ConCourt puts Paia in the party-funding spotlight

Advocate David Unterhalter says that citizens could not fully exercise their right to vote without having information about who funded their political parties. (Supplied)

Advocate David Unterhalter says that citizens could not fully exercise their right to vote without having information about who funded their political parties. (Supplied)

In a landmark case which is set to determine whether South Africans will find out who funds political parties, public-interest group My Vote Counts (MVC) and the National Assembly speaker, Baleka Mbete, on Tuesday argued before the Constitutional Court about whether Parliament should pass a law compelling political parties to make their donations public. 

While many political parties were named in the court papers, and the court papers were given to them, none chose to either oppose the application or join it.

Political parties therefore did not say whether they were opposed to legislation which might make them reveal their donors, although many have publicly declared their opposition to this in the past.

Mbete opposed the application brought by MVC.

Acting on behalf of MVC, Advocate David Unterhalter SC told the court that in terms of Section 32 (1) (b) of the Constitution, everyone has the right to information which they need to exercise their rights. 

Section 32 (2) places a burden on the state to enact legislation to give effect to this right, and Unterhalter wanted the court to declare that Parliament had failed in its duty. 

This was because citizens could not fully exercise their right to vote without having information about who funded their political parties, he said. 

Unterhalter also asked for the court to order Parliament to enact legislation that forced parties to make their donations public within 18 months.But Mbete, represented by Advocate Wim Trengove SC, argued that such legislation already existed in terms of the Promotion of Access to Information Act (Paia).

While Trengove conceded that “voting should consist of more than walking to and from the ballot box”, he said that Paia was enacted to give effect to the right to information as described in Section 32 (2) of the Constitution. 

Trengove said that Paia was “designed” to give full effect to Section 32 (2) and that it had also done so. If MVC felt that Paia did not give full effect to this right, they should go to the high court to have Paia declared unconstitutional, in terms of the “subsidiarity principle”. 

But this was only in the event that MVC’s argument held, he said. Deputy Chief Justice, Dikgang Moseneke, asked if Trengove intended to make the argument that information about political party funding could be made available through the use of Paia. 

Trengove said that his client could not take a view on the matter. When pressed by Moseneke on the issue, Trengove said he could only offer his personal view, which was that it was possible to get information on political party funding through Paia. 

Paia’s  partial regulation
Paia allows for access to records from public or private bodies. Trengove said that when it came to how political parties were funded, they would have to classify as private bodies. 

But Unterhalter said this was precisely the problem with trying to access information through Paia. While MVC had no problem with Paia and did not think it was unconstitutional, he said Paia was designed to do “different things” than the kind of legislation that MVC wanted the Constitutional Court to order Parliament to pass. 

“This case is predicated on the idea that Parliament hasn’t discharged its duty. It follows that (the enactment of) Paia either does or does not fulfill this duty. But it is not a case which seeks to circumvent Paia; it is rather about the duty of Parliament,” Unterhalter said.  

Unterhalter said MVC did not think Paia limited the right described in Section 32; it “partially regulated the matter”, and so new legislation was required which Parliament was obliged to pass.

He said Paia only regulated a “subset” of information: records. In terms of Paia, only specific records, requested once-off by a specific party, at a specific time could be obtained, the court heard.

So a party had to know exactly which records were in the political party’s possession. And political parties were not obliged to keep records of their donations. Unterhalter said many donations would be recorded verbally, so Paia would not allow the release of this information. 

He said the word “record” as defined in Paia did not give full effect to the term “information” as intended by the Constitution. 

Neither public nor private
Unterhalter said Paia allowed for private parties to refuse to release records if they thought that doing so would damage, or commercially harm, a third party. For example, if a donor said the release of the records about its donations to a political party would harm its financial prospects, the political party could refuse to release the record, Unterhalter argued. Paia was a “retrospective request”, he said. 

But Trengove said that the Constitution could only have meant “record” by the term “information” as verbal agreements could not practically be released, in any event. He said that Paia therefore was designed to give effect to Section 32 (2). He said this was why MVC could not escape the “subsidiarity principle”, so they would have to have Paia declared unconstitutional through the high court if they felt that the Act was not sufficient.

Unterhalter said the question before the court wasn’t whether the Act was designed to do give total effect to the right to information in Section 32; the question was whether it did this at all. 

Justice Edwin Cameron pointed to a previous judgment in which the court had said political parties “straddle the dichotomy” that Paia creates i.e. private versus public entities. He said political parties were “super-agents” that could possibly not be defined as either. 

Unterhalter said this was why Paia did not accommodate information on political party funding. 

He said there was other legislation which dealt with the right to information as described in Section 32 (1), so it could not be correct that Paia was specifically designed to give effect to this right. 

Moseneke asked what the court was to understand by the fact that no political party had “bothered” to join or oppose the application. Unterhalter said the court could infer that they did not oppose it but that they agreed that it was Parliament’s duty to enact legislation. 

Judgment was reserved.

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans


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