My Vote Counts Case

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 249/17
In the matter between:
MY VOTE COUNTS NPC Applicant
and
MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES First Respondent
DEMOCRATIC ALLIANCE Second Respondent
APPLICANT'S WRITTEN SUBMISSIONS
Table of Contents
Page No
INTRODUCTION ...................................................................................................... 1
BRIEF BACKGROUND TO THIS MATTER ............................................................. 3
NATURE AND PURPOSE OF THIS APPLICATION ............................................... 4
ISSUES ..................................................................................................................... 4
CONFIRMATION OF THE HIGH COURT DECLARATION OF
CONSTITUTIONAL INVALIDITY AND VARIATION OF THE ORDER ........... 6
THE MINISTER'S CONTENTIONS .......................................................................... 6
ISSUE ONE: IS THERE A PROCEDURAL OBSTACLE TO THIS COURT
DECIDING THIS APPLICATION? ................................................................. 10
The new subsidiarity argument............................................................................... 10
The non-joinder argument ...................................................................................... 12
The locus standi argument ..................................................................................... 14
ISSUE TWO: DOES THE CONSTITUTION REQUIRE THE DISCLOSURE OF
PRIVATE FUNDING INFORMATION? .......................................................... 14
Section 32(1) read with section 19 of the Constitution ........................................... 16
The nature of political parties ................................................................................. 20
Effective exercise of the right to vote ..................................................................... 23
Section 7(2): the effective prevention from and detection of corruption ................ 32
ISSUE THREE: IS PAIA UNCONSTITUTIONAL? ................................................. 39
Does PAIA provide for the disclosure of private funding information? ................... 39
The rights of donors ................................................................................................ 41
ISSUE FOUR: THE APPROPRIATE REMEDY ..................................................... 45
COSTS.................................................................................................................... 50
CONCLUSIONS ..................................................................................................... 50
INTRODUCTION
1. In the confirmation and leave to appeal proceedings, the applicant requests
this Court to declare that the Promotion of Access to Information Act, 2000
("PAIA") is unconstitutional to the extent that it does not allow for the
continuous and systematic disclosure of information about the private funding
of political parties. The applicant submits that this requirement is firmly rooted
in several constitutional provisions, which all require that the public have
access to accurate information required for the effective exercise of their right
to vote.
2. Section 32(1) of the Constitution entitles every person to have access to
private funding information. Such information is reasonably required, and
necessary, for the effective exercise of the rights to vote in elections and to
make political choices, rights enshrined in terms of sections 19(1) and (3) of
the Constitution. The constitutional imperative for providing access to such
information is reinforced by section 7(2) and section 1(d) of the Constitution,
as well as a number of international agreements which have been ratified by
South Africa.
3. The applicant, in early 2015, made application to the Constitutional Court in
terms of section 167 of the Constitution, seeking an order compelling
Parliament to enact legislation, in terms of a constitutional obligation to give
effect to the right of access to information, to regulate the disclosure of private
funding information. This legislation, it was argued by the applicant, was
required in addition to PAIA.
4. The majority judgment ("the majority judgment") of the Constitutional Court
in My Vote Counts v Speaker of the National Assembly ("My Vote Counts")

2
held that PAIA is the legislation envisaged in terms of section 32(2) of the
Constitution and was intended fully to give effect to the right of access to
information.1 Accordingly, it was held that the principle of subsidiarity required
that the applicant ought to have brought a "frontal challenge" to the
constitutional validity of PAIA in an application before the High Court of South
Africa under section 172(1) of the Constitution. Having made this
determination, the merits of the applicant's arguments were not considered by
the majority of the Constitutional Court.
5. This matter is thus the sequel to My Vote Counts – it is the "frontal challenge"
to the constitutional validity of PAIA. Surprisingly, the first respondent's
principal submission in these proceedings is that the applicant should have
challenged not PAIA but some other legislation. In light of the majority
judgment, however, that submission is unsustainable. The first respondent
was the fifth respondent in My Vote Counts.
6. The second respondent put up a spirited defence of PAIA in the High Court.
In this Court, however, it does not oppose the applicant's application.
7. The minority judgment in My Vote Counts, penned by Cameron J, with
Moseneke DCJ, Froneman J and Jappie AJ concurring ("the minority
judgment") dealt with the merits of the case. These findings enhance and
support the applicant's contentions in this application and are expounded upon
below.
1
My Vote Counts v Speaker of the National Assembly 2016 (1) SA 132 (CC) at paras 147-148.
3
BRIEF BACKGROUND TO THIS MATTER
8. Subsequent to this Court handing down its judgment in My Vote Counts on
30 September 2015, the applicant approached the High Court for an order in
terms of section 172(1) of the Constitution declaring PAIA invalid and
unconstitutional insofar as, and to the extent that, it fails to make provision for
the continuous and systematic recordal and disclosure of information
regarding the private funding of political parties and independent ward
candidates (the latter concept as contemplated in section 16 of the Local
Government: Municipal Electoral Act, 2000) ("independent candidates")
registered for elections for any legislative body established under the
Constitution (collectively, "private funding information").
9. The Honourable Madam Justice Meer in the Western Cape Division of the
High Court, on 27 September 2017, declared PAIA unconstitutional and
invalid, in My Vote Counts NPC v President of the Republic of South Africa
("the High Court judgment").2 We refer to the order contained in the High
Court judgment as "the Order".
10. Although Meer J granted most of the substantive relief sought by the applicant,
Her Ladyship did not declare that the recordal and disclosure of private
funding information has to be "continuous and systematic". Although Meer J
was sympathetic to the requirement, she was of the view that the findings in
the majority judgment precluded her from granting that part of the relief.
2
2017 (6) SA 501 (WCC). [Record, volume 4, at 288].
4
NATURE AND PURPOSE OF THIS APPLICATION
11. In this application, two sets of relief are sought ("the confirmation
application"):3
11.1 confirmation of the order of constitutional invalidity in the High Court
judgment. The applicant seeks confirmation of the Order, but varied in
the respects set forth in the notice of motion, essentially to take account
of the continuous and systematic requirement.
11.2 insofar as necessary, the applicant seeks leave to appeal against the
Order and the High Court judgment so as to give effect to the variation in
respect of the continuous and systematic requirement.
12. The respondents in the confirmation application are the only parties who
opposed the relief sought before the High Court. Only the first respondent,
being Minister of Justice and Correctional Services ("the Minister"), persists in

4
his opposition in this Court. The Minister has filed a rule 16(2) notice of
appeal with this Honourable Court against the High Court judgment and
Order.5
ISSUES
13. This matter raises the following questions:
13.1 is this application procedurally barred?
3
[Record, volume 3, at 292].
4
5
5
13.2 does the Constitution require the disclosure of private funding
information?
13.3 if so, is PAIA unconstitutional?
13.4 if so, what is the appropriate remedy?
14. The applicant submits that:
14.1 having regard to the unique nature of political parties, disclosure of
private funding information is reasonably required, and necessary, for:
14.1.1 the effective exercise of the right to vote in elections and the making
of political choices;
14.1.2 the effective protection of all constitutional rights from corruption;
14.2 PAIA is the legislation envisaged under section 32(2) of the Constitution
and was intended fully to give effect to the right of access to information.
The disclosure of private funding information is thus required to be
facilitated under PAIA, yet PAIA fails to make provision for the recordal
and disclosure of private funding information; and
14.3 as such, PAIA must be declared unconstitutional in terms of section 172
of the Constitution insofar and to the extent that it fails to make provision
for the disclosure of private funding information. This declaration should,
however, be suspended for 18 months in order to afford Parliament an
opportunity to remedy PAIA's constitutional deficiencies alternatively this
Court is enjoined to order any relief which is appropriate in the
circumstances.
6
CONFIRMATION OF THE HIGH COURT DECLARATION OF CONSTITUTIONAL
INVALIDITY AND VARIATION OF THE ORDER
15. Based on the reasoning in the High Court judgment and the submissions of
the applicant in the High Court and below, the applicant requests that this
Court confirm the Order of the High Court
16. There is, however, one issue regarding which the applicant submits the High
Court erred in its reasoning and findings. This relates to relief sought by the
applicant for the continuous and systematic disclosure of private funding
information. This relief was contained in paragraph 2 of the applicant's notice
of motion in the High Court.6
17. The applicant thus seeks leave to appeal against certain findings by the High
Court and requests this Court to vary the Order to include the full relief set
forth in paragraph 2 of the notice of motion in the High Court. Should the relief
sought in the leave to appeal application be granted the applicant thus
requests this Court to confirm the Order as varied. The applicant submits that
the varied order should provide for "the continuous and systematic recordal
and disclosure of private funding information" in paragraph 2.
18. The Order as varied is set out at paragraph 1 of the applicant's notice of
motion in this confirmation application.7
THE MINISTER'S CONTENTIONS
19. The Minister has opposed this application by filing an opposing affidavit ("the
Minister's opposing affidavit").8 The Minister has also filed a notice of
6
7
7
appeal against the whole of the High Court judgment and Order ("the
Minister's notice of appeal").9
20. The High Court, for the most part, agreed with the contentions of the applicant.
The Minister contends that the High Court erred in this regard and sets out the
following grounds of opposition. The Minister contends that:
20.1 The High Court proceeded on the incorrect constitutional premise that
private funding information is reasonably required for the effective
exercise of the right to vote in terms of section 19, 32 and 7(2) of the
Constitution.
20.2 The Minister submits that:
20.2.1 the High Court erred in finding that the Independent Electoral
Commission ("IEC") did not have a direct and substantial interest in
the relief and by not requiring joinder of the IEC, all political parties,
independent candidates and independent ward councillors;10
20.2.2 the High Court erred in finding that access to private funding
information is required for the exercise of an informed right to vote
and made this finding without appreciating the statutory
requirements established for the exercise of the rights in section 19
of the Constitution.11 The Minister has argued before the High Court
that the right to vote does not include the right to cast an informed
vote;
8
9
10
Minister's opposing affidavit, paras 10.1 to 10.3 [Record, volume 5, at 332, line 12 to 333, line 10]; see also
Minister's notice of appeal, para 4.1 [Record, volume 5, at 317, line 9 to 318, line 9].
11
Minister's opposing affidavit, para 10.4 [Record, volume 5, at 333, lines 11 to 15].
8
20.2.3 the High Court should have found that the applicant, which may not
exercise the rights in section 19(1) and 19(2) of the Constitution, did
not have locus standi to act for South African citizens;12
20.2.4 the applicant should have instituted a frontal challenge to the
Electoral Act, 1998 ("the Electoral Act") read with the Electoral
Commission Act, 1996 ("the Electoral Commission Act") and not
PAIA and that the High Court should have dismissed the applicants'
challenge, based on the principle of subsidiarity;13
20.2.5 the High Court failed to have regard to the doctrine of separation of
powers when it granted the declaratory order in paragraph 1 of the
Order. The Minister states that paragraph 1 amounts to a
constitutional amendment to section 19 of the Constitution;14
20.2.6 the High Court failed to attach any significance to the fact that
Parliament has passed the Public Funding of Represented Political
Parties Act, 1997 ("the Public Funding Act") to regulate how
parties account to the IEC for the public funds granted to them. The
Minister contends that the High Court should have taken judicial
notice that Parliament was engaged in a legislative process to enact
a law that would regulate private funding.15
20.3 The High Court failed to set out in what way the absence of legislation on
private funding violated the rights in section 19. The Minister complains
12
13
14
Minister's opposing affidavit, para 10.7 [Record, volume 5, at 334, line 14 to 335, line 3].
15
Minister's opposing affidavit, para 11.5 [Record, volume 5, at 335, lines 11 to 17]; see also Minister's notice of
appeal, para 5 [Record, volume 5, at 320, line 9 to 321, line 6].
9
that there was no evidence that voters require access to private funding
information in order to exercise their right to vote and make political
choices.16
20.4 The High Court erred on a point of law and fact when it distinguished the
order sought in this matter from that sought in Institute for Democracy in
South Africa and Others v African National Congress and Others 2005
(5) SA 39 (C) ("IDASA"). In particular, the Minister states that the High
Court erred when it found that IDASA did not make a finding against the
disclosure of private funding information of political parties as a matter of
principle.17
20.5 The High Court erred on a point of law when it found that PAIA was
unreasonable, unjustifiable and invalid to the extent that it does not allow
for the disclosure of private funding information as required under section
32(1) of the Constitution for the effective exercise of the right to vote and
make political choices in sections 19(1) and (3). The Minister contends
that the Court should have found that PAIA gives effect to the rights in
section 32 and it is not its purpose to give effect to the rights in section
19.18
20.6 The High Court erred in its approach to the interpretation of section 32
read with PAIA as it failed to balance those rights with the rights of
16
Minister's opposing affidavit, para 13 [Record, volume 5, at 337, lines 12 to 21].
17
Minister's opposing affidavit, para 14 [Record, volume 5, at 338, lines 1 to 12]; see also Minister's notice of
18
Minister's opposing affidavit, para 15 [Record, volume 5, at 338, line 13 to 339, line 2].
10
persons making private donations to political parties in the exercise of
constitutional rights in section 16, 18 and 19 of the Constitution.19
21. These arguments by the Minister are unavailing and this Court should confirm
the Order as varied. The applicant’s arguments relevant to the relief granted
in the High Court are set out in what follows.
ISSUE ONE: IS THERE A PROCEDURAL OBSTACLE TO THIS COURT

DECIDING THIS APPLICATION?
The new subsidiarity argument
22. The applicant submits that, insofar as section 32(1), read with section 19(3), of
the Constitution requires the systematic and continuous recordal and
disclosure of private funding information, PAIA must accordingly provide for
this. This application is thus the "frontal challenge" which was required by the
majority judgment.
23. Remarkably, however, the Minister take issues with this starting premise.
24. The Minister argues that PAIA is not the legislation at the heart of the
applicant's submissions because the applicant is, in fact, concerned with the
content of section 19 and the right to vote. As such, the applicant should have
directed its constitutional challenge to the Electoral Act and/or the Electoral
Commission Act.20 The Minister submits that the principle of subsidiarity
19
Minister's opposing affidavit, para 16 [Record, volume 5, at 339, lines 3 to 13]; see also Minister's notice of
20
Minister AA, paras 41-46 [Record, volume 2, at 106 to 108]; Minister's opposing affidavit, para 10.6 [Record,
volume 5, at 334, lines 1 to 13].
11
accordingly applies and the High Court ought to have dismissed the
application.21
25. This submission is, with respect, eschews the nature of the challenge and
turns the majority judgment on its head.
26. As the majority judgment held:22 “Although the application falls under this
Court’s exclusive jurisdiction, PAIA is the legislation envisaged in section 32(2)
of the Constitution. The applicant has not challenged it frontally for being
constitutionally invalid. In accordance with the principle of subsidiarity, it ought
to have done so as that principle is applicable to this application”.
27. The majority also dismissed the applicant's contentions that other pieces of
legislation gave effect to section 32, and that PAIA was not the legislation
implicated by the applicant's submissions, in the following terms:23
"However, even though those pieces of legislation do make this

provision, they are distinguishable from PAIA. The main focus of each is
some other subject; not access to information in terms of s 32(1) of the
Constitution. That this is so is reinforced by the sparse manner in which
the content of each touches on the right of access to information. In
each, provision for the right is merely incidental to the legislation's main
focus. On the contrary, PAIA's focus is one subject: the provision of
information in terms of s 32(1) of the Constitution."
28. Of course, section 32 and the right of access to information will necessarily
draw on other rights in the Bill of Rights. This is unavoidable, given the
wording of section 32 as well as the manner in which PAIA is framed. The fact
that, in terms of section 32, the information must be required for the exercise
of rights squarely implicates, and requires consideration of, other rights. That
21
Minister AA, paras 26 and 41-46 [Record, volume 2, at 97 and 106 to 108].
22
My Vote Counts, para 193.
23
My Vote Counts, para 149 (our emphasis).
12
does not change the nature of this application, which is grounded in section
32.
29. The Minister's subsidiarity argument would require an overruling of the key
tenet of the majority judgment.
30. In any event, the Electoral Act and/or Electoral Commission Act are not
primarily concerned with the disclosure of information at all. It would thus ill-
befit these statutes to include, or be expected to include, a complicated
disclosure regime in respect of private funding information, which has as its
"main focus" the vindication of the right of access to information.
The non-joinder argument
31. The Minister also submits that the application is defective for failing to join the
IEC, because the IEC plays a role in organising and facilitating elections under
the Electoral Act and the Electoral Commission Act.24 This is not a point which
was raised by the Minister in the court a quo.25 This argument is without merit:
this case has nothing to do with the Electoral Act and the Electoral
Commission Act.
32. Furthermore:
32.1 in accordance with Rule 10A of the Uniform Rules of Court, the applicant
has cited the executive authorities responsible for the administration of
PAIA;
24
Minister's opposing affidavit, paras 10.1 to 10.3 [Record, volume 5, at 332, line 12 to 333, line 10].
25
The second respondent raised this point.
13
32.2 the matter is simply not within the purview of the IEC and the IEC does
not have a "direct and substantial interest" in the relief sought by the
applicant in these proceedings, which is directed at failings of PAIA;
32.3 owing to the nature of the case, therefore, the applicant was not obliged
to cite any of the political parties appearing as the fifth to seventeenth
respondents, but did so for the sake of good order, as these parties are
the parties represented in Parliament;
32.4 the IEC or any other interested party could have sought to be joined
pursuant to the Rule 16A notice26 delivered by the applicant; and
32.5 in any event, if the applicant is successful, all interested individuals will
have an opportunity to make submissions to Parliament;
33. The High Court Judgment accepted that "[t]he IEC has very little, if anything,
to do with access to information concerning the private funding of political
parties, the focus of this application" and agreed with the applicant "that the
IEC does not have a direct and substantial interest in the relief sought by the
Applicant, directed as it is against the unconstitutionality of PAIA".27
34. With regard to the purported non-joinder of all political parties and independent
ward councillors the High Court points to the EFF judgment at para 47
referring to the obvious purpose of Rule 16A.28 The applicant submits that the
High Court's approach, in not requiring joinder of these parties, was correct.
35. The allegation of non-joinder is thus, with respect, ill-conceived.
26
[Record: volume 1 at 76 - 83].
27
High Court judgment, paras 9 and 10 [Record, volume 4, at 257].
28
Economic Freedom Fighters and Others v Speaker of the National Assembly and Others [2016] 1 All SA 520
(WCC) ("EFF"), at paras 47 and 48; High Court judgment, para 11 [Record, volume 4, at 258].
14
The locus standi argument
36. The Minister also mobilises a completely novel submission before this Court
on standing. It alleges that the applicant does not have locus standi because
it is not capable of casting a vote itself. This submission ignores two decades
of South African constitutional jurisprudence on standing,29 quite aside from
this Court’s views that where a matter concerns the constitutionality of a law
and especially where it is referred to the Constitutional Court for confirmation,
the need for certainty may require the court to decide the matter irrespective of
whether or not the party advancing the challenge had standing.30
37. This application is brought in the public interest in terms of the applicant's
mandate as a public interest body, as provided for in section 38 of the
Constitution.
ISSUE TWO: DOES THE CONSTITUTION REQUIRE THE DISCLOSURE OF

