency and effectiveness in the prevention, containment and elimination of corruption linked to the private funding of political parties and independent candidates seems to cry out for urgent intervention. For, corruption that flows from secret private funding could otherwise stealthily creep into our political and governance space, toxify it and fossilise itself to our detriment, if it has not already done so. [5] Several issues thus arise for determination here: (i) the need to minimise the risk of voters putting into office or even electing into government a political party or independent candidate who is corrupt or somehow compromised; (ii) whether a citizen’s constitutional right to vote necessarily entails the right to cast an informed vote; (iii) if so, whether that informed vote includes the obligatory recordal, preservation and simplified yet effective access to information on the private funding of political parties and independent candidates; and (iv) whether the existing regulatory framework for the exercise of the right of access to information enables a voter to enjoy real access to that critical information. Background [6] My Vote Counts NPC brought an application in the Western Cape Division of the High Court, Cape Town.5 It essentially challenged the constitutional validity of the Promotion to Access to Information Act6 (PAIA) on several grounds. [7] One of them was that, although PAIA is indeed the national legislation envisaged by section 32 of the Constitution to give effect to a citizen’s right of access to information, it has failed to do so. This deficiency is however confined to access to information on the private funding of political parties and independent candidates. 5 My Vote Counts NPC v President of the Republic of South Africa 2017 (6) SA 501 (WCC) (High Court judgment). 6 2 of 2000. 4

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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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