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MOGOENG CJ incorporation or registration of some entities that they be juristic persons with the legal capacity to sue or be sued. Other entities could derive their legal personality from their constitutions. [65] Political parties are neither created by legislation nor required by any legislation to be juristic persons. But, they can in terms of their constitutions clothe themselves with juristic personality, including the capacity to sue or be sued. In all probability, most political parties are juristic persons. PAIA therefore applies to them. However, since there is no law that requires political parties to be juristic persons, a real possibility does exist that some have deliberately or inadvertently not provided for their legal personality in their constitutions. That this probably applies to a small number is neither here nor there. It is an absolute necessity that all, not some, political parties be required to record, preserve and disclose information on their private funding. After all, any of them has the possibility to be elected into power aided by private funders. For this reason, to the extent that PAIA does not cover those political parties that are not juristic persons, it is constitutionally deficient. [66] The real question is whether PAIA provides for the recordal, preservation and disclosure of information on the private funding of political parties and independent candidates. Sections 18 and 53 of PAIA do not pass muster. They prescribe a form to be completed with laborious particularity. And information on private funding would have to be requested from a particular political party for a specific purpose or as and when it is needed. To have it, a fee must be paid and the record asked for must obviously be in existence. It is a cumbersome process that many would not be able to follow. PAIA does not impose any obligation to record information on the private funding of political parties and independent candidates, but even if it did, provision was not made for reasonable access. [67] Information might be withheld on the basis that it is likely to harm the commercial or financial interests of say the private or public body or would amount to 26

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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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