By Duncan Wild on 15 November 2014

This matter involves an application for an order by the Constitutional Court that Parliament is obliged to pass legislation that would require the disclosure of the sources and amounts of money donated privately to political parties (“funding legislation“), and that in not passing such legislation, Parliament has failed in its duty.  The applicant further argues that making such an order falls within the exclusive jurisdiction of the Constitutional Court, requiring direct access to the Court.  

The applicant, My Vote Counts NPC, is a not for profit organisation that campaigns to improve transparency and accountability in elections and politics in South Africa. The applicant argues that section 32(2) of the Constitution, which provides national legislation be passed to give effect to the right to access to information provided in section 32(1), creates an obligation to pass funding legislation.

Parliament has passed the Promotion of Access to Information Act, 2000 (“PAIA“) that general gives effect to the right of access to information. However, the issue of whether PAIA provides access to information on party funding has come before the courts in the case of Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C) where the Western Cape Division of the High Court held that PAIA did not provide a right of access to information of political parties.

The applicants therefore argue that specific political party funding legislation is required in order to give effect to the right of access to information, which is itself is an important right that is designed to allow persons to have access to the information that will allow them to have the information to make informed decisions in exercising the right to vote.

The application is brought directly to the Constitutional Court on the basis that section 167(4)(e) provides that the Court has exclusive jurisdiction to declare that Parliament has failed to fulfill a constitutional obligation.

The respondents in the matter are the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, the President and Deputy President of South Africa, the Ministers of Justice and Constitutional Development and Home Affairs, and various political parties. The Speaker of National Assembly and the Chairperson of the National Council of Provinces are the only respondents actively opposing the matter. In essence they argue that the obligation in section 32(2) was fulfilled when PAIA was passed, and there is no obligation to pass specific legislation in respect of party funding. As a preliminary point the respondents argue that if the applicants are of the view that PAIA does not adequately given effect to the rights of access to information provided by the Constitution the correct procedure is to challenge the constitutionality of PAIA.  As PAIA has not been challenged, the applicants argue that the application should be dismissed on that basis. The respondents concede that the matter falls within the exclusive jurisdiction of the Constitutional Court.

Disclosure: Webber Wentzel is acting for the applicant in this matter, and Ben Winks is involved in the case.