PRIVATE FUNDING INFORMATION?
38. The applicant submits that the need for the disclosure of private funding
information is rooted directly in the provisions of the Constitution:
38.1 the disclosure of private funding information is mandated by section
32(1), read with section 19, as access to accurate information about the
private funding of political parties is reasonably required for the effective
exercise of the right to vote and to make political choices. These
provisions are underpinned by section 1(d), which founds our state on
29
See for example, Democratic Alliance and Others v Acting National Director of Public Prosecutions and
Others 2012 (3) SA 486 (CC) at para 45.
30
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) at para 24; South African Liquor
Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC) at para 6.
15
fundamental democratic values that are imperilled by the absence of a
disclosure mechanism;
38.2 disclosure is further required by section 7(2) of the Constitution, as
transparency in the funding of political parties is required for the effective
prevention and detection of corruption, which erodes the state's capacity
to respect, protect, promote and fulfil the rights in the Bill of Rights. To
this end, the obligation is strengthened by South Africa's international
obligations, as well as by sections 195, 215 and 217 of the Constitution,
which require the promotion of transparency in public administration,
public finance and public procurement, respectively. 31
39. These crucial constitutional imperatives correspond precisely with the twin
priorities served by transparency in respect of private funding of political
parties, as they were eloquently explained by the United States Supreme
Court in Buckley v Valeo:32
"First, disclosure provides the electorate with information 'as to where

political campaign money comes from and how it is spent by the
candidate' in order to aid the voters in evaluating those who seek federal
office. It allows the voters to place each candidate in the political
spectrum more precisely than is often possible solely than on the basis of
party labels and campaign speeches. The sources of a candidate's
financial support also alert the voter to the interests to which a candidate
is more likely to be responsive and thus facilitate predictions of future
performance in office.
Second, disclosure requirements deter actual corruption and avoid the

appearance of corruption by exposing large contributions and
expenditures to the light of publicity. This exposure may discourage
those who would use money for improper purposes either before or after
the election. A public armed with information about a candidate's most
generous supporters is better able to detect any post-election special
favors that may be given in return."
31
Applicant's Founding Affidavit in the High Court ("FA"), para 21 [Record, volume 1, at 17, line 18 to 18, line
14].
32
Buckley v Valeo 424 US 1 (1976) ("Buckley v Valeo") at 62.
16
40. The minority judgment in My Vote Counts cited the above dicta in Buckley v
Valeo with approval, adding that: 33
"For the reasons Ramakatsa sets out, the first two considerations noted
in Buckley v Valeo have particular edge in our democracy. This is
because political parties hold the key to elective and executive office.
They are the indispensable conduits through which the Constitution's
vision of our democratic functioning is to be attained".
41. Buckley v Valeo was also cited with approval in IDASA, where the High Court
stated that the applicants in that matter "made out a compelling case – with
reference both to principle and to comparative law – that private donations to
political parties ought to be regulated by way of specific legislation in the
interest of greater openness and transparency. In the United States, for
example, the first federal disclosure law was enacted as long ago as 1910. It
required political parties and organisations operating to influence
congressional elections in two or more States to disclose names of all
contributors of $100 or more".34
42. As such, the applicant submits that Buckley v Valeo and the clear and logical
conclusions expounded therein are and remain apposite. They also serve as
a cogent starting point for assessing the constitutional need for the disclosure
of private funding information.
Section 32(1) read with section 19 of the Constitution
43. It is the applicant's case that disclosure of information about parties' private
sources of funding is required, in terms of sections 32(1) and (2) of the
33
Minority judgment, paras 42-43.
34
IDASA, para 58.
17
Constitution, for the effective exercise of the right to vote and make political
choices enshrined in sections 19(1) and (3) of the Constitution.35
44. The applicant's starting premise is that section 32 and section 19 must be read
together in order to determine what the Constitution requires.36 It is submitted
that this approach is uncontroversial and flows axiomatically from a plain
reading of section 32.
45. The Minister contended in the High Court, however, that section 19 is self-
standing and utterly divorced from section 32 for, inter alia, the following
reasons:37
45.1 the right to vote is enshrined in section 19, which is designed to give
effect to this right, while section 32 is related to the "exercise or
protection of any rights";
45.2 the right to vote is related to citizenship and the voters roll and does not
depend on access to information;
45.3 the right to vote is limited to adult citizens on the voters' roll while the
right of access to information is limited to information held by the state
and "any other person".
46. The Minister contends that the High Court should have found that PAIA gives
effect to section 32 and it is not PAIA's purpose to give effect to the rights in
35
FA, para 26 [Record, volume 1, at 20, lines 8 to 12].
36
FA, paras 14, 26, 29-31 [Record, volume 1, at 14-15, 20 and 21-23].
37
Minister's Answering Affidavit in the High Court ("Minister AA"), para 28 [Record, volume 2, at 99, line 1 to
101, line 6].
18
section 19.38 The Minister in this respect misconstrues the constitutional
scheme.
47. The applicant accepts that section 19 and section 32 do not overlap in every
respect. It is clear, however, that section 32 cannot be read in isolation and, in
its terms, must operate in contexts where it gives effect to other rights in the
Bill of Rights and elsewhere. To hold otherwise would be to deprive the right
of access to information of any meaningful content and defeat the purposes of
section 32.
48. In any event, in order to accept the Minister's contentions, one must also
accept the Minister's strained submission that the content of the right to vote
"is contained in section 19 and cannot be abridged or extended by reference
to other rights" (including the right of access to information).39 This submission
is clearly incorrect and inconsistent with long-standing jurisprudence to the
contrary. It is clear that our Courts adopt a purposive, contextual, value-driven
and holistic consideration of the Bill of Rights and the constitutional framework
as a whole when seeking to interpret and give effect to those rights.40 This is
unavoidable in respect of the right of access to information, which must be
read together with other rights.
49. Section 32 must thus be interpreted in light of section 19 and the Constitution
as a whole.
38
Minister's opposing affidavit, para 15 [Record, volume 5, at 338, line 13 to 339, line 2].
39
Minister AA, para 30 [Record, volume 2, at 101 to 103]; Minister's opposing affidavit, para 10.6 [Record,
volume 5, at 334, lines 1 to 13].
40
S v Zuma 1995 (2) SA 642 CC, paras 13-15; S v Makwanyane 1995 (3) SA 391 CC ("Makwanyane"), paras
9-10; Soobramoney v Minister Of Health, Kwazulu-Natal 1998 (1) SA 765 (CC) at para 16.
19
50. The test for determining the meaning of "reasonably required" has been most
authoritatively been stated by Comrie AJA in Clutchco:41
"I think that "reasonably required" in the circumstances is about as

precise a formulation as can be achieved, provided that it is understood
to connote a substantial advantage or an element of need."
51. It is trite that the circumstances of each case will determine whether particular
information is "reasonably required" by one person from another for the
exercise or protection of any rights. The applicant submits that the relevant
circumstances include, crucially, the objective features and functions of the
parties, as well as the relationship between them.
52. Context is all-important. In Unitas, where the Supreme Court of Appeal (per
Brand JA, with Harms, Conradie and Cloete JJA concurring) denied a request
for information from a private hospital by a deceased patient's widow,
Cameron JA stated forcefully as follows in a lone dissent:42
"Following the distinction the Bill of Rights draws between information

held by the State and that held by other persons, PAIA distinguishes
between public and private bodies, each of which it defines. In the case
of the former, there is a general right of access. In the case of the latter,
access must be required for the exercise or protection of rights. But, as
Brand JA explains, 'required' is a flexible term and its application must be
fact-bound. And, in applying it to any particular case, we must, in my
view, consider the extent to which it is appropriate, in the case of any
private body, to further the express statutory object of promoting
'transparency, accountability and effective governance' in private bodies.
This statutory purpose suggests that it is appropriate to differentiate
between different kinds of private bodies. Some will be very private, like
the small family enterprise in Clutchco. Effective governance and
accountability, while important, will be of less public significance. Other
entities, like the listed public companies that dominate the country's
economic production and distribution, though not 'public bodies' under
PAIA, should be treated as more amenable to the statutory purpose of
promoting transparency, accountability and effective governance."
41
Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) ("Clutchco"), para 13. This was also applied in Unitas
Hospital v Van Wyk and Another 2006 (4) SA 436 (SCA) ("Unitas"), para 17. Both judgments concerned
section 50(1)(a) of PAIA, which replicates the language used in section 32(1)(b) of the Constitution and
section 23 of the interim Constitution.
42
Unitas, para 40 (our emphasis); see also paras 31 and 42.
20
53. We submit, with respect, that the above reasoning is clearly correct. Indeed, it
has been implicitly affirmed by a unanimous Supreme Court of Appeal in
ArcelorMittal.43 Upholding a request for information from a major steel
producer (AM) by an environmental advocacy group, Navsa ADP emphasised
that "AM's activities and the effects thereof are matters of public importance
and interest. Put differently, the nature and effect of AM's activities are
crucially important."44 Navsa ADP echoed the argument of Cameron JA in
Unitas, as follows:45
"PAIA, in its preamble, recognises that the system of government in

South Africa, before the advent of a constitutional democracy, "resulted
in a secretive and unresponsive culture in public and private bodies
which often led to an abuse of power and human rights violations".
Furthermore, it also expressly recognises the horizontal application of
rights in the Bill of Rights to juristic persons "to the extent required by the
nature of the rights and the nature of those juristic persons."
The nature of political parties
54. In the present circumstances, determining whether particular information is
"reasonably required" for the exercise or protection of any rights must take into
account the fact that political parties occupy a unique and critical role in our
constitutional democracy. Like the national and provincial legislatures, the
executive and the judiciary, they are institutionalised within the legal system.46
The centrality of political parties has been recognised by the Constitutional
Court and cannot be gainsaid.
55. First, the entire electoral system is dependent on political parties contesting
elections, and therefore, determining which persons are allocated to legislative
43
Company Secretary of ArcelorMittal South Africa v Vaal Environmental Justice Alliance 2015 (1) SA 515
(SCA) ("ArcellorMittal").
44
ArcelorMittal, para 52.
45
ArcelorMittal, para 78.
46
IDASA, para 42.
21
bodies and the executive;47 second, members of political parties (in their
capacity as members of the national and provincial legislatures and executive)
determine the laws and policies of the country; third, under the Constitution,
membership of the legislature and the executive is inextricably linked to party
membership;48 fourth, broadly in terms of section 236, but also in terms of
sections 57(c) and (d) and section 116(2), the Constitution envisages the
provision of public funding of political parties; and fifth, political parties, through
their congresses and think tanks, shape and often define policies and
legislation.
56. It is clear then that political parties are not only bearers of political rights, but
are also duty-bound to respect and advance the political rights of the
electorate. 49 Political parties are, at the very least, a special species of private
actors, rightly bearing constitutional responsibilities towards the voting public.50
Political parties are constitutionally unique - central vehicles of democracy
which must be considered, approached and regulated in a manner alive to
their place within the constitutional firmament.
57. In the First Certification judgment, this Court sketched the constitutional
place of political parties briefly as follows:51
47
Part 3 of the Electoral Act, schedule 3 item 1(1).
48
Section 47(3)(c) of the Constitution specifies that a person loses membership of the National Assembly if that
person "ceases to be a member of the party that nominated that person as a member of the Assembly,
unless that member has become a member of another party in accordance with Schedule 6A". Section
62(4)(d) of the Constitution provides that a person ceases to be a permanent delegate to the National
Council of Provinces if that person ceases to belong to a particular party.
49
FA, paras 32-33 [Record, volume 1, at 23, line 8 to 24, line 3].
50
The applicant contends that, if political parties are private actors, they are private actors with a distinctly
public character.
51
Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) ("First
Certification"), para 186.
22
"Under a list system of proportional representation, it is parties that the

electorate votes for, and parties which must be accountable to the
electorate".
58. More recently, in Ramakatsa, this Court robustly affirmed the special role of
political parties in our constitutional project. Writing for the majority, Moseneke
DCJ held as follows:52
"In our system of democracy political parties occupy the centre stage and
play a vital part in facilitating the exercise of political rights. This fact is
affirmed by section 1 of the Constitution which proclaims that "[u]niversal
adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability,
responsiveness and openness" are some of the values on which our
state is founded. …
In order to enhance multi-party democracy, the Constitution has enjoined

Parliament to enact national legislation that provides for funding of
political parties represented in national and provincial legislatures. Public
resources are directed at political parties for the very reason that they are
the veritable vehicles the Constitution has chosen for facilitating and
entrenching democracy.
Our democracy is founded on a multi-party system of government.

Unlike the past electoral system that was based on geographic voting
constituencies, the present electoral system for electing members of the
national assembly and of the provincial legislatures must "result, in
general, in proportional representation". This means a person who
intends to vote in national or provincial elections must vote for a political
party registered for the purpose of contesting the elections and not for a
candidate. It is the registered party that nominates candidates for the
election on regional and national party lists. The Constitution itself
obliges every citizen to exercise the franchise through a political party.
Therefore political parties are indispensable conduits for the enjoyment of
the right given by section 19(3)(a) to vote in elections." (emphasis added)
59. A decade earlier, this Court made clear in Masondo that political parties are
not only conduits of constitutional power, but are essential to the achievement
of our Constitution’s most sacred goals:53
"The open and deliberative nature of the process [of our democracy]
goes further than providing a dignified and meaningful role for all
52
Ramakatsa and Others v Magashule and Others 2013 (2) BCLR 202 (CC) ("Ramakatsa"), paras 65-68.
53
Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC), paras 42-43.
23
participants. It is calculated to produce better outcomes through

subjecting laws and governmental action to the test of critical debate,
rather than basing them on unilateral decision-making. It should be
underlined that the responsibility for serious and meaningful deliberation
and decision-making rests not only on the majority, but on minority
groups as well. In the end, the endeavours of both majority and minority
parties should be directed not towards exercising (or blocking the
exercise) of power for its own sake, but at achieving a just society where,
in the words of the Preamble, 'South Africa belongs to all who live in it."
(emphasis added)
60. The minority judgment observed that political parties are central to our
democracy, facilitating and entrenching it.54 The Court also stated that
Ramakatsa authoritatively establishes the link between the role of political
parties and their funding, as political parties' activities are critical to social
progress.55 Moreover, the minority judgment stressed that public resources
are directed to political parties precisely because of their central role in our
political system and, as a necessary corollary, any private funds they receive
have a distinctly public purpose.56
61. In this light, the applicant submits that the unique nature of political parties and
their integral role in the success of the democratic project bear undeniable
significance for the determination of whether, and to what extent, their funding
information is reasonably required for the effective exercise of the right to vote
and the effective protection of all constitutional rights from, inter alia,
corruption.
Effective exercise of the right to vote
62. The minority judgment, having considered the merits of the applicant's
submissions, concludes that information about political parties' private funding
54
Minority judgment, para 34.
55
56
24
is required for the exercise of the right to vote and to make political choices.
This judgment, in reaching that conclusion, illustrates the rich and fundamental
nature of the right to vote as follows: 57
"So the right to vote does not exist in a vacuum. Nor does it consist
merely of the entitlement to make a cross upon a ballot paper. It is
neither meagre nor formalistic. It is a rich right – one to vote knowingly for
a party and its principles and programmes. It is a right to vote for a
political party, knowing how it will contribute to our constitutional
democracy and the attainment of our constitutional goals.
Does this include knowing the private sources of political parties’

funding? It surely does. Private contributions to a political party are not
made thoughtlessly, or without motive. They are made in the anticipation
that the party will advance a particular social interest, policy or viewpoint.
And political parties, in turn, depend on contributors for the very
resources that allow them to conduct their democratic activities. Those
resources keep flowing to the extent that they meet their contributors' and
funders' expectations. There can be little doubt, then, that the identity of
those contributors, and what they contribute, provides important
information about the parties' likely behaviour."
63. The minority judgment also unequivocally states that: 58
"The applicant submitted that the right to vote is a right to cast an

informed vote. This must be correct."
and
"Section 19(1) of the Constitution envisages that every citizen is 'free to

make political choices'. This includes forming a political party,
participating in a political party's activities, and campaigning for a political
party or cause. It also includes, of course, the freedom to choose one's
leaders. But that choice, like all others, is valuable only if one knows what
one is choosing. It loses its value if it is based on insufficient information
or misinformation. This the Constitution recognises by insisting that
government is not only democratic but openly accessible. That is why its
preamble speaks of a 'democratic and open' society; why its fundamental
rights are to be interpreted to promote the values underlying an 'open
and democratic' society, and limited only on that same basis; and why
the founding values of universal suffrage and democratic elections are
tied to 'openness' of government."
57
Minority judgment, paras 39 and 43.
58
Minority judgment, paras 38-39.
25
64. The applicant respectfully submits that the conclusions in the minority
judgment are correct.
65. The Minister attempted in the High Court to undermine the above dicta on the
basis that the minority judgment, in accepting the applicant's arguments in
respect of the right to vote, was wrong "on a proper factual and legal
analysis"59 and that, in any event, the minority judgment was seized with a
consideration of the right of access to information and not the right to vote.60
The Minister also denied the conclusions reached in the minority judgment,
contending that the right to vote is not the right to cast an informed vote and
that "the kind of information required for adult citizens to exercise their right to
vote is varied and need not necessarily be accurate".61
66. The Minister's contentions are unfounded. Although this application
constitutes a frontal challenge to PAIA, the same "factual and legal analysis"
(including the right of access to information, the right to vote and what is
required by the Constitution) underscores the present matter as that in My
Vote Counts - an analysis which the applicant maintains has been, and
continues to be, factually and legally correct. Furthermore, the minority
judgment was clearly expressing the views of the minority in respect of the
right of access to information, read with the right to vote. There is no basis for
the forced distinction sought to be drawn by the Minister.
67. Furthermore, the minority judgment accords with, and is the obvious
culmination of, a weight of jurisprudence in respect of the right of access to
information and the right to vote.
59
Minister AA, paras 13-14 [Record, volume 2, at 91, line 19 to 92, line 6].
60
Minister AA, para 75 [Record, volume 2, at 117].
61
Minister AA, para 55 [Record, volume 2, at 110, line 15 to 111, line 5].
26
68. In M&G Media, Ngcobo CJ, for a majority of the Constitutional Court, stated
that:62
"The constitutional guarantee of the right of access to information held by

