High Court ruling on amaBhungane’s application in the matter between the President and the Public Protector regrettable

11 March 2020

My Vote Counts (MVC) notes the judgment delivered on 10 March 2020 in the matter of the President of the Republic of South Africa & Another and the Public Protector and Others in the Gauteng High Court. The judgments set aside Public Protector BusisiweMkhwebane’s 2019 report and findings into President Ramaphosa’s alleged misleading of Parliament related to a donation from Bosasa towards his CR17 campaign. 

The Public Protector found that the President had deliberately misled Parliament, that there was evidence of money laundering in the CR17 campaign and proposed serious remedial action be taken. In what commentators describe as a scathing judgment, the Court found that the Public Protector had made fundamental errors in law and overstepped her jurisdiction in her investigation.

In its judgment the Court also dismissed an application made by the investigative journalism organisation, amaBhunghane, who joined the matter as a neutral party to argue that the Executive Ethics Code is unconstitutional. They argued that it was unconstitutional to the extent that it does not provide for disclosures of donations to internal party political contests. 

The Code is meant to provide a framework for members of the Executive to perform their duties without running afoul of conflicts of interest, and to provide clarity for instances when they need to declare things such as financial interests, gifts or sponsorship they have received. Members of the Executive have to make such disclosures on an annual basis. 

MVC has publicly supported amaBhunghane’s application because transparency in the funding of politics is crucial to allow for informed political decision making when we vote, to curb corruption, and to hold our leaders accountable by understanding the sources and amounts of private donations they receive. This remains true whether it be at the level of internal party contestations, or for private funds that parties receive to maintain their operations and to conduct election campaigns. 

The importance of upholding and promoting our rights to access to information and to vote from an informed position were key provisions in MVC’s 2018 Constitutional Court judgment where the Court found PAIA (Promotion of Access to Information Act) to be unconstitutional because it failed to regulate the recordal, reservation and reasonable disclosure of the private funding received by political parties and independent candidates. 

At the ANC’s 2017 Nasrec conference, hundreds of millions of rand were donated to candidate’s campaigns, predominantly to President Ramaphosa and who emerged victorious, and to Nkosazana Dlamini-Zuma, who was unsuccessful in her bid for ANC President. Sites of contestation such as these that are fuelled by private funds are a prime example of how the unregulated movement of money can infiltrate our politics and leave us at risk of not knowing if private narrow interests are being prioritised over the national good. 

The Court ruled against amaBunghane’s application on technical grounds, and stressed that there is indeed immense importance to having access to this type of information to combat corruption and to participate politically. 

The Court said that the issues raised by amaBhunghane are crucial to our country’s democracy, but that it was not convinced by the arguments in their current form that the Executive Ethics Code should be declared unconstitutional. Importantly, the Court said that this does not mean that the Code is indeed constitutional in its current form.

MVC fully supports the notion that private donations made to support candidates in internal political party campaigns should be disclosed and regulated. It is also encouraging that the Court essentially signalled that this is an issue that can be revisited. Without information of the donations allocated not merely to political parties, but also to politicians and their campaigns, being publicly available we simply cannot know whose interests are being pursued. We need to continue exploring avenues that enhance transparency in our politics and this is a crucial element that requires further attention.   

Issued by Sheilan Clarke, Communications Officer, MVC, 11 March 2020