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MOGOENG CJ mean that the mechanism for regulating licensing would immediately cease to exist to the prejudice of the public.60 And one of the conditions often attached to the suspension is a period within which the defect must be corrected by the competent authority. In appropriate circumstances, the operation of the provision would, pending curative action, be subject to words severed from or read into that provision. The order of suspension is not without purpose nor is it an automatic consequence of a declaration of invalidity. [85] In this case, no consequence would flow from a failure to suspend the declaration of invalidity. No provision of PAIA was declared invalid in the sense that it would, barring the suspension, ordinarily be required not to apply to the extent of its inconsistency with the Constitution. Virtually all provisions of PAIA stand as if nothing has happened. It is the omission to provide for the recordal and disclosure of private funding that is inconsistent with the Constitution and invalid. This is so because the Constitution, properly construed, requires that this should have been done. The bite of the declaration of invalidity thus falls on PAIA’s failure or omission. Meaning that none of the consequential provisions of PAIA is itself nullified by the order or inconsistent with the Constitution. It is the incidence of what is not there that is. The extent of the inconsistency is nothing but a lamentation of the lacunae in PAIA. [86] It bears emphasis that there is no section of PAIA whose application is tangibly or actually affected by the declaration of invalidity. The purpose of the declaration of invalidity is to alert Parliament to its inadvertent dereliction of a constitutional duty. It must amend PAIA and, if so advised, pass another legislation that would remedy the deficiency now detected and brought to its attention. There is thus no purpose that would be served by suspending the declaration of invalidity. 60 National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries [2013] ZACC 26; 2013 (5) SA 571 (CC); 2013 (10) BCLR 1159 (CC) at para 41. 33

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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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