the state gives effect to 'accountability, responsiveness and openness' as
founding values of our constitutional democracy. It is impossible to hold
accountable a government that operates in secrecy. The right of access
to information is also crucial to the realisation of other rights in the Bill of
Rights. The right to receive or impart information or ideas, for example,
is dependent on it. In a democratic society such as our own, the effective
exercise of the right to vote also depends on the right of access to
information. For without access to information, the ability of citizens to
make responsible political decisions and participate meaningfully in
public life is undermined." (emphasis added)
69. Thus, the right to vote is the right to cast an informed vote, and the right to
make political choices is the right to make informed political choices. Secrecy
of donations to political parties (whether by wealthier citizens, or even by non-
citizens, such as local corporations, foreign individuals or corporations, or
even foreign governments) distorts and devalues the accuracy of the
information that is available to citizens exercising their electoral and political
choices. Having equal access to accurate information regarding by whom a
political party is funded, and thus to whom it is likely to owe political loyalty, is
critical for all citizens to make equally informed political choices, particularly
when they cast their votes.
70. As this Court stated in Ambrosini, the imperative is to cultivate an "active,
informed and engaged citizenry", since "the public can only properly hold their
62
President of the Republic of South Africa and Others v M&G Media Ltd 2012 (2) SA 50 (CC) ("M&G Media"),
para 10.
27
elected representatives accountable if they are sufficiently informed of the
relative merits of issues".63
71. Our Constitution's notion of citizenship is conceived with an emphasis on
equality: "[a]ll citizens are … equally entitled to the rights, privileges and
benefits of citizenship".64 Among those rights, privileges and benefits is the
right to vote. Ensuring equal access to material information about each
political party is an important part of ensuring equal exercise of the right to
vote, which is impressed into the founding values of our democratic state:65
"Universal adult suffrage, a national common voters roll, regular elections

and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness."
72. This founding value was accorded considerable significance by Sachs J,
writing for a unanimous Court in August:66
"The universality of the franchise is important not only for nationhood and
democracy. The vote of each and every citizen is a badge of dignity and
of personhood. Quite literally, it says that everybody counts. In a
country of great disparities of wealth and power it declares that whoever
we are, whether rich or poor, exalted or disgraced, we all belong to the
same democratic South African nation; that our destinies are intertwined
in a single interactive polity."
73. The equal exercise of the right to vote is, of course, not only a symbol but a
constitutional imperative, requiring practical and positive steps to be taken
towards its realisation. In New National Party, Yacoob J explained that the
right to vote "is fundamental to a democracy for without it there can be no
democracy. But the mere existence of the right to vote without proper
63
Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6) SA 588 (CC) ("Ambrosini"),
para 64, citing Roux “Democracy” in Stuart Woolman et al (eds) Constitutional Law of South Africa (Juta &
Co Ltd, Cape Town, 2011), p 10-25 (emphasis added).
64
Constitution, section 3(2)(a) (our emphasis).
65
Constitution, section 1(d) (our emphasis).
66
August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC), para 17.
28
arrangements for its effective exercise does nothing for a democracy; it is both
empty and useless."67
74. These elements were drawn together by this Court in Richter:68
"Each vote strengthens and invigorates our democracy. In marking their

ballots, citizens remind those elected that their position is based on the
will of the people and will remain subject to that will. The moment of
voting reminds us that both electors and the elected bear civic
responsibilities arising out of our democratic Constitution and its values.
We should accordingly approach any case concerning the right to vote
mindful of the bright, symbolic value of the right to vote as well as the
deep, democratic value that lies in a citizenry conscious of its civic
responsibilities and willing to take the trouble that exercising the right to
vote entails.
Unlike many other civil and political guarantees, as this Court has
remarked on previous occasions, the right to vote imposes an obligation
upon the state not merely to refrain from interfering with the exercise of
the right, but to take positive steps to ensure that it can be exercised.”
75. In Democratic Alliance, this Court stated that "people in our society must be
able to hear, form and express opinions freely" and that open debate, or a free
flow of information, "enhances truth-finding and enables us to scrutinise
political argument".69
76. The Minister's response to the above authorities, partly premised on a very
limited reading of IDASA, is that an endorsement of the applicant's allegations,
would discount the validity of all prior elections, which have been conducted
without disclosure of private funding information.70 This is plainly not so.
77. The applicant has never contested the validity, freedom or fairness of elections
which took place without the disclosure of private funding information. There
67
New National Party v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) ("New
National Party"), para 11 (our emphasis).
68
Richter v Minister for Home Affairs and Others 2009 (3) SA 615 (CC), paras 52-53 (our emphasis).
69
Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC), paras 122-124
("Democratic Alliance").
70
Minister AA, paras 50 and 101-108 [Record, volume 2, at 109, 125 to 128]; IDASA, para 52.
29
would, in any event, be cogent reasons why (even if there were material flaws
in elections) a court would be hesitant to set aside long-concluded processes.
The applicant does not seek retrospective relief. The applicant simply
contends that, in terms of our Constitution, the relevant disclosure is
"reasonably required" for the purposes of exercising the right to vote, as
contemplated in section 32. In other words, there is an element of need or
substantial advantage to such disclosure being made71 and Parliament is,
therefore, obliged, in terms of our Constitution, to take steps to provide for
such disclosure.
78. In any event, past failures do not justify future illegality.
79. It is also apparent that the IDASA judgment is not, in fact, at odds with the
applicant's submissions. Although Griesel J had "not been persuaded by the
applicants, on the facts of this case, that they reasonably require any of the
records in question for the exercise or protection of any of the rights claimed
by them"72 he specifically went on to state that:73
"The above-mentioned conclusion does not mean that political parties

should not, as a matter of principle, be compelled to disclose details of
private donations made to their coffers. It merely means that, on my
interpretation of existing legislation, the respondents are not obliged to
disclose such records.
This said, the applicants have nevertheless made out a compelling case -
with reference both to principle and to comparative law - that private
donations to political parties ought to be regulated by way of specific
legislation in the interest of greater openness and transparency."
80. Furthermore, the African National Congress itself made the submission in
IDASA that political and legislative processes should "follow the proper course
71
Clutchco at para 13.
72
IDASA, para 81.
73
IDASA, paras 86-87.
30
necessary for the adoption of a national policy through legislation regulating
the funding of political parties".74
81. The Minister has now also faintly suggested that the applicant has failed to
provide evidence that voters require access to private funding information in
order to exercise their right to vote and make political choices.75 This
submission has not previously been made by the Minister, but by the second
respondent in the High Court. It is also simply incorrect.
82. The proposition that private funding information provides a substantial
advantage to those exercising the right to vote is manifest. It need not be
established by evidence. It has been recognised and applied by countless
courts. In any event, the question is not whether a specific person requires
such an information, but whether the voting public as a whole will gain
substantial advantage from having access to this information. This is not a
question of evidence, but is a conclusion based on the nature, import and
inter-connectedness of the rights in question.
83. As this Court has held in Ferreira v Levin, the enquiry of constitutional
invalidity "is an objective one. A statute is either valid or 'of no force and effect
to the extent of the inconsistency'. The subjective positions in which parties to
a dispute may find themselves cannot have a bearing on the status of the
provisions of a statute under attack. The Constitutional Court, or any other
competent Court for that matter, ought not to restrict its enquiry to the position
74
As reported in My Vote Counts, para 11. See also footnote 19, which states as follows: "In Mr Motlanthe’s
answering affidavit in IDASA, annexed to My Vote Counts’ founding affidavit in this Court, he noted that
South Africa is a signatory member of the African Union and, in terms of Article 10 of the African Union
Convention on Preventing and Combating Corruption, it is obliged, inter alia, to adopt legislative and other
measures to 'incorporate the principle of transparency into funding of political parties'. He added:
'Parliament will fulfil this obligation'".
75
Minister's opposing affidavit, para 13 [Record, volume 5, at 337, lines 12 to 21]; DA's Answering Affidavit in
the High Court ("DA's AA"), para 38.1 [Record, volume 3, at 149, lines 10 to 20].
31
of one of the parties to a dispute in order to determine the validity of a law. The
consequence of such a (subjective) approach would be to recognise the
validity of a statute in respect of one litigant, only to deny it to another. Besides
resulting in a denial of equal protection of the law, considerations of legal
certainty, being a central consideration in a constitutional state, militate against
the adoption of the subjective approach." It is thus not the details of any
specific individual case which is critical, but whether the statutory provision in
question has a tendency, objectively speaking, to infringe on the human rights
protected under the Constitution. This is a matter of inference.
84. The applicant has demonstrated the tendency and objective causal link
between the protection and advancement of various rights in the Bill of Rights
on the one hand and private funding information on the other. These links
have been recognised in case law, legislation and international treaties.
85. Furthermore, the insidious connection between private party funding and
political favouritism is one which is globally acknowledged and has been given
prominence in a number of countries, regions and by civil society institutions.76
86. Moreover, we need not debate whether the secrecy surrounding party funding
violates the right to vote, as a discrete right. Rather, the issue is whether
citizens would, in exercising their right to vote, derive a "substantial
advantage" from being informed about the sources and sums of private funds
channelled into political parties seeking public power. For the reasons set out
76
This issue has been given weight in a number of international treaties, including the African Union Convention
on Preventing and Combating Corruption, as detailed in paragraph 47-57 of the founding affidavit.
Furthermore, a range of civil society groups engage with this issue, including, inter alia, the applicant, the
Human Sciences Research Council and the Institute for Democracy and Electoral Assistance. As
mentioned above, our own Legislature has also undertaken to engage with and pass legislation which
addresses the disclosure of private funding information.
32
above, we submit that they undoubtedly would. The applicant need not
establish that every citizen would, in fact, derive such an advantage.
87. For a separate self-standing reason, however, citizens and the country as a
whole would also gain "substantial advantage" from this information as a
bulwark against corruption. It is to that advantage that we turn next.
Section 7(2): the effective prevention from and detection of corruption
88. Section 7(2) of the Constitution contains a pivotal demand: "The state must
respect, protect, promote and fulfil the rights in the Bill of Rights". This general
injunction is fortified in sections 195, 215 and 217 of the Constitution, which
require, inter alia, that all spheres of government maintain high ethical
standards; are responsive, accountable, fair and transparent; and promote the
efficient, economic and effective use of resources.
89. The ability of the state to discharge these duties is, however, corroded by the
insidious effects of corruption. The Constitution thus requires that effective
preventative measures be put in place to safeguard against it. As this Court
held in Glenister II:77
"The Constitution enshrines the rights of all people in South Africa.

These rights are specifically enumerated in the Bill of Rights, subject to
limitation. Section 7(2) casts an especial duty upon the state. It requires
the state to 'respect, protect, promote and fulfil the rights in the Bill of
Rights.' It is incontestable that corruption undermines the rights in the Bill
of Rights, and imperils democracy. To combat it requires an integrated
and comprehensive response. The state’s obligation to 'respect, protect,
promote and fulfil' the rights in the Bill of Rights thus inevitably, in the
modern state, creates a duty to create efficient anti-corruption
mechanisms."
77
Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) ("Glenister II"), para
177. Glenister II was reaffirmed unanimously by the Constitutional Court in Helen Suzman Foundation v
President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa
and Others 2015 (2) SA (1) CC ("Helen Suzman Foundation").
33
90. The essential import of Glenister II is that the Bill of Rights entitles everyone
to protection from corruption and that the state has a duty to ensure that this
protection is manifest. This flows from the fact that "corruption in the polity
corrodes the rights to equality, human dignity, freedom, security of the person
and various socio-economic rights".78
91. That conclusion is bolstered by international law, which plays an important role
in interpreting section 7(2), 19 and 32, and understanding the extent of the
state's obligations. As this Court explained in Glenister II, "our Constitution
takes into its very heart obligations to which the Republic, through the solemn
resolution of Parliament, has acceded, and which are binding on the Republic
in international law, and makes them the measure of the state’s conduct in
fulfilling its obligations in relation to the Bill of Rights".79
92. In this regard, Parliament has without reservation ratified three international
agreements that directly address corruption:
92.1 the Southern African Development Community Protocol against
Corruption ("the SADC Protocol") on 15 May 2003;
92.2 the United Nations Convention against Corruption ("the UN
Convention") on 22 November 2004; and
92.3 the African Union Convention on Preventing and Combating Corruption
("the AU Convention") on 11 November 2005.
93. The SADC Protocol obliges South Africa "to adopt measures, which will
create, maintain and strengthen" mechanisms needed to prevent, detect,
78
Glenister II, para 200.
79
Glenister II, para 178.
34
punish and eradicate corruption in the public and private sector.80 These must
include "mechanisms to promote access to information and to facilitate
eradication and elimination of opportunities for corruption",81 as well as
"mechanisms for promoting public education and awareness in the fight
against corruption".82
94. The UN Convention likewise obliges South Africa to "develop and implement
or maintain effective, coordinated anti-corruption policies that promote the
participation of society and reflect the principles of the rule of law, proper
management of public affairs and public property, integrity, transparency and
accountability".83 Specifically, it requires as follows:84
"Each State Party shall also consider taking appropriate legislative and
administrative measures, consistent with the objectives of this
Convention and in accordance with the fundamental principles of its
domestic law, to enhance transparency in the funding of candidatures for
elected public office and, where applicable, the funding of political
parties."
95. The AU Convention is even more robust, requiring explicitly as follows:85
"Funding of Political Parties

Each State Party shall adopt legislative and other measures to:
(a) Proscribe the use of funds acquired through illegal and corrupt
practices to finance political parties; and
(b) Incorporate the principle of transparency into funding of political
parties."
96. This obligation is positioned between, and buttressed by, the obligation in
Article 9 to "adopt such legislative and other measures to give effect to the
80
SADC Protocol, article 4.
81
SADC Protocol, article 4(d).
82
SADC Protocol, article 4(j).
83
UN Convention, article 5(1) (our emphasis).
84
UN Convention, article 7(3) (our emphasis).
85
AU Convention, article 10 (our emphasis).
35
right of access to any information that is required to assist in the fight against
corruption and related offences".
97. As a useful comparative indicator of the importance of such measures, the
Organisation for Economic Cooperation and Development Framework on
Financing Democracy86 ("the OECD Framework") records that transparency
in private funding information has two potential advantages:87
97.1 it is a guard against corruption and improper influence as, if a politician is
elected to office with major financial support from an individual donor,
corporation or industry and subsequently uses his or her power unduly to
benefit the benefactor, the link between donation and reward will not
pass unnoticed; and
97.2 transparency may permit the elector to know the identity of each
candidate's and each political party's main backers, informing the elector
of the interests behind the rival contestants.
98. The OECD Framework recommends, as a tool to achieve "transparency and
accountability", comprehensive reporting in respect of private donations. It
also recommends that disclosed data must be "timely, reliable, accessible and
intelligible", so as to allow proper public scrutiny.88
99. As confirmed in a number of these international instruments, "corruption" may
take a number of multi-faceted and complex forms. This broad understanding
of corruption is also echoed in the Prevention and Combating of Corrupt
86
OECD (2016) Financing Democracy: Funding of Political Parties and Election Campaigns and the Risk of
Policy Capture, OECD Public Governance Reviews, OECD Publishing, Paris, accessed at
http://transparenz-ja.ch/wp-content/uploads/sites/65/2016/04/Financing-Democracy-OECD.pdf on 15
January 2018.
87
The OECD Framework, page 70.
88
The OECD Framework, table 1.1 on page 30, and page 72.
36
Activities Act, 2004 ("PRECCA"), which brings within its ambit the giving or
offer of gratification in exchange for: the abuse of a position of authority; the
breach of a relationship of trust; and/or actions which are designed to achieve
an unjustified result.
100. The applicant thus submits that transparency in the funding of political parties
is imperative, not only for the effective exercise of the right to make political
choices and to vote in elections, but also for the effective protection of all
persons from malfeasance in government between elections.89 The prospect
of a political party being beholden or grateful to its donors - especially
substantial donors - creates considerable scope for corruption if indeed that
party is elected into a position of public power. For this reason, secret funding
of political parties creates the clear and compelling risk that public officials may
extend undue - and undetected - favouritism towards those that funded their
political progress. In this insidious way, secret funding of political parties
threatens to encourage or at least to conceal corruption, and thus to retard the
realisation of the pivotal command in section 7(2) of the Constitution.
101. This view is also expounded in the minority judgment:90
"Private contributions to a political party are not made thoughtlessly or

