On April 20 this year the Cape High Court gave judgement, dismissing the application by the Institute for Democracy in South Africa (Idasa) to access records of private donations made to the four biggest political parties in South Africa — the African National Congress, the Democratic Alliance, the Inkatha Freedom Party and the New National Party — under the Promotion of Access to Information Act.
Recognising that the litigation was brought in the public interest and the importance of the principles of transparency and openness were at stake, Justice Bennie Griesel made no order as to costs.
While dismissing the application the court also held that the judgement did not mean ”that political parties should not, as a matter of principle, be compelled to disclose details of private donations made to their coffers.” The court was certain that private donations ought to be regulated by way of specific legislation.
As Idasa said when it launched the application in November 2003, this was difficult and bold litigation, particularly given the inherent limitations of relying on the Promotion of Access to Information Act. It respects the judgement as reasonable and balanced, but believes that a more imaginative court would have adopted a wider interpretation of the Section 19 right to free political choice.
Judge Griesel found that access to records of private donations was not reasonably required for the exercise and protection of Section 19. The Constitutional Court may well have decided these issues differently and potentially have accepted Idasa’s argument that for the full enjoyment of this right, the records are reasonably required so that voters can make an informed choice. A restrictive approach to Section 19 runs the risk of reducing free political choice to the ”event” of placing a vote in a ballot box, rather than the process that must precede election day itself.
Noting in conclusion that Idasa had ”raised matters of great public interest and concern”, it is clear that the court relied substantially on the assertions made by the political parties, the ANC in particular, that a legislative process is the best way to design the regulation of private donations.
In its heads of argument, the ANC stated that such legislation should embody national policy perspectives and balance the rights interests of all people, including the electorate, political parties and their donors.
In addition, the ANC buttressed its argument about the political and legislative process by reference to Article 10 of the African Union Convention on Preventing and Combating Corruption. As a signatory, South Africa will be obliged to adopt measures to ”incorporate the principle of transparency into funding of political parties”.
For these reasons, and in this spirit of accepting the good faith and good intentions of the governing party, and having carefully considered the judgement, Idasa has decided not to appeal. It has not abandoned its position, but accepts, for now, that political parties should be given further opportunity to fill the lacuna that exists in the anti-corruption policy and legal apparatus by processing appropriate legislation through Parliament.
What the case had done is start a dialogue on the levels of accountability that should be demanded of political parties in relation to their private donations. Ahead of last year’s national elections, 16 major corporations voluntarily disclosed the amount of their donations as well as the identity of the recipients. This is welcome as a first, important step in creating a culture of openness. In addition, the JSE Securities Exchange released its revised Social Responsibility Index in October last year. While the index is voluntary, it encourages listed companies to be transparent about their donations.
Revelations in the corruption trials of Peter Marais, David Malatsi and Schabir Shaik show the ongoing danger of secret, unregulated private funding of political parties. Malatsi recently testified that he expedited approval for the Roodefontein golf estate, having been ”buoyed” by a series of secret, substantial donations to the NNP — an example of the price some private donors seek to extract from the recipients. Shortly afterwards, in the Shaik trial, Zweli Mkhize gave evidence that Shaik made substantial donations to the ANC in the late 1980s and early 1990s.
The outcome of the case makes no difference to Idasa’s determination to assert the public’s right to know who funds political parties, and that transparency is essential to defend democracy.
Judith February is head of Idasa’s political information and monitoring service. Richard Calland is the head of Idasa’s right to know programme