In My Vote Counts v President of the Republic of South Africa, the court said that PAIA was inconsistent with the Constitution and invalid because it does not require political parties to record and disclose private political funding. The court acknowledged that citizens can only exercise their right to vote if they know the source of political funding.
Who should care about this judgment and why?
- Political parties because they must disclose who is funding them.
- The information regulator because of their mandate to promote access to information.
What could you do about it?
- Read the full judgment by downloading it.
- Access other relevant PAIA judgments by joining the Michalsons Access to Information programme.
Our insights on the judgment
This judgment highlights how legislation enacted to advance a right may prove insufficient. PAIA did not consider political parties in its definition of private bodies. This allowed political parties to evade the obligation to inform the public about where they source their funds. To effectively promote constitutional democracy, voters must know who funds the political parties they vote for. This will help strengthen democracy and avoid corruption.
Digest
We usually refer to this judgment as “My Vote Counts 2”. My Vote Counts, an NGO, initially approached the Constitutional court to compel Parliament to enact legislation that forces political parties to record and disclose funders. The Constitutional court rejected their application and identified PAIA as the applicable legislation. My Vote Counts then approached the Western Cape High Court to determine the following:
- Does the Consitution require political parties to disclose their funders?
- Does PAIA allow for the disclosure of private political funding?
- Is PAIA unconstitutional and invalid?
The court read the right to access information with political rights found in the Constitution. It concluded that citizens can only exercise their right to vote if know who is funding political parties. The court concluded that this is consistent with creating an open democratic society. This will also ensure that South Africa honours its international agreements and curb corruption.
My Vote Counts also highlighted the difficulty of relying on PAIA to get information from political parties. The court expressed that PAIA does not allow for continuous disclosure of political party records. This, the court found would cause an onerous obligation on citizens who require this information. Moreover, the definition of private bodies in PAIA did not cover political parties.
PAIA’s reach is only limited to recorded information and this conflicts with the Constitution which envisioned the disclosure of any information. Moreover, PAIA allows private bodies to refuse disclosure of information that parties agreed in a contract (NDA) to keep confidential. The court feared that political parties could abuse this to protect the identity of their funders. The court also held that while PAIA allows for mandatory disclosure if the information is in the public interest, this places an undue burden on voters.
For these reasons, the court declared that PAIA in its current form is inconsistent Consitution.
Order
The Court:
- declared that information about private funding to political parties and independent candidates is reasonably required to exercise the right to vote and make political choices;
- declared PAIA inconsistent with the Constitution and invalid so long as it does not allow for the recording and disclosure of private political funding;
- suspended the declaration of invalidity for 18 months to allow Parliament to remedy the defects of PAIA.
Details of My Vote Counts NPC v President of the Republic of South Africa and Others
- Universal citation: [2017] ZAWCHC 105
- Case number: 13372/2016
- Full name: My Vote Counts NPC v President of the Republic of South Africa and Others
Please note: This judgment summary is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.