without motive. They are made in anticipation that the party will advance
a particular social interest, policy or viewpoint … There can be little
doubt, then, that the identity of those contributors, and what they
contribute, provides important information about the parties' likely
behaviour."
102. The Minister, however, refuses to accept the interconnected nature of the
rights in the Bill of Rights, stating that it is unclear how section 32 and section
89
FA, para 43 [Record, volume 1, at 28, lines 2 to 11.
90
37
19 should be read, together with section 7(2), to require the disclosure of
private funding information in order to curb corruption.91 Further, the Minister
contends that the detection of corruption is a matter which can be left to the
criminal justice authorities and law enforcement agencies.92
103. At the outset, the Minister's submissions are difficult to understand in light of
the Minister's admission that the notion that "financial backers may corrupt a
political system is correct".93 In any event, the Minister has ignored the import
of Glenister II, which underscores that there is a duty on the state to
implement safeguards to detect, counteract and prevent corruption. This duty
arises in respect of the Constitution as well as the state's international
obligations and is not simply or wholly discharged by the establishment of
"criminal justice authorities" tasked with tackling corruption. The disclosure of
private funding information is clearly a means of promoting greater
transparency and accountability and counteracting corruption, and reducing
the scope for corrupt practices to proliferate, in the Republic. It is thus difficult
to conceive of a reason why information which would potentially expose
corrupt behaviour ought to remain secret, to be dug out (or not, as the case
may be) by the criminal justice authorities once a corrupt act is ultimately
committed (assuming it came to light in the first place).
104. In any event, there is a myriad ways in which corruption can be addressed,
once the public is armed with relevant information: civil litigation, lawful
protests, media campaigns, petitions and the like. The Minister’s approach
preferences, for no discernible reason or advantage, the information being
91
92
Minister AA, paras 69 and 82 [Record, volume 2, at 115 and 120].
93
38
kept secret and the disempowering of the public from exercising and
protecting their rights.
105. It is clear that secrecy of funding facilitates potential collusion and corruption.
Funding emanating from particular sources may also encourage the political
party to adopt policies favouring their funders, or further funds would only, in
practice, be made available if the policies of such party advance the donors’
interests and agenda. These unacceptable risks are allowed to proliferate in
South Africa where there is a complete lack of regulation of private funding.
As Fick has argued in respect of this lacuna:94
“In the absence of any legislative framework the electorate cannot know
or easily obtain information on where political parties derive their funding
from. The electorate is unable to form an opinion on the measure of
influence brought to bear upon a political party by a private donor. Such
unregulated funding creates incentives for corruption.”
106. This Court has recognised that the combatting of corruption is a pivotal
constitutional imperative in South Africa, and the scourge of corruption has the
real potential to destroy our constitutional project. Increased transparency
would undoubtedly assist in ensuring that corruption and the practice of
providing monetary compensation or political favours or indulgences is
prevented.
107. The applicant has set forth the attendant benefits of disclosure in promoting
transparency, exposing political supplicants and reducing the insidious effects
of patronage in our democracy. Transparency and disclosure plainly reduce
the opportunity for corrupt activity. In any event, there can be little (if any)
94
G Fick ‘Elections’ in M Chaskalson, J Kentridge, J Klaaren, G Marcus, D Spitz, A Stein & S Woolman (eds),
nd
Constitutional Law of South Africa (2 Edition, Original Service, August 2005) Chapter 29, 22.
39
benefit in maintaining the secrecy of private funding information, and none
which the Minister advances.
108. Whether viewed through the prism of section 32(1) read with section 19 of the
Constitution or that of section 7(2) of the Constitution - each of which is equally
and independently applicable - the disclosure of private funding sources,
including through systematic and continuous recordal and disclosure of private
funding information is reasonably required under the Constitution.
109. The High Court thus correctly found that information about political parties'
funding is required for the exercise of an informed right to vote and that the
applicant had "adequately explained why private disclosure information is
required for the exercise of the right to vote".95
110. The High Court also correctly accepted "that Section 32(1) read with Section
19 of the Constitution, and also Sections 7(2) and 1(d) thereof, require
disclosure of information on political parties' private funding for the exercise
and protection of the right to vote".96
ISSUE THREE: IS PAIA UNCONSTITUTIONAL?
Does PAIA provide for the disclosure of private funding information?
111. Does PAIA provide for the disclosure of private funding information, in
accordance with constitutional prescripts? We submit not.
95
High Court judgment, paras 29 to 30 and 33.3.1 [Record, volume 4, at 266 to 268 and 271].
96
High Court judgment, para 42 [Record, volume 4, at 274].
40
112. In the words of the minority judgment, PAIA "does not provide at all for access
to information about political parties' private funding required for the right to
vote".97 This is the same conclusion that was reached a decade earlier by the
High Court in IDASA.98
113. It is evident then that PAIA as a whole does not provide for the disclosure of
private funding information. This is an unjustifiable limitation of sections 32
and 7(2), and accordingly renders PAIA unconstitutional and invalid.
Moreover, in order to illustrate this, the applicant has set out and explained the
specific shortcomings besetting PAIA at paragraphs 69 to 101 of its founding
affidavit in the High Court.99 In summary, these are:
113.1 disclosure under PAIA is not automatic, is triggered only once a request
has been made for information and comes at a financial cost to every
requester;
113.2 disclosures are, at best, limited to the specific records requested at the
specific time by a requester;
113.3 only existing records of information are accessible under PAIA, rather
than information generally;
113.4 PAIA also does not deal with payments in kind and informal support
which is not recorded or reflected in any document;
113.5 there is no obligation to create records of private funding information;
97
My Vote Counts, para 66.
98
IDASA, paras 81-82.
99
FA, paras 69-101 [Record, volume 1, at 38 to 50].
41
113.6 there is no obligation to ensure continuous disclosure of private funding
information in respect of political parties;
113.7 there is no obligation to maintain records of private funding information
and there are no penalties for the destruction of records with private
funding information;
113.8 there are a number of grounds on which access to records may be
refused, which are inconsistent with the Constitution in respect of the
disclosure of private funding information.
114. Importantly, on 31 May and 1 June 2016, the applicant submitted various
"request for information" forms ("the 2016 PAIA requests") to the various
political parties currently represented in Parliament under section 53(1) of the
PAIA.100 The 2016 PAIA requests either elicited no response or were
denied.101 The inadequacies of PAIA are thus also amply demonstrated by the
responses to the 2016 PAIA requests. The High Court agreed that this state of
affairs demonstrated the inadequacies of PAIA.102
The rights of donors
115. The Minister did not make any factual or legal submissions in the High Court
pertaining to the rights of third parties being implicated by the applicant's relief
or in respect of the limitations analysis under section 36 of the Constitution.
116. The Minister now tries to adopt an argument of the second respondent on
these topics for the first time. He states that the High Court failed to balance
100
FA, para 104 [Record, volume 1, at 52].
101
FA, paras 106-107 [Record, volume 1, at 53].
102
High Court judgment, para 63 [Record, volume 4, at 283, lines 11 to 15].
42
the rights in section 32 with the rights of persons making private donations to
political parties in the exercise of constitutional rights in sections 16, 18 and 19
of the Constitution.103
117. The arguments based on those sections are meritless.
Right to privacy
118. In Bernstein, the Constitutional Court explained that an integrated approach
to interpreting the right to privacy eschews "an abstract individualistic
approach".104 Because no right is absolute, "each right is always already
limited by every other right accruing to another citizen".105 Therefore:
"[p]rivacy is acknowledged in the truly personal realm, but as a person

moves into communal relations and activities such as business and
social interaction, the scope of personal space shrinks accordingly."106
119. Furthermore, in Mistry, the Constitutional Court affirmed that the right to
privacy exists on a continuum and that:
"[T]he more public the undertaking and the more closely regulated, the
more attenuated would the right to privacy be and the less intense any
possible invasion."107
120. The right to privacy is necessarily and significantly attenuated in respect of
political parties. This view is supported by the reasoning employed in
Ramakatsa, which recognised the public nature of political parties as well as
103
Minister's opposing affidavit, para 16 [Record, volume 5, at 339, lines 3 to 13].
104
Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) ("Bernstein"), para 67.
105
Loc cit.
106
Loc cit.
107
Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) ("Mistry"), para 27.
43
the fact that the private funds they receive have a distinctly public purpose and
public effect on whether democracy is enhanced and entrenched.108
121. The same principles must, as a necessary corollary, apply to the donors. As
Bernstein makes plain, the matter of disclosure is not an individualistic
inquiry, but one which focuses on the nature of the funding itself and, naturally,
must factor in its distinctly public purpose and effect.
122. Thus, with respect, the right to privacy cannot avail the Minister (and/or
donors) in respect of the duty to disclose private funding information. The
High Court agreed with the applicants in this regard with reference to the
above case law.109
Rights to freedom of association and to vote
123. The arguments raised in respect of the right to freedom of association and the
right to vote are also of little moment:
123.1 no person will be precluded from making financial contributions to a
political party - they will simply have the details of such funding made
publicly available;
123.2 the above disclosure policy, to the extent that it may dissuade some
persons from making financial contributions, will simply have an effect on
the choices made by them - choices which they will still be able to make
freely, in light of any consequences such contribution may entail;
108
Ramakatsa, paras 66-68.
109
High Court judgment para 66 [Record, volume 4, at 284].
44
123.3 the same considerations apply in a number of instances where people
choose to exercise their rights, in conjunction with other rights and in a
constitutionally acceptable manner - the right to freedom of expression
and the constraints placed on this right under our Constitution is a prime
example of this interplay;110
123.4 a person's decision to make a financial contribution to a political party
does not necessarily betray a person's political beliefs or voting patterns -
a point made plain by the second respondent in its answering affidavit in
the High Court, who explain that a number of donors fund numerous
political parties, for a variety of reasons;111
123.5 in any event, a person is not forced to make financial contributions to a
political party and any such contribution, and its disclosure, would
constitute an informed election by the donor - hardly a breach of their
constitutional rights.
124. The rights of donors and political parties are thus not limited by the applicant's
case – and certainly not in a manner which should prevent or inhibit the
applicant obtaining the relief sought by it, given the clear countervailing factors
in favour of disclosure.
110
See, for example, the judgment in Davis v Tip NO 1996 (1) SA 1152 (W) where Nugent J held at p 1158-9
that: "The applicant's submission suggests that, if the alternatives which are to be chosen from are equally
unattractive, then choice is tantamount to compulsion, and that the right to silence entitles an accused
person not to be faced with that choice. I do not agree. What distinguishes compulsion from choice is
whether the alternative which presents itself constitutes a penalty, which serves to punish a person for
choosing a particular route as an inducement to him not to do so … Hard as the choice may be, it is a
legitimate one which the applicant can be called upon to make and does not amount to compulsion. In my
view his right to silence does not shield him from making that choice".
111
DA's AA, para 86 [Record, volume 3, at 168 - 169].
45
125. The Minister does not advance any further aspect to justify PAIA. We do not
traverse all responses to the second respondent's submissions in the High
Court.
ISSUE FOUR: THE APPROPRIATE REMEDY
126. PAIA has failed to satisfy the standards set by the Constitution fully and
lawfully, as identified above, as confirmed in the minority judgment. It is
respectfully submitted that this Court is required to declare that such failure is
inconsistent with the Constitution and invalid and must order a just and
equitable remedy to ensure that the failure is corrected without undue delay.112
Essentially, the applicant contends that PAIA must be remedied so as to allow
for the continuous and systematic recordal and disclosure of private funding
information by all political parties to all citizens.
127. This application does not prescribe - and does not ask this Court to prescribe -
exactly how PAIA may be remedied in order to align it with the Constitution.
The manner in which PAIA's inadequacies, outlined in the founding affidavit,
should be addressed must, in the first instance, be debated and decided by
the Legislature.
128. The Minister suggests that the High Court failed to have regard to the doctrine
of separation of powers when it granted the declaratory order in paragraph 1
of the order as it contends that paragraph 1 amounts to a constitutional
amendment to section 19 of the Constitution. This is plainly not correct. The
applicant challenged the constitutionality of PAIA and has not sought any
112
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African
Social Security Agency and Others (No 2) 2014 (4) SA 179 (CC), paras [30] and [56]. State Information
Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40 (14 November 2017),
paras [52] and [53].
46
amendment to a constitutional provision. It is within the peculiar province of
the courts under section 172 of the Constitution to do their duty by
pronouncing on the constitutional validity of legislation.
Recordal and disclosure must be continuous and systematic
129. The applicant seeks to vary the Order to include relief relating to the
continuous and systematic recordal and disclosure of information. This relief
was sought by the applicant in the High Court, but was refused.
130. Continuous and systematic recordal and disclosure was an important aspect
of the relief sought by the applicant.
131. The High Court at paragraph 70 of the High Court judgment113 stated that
"[w]hilst I am able to order disclosure, I am of the view that I am prevented, by
the pronouncements at paragraphs 122, read with paragraphs 155 and 156 of
the [majority judgment], from ordering the preferred manner of disclosure,
namely "continuous and systematic", that the Applicant seeks".
132. The High Court's reasoning for this finding is set out, with references to the
relevant paragraphs of the majority judgment, at paragraphs 70 to 73 of the
High Court judgment.114
133. Paragraph 122 of the majority judgment states:
"Summarising it, our difficulty with the minority judgment is twofold. First,
insofar as it seeks to have Parliament legislate in a manner preferred by
the applicant, the minority judgment violates the doctrine of separation of
powers. We elaborate on this below."
134. Paragraphs 155 and 156 of the majority judgment state:
113
114
[Record, volume 4, at 286 to 287].
47
"[155] The applicant wants information on the private funding of political

parties to be made available in a manner preferred by it. It prefers that
the legislation should require the disclosure of the information as a matter
of 'continuous course, rather than once-off upon request'. According to
the minority judgment, what South Africa must have is systemic
disclosure. It may well be that this is ideal; who knows? But that is not the
issue. It is for Parliament to make legislative choices as long as they are
rational and otherwise constitutionally compliant. Crucially, lack of
rationality is not an issue in these proceedings.
[156] Despite its protestation to the contrary, what the applicant wants is
but a thinly veiled attempt at prescribing to Parliament to legislate in a
particular manner. By what dint of right can the applicant do so? None, in
the present circumstances. That attempt impermissibly trenches on
Parliament's terrain; and that is proscribed by the doctrine of separation
of powers."
135. These paragraphs, read in the proper context of the case, cannot be
interpreted to mean that the applicant is precluded from being granted the
relief sought relating to "continuous and systematic recordal and disclosure" of
private funding information. The High Court found that paragraphs 122, 155
and 156, however, prohibited the Court from ordering continuous and
systematic disclosure of private funding information.
136. The High Court, with respect, erred in making these findings as they are based
on an incorrect interpretation of the majority judgment.
137. The lis before this Court in My Vote Counts was whether there was a breach
of the constitutional obligation to pass legislation in terms of section 32(2).
This Court held that, for the purposes of section 32(2), Parliament was
required no more than to pass the freedom of information legislation, which it
did in the form of PAIA. In fulfilling that constitutional obligation, and judged
against the standard of rationality, the applicant could not quibble with the fact
that Parliament chose to pass legislation in a specific form. This is because
the only obligation resting on Parliament in terms of section 32(2) was to pass
some legislation which purported to cover the field. The majority judgment
48
thus held that such an obligation was fulfilled by the enactment of PAIA,
regardless of its possible deficiencies.
138. Whether substantively the legislation infringes the constitutional right of access
to information or any other right would have to be tested in a frontal challenge
on PAIA. The majority judgment specifically avoided pronouncing, and did not
come to any conclusions, on the substance of that challenge.
139. Such a challenge was not before the Court. It is clear from paragraph 159 of
the majority judgment that specific shortcomings of PAIA were not intended to
be addressed in that judgment and such shortcomings had to be dealt with in
a frontal challenge to PAIA. Similarly, even in paragraph 156, the majority
judgment specifically states that there was no right shown by the applicant "in
the present circumstances", ie in the context of a section 32(2) challenge.
140. The findings in paragraphs 122, 155 and 156 of the majority judgment are thus
not dispositive in any respect.
141. Should this Court vary the Order?
142. In terms of section 172(1) of the Constitution, this Court may make any order
which is just and equitable. As recently held by this Court, this is a wide power
"bounded only by considerations of justice and equity".115 A just and equitable
order must effectively vindicate the constitutional right infringed,116 and
requires this Court to "analyse the nature of a constitutional infringement, and
strike effectively at its source".117 The vindication of the rights implicated in
115
Gijima (op cit, fn 112), para [53].
116
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
117
Ibid, para [96].
49
this application, we submit, requires this Court to order that the recordal and
disclosure be ongoing and systematic.
143. The basis for the applicant praying for continuous and systematic recordal and
disclosure of private funding information is set out in the applicant's papers in
the High Court.118
144. Given the nature of the information in question, ie that the electorate will not
know when a further donation or other benefit has been conferred on a
political party, and thus is not in any position to monitor the situation, and
given that new donations/benefits will likely be given relatively frequently (from
a variety of sources), it is imperative for the disclosure (and recordal) of this
information to be done on a continuous and systematic basis, so that the
public may be regularly informed. Given the millions of persons whose rights
are potentially affected by private funding information, the fact that the
information is required at all times and not only during election cycles, it is
imperative that information does not have to be sought on an ad hoc basis,
and that it is both recorded and disclosed on a continuous and systematic
basis. In any event, any disclosure of information should be systematised to
ensure that all political parties are treated equally in the way and time that the
information is recorded and disclosed.
145. Fulfilment of this Court's mandate to order appropriate and effective relief, we
submit, requires the variation of the wording in the Order to make provision for
a continuous and systematic recordal and disclosure. The information should
be relevant, complete, up-to-date and easily accessible to give proper effect to
the constitutional obligations in question.
118
See for instance FA paras 67 to 103 [Record, volume 1, at 37 to 52]
50
COSTS
146. The Biowatch principles are plainly applicable in this case.119
CONCLUSIONS
147. The applicant submits that:
147.1 the systematic and continuous recordal and disclosure of private funding
information is required under section 32, read with sections 19(1), 19(3),
1(d) and 3(2)(a), of the Constitution, as well as under section 7(2) of the
Constitution;
147.2 PAIA does not allow for such disclosure; and
147.3 PAIA is invalid and unconstitutional to the extent of this inconsistency.
148. The applicant thus requests that, subject to the variation set forth above, the
Order is confirmed, and the Minister be ordered to pay the applicant's costs in
this Court.
Max du Plessis
Chambers
Durban
16 January 2018
119
Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC), para [43].
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No.: CCT 249/17
In the matter between:
MY VOTE COUNTS NPC Applicant
and
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES First Respondent
DEMOCRATIC ALLIANCE Second Respondent
FIRST RESPONDENT'S HEADS OF ARGUMENT
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 1
THE ISSUES ............................................................................................................................. 1
FACTUAL BACKGROUND .................................................................................................... 3
THE NON-JOINDER OF NECESSARY PARTIES ................................................................ 5
THE CONSTITUTIONAL ISSUES .......................................................................................... 9
DOES SECTION 32(1) OF THE CONSTITUTION REQUIRE POLITICAL PARTIES AND
INDEPENDENT CANDIDATES TO RECORD AND DISCLOSE PRIVATE FUNDING
INFORMATION...................................................................................................................... 11
REGULATION OF POLITICAL PARTIES AND INDEPENDENT CANDIDATES .......... 24
IS INFORMATION ABOUT PRIVATE FUNDING OF POLITICAL PARTIES AND
INDEPENDENT CANDIDATES REASONABLY REQUIRED TO EXERCISE
CONSTITUTIONAL RIGHTS ............................................................................................... 30

