In the judgment of My Vote Counts v Minister of Justice and Correctional Services, My Vote Counts won the right for the public to know the source of a political party’s funding. This enables voters to make informed decisions when electing political parties and independent candidates into office, and hopefully, reduce corruption and political favours. Additionally, this landmark judgment requires Parliament to amend PAIA.

Who should care about this judgment and why?

  • The general public as it enables them to access information about who funds political parties and make an informed decision when voting.
  • Private funders of political parties (for example individuals, companies or trusts) because your identity might be disclosed to the public if you fund politicians or independent candidates.
  • Political parties because any private funding received might be disclosed to the public.
  • Parliament because they need to amend PAIA.

What could you do about it?

  1. Read the full judgment here.
  2. Read the explanatory note released by the Constitutional Court here.
  3. Find out more by reading the Michalsons insights on access to information and data protection in elections.
  4. Access other relevant judgments by joining a Michalsons programme.

Our insights on the judgment

In this judgment, Chief Justice Mogoeng strongly conveyed the importance of access to information and the imminent need to prevent corruption during the election process.

The Court highlighted the importance of funding information for voters and cautioned candidates not to be selective about what information they disclose to voters.

The judgment essentially signals the need for complete transparency and accountability during election proceedings.

Digest

My Vote Counts sought an order to obtain details around the private funding of political parties and independent candidates. They also challenged the constitutional validity of PAIA in relation to:

  • the right of access to information as enshrined in section 32 of the Constitution.
  • section 7(2) of the Constitution, which mandates the State to respect, protect, promote and fulfill the rights in the Bill of Rights; and
  • the right to vote under section 19.

The High Court held that PAIA does not apply to political parties, independent candidates nor to all records on private funding. The Court found that PAIA’s failure to provide for access to information on private funding renders it inconsistent with the provisions of sections 32, 7(2), and 19 of the Constitution when read together.

Before confirming the order of constitutional invalidity, the Constitutional Court had to determine:

  1. the need to reduce the risk of voters electing a corrupt or compromised political party or independent candidate;
  2. whether a citizen’s constitutional right to vote includes the right to cast an informed vote; and if so,
  3. whether an informed vote includes access to information on the private funding of political parties and independent candidates; and
  4. whether the current legal framework enables a voter to enjoy real access to funding information.

Order

The Constitutional Court declared that information on the private funding of political parties and independent candidates:

  1. is essential for citizens to make informed political choices and to participate in elections;
  2. must be recorded, preserved and made reasonably accessible.

Additionally, the Court declared that:

  1. PAIA is inconsistent with the Constitution because it does not provide for the recordal, preservation, and reasonable disclosure of information on the private funding of political parties and independent candidates.
  2. Parliament must amend PAIA within a period of 18 months and facilitate reasonable access to information on the private funding of political parties and independent candidates.

Details of My Vote Counts v Minister of Justice and Correctional Services

  • Universal citation: [2018] ZACC 17 
  • Also reported at 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC)
  • Full name: My Vote Counts NPC v Minister of Justice and Correctional Services and Another

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Data Protection programme.