In July this year, the Constitutional Court overturned the Public Protector’s findings that President Cyril Ramaphosa had acted unlawfully in various respects regarding donations made to his CR17 election campaign. Indeed, the President was under no obligation under the Code of Ethics for Members of the Executive (the Code), adopted under the Ethics for Members of the Executive Act 1998, to disclose these gifts because, according to the court, he did not personally benefit from these gifts.
The current Code requires disclosure of gifts, sponsorships or benefits received by an executive member in a private capacity. Accordingly, any donation to an internal party campaign in favor of a member of the executive does not have to be disclosed, as long as the campaign exists as its own legal entity separate from the member concerned (such as the campaign CR17).
The amaBhungane Center for Investigative Journalism has now successfully challenged this aspect of the Code. In a judgment written by Presiding Judge Dunstan Mlambo, Judge Keoagile Matojane and Judge Raylene Keightley, it was confirmed that the High Court had previously dismissed amaBhungane’s challenge solely “on technical grounds”.
These technical grounds were each overturned by the Constitutional Court in July and the High Court was therefore required to determine the merits of amaBhungane’s constitutional challenge to the Code.
AmaBhungane did not seek any relief against the President, nor did he seek to argue that the President was wrong to argue, as he did in his successful application for review of the Public Protector’s findings against him, that the Code did not require the disclosure of gifts. made to the CR17 campaign because these donations were not made to him personally but rather to a political campaign.
What amaBhungane sought, however, was a statement that the Code was unconstitutional as it did not require members of the executive branch to disclose donations made to support their internal political campaigns. amaBhungane argued that in the interest of openness, transparency and accountability, the public should have the right to know who has donated to executive members’ campaigns, especially when those campaigns ultimately lead to the member acceding to high public office. amaBhungane’s challenge to the Code was therefore intended to ensure that private money was not used to improperly influence those elected to public office, that power could not be “bought” through secret campaign donations, and that politicians cannot use the public service to favor those who fund their campaigns in the dark.
The President opposed amaBhungane’s challenge to the Code, arguing that no amendment was needed, as the Code already requires disclosure of donations from which executive members derive personal benefit and most donations from campaigning for the party’s internal elections would constitute a “personal advantage”. ”, which would be disclosable under the Code.
However, the High Court held that:
“[A]As it stands, we know that the Code requires the disclosure of internal party political campaign financing by Members of Parliament if it is for personal benefit. However, what MPs and the public do not know for sure is what constitutes a personal benefit beyond the obvious case where the money is given directly or made available to the MP herself.
The high court upheld amaBhungane’s argument that Section 96 of the Constitution requires a code of conduct for members of the executive that guards against the risk of a conflict between a member’s official responsibilities and its private interests and that an effective means of achieving this objective is to require the disclosure of campaign finance donations:
“The only way to effectively achieve the constitutional goals of accountable, transparent and open government and to ensure that Members are not at risk of a conflict between their official responsibilities and their private interests is for the Code to state make it clear that Members are required in all cases to disclose internal campaign donations received from members of the public. It is through this disclosure required by Members of Parliament that the public’s constitutional right to information and its right to engage in political activities are promoted and respected.
Due to the shortcomings of the Code, the High Court ruled that the Code is unconstitutional, illegal and invalid insofar as it does not require the disclosure of donations made to political campaigns for positions in political parties. Parliament has 12 months to correct this defect. AmaBhungane must now go to the Constitutional Court to uphold the High Court’s declarations of the Code’s unconstitutionality.
The High Court judgment is a historic victory in the fight against the secret capture of members of the executive – members must now disclose all donations to political campaigns in support of their election to office within their respective parties and can no longer keep these gifts secret from the public.
Greater transparency regarding the private funding of politicians can only provide greater protection against undue private influence on public officials and deter politicians from serving the interests of their private funders at the expense of the public. DM
Dario Milo is Partner and Lavanya Pillay Senior Partner at Webber Wentzel. They represented amaBhungane in the litigation.