IMPORTANCE OF THE RIGHT TO VOTE v THE DISCLOSURE OF PRIVATE
FUNDING INFORMATION................................................................................................... 32
The disclosure of private funding information is mandated by section 32(1) ..................... 33
Transparency requires it ....................................................................................................... 33
Disclosure as an anti-corruption measure ............................................................................ 34
THE CORRECT APPROACH TO LEGISLATIVE AND CONSTITUTIONAL
INTERPRETATION................................................................................................................ 37
COMPARABLE FOREIGN CONSTITUTIONAL PROVISIONS APPLICABLE TO THE
INTERPRETATION OF POLITICAL RIGHTS IN SECTION 19 ........................................ 39
LEGISLATION REGULATING POLITICAL PARTIES AND INDEPENDENT
CANDIDATES ........................................................................................................................ 42
CURRENT PARLIAMENTARY PROCESS ON THE ISSUE BEFORE THIS COURT ..... 42
Draft Political Party Funding Bill, 2017 .............................................................................. 43
Memorandum on the objects of the funding of political party Bill, 2017 ........................... 45
DONTRINE OF SEPARATION OF POWERS ...................................................................... 46
THE APPROPRIATE REMEDY ............................................................................................ 48
ii
1
INTRODUCTION
1. In the Western Cape Division of the High Court (“the High Court”), an order of
constitutional invalidity was handed down by Honourable Justice Meer on 27 September
2017 in the following terms:
“2. It is declared that the Promotion of Access to Information Act 2 of 2000
(“PAIA”) is inconsistent with the Constitution and invalid insofar as it does not
allow for the recordal and disclosure of private funding information”
2. These submissions are prepared to oppose the confirmation of the aforementioned order by
this Honourable Court as required in terms of section 172(2)(d) of the Constitution of the
Republic of South Africa, 1996 (“the Constitution”). The first respondent further appeals
paragraphs 1 and 4 of the order of High Court.1 Finally, the first respondent opposes the
applicant’s appeal to vary paragraph 1 of the order of the High Court.2
THE ISSUES
3. The crisp issue in these proceedings is whether the political and voting rights guaranteed in
section 19 of the Constitution require the legislature, in terms of section 32 of the
Constitution, to pass legislation requiring political parties and independent candidates
1
“1. It is declared that information about the private funding of political parties and independent ward
candidates (the latter concept as contemplated in section 16 of the Local Government: Municipal Electoral
Act, 27 of 2000) (“independent candidates”) registered for elections for any legislative body established under
the Constitution (“private funding information”) is reasonably required for the effective exercise of the right
to vote in such elections and to make political choices, in terms of sections 19(1), 19(3), 32 and 7(2) of the
Constitution;
4. The costs of this application, including the costs of two counsel, shall be borne jointly and severally by the
Second and Sixth Respondents.”
2
The applicant seeks to vary the order of constitutional invalidity in paragraph 2 to read as follows:
“It is declared that the Promotion of Access to Information Act, 2 of 2000 (“PAIA”) is inconsistent with the
Constitution and invalid insofar as it does not allow for the continuous and systematic recordal and
disclosure of private funding information;”
2
participating in elections for public office, to, on a continuous and systematic basis, record
and disclose information on their private funding. The applicant contends that section 32 read
together with section 19 and 7(2) of the Constitution requires such legislation which entitles
all persons to have access to private funding information of political parties and independent
candidates. The applicant further contends that the legislature has failed to pass such
legislation. It submits that the Promotion of Access to Information Act 2 of 2000 (“PAIA”),
which is the legislation passed by the legislature pursuant to the requirement in section 32(2)
of the Constitution is constitutionally deficient in that it does not require political parties to
continuously and regularly record and disclose private funding information in order to give
effect to the rights of citizens in section 19 of the Constitution. In its declaratory order, the
High Court, as the minority judgment of Cameron J in My Vote Counts NPC v Speaker of
the National Assembly and Others 2016 (1) SA 132 (CC) (“My Vote Counts 1 (CC)”)
found that, for numerous reasons related to the constitutional importance of the rights in
section 19 of the Constitution, information about the private funding of political parties and
independent ward candidates registered for elections for any legislative body established
under the Constitution is reasonably required for the effective exercise of the right to vote in
such elections and to make political choices, in terms of section 19(1), 19(3) 32 and 7(2) of
the Constitution.
4. The High Court accepted the applicant’s submissions, essentially following the findings in
the majority judgment of this Honourable Court in My Vote Counts 1 (CC). The declaratory
order was granted without determining whether there were faults with the current regulatory
and legislative scheme governing the exercise of the rights in section 19 of the Constitution.
The High Court however refused to order that the duty contended for by the applicant
included continuous and systematic disclosure. It is this that the applicant seeks to vary so
3
that the High Court order is confirmed with the words “continuous” and “systematic” added
to it.3
5. In these submissions, the first respondent will address the following issues in opposition to
the confirmation of the High Court order and the applicant’s application for leave to appeal:
5.1. Factual background;
5.2. The non-joinder of necessary parties;
5.3. The constitutional issues;
5.4. Does section 32(2) of the Constitution impose on political parties and independent
candidates the duty to record and disclose private financial information;
5.5. Whether information about private funding of political parties and independent ward
candidates is reasonably required for the effective exercise of the rights in section
19(1), 19(3) 32 and 7(2) of the Constitution;
5.6. The justifiable limitations on the right of access to information: the constitutional
rights of private donors/funders;
5.7. Comparative jurisdictions; and
5.8. Principle of Separation of powers.
6. We deal with each of the issues in turn.
FACTUAL BACKGROUND
7. The applicant is a non-profit voluntary association which claims as its primary purpose to
improve accountability, transparency and inclusiveness of elections and politics in South
Africa. On 30 May 2016 and 1 June 2016 the applicant addressed requests in terms of
3
Record: Notice of Motion: Volume 5 page 292- 294.
4
section 53(1) of PAIA for access to private funding information from various political parties
currently represented in Parliament.4 The political parties that responded to the requests
refused to give the applicant the right of access to information on different grounds based on
PAIA.5 The applicant did not challenge the refusal by these political parties to accede to its
request but lodged direct proceedings to the Constitutional Court for declaratory orders in the
same terms as in this application but did not frontally challenge the constitutional validity of
PAIA. The Constitutional Court dismissed the application on the following summarised
grounds:-
7.1. Parliament had fulfilled its constitutional obligation to enact legislation envisaged in
section 32(2) of the Constitution by passing PAIA;
7.2. The applicant’s complaint was essentially a complaint about access to information as
envisaged in PAIA. The applicant’s complaint had to fail because it was not
premised on a frontal attack on the constitutional validity of PAIA. The principle of
subsidiarity was applied;
7.3. The application further failed because at its core, it sought to compel Parliament to
legislate in a manner preferred by the applicant, thereby violating the doctrine of
separation of powers.
8. The application in the High Court was that frontal challenge to the constitutional validity of
PAIA , in direct response to the Constitutional Court is judgment in My Vote Counts 1 (CC).
The success of this constitutional challenge therefore appears to be based on the success of
the declaratory order, in that, only in the event that it is declared that information about the
4
Record: Vol. 1 at p 52 para 104 – 108.
5
Record. Vol. 1 at p 59 – 65.
5
private funding of political parties and independent ward candidates (the latter concept as
contemplated in section 16 of the Local Government Municipal Electoral Act 2000)
(“independent candidates”) registered for any legislative body established under the
Constitution is reasonably required for the effective exercise of the right to vote in such
elections and to make political choices, in terms of sections 19(1), 19(3) 32 and 7(2) of the
Constitution, may the constitutionality of PAIA be impugned. Conversely, if it is found that
private funding information is not necessary for the exercise of the right to vote and to make
political choices in sections 19(1) and 19(3) then, the argument for a requirement to pass
legislation in terms of section 32 to give effect to that obligation, would fall flat.
9. The High Court accepted the applicants’ contentions and declared that information on the
private funding of political parties is reasonably required for the effective exercise of the
right to vote, having regards to sections 19(1), 19(3), 32 and 7(2) of the Constitution.
Following the declaratory order, the High Court also found that PAIA was constitutionally
invalid to the extent that it does not allow for the recordal and disclosure of private funding
information. It is this finding that this Honourable Court, exercising its constitutional
jurisdiction in terms of section 172(2)(a) of the Constitution read together with the rules must
decide.6
THE NON-JOINDER OF NECESSARY PARTIES
10. The High Court found that the Independent Electoral Commission (“IEC”) “has very little, if
anything, to do with access to information concerning the private funding of political parties,
the focus of this application”7 and concluded that the IEC “does not have a direct and
substantial interest in the relief sought by the applicant, directed as it is against the
6
Rule 16 of the Constitutional Court Rules deals with confirmation of an order of constitutional invalidity.
7
My Vote Counts v President of the Republic of South Africa 2017 (6) SA 501 (WCC) at para 9H-1.
6
unconstitutionality of PAIA in addressing the section 32 right of access to information, read
with sections 19, 7(2) and 1(d) of the Constitution.
11. The High Court was wrong in making this finding, based on a cursory examination of IEC’s
responsibility as it appears in the preamble to the Electoral Commission Act 51 of 1996. The
High Court narrowed the scope of the orders sought by the applicant and failed to appreciate
their implications on the functioning of the IEC to regulate political parties in a manner that
gives effect to the rights in section 19 of the Constitution. The applicant’s complaint is that
the effective exercise of section 19 constitutional rights is impeded by the failure of
Parliament, when passing PAIA, to ensure that provision was made for the disclosure of
private funding information. Read with the declaratory order, the applicant’s case is that
section 19 constitutional rights are not effectively exercised because there is a constitutional
lacuna in PAIA. In order to determine whether this is the case, it is important to establish
how section 19 rights are given effect to, for if indeed there is a deficiency in the legislative
and regulatory scheme designed to give effect to those rights, then the application may have
some merit. The role of the IEC, that gives it a direct and substantial interest in this matter,
is that it regulates public funding of political parties in terms of the Public Funding of
Represented Political Parties Act 103 of 1997 (“Public Funding Act”). In terms of section
5(b)(i) to (c), the funds allocated to the political party may be used for any purpose that is
compatible with its functioning as a political party in a modern democracy, which includes
the following;
11.1. The development of the political will of people;
11.2. Bringing the political party’s influence to bear on the shaping of public opinion;
11.3. Inspiring and furthering political education;

7
11.4. Promoting active participation by individual citizens in political life;
11.5. Exercising an influence on political trends; and
11.6. Ensuring continuous, vital links between the people and organs of state.
12. The IEC has a legal interest in the regulation of political parties and consequently in how the
disclosure of private funding information impacts on its core constitutional mandate.8
13. In relation to the failure of the applicant to join registered political parties and independent
ward councillors, the High Court relied on the judgment of the Western Cape High Court in
Economic Freedom Fighters and Others v Speaker of the National Assembly & others
[2016] 1 All SA 520 (WCC) at paras 47 and 48 in which Binns- Ward J found that:
“Where the interests of a very large, and effectively indeterminable, number of
persons, might be affected by the order sought, it would be impracticable to require
that they should all be joined. A pragmatic approach had to be adopted in such
cases in identifying who needs to be joined as a necessary party. A material
consideration is that the constitutional invalidity of legislation-certainly laws of
general application – falls to be determined objectively, and not with reference to
its subjective effect on particular individuals.”
14. The finding was erroneous for a number of reasons. First, it was made without assessing
whether this approach was consistent with the legal requirement to join necessary parties.
8
In terms of Chapter 9, the Electoral Commission is one of the state institutions established to support
constitutional democracy. Its functions are set out in sections 190 of the Constitution.
8
Second, the approach of the High Court undermines the constitutional rights of parties as
guaranteed in section 349 of the Constitution. The Courts have held that, to give judgment in
the application and to take away certain rights from the parties that have not been cited
without these parties being afforded an opportunity of be heard, would be contrary to natural
justice. Third, even accepting the finding of the High Court as a justified deviation from the
requirements of joinder, there was no evidence placed by the applicant and relied by the High
Court to show the following factors articulated in the judgment of Binns-ward J above:
14.1. That there was a large, and effectively indeterminable, number of persons who might
be affected by the order sought;
14.2. It would be impracticable to require that registered political parties and independent
councillors be joined.
15. The applicant cited only fifteen political parties as respondents, but did not explain why it
could not cite all the registered political parties likely to be affected by the orders sought.
The applicant simply failed to join independent councillors and no explanation was given for
such failure. It is a trite principle of law that a failure to join a necessary party with a direct
and substantial interest in the constitutional relief sought may be fatal to the proceedings.10
There was no legal basis on which the High Court effectively condoned the failure by the
applicant to join parties with a direct and substantial interest and therefore are necessary to
the application.
16. For this reason, this Court should refuse to confirm the declaration of invalidity with costs.
Alternatively, this Honourable Court should direct that this application be served on all the
9
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
10
Glenister v President of RSA 2011 (3) SA 347 (CC) at para 29.
9
registered political parties, the IEC and independent candidates inviting them to make
submissions if necessary. This Honourable Court made such a directive in Doctors for Life
International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC).
THE CONSTITUTIONAL ISSUES
17. This is not an application under PAIA for an order compelling political parties and
independent candidates to grant the applicant access to information on private funders of
political parties.11 The applicant does not contend that they wish to be granted access to this
information because they are entitled to exercise and protect the right to vote alternatively,
the right to make political choices as guaranteed in section 19 of the Constitution. The
applicant cannot advance such a claim because it is neither a citizen nor a political party
entitled to exercise such rights. The applicant’s standing to bring this application is of vague
general public interest, based on section 38 of the Constitution.
18. This is also not an application to review and set aside a decision by any political party or
independent candidates refusing the applicant the right of access to private funding
information. Following the refusal of the applicant’s request to access private funding
information, it was entitled to challenge such decisions on any lawful grounds, but chose not
to do so. It chose to bring this application for an order declaring that PAIA is
unconstitutional because it does not require political parties and independent candidates to
continually and systematically record and disclose their private funding information.
19. Three issues arise from this constitutional challenge. The first is whether PAIA does not give
the applicant the right of access to private funding information that is held by political
11
Chapter 2 of Part 4 of PAIA deals with applications to courts and comprises section 78-82. See also Brummer v
Minister for Social Development 2009 (6) SA 323 (CC) at 43.
10
parties. It is not the applicant’s complaint that PAIA does not give effect to the right of
access to private funding information that is held by the state. Secondly, if indeed PAIA
does not give effect to the right of access to private funding information held by political
parties and independent candidates, is it unconstitutional for that reason? The third issue is
whether there is a duty in terms of section 32 of the Constitution on political parties and
independent candidates to continuously and systematically record private funding
information. The applicant contends that such a duty exists and should have been covered by
the legislature when it promulgated PAIA. Consequently the applicant contends that the
absence of a provision in PAIA obliging political parties and independent candidates to
regularly record and disclose private funding information renders it unconstitutional, for it is
an obligation whose source is section 32(2) of the Constitution.
20. The first issue may speedily be disposed of briefly. PAIA does not require political parties
and independent candidate to continuously and systematically record and disclose their
private funding information. As already submitted above, it is not the constitutional purpose
of PAIA to require political parties and independent candidates to regularly and
systematically disclose private funding information. This contention will be expanded on
later in these submissions.
21. The core issue is whether there is a constitutional requirement in terms of section 32 of the
Constitution to pass legislation that require political parties and independent candidates to
regularly record and disclose information on their private funders. If there is such a duty in
section 32 of the Constitution, it follows that such a constitutional requirement should have
been reflected when the legislature passed PAIA. If indeed there is a constitutional
requirement on political parties and independent candidate to regularly record and disclose
information on private funding, PAIA would be unconstitutional for not reflecting that
requirement.
11
DOES SECTION 32(1) OF THE CONSTITUTION REQUIRE POLITICAL PARTIES AND
INDEPENDENT CANDIDATES TO RECORD AND DISCLOSE PRIVATE FUNDING
INFORMATION
22. Section 32(1) provides that everyone has a right of access to (a) any information that is held
by the state; and (b) any information that is held by another person and that is required for
the exercise or protection of any rights. Insofar as section 32(1)(a) of the Constitution is
concerned, everyone has a right of access to any information that is held by the state.
Everyone in section 32 includes political parties and independent candidates. It follows that
political parties and independent candidates have a right of access to any information that is
held by state in terms of section 32(1)(a) of the Constitution. It also follows that where
private funding information is in the hands of the state, anyone (including political parties
and independent candidates) may exercise the right of access to that information. Whether
there is a constitutional requirement arising from section 32 of the Constitution on political
parties and independent candidates to regularly and systematically record and disclose
private funding information depends on whether political parties may be defined as “state” or
“another person” referred to in sections 32(1) of the Constitution. The High Court, following
the minority judgment in My Vote Counts 1 (CC) correctly found that political parties and
independent candidate do not fit the definition of state or organ of state.12 This means that
there is no right of access to information on the basis that political parties and independent
candidates constitute the state.
23. The more difficult question is whether political parties and independent candidates fall
within the definition of “another person” in terms of section 32(1)(b) of the Constitution.
Section 32(1)(b) of the Constitution, provides that everyone has a right to any information
12
My Vote Counts 2 (WCC) at para 51- 52 and My Vote Counts 1 (CC) at para 113.
12
that is held by “another person” and that is required for the exercise or protection of any
right. The phrase “another person” is wide enough to include political parties and
independent candidates. It follows that unless it can be shown to be consistent with the
Constitution that political parties and independent candidates are not considered ‘persons’ for
the purpose of exercising or protecting the rights in section 32 of the Constitution. Political
parties and independent candidates are not bearers of the obligations in section 32 of the
Constitution. They can be brought under PAIA if they are defined as public or private
bodies. It is clear from the definition of private and public bodies in PAIA that the
legislature did not intend to regulate the disclosure of public or private funding of political
parties and independent candidates in terms of PAIA. Public funding of political parties is
regulated in terms of the Public Funding Act. There is no equivalent legislation regulating
private funding of political parties although Parliament is currently processing such
legislation in terms of the Draft Political Party Funding Bill, 2017 (“the Draft Bill”), we deal
with the Draft Bill later in these submissions.
24. The source of the constitutional authority for the requirement on political parties and
independent candidates to record and disclose private political funding is not found in section
32 of the Constitution. The source of authority for regulating public funding of political
parties is section 236 of the Constitution.13 The contention for such a constitutional
requirement would be found in the general constitutional obligation in section 7(2) of the
Constitution to “respect, protect, promote and fulfil the rights in the Bill of Rights” by
passing appropriate legislation fit for the constitutional purpose. Section 32 of the
Constitution therefore is not the constitutional source for the requirement on political parties
and independent candidates to record and disclose private funding information for the
following reasons:-
13
“To enhance multi-party democracy, national legislation must provide for the funding of political parties
participating in national and provincial legislatures on an equitable and proportional basis.”
13
24.1. No reference is made to political parties and independent candidates in section 32;
24.2. The first constitutional purpose of section 32(1)(a) is to guarantee the right of access
to information held by the state. The right is to existing information held by the state.
In order for the state to give effect to this right, it must ensure that information held
by it is recorded;
24.3. The second constitutional purpose of section 32(1)(b) is to guarantee the right of
access to information that is held by another person and that is required for the
exercise or protection of any rights. This means that information held by another
person is subject to the right of access where it can be shown that such information is
required for the exercise or protection of a political right. Where it is not shown, no
right to access information exists. A requirement as contended for by the applicant –
continuous and systematic recordal and disclosure of private funding information –
would be inconsistent with the jurisdictional requirement for the exercise of the right.
A continuous and systematic recordal and disclosure of private funding information
would render useless the requirement to show that information is required for the
exercise or protection of any right.
25. In any event, the applicant has not shown that it requires the recordal and disclosure of
private funding information in order to exercise or protect any rights in section 19 of the
Constitution. It has only expressed the view that such a recordal and disclosure requirement
of private funding information would be good for our constitutional democratic system in
that it would improve the system of accounting and promote transparency in who and how
political parties and independent candidates are funded. In doing so, however, the applicant
has failed to show why PAIA is the legislation envisaged in terms of section 32 to achieve
14
this noble constitutional goal – to promote accountability and transparency in the private
funding of political parties and independent candidates.
26. The Constitution, more specifically, section 32(1)(a) of the Constitution, does not define
either state14 or refer to political parties. PAIA does not define either state or political parties.
If political parties do not fall under the definition of state as referred to in section 32(1)(a) of
the Constitution, no requirement or obligation may be imposed on them to regularly record
and systematically disclose private information held by it under PAIA. It is accepted that
neither political parties nor independent candidates fall within the definition of PAIA.
27. Section 1 of the Constitution refers to the Republic of South Africa as “one, sovereign,
democratic state” founded on the values of (a) human dignity, the achievement of equality
and the advancement of human rights and freedoms (b) non-racialism and non-sexism (c)
supremacy of the constitution and rule of law (c) universal adult suffrage, a national common
voter’s roll, regular elections and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness. State, though includes organs of state. Section
239 defines organs of states as follows:
“(a) any department of state or administration in the national, provincial or
local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the
Constitution or provincial constitution or
(ii) exercising a public power or performing a public function in terms
of any legislation, does not include a court or a judicial officer.”
14
Ngonyama Trust v Ethekwini Municipality 2013 (1) SA 564 (SCA) at para 5-7.
15
28. A political party is not an organ of state as defined in section 236 of the Constitution.15
Cameron J for the minority in My Vote Counts 1 (CC), said that the “wide definition of
‘organs of state’ in the Constitution means that in the first instance section 32(1) of the Bill
of Rights gives a right of access to all information held by departments of state at any level of
government, as well as by any other functionary or institution that exercises a power or
performs a function under the national or a provincial constitution, or that exercises a power
public power or public function in terms of any other legislation. This PAIA closely
reflects.”16 It is clear that there is no obligation on political parties to disclose any
information arising from section 32(1)(a) of the Constitution because they do not fall within
the definition of state or organs of state.
29. The question is whether there is an obligation on political parties in terms of section 32(1)(b)
by virtue of the definition of “another person” referred to in that section. Cameron J for the
minority in My Vote Counts 1 (CC) correctly found that despite the:
“absence of a definition, the word ‘person’ is plainly very wide. It is not limited to
natural persons, for the Bill of Rights binds also a juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the
nature of the duty imposed by the right. What is more, the Bill of Rights specifies
which ‘persons’ may enforce the rights it confers. This Court has repeatedly held
that the ambit of the standing provisions is wide. So ‘person’ includes any
individual or association or community or group. It would certainly include a
political party.”17
15
My Vote Counts 1 (CC) per Cameron J (minority) at para 103.
16
Ibid, para 104C-D.
17
Ibid, para 105E-F.
16
30. Cameron J concluded that the “right section 32 confers operates within a wide and potently
encompassing field – the anvil on which its hammer fall is the entire state, and outside the
state, any person who holds information that is required for the exercise or protection of any
rights. The obligation 32(2) imposed on Parliament was therefore to enact legislation to give
effect to the right of access to information held by anyone else (‘another person’) that is
required for the exercise or protection of any rights.” This is the constitutional deficiency
that the court found renders PAIA unconstitutional. As argued above, the legislature’s duty
under section 32(2) was not to pass legislation regulating political parties and independent
candidates. It was to give effect to the right of access to information from persons and in
terms of section 32(1)(b) of the Constitution – to give effect to the right of access to
information where the constitutional purpose is to exercise and protect any right. The
legislature has a discretion to sketch the scope of the range of persons against who access to
information may be exercised in terms of PAIA. It would render PAIA unworkable if all
persons (natural and juristic) were to be included in the scope of the obligations in section
32(1) of the Constitution. For example, despite the fact that section 32(1)(a) of the
Constitution provides that everyone has a right of access to all information held by the state,
PAIA limits the scope of public bodies and information that may be accessed. 18 In any
event, the whole of Chapter 4 of PAIA lists a number of permissible grounds on which
access to information must be refused if a request were made for their disclosure. Section 34
prohibits the disclosure private information of third party who is a natural person; section 35
18
Section 12 of PAIA provides that:
“This Act does not apply to a record-
(a) of Cabinet and its committees
(b) relating to the judicial functions of
(i) a court referred to in section 166 of the Constitution;
(ii) a Special Tribunal established in terms of section 2 of the Special Investigating Units and Special
Tribunals Act, 1996 (Act 74 of 1996 or
(iii) a judicial officer of such a court or Special Tribunal
(c) of an individual member of Parliament or of a provincial legislature in that capacity;
(d) relating to a decision referred to in paragraph (gg) of the definition of ‘administrative action’ in section
1 of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), regarding the nomination,
selection or appointment of a judicial officer or any other person by the Judicial Service Commission in
terms of any law.”
17
provides for the mandatory protection of certain records of South African Revenue Service;
section 36 provides for the mandatory protection of commercial information of third parties;
section 37 provides for the mandatory protection of certain confidential information, and
protection of certain other confidential information, of third party. This demonstrates that
despite the wording of section 32 of the Constitution, the legislature has a wide discretion to
place constitutionally permissible limits on the type of information and the range of state
entities subject to the rights in section 32. It is accordingly not inconsistent with the
provisions of section 32 that PAIA was not chosen by the legislature to require the recordal
and disclosure of public financial information held by political parties and independent
candidates.
31. On the definition of private bodies the legislature limited the range of persons that are subject
to the obligation in section 32(1)(b) of the Constitution by narrowly defining the meaning of
persons in such a manner that it does not include political parties and independent candidates.
Part 3 of PAIA deals with access of records of private bodies. Chapter 4 thereof provides for
grounds on which certain records may be refused.19 The exclusion of certain information
from the range of “all information” in section 32(1) can only confirm the legislature’s
discretion to limit the type and persons that may be subject to the PAIA. It is therefore not
“telling” that political parties are not included in the definition of public or private bodies in
PAIA because the constitutional purpose of PAIA was to create a legislation framework that
accords with the Constitution for the exercise and enforcement of the right of access to
information. It was not the purpose of PAIA to regulate recordal and disclosure of private
funding of political parties.
DEFINITION OF POLITICAL PARTIES
19
Sections 62 to 70 of PAIA.
18
32. The legislature, in its wide constitutional discretion, defines political parties in two statutes.
The Independent Electoral Commission Act 150 of 1993 which was repealed by section 24
of the Electoral Commission Act 51 of 1996 defined political party as “any registered party,
and any party, organisation or movement of a political nature which publicly supports or
opposes policies, candidates or cause of any registered party, or which propagates non-
participation in any election.” The Electoral Commission Act defines a political party as
“any registered party, and includes any organisation or movement of a political nature
which publicly supports or opposes the policy, candidates or cause of any registered party,
or which propagates non-participation in any election.” A registered political party, as is an
independent candidate, is a person for the purpose of exercising and protecting the rights in
section 32 of the Constitution. Consequently, a political party and an independent candidate
may exercise the right of access to private funding information. However, political parties
and independent candidates are not defined in PAIA as private bodies for the purpose of
defining the scope of persons who must give access to information. A requester seeking to
exercise the right of access to information from a political party will face the responses that
the applicant got from political parties because it is not envisaged in PAIA that political
parties must be required to record and disclose private funding information.
33. The minority judgment in My Vote Counts 1 (CC) and the High Court found that PAIA is
unconstitutional because it does not include political parties in its definition of “person”
(which means a natural or a juristic person) or private body. But this cannot reflect the true
constitutional position regarding the enforcement of the rights in section 32 and 19 of the
Constitution. A fundamental flaw in the judgment of the High Court when it granted the
declaratory order, is that it assumed that PAIA is the vehicle chosen by the Constitution for
the requirement on political parties and independent candidate to regularly record and
systematically disclose private funding information for the purpose of exercising and
protecting other rights.

