11 October 2017 by and Dispute Resolution Alert

PAIA declared unconstitutional: Political parties must disclose private funding

On 27 September 2017 the Western Cape Division of the High Court, Cape Town (High Court) handed down judgment in My Vote Counts NPC v President of the Republic of South Africa and Others [2017] ZAWCHC 105 (MVC2). It declared that information about the private funding of political parties is reasonably required for the effective exercise of the right to vote, and that the Promotion of Access to Information Act, No 2 of 2000 (PAIA) is constitutionally invalid to the extent that it does not allow for the continuous and systematic recordal and disclosure of this funding information.

By way of background, in 2015, the applicant approached the Constitutional Court directly and sought an order compelling Parliament to enact legislation to regulate the disclosure of private funding information. The Constitutional Court affirmed that PAIA is the legislation which is intended to grant access to information in terms of s32 of the Constitution and held that, should the applicant wish to access this information, it is obliged to use PAIA’s mechanisms or frontally challenge PAIA’s consistency with the Constitution (see My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (MVC1)).

The recent judgment by the High Court is the sequel to MVC1. The High Court was faced with three main issues: 

  • whether the Constitution requires the disclosure of private funding information; 
  • whether PAIA allows for the disclosure of private funding information for the effective exercise of the right to vote and make political choices; and
  • whether PAIA is unconstitutional.

Does the Constitution require private funding information?

As a starting point, the High Court held that political parties are not part of the state, therefore information is not just there for the taking. The question for the High Court to decide was whether the relevant information on private funding is required for the exercise of the constitutional right to vote enshrined in s19 of the Constitution.

The High Court agreed with the Constitutional Court in MVC1 that because of the unique and influential role of political parties in South Africa, information about their private funding is required for the exercise of the right to vote.

Does PAIA allow for the disclosure of private funding information?

The High Court identified a number of shortcomings in PAIA. Firstly, it found it problematic that political parties do not comfortably fit into the definition of either public or private bodies under PAIA. It agreed with the minority judgment of the Constitutional Court in MVC1 that PAIA appears to have been drafted without political parties in mind.

After examining the mechanisms for requesting information under PAIA, the High Court also concluded that, even if a political party can be classified as a private body, PAIA does not create a process for continuous disclosure of private funding information. The current process of applying for specific, existing records known to the requester imposes “an onerous and unwarranted burden on citizens”. 

A further problem with PAIA is, according to the High Court, the fact that it restricts its application to “recorded” information.  PAIA does not take into account the fact that it is possible for a record to be deleted or destroyed before an application is made for its disclosure, or to avoid the recordal of sensitive information altogether.

Finally, the High Court also identified the possibility of political parties relying on a number of the grounds for refusal set out in PAIA in order to refuse disclosure of the private funding information.

Overall the High Court found that PAIA does not provide for the disclosure of private funding information of political parties due to its inherently limited mechanisms and processes. Therefore, PAIA is not in sync with s32 of the Constitution read with s19. However, PAIA could only be declared unconstitutional if the limitations on these rights are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (under s36 of the Constitution).

Is PAIA unconstitutional?

The High Court was of the view that PAIA’s limitation of the constitutional rights in question is not reasonable or justifiable because there is a possibility of a ruling party taking action to punish donors who support opposition parties. Therefore, PAIA was declared unconstitutional.

The High Court declined to order continuous and systematic disclosure of private funding information as this would breach the doctrine of separation of powers by prescribing the law to Parliament. The High Court suspended its declaration of invalidity for a period of 18 months to afford Parliament time to remedy PAIA’s shortcomings as it deems fit.  

However, MVC2 was handed down shortly after the Draft Political Party Funding Bill, 2017 was published for public comment on 19 September 2017. The aim of the Draft Bill is to regulate both public and private funding of political parties. It provides for political parties to report donations to the Electoral Commission who in turn must publish this information on an annual basis. 

In terms of s172(2)(a) of the Constitution, the High Court’s declaration of constitutional invalidity must be confirmed by the Constitutional Court. South Africa’s apex court will therefore once again be confronted with these issues.

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