Advocacy update: AmaBhungane’s win for transparency

The High Court handed down judgment declaring the Executive Ethics Code to be unconstitutional, unlawful and invalid — internal campaign donations to be disclosed.

An avenue to funnel funds towards the interests of political office bearers under a cloud of secrecy – potentially to secure patronage relationships – has just been shut firmly by the high court.

On Thursday, amaBhungane scored a ground breaking court victory that will see future donations to members of the executive seeking election to political office within their respective parties become subject to scrutiny.

The high court declared the Executive Ethics Code to be unconstitutional, unlawful and invalid.

The Code governs the conduct of members of Cabinet, deputy ministers, and members of executive councils. It obliges them to disclose “benefits of a material nature received by them” while in office.

We raised the issue of internal campaign funding disclosure when we intervened in the president’s high court review of the public protector’s report that found that the president had acted unlawfully by failing to disclose donations made to his CR17 campaign for election to lead the ANC.

Our basis for intervening was always one of principle: we did not take a view on the dispute between the public protector and the president. Rather, our arguments concerned the disclosure of future donations.

The high court dismissed our arguments on technical grounds, as well as the public protector’s case. When she applied for leave to appeal in the Constitutional Court, we also approached that court to consider our appeal. 

While the public protector’s case was dismissed by the top court, it determined that our constitutional case had been dismissed wrongly, and remitted the matter to the high court.

Back in the high court, amaBhungane contended that the Constitution and the Executive Members Ethics Act require internal campaign donations to be disclosed. This can help to mitigate risks of conflicts of interest arising when donors support political candidates’ campaigns for high office within parties – or at least, make them subject to public scrutiny.

Judge President Dunstan Mlambo accepted these arguments in a judgment that is eminently clear and methodical. It deals with a potentially contradictory statement in the Constitutional Court’s judgment regarding whether internal campaign donations are disclosable squarely by cutting to the nub of the issue: the duty to disclose rests on the question of whether the donations can be categorised as a personal benefit.

Read the full judgment here.

But it is precisely this categorisation that introduces a dangerous loophole. Members of the executive could structure their campaigns in a way in a way that donations to it would fall outside the “personal benefit” criteria set out by the Constitutional Court.

The public would not be able to know with certainty, whether donations are disclosable or not – meaning that the Code is “not an effective means of achieving accountability, transparency and openness” as demanded by the Constitution and the Act. As a result, it is unconstitutional and invalid.

AmaBhungane had requested specifically that the order only have prospective effect, for a simple reason: national and provincial members of the executive took the Code as they found it. It would be unfair to criticise them for not having made these disclosures under the Code as it currently stands.

The court suspended the declaration of invalidity for 12 months to give the President time to remedy the defect and awarded amaBhungane its costs. 

Taken together with our SARS tax records transparency victory, this ruling brings amaBhungane’s tally of court wins to two in under three weeks – a remarkable feat.

But behind that statistic lies many years of planning and hard work, by ourselves and our team of top-tier legal representatives who are equally as dedicated to our cause.

Wins like these make the effort worthwhile, because we know that the benefit is not ours alone: they open up the space for full and meaningful democratic participation of all South Africans.

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