19
34. The High Court following the minority judgment of this Court held that the definition of
private body in PAIA is narrower than the definition of another person in section 32 of the
Constitution.20 It found as the minority judgment in this Court found that 21 “political parties
are quite plainly not private bodies, and, as already shown, if not juristic persons, they are
not covered by PAIA at all. Even where a political party is a juristic person, and thus falls
inside PAIA, the term ‘private’ ill befits it. The reason lies in the nature of political parties,
and the critical importance of their functioning to the success of the country’s constitutional
project.”
35. Amongst other constitutional defects identified by the minority judgment is that even where a
political party is a juristic person, and thus falls inside PAIA, the term ‘private’ ill befits it.
What the High Court as the defect in the definition of private bodies in PAIA are in fact
permitted limitations on the scope of persons under section 32 of the Constitution. A limited
definition in PAIA that excludes political parties and independent candidates from the scope
of obligations in PAIA is not unconstitutional for that reason. This problem is more
imagined than real if the approach to interpreting PAIA is given its due place.
36. A critical point for assessing whether the reach of PAIA should be extended to political
parties and independent candidates is stated in its objects in section 9 thereof. Of
significance to the objects of the Act is section 9(b), (c) and (d) of PAIA.22 It is clear that the
20
My Vote Counts 1 (CC) per Cameron J(minority) at para 107.
21
My Vote Counts 2 per Meer J at paras 52 to 54.
22
Section 9 of PAIA provides the following: -
“The objects of this Act are –
(a) ….
(b) to give effect to that right-
(i) subject to justifiable limitations, including, but not limited to, limitations aimed at the
reasonable protection of privacy, commercial confidentiality and effective, efficient
and good governance; and
(ii) in a manner which balances that right with any other rights, including the rights in the
Bill of Rights in Chapter 2 of the Constitution;
20
scope of the purpose of PAIA is not to regulate how private funding to political parties and
independent candidates ought to be recorded and disclosed.
37. It appears from the minority judgment of the Constitutional Court that PAIA covers political
parties if such parties are defined as juristic persons. The lacuna identified by the minority
judgment and amplified by the High Court is that the “field of natural persons is plainly not
covered and while PAIA gives access to records of juristic bodies, insofar as they are
‘private bodies’, political parties appear to fall within a category of political actors who may
or may not be ‘juristic persons’ for the purpose of PAIA. They fall into a very singular
category of ‘persons’, envisaged in the Bill of Rights, but for who PAIA doesn’t appear to
cater at all.”23
38. The minority judgment’s lamentation that PAIA does not cater for natural persons, who have
information needed for the exercise or protection of any rights but are not involved in any
trade, business or profession, does not take into account the scope of the legislature’s duty.
As shown above, the limits placed on the category of persons is not inconsistent with the
duty of the legislature to pass legislation to give effect to the rights in section 36 of the
Constitution. It is not within the scope of the duty created in section 32(2) of the
Constitution for Parliament to enact legislation that covers all the categories of persons. This
(c) To give effect to the constitutional obligations of the State of promoting a human rights culture
and social justice, by including public bodies in the definition of ‘requester’, allowing them,
amongst others, to access information from private bodies upon compliance with the four
requirements in this Act, including an additional obligation for certain public bodies in certain
instances to act in the public interest;
(d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a
manner which enables persons to obtain access to records of public and private bodies as
swiftly, inexpensively and effortlessly as reasonably possible and
(e) generally, to promote transparency, accountability and effective governance of all public and
private bodies by including, but not limited to, empowering and educating everyone-
(i) to understand their rights in terms of this Act in order to exercise their rights in
relation to public and private bodies;
(ii) to understand the functions and operation of public bodies; and
(iii) to effectively scrutinise and participate in, decision-making by public bodies that
affects their rights.”
23
My Vote Counts 1 (CC) at para 108D-E.
21
would make PAIA unworkable and place the exercise of this and other rights untenable. On
the High Court and minority judgment’s approach, everyone that is bound by the
Constitution is under a constitutional duty to give the right of access to information as long
as it can be shown that such information is required to exercise or protect any right. As
shown above, it is not unconstitutional that PAIA limits the obligation to grant access to
information to private bodies as defined. The first respondent’s approach is further borne out
by the proper approach to the interpretation of the rights in the Constitution.
39. The minority judgment accepted that PAIA “offers access to the records only of parties that
are juristic persons (or conceivably, partnerships)”24 but held that “the right of access it
affords excludes from regulation all non-juristic persons not carrying on a trade, business or
profession”.25 The Court thereafter found that PAIA’s limited definition only catered for
juristic person and not those who were not juristic.26 The Court then identified a “more
telling point”- which is that our law does not require that political parties be juristic
persons.27 A political party may simply be an organisation or movement and not a juristic
person.28 There is no requirement in section 19 of the Constitution that a party formed must
be a juristic person. Cameron J concluded that PAIA does not cover political parties whether
big or small, predominant or minor – “if they are not juristic persons.” The minority court
then referred to the definition of political parties in the Electoral Commission Act and
concluded that there is “conspicuously no requirement in that statute that a political party be
a juristic person.”29 The High Court endorsed this approach.30
24
My Vote Counts (CC) 1 at para 109.
25
My Vote Counts 1 at para. 109F-G.
26
Ibid, para 110.
27
Ibid, para 111.
28
See definition of party in terms of the Electoral Commission Act 51 of 1996.
29
Ibid para 112.
30
My Vote Counts (WCC) 2 at para 52.
22
40. As pointed out above, it is not unconstitutional that the legislature imposed some limitations
on the range of persons liable under PAIA to give effect to the right of access to information.
Furthermore, it is not the constitutional purpose of PAIA to regulate the conduct of political
parties and independent candidates in so far as the recordal and disclosure of private funding
information is concerned. In any event, the approach of the High Court and the minority
judgment in My Vote Counts 1 (CC) would make the enforcement of the rights in section
32(1)(b) of the Constitution unmanageable and impractical. Section 32(2) of the Constitution
should not be read to require legislation that distinguishes between a range of persons that
must give effect to the right of access to information. Section 32 is clearly not the
constitutional authority for the obligation contended for because it does not single out
political parties and independent candidates but refers broadly to persons. PAIA gives effect
to the right of access to information in a responsible and constitutionally balanced manner. It
identifies its objects. It then identifies the public bodies against whom the right may be
exercised. It then sets out restrictions on these public bodies, so that not all organs of state
are subject to PAIA. It also identified private bodies that are subject to the duty under
section 32 and thereafter places acceptable limits on the right of access to information that
are held by private bodies. It does not target political parties and independent candidates
because that is not its focus. PAIA limits the class of persons that carry the obligation in
section 32(1)(a) and (b) of the Constitution. PAIA places reasonable limits on the class of
people who have an obligation to give effect to the rights in section 32 of the Constitution.
The restricted definition of public and private bodies does not render it unconstitutional by
virtue of section 32(1)(a) and (b) of the Constitution.
41. PAIA is a general statute designed to regulate access to innumerable types of information
held by the state and persons.31 In PAIA, Parliament laid down general rules to balance
competing interests and rights. In terms of PAIA, a private body is (a) a natural person who
31
Nova Property Group Holdings Ltd and Others v Cobbett and another 2016 (4) SA 317 (SCA) at 21.
23
carries or has carried on any trade, business or profession, but only in such capacity; (b) a
partnership which carries or has carried on any trade, business or profession or (c) any
former or existing juristic person but excludes a public body. It is on this definition that the
minority judgment of Cameron J and the High court found that PAIA only applies to political
parties that are juristic persons and not those that are not. But such a distinction is not
consistent with the purpose of PAIA as authorised by section 32. A distinction of this nature
would offend the principle of equality and equal protection of the law – for it would impose
different obligations to similar parties on grounds that do not advance the object, purpose and
spirit of the Constitution.
42. This distinction clearly demonstrates that the legislature did not intend to regulate political
parties and independent candidates. It intended to limit the class of persons in the application
of the right in section 32 of the Constitution. This is where the nub of the first respondent’s
submissions is focused - for it is its contention that the purpose of PAIA is to regulate the
exercise of the right of access to information as referred to in section 32(1) and not to
regulate political parties and independent candidates in their exercise of rights in section 19
of the Constitution.
43. Political parties are neither public nor private bodies for purposes of the rights in PAIA even
though they fall within the wide definition of persons. The limitation placed on the scope of
persons that carry the obligation to disclose information in PAIA is justified by the nature of
political parties and the special role that they play in developing our constitutional
democratic culture.
24
REGULATION OF POLITICAL PARTIES AND INDEPENDENT CANDIDATES
44. Having regards to the special role that political parties and independent candidates play in the
development of constitutional democracy, it makes constitutional sense that their duties and
obligations are regulated extensively in separate legislation – in the Electoral Act read
together with the Electoral Commission Act. The applicant specifically wants political
parties and independent candidates to be regulated in terms of PAIA but cannot say why it is
unconstitutional for the legislature to choose another legislation to do so. The duties and
obligations of political parties established for the exercise of the rights in section 19 of the
Constitution are set out in the Electoral Act and Electoral Commission Act. Where any
citizen or indeed anybody wishes to exercise or protect the rights under section 19(1) and
19(3), he or she must rely on the Electoral Act and the Electoral Commission Act. There is
no constitutional requirement that the exercise of the rights in section 19 must be subject to
those in section 32 of the Constitution. Given the centrality of the rights in section 19 in the
protection of constitutional democracy, and the importance of political parties and
independent candidates in the exercise of section 19 rights, it cannot be correct to make the
exercise and protection of such rights subject to PAIA. More directly put, it is not a
constitutional requirement that section 19 rights must be exercised within the context of the
rights in section 32 of the Constitution. Section 19 rights stand on their own and do not
require PAIA for their effectiveness.
45. In Ramakatsa and Others v Magashule and Others 2013 (2) BCLR 202 (CC)
(“Ramakatsa”),32 this Court expressed itself on the constitutional importance of political
parties. Writing for the majority, Moseneke DCJ held that political parties occupy centre
stage and play a vital role in facilitating the exercise of political rights. In order to enhance
multi-party democracy, the Constitution has enjoined Parliament in terms of section 236 of
32
Ramakatsa at para 65.
25
the Constitution to enact legislation that provides for funding of political parties represented
in national and provincial legislatures.33 Acting in accordance with that constitutional
injunction, Parliament passed the Public Funding Act.34 In terms of section 6 of the Public
Funding Act political parties must account to the Independent Electoral Commission for the
monies allocated to them. The IEC, as an organ of state, would be obliged to give effect to
the rights of access to private funding information held by it without the need to show that
such information is required to exercise and protect the rights in section 19 of the
Constitution. The IEC is obliged in terms of the Public Funding Act to record and disclose to
Parliament the public funding of registered political parties.
46. The rights in section 19 of the Constitution resonate with the founding provisions of the
Constitution. The Republic of South Africa is a democratic state founded on amongst others,
a universal adult suffrage, a national common voters’ roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness and openness.
Elections sit at the core of our constitutional democratic system. Section 7 of the
Constitution is critical to appreciating the importance of each constitutional right and the
constitutional obligation of the state to respect, protect, promote and fulfil the rights in the
Bill of Rights. Section 7(3) affirms that the rights in the Bill of Rights are subject to the
limitations contained or referred in section 36, or elsewhere in the Bill.
47. Section 36 of the Constitution is important to the proper interpretation of PAIA and the
constitutional constraints that may reasonably be placed on the exercise of the right to access
information in section 32, including whether PAIA could constitutionally exclude political
parties and independent candidates from the reach of public or private bodies with a duty to
give effect to the right of access to private funding information. The approach adopted by
33
Section 234 of the Constitution provides that “In order to deepen the culture of democracy established by the
Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution”.
34
Section 5 of the Public Funding Act.
26
the applicant suggests that section 32 does not permit the kind of limits that PAIA imposes
on the definition of public and private bodies in so far as it relates to political parties and
independent candidates. The approach is to read section 32 as permitting no limitations on
the range of persons that may be selected to give effect to the right of access to private
funding information. Such a reading omits the fact that the legislature is given a wide
constitutional mandate to take relevant legislative steps to give effect to the rights in the Bill
of Rights.35 That constitutional duty must be exercised in a manner that is effective and
magnifies the value of each constitutional right.
48. When Parliament passed PAIA it was enjoined to ensure that PAIA was capable of achieving
its constitutional purpose. The approach of the applicant, with respect, misreads the true
constitutional potency of the rights in section 19 and the wide constitutional mandate on the
legislature to pass legislations that advances, protects, promotes and fulfils the rights.
49. According to section 19 of the Constitution, every citizen is free to make political choices,
which includes the right to (a) form a political party (b) to participate in the activities of, or
recruit members for, a political party; and (c) to campaign for a political party or cause. The
formation of a political party is not regulated but if a political party intends to participate in
the national, provincial or local government elections, such a party must be registered in
terms of section 15 of the Electoral Commission Act. Section 26 of the Electoral Act
provides that a party may contest elections only if that party (a) is a registered party; and (b)
has submitted a list of candidates in terms of section 27. In terms of section 31(1)(b) of the
Electoral Act, the Chief Electoral Officer must compile a list of the registered parties entitled
to contest the election concerned and to have a final list of candidates for each of those
parties available. Chapter 7 of the Electoral Act deals with prohibited conduct in relation to
35
This must be read with section 44 of the Constitution which provides that Parliament has the power to pass
legislation with regards to any matter, including a matter falling within the functional area listed in Schedule 4,
but excluding, subject to subsection (2), a matter falling within the functional area listed in Schedule 5.
27
registered political parties. In terms of section 94 of the Electoral Act, no person or registered
party bound by the Code may contravene or fail to comply with a provision of the Code.
50. In terms of Schedule 1A of the Electoral Act there is a system of proportional representation
in the national assembly and provincial legislatures. In so far as the national assembly is
concerned, only registered political parties contesting elections may nominate candidates for
such elections on the list of candidates prepared in accordance with the Act. Schedule 2
(section 99) is the Code of Conduct and its purpose is to “promote conditions that are
conducive to free and fair elections”. Every registered political party and every candidate
bound by the Code of Conduct must promote the purpose of the Code when conducting an
election. Clause 3 of the Code of Conduct applies to registered political parties and
candidates for political office. A registered political party must instruct its candidates,
persons who hold political office in the party and its representatives, members and
supporters, to comply with this Code and any applicable electoral laws. Every registered
political party and candidate must accept the result of an election or challenge it in Court.
51. The exercise of the rights in section 19(1) and 19(3) of the Constitution is therefore covered
in the Electoral Act and the Electoral Commission Act. These legislations set out how the
rights in section 19 may be exercised by the citizens. If indeed access to information on the
private funding of political parties is a constitutional requirement for the exercise and
protection of the rights in section 19(1) and 19(3) of the Constitution, such a requirement
must be contained and set out in the Electoral Act or the Electoral Commission Act. As
referred to above, the Electoral Act regulates the registration of political parties, even though
section 19 (1)(a) does not restrict political parties to registered political. Only registered
political parties may participate in elections and seek representation in the legislative houses.
28
52. Only citizens may exercise the rights in section 19(1) of the Constitution. This means that
any regulation requiring the disclosure of information on the private funding of political
parties and independent candidates will have to be done within the constraints of citizenship.
PAIA on the other hand applies to everyone, which is wider than citizens in section 19 of the
Constitution read with the Electoral Act. The right to vote in section 19(3) of the
Constitution may also only be exercised by citizens. This means that only citizens may seek
to access information for the exercise and protection of the right to vote. This is not a matter
falling within section 32 and therefore PAIA. It is a matter falling within the Electoral Act
and the Electoral Commission Act, for it is those legislations that regulate how citizens may
exercise the right to vote. If, as the applicants contend, the right of access to private funding
information is a constitutional requirement for the exercise of the right to vote, it must apply
only to citizens and be dealt with in the legislation that governs the right to vote. On the
applicant’s approach, a citizen intending to exercise the right to vote in terms of section 19(3)
must first exercise the right of access to private funding information of political parties in
order to meaningfully exercise that right. That approach cannot require the imposition of
section 32 read with PAIA but an inclusion of such a requirement in the Electoral Act. This
is where the principle of subsidiarity applies. The applicant has not attacked the Electoral
Act or the Electoral Commission Act on the basis that it unconstitutionally limits the rights
of a citizen to cast an informed vote by not requiring political parties and independent
candidates to regularly record and systematically disclose their funders. The appropriate
legislation to challenge is therefore not PAIA but the Electoral Act or the Electoral
Commission Act. It is not a requirement of PAIA to regulate the functioning of political
parties - and to impose a requirement to regularly record and systematically disclose
information about their private funders.
53. It is not necessary therefore to attempt to fit, by judicial fiat, the definitions of public and
private bodies in PAIA into those of political parties in the Electoral Act and Electoral
29
Commission Act. The purpose of PAIA is different to the legislation passed by Parliament to
give effect to the rights in section 19 of the Constitution. PAIA was passed to give effect to
the rights in section 32. The Electoral Act read with the Electoral Commission Act were
passed to give effect to the rights in section 19. There is no duty in section 32 on the
legislature to specifically deal with the political parties, and to impose a duty to record and
disclose information on their private funders. The constitutional discretion on the legislature
to pass legislation under section 32, is wide enough for it to have narrowed the ambit of
persons with an obligation to record and disclose to anyone information, held by them.
There is no specific duty on the legislature to pass legislation that deal with political parties
and independent candidates that can be read in section 32 of the Constitution.
54. The applicant’s approach which was accepted by the High Court was, first, to seek an order
that information about private funding of political parties and independent candidates
registered for elections for any legislative body established under the Constitution is
reasonably required for the effective exercise of the right to vote in such elections and to
make political choices, in terms of section 19(1), 19(3), 32 and 7(2) of the Constitution. This
as a general proposition of the Constitution may be correct to the extent that it seeks to
expand on the range of information that may be necessary for a voter to consider when
casting a vote for a political party or independent candidate. However it is incorrect that this
position must be covered under PAIA. As stated above, the type of information that is
necessary for a voter to effectively exercise the right to vote – or even the rights in section 19
in their totality, is prescribed in the Electoral Act and the Electoral Commission Act. If
indeed private funding information is an indispensable requirement for the exercise of the
right to form a political party and to participate in the activities of the political and the right
to vote, such a requirement must be reflected in the provisions of the Electoral Act. As dealt
with below, private funding information of political parties and independent candidates
registered for elections for any legislative body under the Constitution is not required for the
30
effective exercise of the right to vote in such elections and to make political choices, in terms
of section 19(1), 19(3), 32 and 7(2) of the Constitution.
IS INFORMATION ABOUT PRIVATE FUNDING OF POLITICAL PARTIES AND
INDEPENDENT CANDIDATES REASONABLY REQUIRED TO EXERCISE
CONSTITUTIONAL RIGHTS
55. The importance of the right to vote has been given serious attention by our courts, especially
the Constitutional Court.36It was described with commendable clarity by Sachs J in August
and Another v Electoral Commission & Others 1999 (3) SA 1 (CC) (“August”) as a
badge of dignity and personhood. The right to vote is no doubt indispensable to the
legitimacy of government. Without it, no government may legitimately claim the
constitutional authority to govern. The right to vote is not only a symbol of citizenship; it is
citizenship in action. The right to vote sits at the core of our constitutional founding
provisions. The relevant founding provision provides that the Republic of South African is
one, sovereign, democratic state founded on the values of universal adult suffrage, national
common voters roll, regular elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.
56. The Supreme Court of Canada in Figueroa v Canada (Attorney General) [2003] SCR, the
right to vote was held to be a right to vote in a fair and free election, in which all parties and
participants are treated as equals. In dealing with the Electoral Financing Regime, the
Supreme Court held that preserving the integrity of the electoral process is a pressing and
36
African Christian Democratic Party v Electoral Commission and Others 2006 (3) SA 305 (CC); Minister of
Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others
2005 (3) SA 280 (CC); Democratic Party v Minister of Home Affairs and Another 1999 (3) SA 254 (CC); Ritcher
v Minister of Home Affairs 2009 (3) SA 615 (CC).
31
substantial concern to a free and democratic state.37 It further held that the “systems and
regulations that govern the process by which governments are formed should not be easily
compromised. Electoral financing is an integral component of that process, and thus it is of
great importance that the integrity of the electoral financing regime be preserved. Ensuring
that funds raised to the Elections Act are not misused is a constitutional valid objective.”38
57. The importance of the right in section 19 of the Constitution is therefore trite, requiring no
more than just the emphasis already given to it by this Court in Ramakatsa. This is one aspect
of this application that needs no squabbling and disagreement. The disagreement is based on
the attempts by the applicant to attenuate the right to vote by subordinating it to the right of
access to information in section 32 of the Constitution. The applicant’s approach is
incoherent without reading section 19 of the Constitution together with section 32 of the
Constitution. However, as demonstrated above, such a reading of the right to vote is not
consistent with it. To suggest that information on the private funding of political parties is
necessary for the effective exercise of the right to vote is to overstate the proposition. There
is no evidence whatsoever from elections already held in South Africa to suggest that the
applicant’s proposition is correct. Bluntly put, the voter does not require information on the
private funding of political parties to effectively exercise the right to vote.
58. The requirements for the proper and effective exercise of the right to vote and to make
political choices are already covered in detail in the Electoral Act and the Electoral
Commission Act. Amongst these requirements are:
58.1. A registered political party;
37
Para 72.
38
Para 73.
32
58.2. A registered candidate;
58.3. Free participation in the activities of the political party of his or her choice, which
activities may include fundraising for the party;
58.4. Registration as a voter;
58.5. Understanding of the voting process including access to a voting booth and a ballot
paper accurately reflecting the political party of choice or the individual candidate of
choice.
59. The is no evidence that voters are unable or are disadvantaged, because of the absence of a
requirement in PAIA on political parties and independent candidates to record and disclose
their private funding information, to effectively exercise their rights under section 19
including the right to vote. There is no evidence to suggest that the exercise of the right to
vote has been denuded because PAIA does not impose the requirement contended for by the
applicant. The evidence, on the other hand is overwhelming, that the absence of this
requirement has no bearing whatsoever on the quality of the voting process. South Africa
has held successful national and local government elections since 1994 and there is no
evidence that the absence of a requirement contended for by the applicants denudes the rights
of political rights of citizens.
IMPORTANCE OF THE RIGHT TO VOTE v THE DISCLOSURE OF PRIVATE
FUNDING INFORMATION
33
60. The applicant contends that information on the private funding of political parties and
independent candidates is reasonably required to exercise and protect rights guaranteed in
section 19 of the Constitution. They say so for a number of reasons:
The disclosure of private funding information is mandated by section 32(1)
61. The first basis on which the applicant contends for the declaratory order is that disclosure of
private funding information is rooted directly in the provisions of the Constitution. If indeed
that is so, there is no need for a declaratory order. This Honourable Court should not be
forced into making a declaratory order that does not clarify any confusion about the true
position of the Constitution on this issue. Clearly the disclosure of private funding
information of political parties held by the state may, subject to PAIA, be disclosed.
However, as argued above, private funding information that is held by political parties and
independent ward candidates need not be disclosed in terms of PAIA but by relevant
legislation governing the duties and obligations of political parties and independent
candidates. In so far as private funding information is sought from the State, there is no
requirement to show that such information is required to exercise and protect a right.
However, if such information were sought from the political parties and independent
candidates, it would be only on the basis that PAIA covers those. If PAIA does not, as is the
case, then such access may not be granted on the basis of PAIA.
Transparency requires it
62. The principle of transparency in section 7(2) of the Constitution is not the source of
constitutional authority for the requirement contended for by the applicant. Transparency
does not give rise to a requirement on political parties and independent candidates to record
and disclose private information under PAIA. The fact that it would be consistent with the
34
constitutional values to require political parties to disclose their private funding information
does not give credence to the argument that such a duty must be reflected in PAIA. There is
nothing inconsistent with the Constitution for the legislature to choose a different legislative
vehicle in order to regulate the disclosure of private funding of political parties. In this case,
where it is submitted that such a disclosure is an indispensable requirement for the proper
and effective exercise of the right to vote, it is requirement that must be included in the
requirement set out in the Electoral Act.
Disclosure as an anti-corruption measure
63. The applicant’s reliance on Burkley v Valeo39 is unhelpful for our constitutional
jurisprudence. In the US, party political funding is regulated in specific legislation and not in
legislation dealing with the right to access information. The constitutional settings are
different. This was not a case in which the US had adopted an access to information act of a
general nature, but concerned specific legislation regulating campaign financial disclosures.
64. In Buckley v Valeo, the US Supreme Court recognised the importance of contributions in
financing political campaigns and found that “contribution restrictions could have a severe
impact on political dialogue if the limitations prevented candidates and political committees
from amassing the resources necessary for effective advocacy…” It further found that
measures that limited financial contributions “also impinge on protected associational
freedoms. Making a contribution, like joining a political party, serves to affiliate a person
with a candidate. In addition, it enables like-minded persons to pool their resources in
furtherance of common political goals.”
39
Burkley v Valeo 424 US 1 (1976).
35
65. The US Supreme Court then dealt with the implications of disclosure requirements, and held
as a general principle, that “compelled disclosure, in itself, can seriously infringe on privacy
of association and belief guaranteed by the First Amendment.” The Court reiterated its
position that “significant encroachments on First Amendment rights of the sort that
compelled disclosure imposes cannot be justified by a mere showing of some legitimate
governmental interest.” Importantly the Court held that “group association is protected
because it enhances “effective advocacy”. The right to join together “for the advancement of
beliefs and ideas,” is diluted if it does not include the right to pool money through
contributions, for funds are often essential if “advocacy” is to be truly or optimally
“effective”. Moreover, the invasion of privacy of belief may be as great when the
information sought concerns the giving and spending of money as when it concerns the
joining of organisations, for financial transactions can reveal much a person’s activities,
association and beliefs.” There is accordingly a strict test for compelling disclosure of
financial contributions or donation in the USA because of its impact on protected
constitutional rights.
66. The applicant relies on this case as authority for the proposition that compulsory disclosure
of financial contributions must be held to be part and parcel of the right to vote in section 19
of the Constitution. Even if this were correct, it is clear that PAIA is not the legislation
envisaged for this constitutional purpose.
67. In dealing with the concern and dangers of corruption in private funding of political parties,
the US Supreme Court stated the following:
“It is unnecessary to look beyond the Act’s primary purpose- to limit the actuality
and appearance of corruption resulting from large individual contributions- in
order to find constitutionally sufficient justification for the $1000 contribution

36
limitation. Under a system of private financing of elections, a candidate lacking
immense personal or family wealth must depend on financial contributions from
others to provide the resources necessary to conduct a successful campaign. The
increasing importance of the communications media and sophisticated mass-
mailing and polling operations to effectively campaigning make the raising of large
sums of money an ever more essential ingredient of an effective candidacy. To the
extent that large contributions are given to secure a political quid pro quo from
current and potential office holders, the integrity of our system of representative
democracy is undermined.”
68. The High Court accepted the applicant’s submissions based on the important of disclosure of
financial donations to political parties and independent candidates on combatting corruption.
There is merit in the applicant’s contention only to the extent that they contend for such a
duty to be arising from PAIA. There is no constitutional injunction arising from section 32
on the legislature to pass legislation requiring the combatting of criminal activities and crime,
that accompany private financial donations to political parties. The Electoral Act is the
legislation chosen by Parliament to regulate the conduct of political parties and independent
candidates registered for elections. If that legislation does not require political parties to
record and disclose their private funding information in order to detect criminal activities
therein, then it to that legislation that a constitutional challenge must be mounted.
69. Therefore even if it were correct that the disclosure of private financial contributions to
political parties could act as a deterrent to corruption, there is no duty on the legislature
acting in terms of section 32(2) to require political parties to record and disclose private
financial contribution to combat corruption.

37
70. The application must therefore fail to the extent that it challenges the constitutionality of
PAIA on the basis that it does not impose a duty to disclose information on the private
funders of an independent candidate, where the jurisdictional requirements for the exercise of
that right are met.
THE CORRECT APPROACH TO LEGISLATIVE AND CONSTITUTIONAL
INTERPRETATION
71. When interpreting section 32 of the Constitution and the obligations it carries, it is important
to do so with regards to the following:-
71.1. Section 39(2) of the Constitution enjoined the High Court to promote the spirit,
purport and objects of the Bill of Rights when interpreting any legislation and the
constitutional provisions. In terms of section 39(1) a Court when “interpreting the
Bill of Rights, –
(a) must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.” (Emphasis added.)
71.2. Section 2 of PAIA states the following:
“When interpreting a provision of this Act, every court must prefer any
reasonable interpretation of the provision that is consistent with the objects
of this Act over any alternative interpretation that is inconsistent with those
objects….”
38
71.3. This Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism and Others 2004 (4) SA 490 (CC) (“Bato Star”), Court held that40 the
Constitution is: “…the starting point in interpreting any legislation”. Indeed, every
court “must promote the spirit, purport and objects of the Bill of Rights” when
interpreting any legislation. That is the command of section 39(2). Implicit in this
command are two propositions: first, the interpretation that is placed upon a statute
must, where possible, be one that would advance at least an identifiable value
enshrined in the Bill of Rights; and second, the statute must be reasonably capable of
such interpretation. This flows from the fact that the Bill of Rights “is a cornerstone
of [our constitutional] democracy.” It “affirms the democratic values of human
dignity, equality and freedom.” In interpreting section 32, therefore, we must
“promote the values of our constitutional democracy.”
72. It is trite that where a constitutional provision confers a power to bring about a certain result,
that provision necessarily confers and/or implies the power to bring about a direct or natural
consequence of that result and/or provision.41
73. In Matatiele Municipality and Others v President of the RSA (No 2) 2007 (6) SA 477
(CC) (“Matatiele”), this Court held that “[O]ur Constitution embodies the basic and
40
At para [72].
41
See Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at para [68],
where this Court held that:
“…if the Constitution does not confer implicit power on the President to dismiss, what would be the source of
such power in national legislation such as section 3(3)(a) of ISA? Why would it be competent to imply the
power in legislation but not in the empowering constitutional provision? I cannot accept that the power to
dismiss has been deliberately omitted from the Constitution or that it is unnecessary. …The power to dismiss is
necessary in order to exercise the power to appoint. The High Court is right that the power to dismiss a head
of the Agency is a necessary power without which the pursuit of national security through intelligence services
would fail. Without the competence to dismiss, the President would not be able to remove the head of the
Agency without his or her consent before the end of the term of office, whatever the circumstances might be.
That would indeed lead to an absurdity and severely undermine the constitutional pursuit of the security of this
country and its people. That is why the power to dismiss is an essential corollary of the power to appoint and
the power to dismiss must be read into section 209(2) of the Constitution. There is no doubt that the power to
appoint under section 209(2) of the Constitution and the power under ISA implies a power to dismiss.”
39
fundamental objectives of our constitutional democracy. Like the German Constitution, it
“has an inner unity, and the meaning of any one part is linked to that of other provisions.
Taken as a unit [our] Constitution reflects certain overarching principles and fundamental
decisions to which individual provisions are subordinate.” Individual provisions of the
Constitution cannot therefore be considered and construed in isolation. They must be
construed in a manner that is compatible with those basic and fundamental principles of
our democracy. Constitutional provisions must be construed purposively and in the light of
the Constitution as a whole….Any construction of a provision in a constitution must be
consistent with the structure or scheme of the Constitution. This provides the context within
which a provision in the Constitution must be construed…” (Emphasis added.)
74. It follows that the approach to interpreting PAIA must be done within the context set out
above. So, done, the approach of the first respondent is correct and that of the applicant is
wrong. To interpret section 32 as requiring political parties and independent candidates to
disclose private funding information under PAIA does not accord with the purpose of section
32 read within the purpose, spirit and object of the Bill of Rights. The approach will denude
the true constitutional potency of the rights in section 19 by making them subject to section
32 of the Constitution.
COMPARABLE FOREIGN CONSTITUTIONAL PROVISIONS APPLICABLE TO THE
INTERPRETATION OF POLITICAL RIGHTS IN SECTION 19
75. The applicant has relied on international legal instrument to support its contention for a
requirement on political parties to record and disclose information. It contends international
law requires a law requiring the disclosure of private funding information from political
40
parties and independent candidates.42 These international agreements are important authority
for a general international law requirement that states must pass laws that foster transparency
and assist in the combating of corrupt practices. For example, the SADC Protocol requires
South Africa ‘to adopt measures, which will create, maintain and strengthen mechanisms
needed to prevent, detect, punish and eradicate corruption in the public and private sector.
These must include “mechanisms to promote access to information and to facilitate
eradication and elimination of opportunities for corruption, as well as mechanisms for
promoting public education and awareness in the light of corruption.’ The SADC Protocol is
not authority for the requirement in PAIA contended for by the applicant. South Africa has
passed legislation and built institutions tasked with combating corruption. The Protocol is
not authority for PAIA to require political parties and independent political parties to record
and disclose private funding information in terms of PAIA.
76. The UN Convention relied on by the applicant is not authority for the obligation that the
applicant contends is required in terms of PAIA. South Africa has passed a number of anti-
corruption laws.
77. It is worth referring to some countries that have passed laws that deal with private funding of
political parties. Article 21(1) of the Germany's Constitution of 1949,43 is headed
“Political parties” and provides that:
“1. Political parties shall participate in the formation of the political will of the
people. They may be freely established. Their internal organisation must conform
to democratic principles. They must publicly account for their assets and for the
sources and use of their funds.” (Emphasis added.)
42
Applicant’s heads of argument: para 91 to 99.
43
With Amendments through 2014.
41
78. Section 67 of the Zimbabwe's Constitution of 2013, is headed “Political rights” and the
relevant part provides that “For the purpose of promoting multi-party democracy, an Act of
Parliament must provide for the funding of political parties.” This is not different to
section 236 of our Constitution referred to above, which requires parliament to pass a law
dealing with the funding of registered political parties – now the Public Funding Act.
79. Part III of Ghana's Constitution of 1992,44is headed “Political Parties” and article 55
thereof is headed “Organization of Political Parties” provides a clause that specifically
recognises the rights of persons to fund political parties.45
44
With Amendments through1996.
45
“1. The right to form political parties is hereby guaranteed.
2. Every citizen of Ghana of voting age has the right to join a political party.
3. Subject to the provisions of this article, a political party is free to participate in shaping the political
will of the people, to disseminate information on political ideas, social and economic programmes of a
national character, and sponsor candidates for elections to any public office other than to District
Assemblies or lower local government units.
4. Every political party shall have a national character, and membership shall not be based on
ethnic, religious, regional or other sectional divisions.
5. The internal organization of a political party shall conform to democratic principles and its
actions and purposes shall not contravene or be inconsistent with this Constitution or any other
law.
6. An organization shall not operate as a political party unless it is registered as such under the
law for the time, being in force for the purpose.
7. For purposes of registration, a prospective political party shall furnish the Electoral
Commission with a copy of its Constitution and the names and addresses of its national
officers; and shall satisfy the Commission that-
a. there is ordinarily resident, or registered as a voter, in each district. Of Ghana, at least
one founding member of the party;
b. the party has branches in all the regions of Ghana and is, in addition, organised in not
less than two-thirds of the districts in each region; and
c. the party's name, emblem, colour, motto or any other symbol has no ethnic, regional,
religious or other sectional connotation or gives the appearance that its activities are
confined only to a part of Ghana.
8. A political party shall not have as a founding member, a leader or a member of its executive, a
person who is not qualified to be elected as a member of Parliament or to hold any other public
office.
9. The members of the national executive committee of a political party shall be chosen from all
the regions of Ghana.
10. Subject to the provisions of this Constitution, every citizen of voting age has the right to
participate in political activity intended to influence the composition and policies of the
Government.
11. The States shall provide fair opportunity to all political parties to present their programmes to
the public by ensuring equal access to the state-owned media.
12. All presidential candidates shall be given the same amount of time and space on the state-
owned media to present their programmes to the people.
42
LEGISLATION REGULATING POLITICAL PARTIES AND INDEPENDENT
CANDIDATES
80. In the exercise of its national legislative powers, Parliament enacted the following pieces of
legislation in order to give effect to the “political rights” in section 19 of the Constitution,
namely the:
80.1 Electoral Act;
80.2 Electoral Commission Act; and
80.3 Public Funding Act.
CURRENT PARLIAMENTARY PROCESS ON THE ISSUE BEFORE THIS COURT
81. On 19 September 2017, that is eight (8) days prior to the High Court handing down its
judgment in this matter on 27 September 2017, Parliament’s ad hoc Committee on the
Funding of Political Parties published the Draft Political Party Funding Bill, 2017 (“the
Draft Bill”) and the Memorandum on the Objects of the Bill for public comment. Copies of
the Draft Bill and the Memorandum are attached to these submissions.
13. Every candidate for election to Parliament has the right to conduct his campaign freely and in
accordance with law.
14. Political parties shall be required by law–
a. to declare to the public their revenues and assets and the sources of those revenues and
assets; and
b. to publish to the public annually their audited accounts.
15. Only a citizen of Ghana may make a contribution or donation to a political party registered in
Ghana.
16. A member of an organization or interest group shall not be required to join a particular
political party by virtue of his membership of the organisation or group.
17. Subject to the provisions of this Chapter, Parliament shall by law regulate the establishment and
functioning of political parties.” (Emphasis added.)
43
82. In the exclusive exercise of its legislative powers to enact national legislation, Parliament
chose section 236 as its enabling provision to introduce the Draft Bill dealing with the
regulation of public and private funding of political parties.
Draft Political Party Funding Bill, 2017
83. The long title of the Draft Bill says it is intended to–
“regulate the public and private funding of political parties, in particular: the
establishment and management of Funds to fund represented political parties
adequately; to prohibit certain donations made directly to political parties; to
regulate disclosure of donations accepted; to determine the duties of political
parties in respect of funding; to provide for powers and duties of the Commission;
to provide for administrative fines; to repeal the Public Funding of Represented
Political Parties Act, 1997 and provide for transitional matters; and related
matters.” (Emphasis added.)
84. The preamble, affirms Parliament’s legislative powers in terms of section 44 of the
Constitution and seek to enact national legislation dealing with both public and private
funding in terms of section 236 of the Constitution. Parliament states further that is seeks to
give effect to section 236 by establishing an additional fund to receive funding from private
sources subject to certain restrictions; prohibiting certain donations being made directly to
political parties; and providing for the disclosure of donations.

44
85. Clause 2(1) of the Draft Bill establishes a Represented Political Party Fund for the purpose of
enhancing multi-party democracy by providing for the funding of political parties that
participate in national or provincial legislatures.
86. Clause 3(1) of the Draft Bill establishes a Multi-Party Democracy Fund for the purpose of
providing private sources of funding for political parties that participate in national or
provincial legislatures.
87. Both the intended funds will be managed and controlled by the Electoral Commission in
terms of clauses 2 and 3.46
88. Clause 5 of the Draft Bill, make similar provisions as section 4 of the Public Funding Act
and is also headed “Management and control of Funds”. The Draft Bill makes provision for
the continuous and systematic recordal of public funding information as follows–
“5. (1) The chief electoral officer of the Commission is the accounting officer and
chief executive officer of the Funds and responsible for their management and
administration.
(2) For each financial year, the Commission must keep records in accordance with
the standards of generally recognised accounting practice in respect of each of the
Funds, setting out —
(a) all money received or accruing to the Funds;
(b) all allocations and payments made;
46
Clause 5 of the Draft Bill.
45
(c) all expenditure arising from the allocation of money from the Funds;
and
(d) the current record of the capital and liabilities of the Funds during that
year.”
89. Chapter 3 of the Draft Bill deals with direct funding of political parties. Clause 9 set out
provisions relating to prohibited donations and clause 10 deals with disclosure of donations
to political parties.
90. Chapter 4 of the Draft Bill provides for duties of political parties. Clause 21 set out the
Electoral Commission’s duty to report to Parliament on annually.
Memorandum on the objects of the funding of political party Bill, 2017
91. Clause 1 of the Memorandum, provides that on 6 May 2017, “the National Assembly
resolved to establish an ad hoc committee, in terms of National Assembly Rule 253 (1)(a), to
‘enquire into and make recommendations on funding of political parties represented in
national and provincial legislatures in South Africa with a view to introducing amending
legislation if necessary and, in so doing, consider –
 the model of public and private funding for political parties; and
46
 the need for, and possible means of, regulating private funding in all its forms as well
as investment entities owned by political parties[;]’.
The Ad Hoc Committee called for public comment on how the Public Funding of Represented
Political Parties Act, No 103 of 1997 may be strengthened to allow for greater transparency
in the manner in which political parties are funded so as to ensure their effective functioning.
The Committee received seventeen sets of written comments and proceeded to invited all
those who commented to make oral submissions during public hearings held from 15 to 17
August 2017.”
92. Clause 2.1 states that the preamble to the Draft Bill seeks to “reflect the need to give effect to
the constitutional obligation imposed in terms of section 236 of the Constitution of the
Republic of South Africa, 1996 (“the Constitution”). It further seeks to reflect Parliament’s
plenary legislative authority in terms of section 44 to pass legislation concerning matters
such as the regulation of private funding of political parties.”
DONTRINE OF SEPARATION OF POWERS
93. The doctrine principle of separation of powers has been endorsed as fundamental to the
proper functioning of the constitutional order. If this principle is undermined, it effectively
undermines the very constitutional government and the key foundations of government. In
International Trade Administration Commission v Scaw South Africa (Pty) Ltd 2012
(4) SA 618 (CC) this Court held that the “doctrine of separation of powers is part of our
constitutional architecture.”47
47
International Trade Administration Commission v Scaw South Africa (Pty) Ltd; para 91 to 95.
47
94. In My Vote Counts 1 (CC), the majority emphasized the importance of the principle of
separation of powers in determining the extent of judicial intervention in Parliament’s
domain of legislative authority.48 It held that the “true complaint by the applicant is the
manner in which Parliament – exercising a power that vests solely in it – has chosen to
legislate.” The Constitutional Court reaffirmed the principle that it is for Parliament to make
legislative choices as long as they are rational and otherwise constitutionally compliant.” 49
Then in paragraph 156, the majority held that:
“Despite its protestation to the contrary, what the applicant wants is a thinly veiled
attempt at prescribing to Parliament to legislate in a particular manner. By what
dint of right can the applicant do so? None, in the present circumstances. That
attempt impermissibly trenches on Parliament’s terrain; and that is proscribed by
the doctrine of separation of powers.”
95. The issues in this application clearly implicate the principle of separation of powers in that
the applicant seeks to prescribe to Parliament how to legislate on private funding of political
parties and independent candidates. If it is successful in this application, political parties will
be required, not merely, as the Constitution requires, to grant the right of access to
information held by the state or another person – but must generate such private funding
information by a recordal requirement.
96. In conclusion, the findings of the High Court in IDASA are apt and constitute a full response
to the declaratory order sought. In paragraph 52 thereof, the High Court held the following:
48
Paras 150 to 152.
49
Para 155.
48
“I have not been persuaded by the applicants, on the facts of this case, that they
reasonably require any of the records in question for the exercise or protection of
any of the rights claimed by them. Donor secrecy does not impugn any of the rights
contained in either sections 19(1) or (2) of the Constitution. Put differently,
disclosure of donor funding is not a prerequisite to free and fair elections- a
proposition borne out of the experience of our first 11 years of democracy, which
included no less than three general elections that have universally been accepted as
free and fair.” (Emphasis added.)
97. The High Court’s order ought not be confirmed as this would be an unjustified judicial
imposition on the choices and discretion of Parliament to determine the limits of its
legislative powers to give effect of access to private funding information held by political
parties and independent candidates. In essence, the order of constitutional invalidity would
create intractable constitutional dilemma for the legislature that has already embarked on a
legislative process to determine how to regulate private funding of political parties including
the appropriate models for the disclosure of private funding of political parties.
98. In terms of the declaratory order, the Court essentially amended section 32 by adding that
private funding information held by political parties and independent candidates registered to
participate in any elections for public office is reasonably required in order to exercise and
protect the rights in section 19, 32 and 7(2) of the Constitution. This is the declaratory order
that gives credence to the order of constitutional invalidity – for if the declaratory succeed,
there is no reason why the order of constitutional validity to fail.
THE APPROPRIATE REMEDY

49
99. For all the reasons advanced above, the appeal should be upheld and the confirmation
refused. The application to vary the order of the High Court should also be refused. There is
simply no legal basis for such a variation of the order as this was not an order granted in
circumstances justifying a variation.
T MASUKU
L DZAI
Chambers, Cape Town
31 January 2018

My Vote Counts Case

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 249/17

In the matter between:

MY VOTE COUNTS NPC Applicant

MINISTER OF JUSTICE AND

DEMOCRATIC ALLIANCE Second Respondent

APPLICANT'S WRITTEN SUBMISSIONS

1. In the confirmation and leave to appeal proceedings, the applicant requests

continuous and systematic disclosure of information about the private funding

2. Section 32(1) of the Constitution entitles every person to have access to

private funding information. Such information is reasonably required, and

the Constitution. The constitutional imperative for providing access to such

information is reinforced by section 7(2) and section 1(d) of the Constitution,

as well as a number of international agreements which have been ratified by

3. The applicant, in early 2015, made application to the Constitutional Court in

terms of section 167 of the Constitution, seeking an order compelling

Parliament to enact legislation, in terms of a constitutional obligation to give

effect to the right of access to information, to regulate the disclosure of private

funding information. This legislation, it was argued by the applicant, was

required in addition to PAIA.

4. The majority judgment ("the majority judgment") of the Constitutional Court

in My Vote Counts v Speaker of the National Assembly ("My Vote Counts")

information.1 Accordingly, it was held that the principle of subsidiarity required

that the applicant ought to have brought a "frontal challenge" to the

constitutional validity of PAIA in an application before the High Court of South

Africa under section 172(1) of the Constitution. Having made this

determination, the merits of the applicant's arguments were not considered by

the majority of the Constitutional Court.

to the constitutional validity of PAIA. Surprisingly, the first respondent's

principal submission in these proceedings is that the applicant should have

judgment, however, that submission is unsustainable. The first respondent

was the fifth respondent in My Vote Counts.

In this Court, however, it does not oppose the applicant's application.

7. The minority judgment in My Vote Counts, penned by Cameron J, with

Moseneke DCJ, Froneman J and Jappie AJ concurring ("the minority

BRIEF BACKGROUND TO THIS MATTER

8. Subsequent to this Court handing down its judgment in My Vote Counts on

terms of section 172(1) of the Constitution declaring PAIA invalid and

the continuous and systematic recordal and disclosure of information

regarding the private funding of political parties and independent ward

candidates (the latter concept as contemplated in section 16 of the Local

Government: Municipal Electoral Act, 2000) ("independent candidates")

Constitution (collectively, "private funding information").

High Court, on 27 September 2017, declared PAIA unconstitutional and

invalid, in My Vote Counts NPC v President of the Republic of South Africa

Court judgment as "the Order".

funding information has to be "continuous and systematic". Although Meer J

NATURE AND PURPOSE OF THIS APPLICATION

11.1 confirmation of the order of constitutional invalidity in the High Court

judgment. The applicant seeks confirmation of the Order, but varied in

of the continuous and systematic requirement.

respect of the continuous and systematic requirement.

being Minister of Justice and Correctional Services ("the Minister"), persists in

13. This matter raises the following questions:

13.1 is this application procedurally barred?

13.2 does the Constitution require the disclosure of private funding

13.3 if so, is PAIA unconstitutional?

13.4 if so, what is the appropriate remedy?

14. The applicant submits that:

14.1 having regard to the unique nature of political parties, disclosure of

private funding information is reasonably required, and necessary, for:

14.1.2 the effective protection of all constitutional rights from corruption;