Webber Wentzel's client, amaBhungane succeeded in an application before the Constitutional Court following its challenging of the constitutionality of the Executive Member's Ethics Code regarding the disclosure of private donations to political campaigns.
Justice Majiedt's opening remarks set the tone for this seminal judgment on transparency in politics and funding candidates for high office when he said: "politics and money make disquieting bedfellows".
On 20 September 2022, our client, amaBhungane, succeeded in an application before the Constitutional Court confirming an order handed down by the full bench of the Pretoria High Court on 2 December 2021 (see previous newsflash here). The unanimous Court confirmed that the Executive Members' Ethics Code (the Code) is unconstitutional, unlawful, and invalid insofar as it does not require the disclosure of donations made to political campaigns for positions within political parties. This ended three years of litigation by amaBhungane which began when it intervened in a review brought by President Cyril Ramaphosa in which the President sought to review the Public Protector's report concerning the CR17 campaign.
The issue in the review was whether the President was required, under the Code, to disclose donations made to his CR17 campaign. The President argued that the Code did not require the disclosure of donations made to the CR17 campaign, as these donations were not made to him personally but rather to a political campaign, and the Code only regulates "personal benefits". The Public Protector's report contained a finding that the President breached the Code in his failure to disclose the donations.
AmaBhungane's argument was that if properly interpreted, the Code does not currently require members of the executive to disclose donations made in support of their campaigns for positions within their respective political parties, then the Code is unconstitutional. AmaBhungane, therefore, did not enter the fray in the dispute between the Public Protector and the President, but brought a conditional application challenging the constitutionality of the Code if the President's interpretation of the Code was upheld. In 2020, the High Court found that all of the issues raised by amaBhungane were critical to South Africa's democracy but that the constitutional challenge against the Code was not properly before it. The High Court also held that the President's review succeeded because the Code (on its interpretation) did not require the President to disclose donations to the CR17 campaign.
On appeal to the Constitutional Court, it upheld the review by the President against the Public Protector's report but overturned the High Court's decision not to determine amaBhungane's challenge to the Code. The Court sent the challenge back to the High Court for reconsideration.
In round two, before the full bench of the High Court, our client argued that the constitutional objectives of the Code will only be properly met if there is mandatory disclosure required by members of the executive (ministers, deputy ministers and MECs) of all donations towards their internal party-political campaigns. The High Court agreed, ruling that the Code was unconstitutional and invalid because it did not require disclosure in these circumstances.
AmaBhungane then applied to the Constitutional Court to confirm the order of constitutional invalidity made by the High Court. The Johannesburg Society of Advocates (JSA) was admitted as amicus curiae at the request of the Court. The Court opposed the relief sought by amaBhungane (the President opposed amaBhungane's relief in round one and at the High Court in round two, but finally gave up by the time the case reached the Constitutional Court).
Justice Majiedt for a unanimous Court held that the purpose of the Ethics Act is to ensure members of the executive do not allow themselves to be unduly influenced in the discharge of their duties. The fight against corruption is central to this purpose.
The Court found that the Code fell short of the objectives of the Ethics Act which gives effect to section 96(1) of the Constitution which states that “[m]embers of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation". Section 2(1) of the Ethics Act prescribes standards and rules which are aimed at promoting an open, democratic, and accountable government. The Code, however, specifically excludes sponsorships for member's party benefits that accrue to the member in his or her personal and private capacity. As pointed out by our senior counsel during the hearing, this is irrational because it would mean that there is a stark difference in the treatment of gifts/sponsorships: a member of the executive would be required to disclose gifts/donations of a bottle of wine worth ZAR 500, rent-free accommodation and university fees sponsorships, but would not be required to disclose donations to internal party campaigns, which runs into millions and sometimes billions of rands, as rumoured in the CR17 campaign.
The Court concluded: "The Code falls short of constitutional and statutory dictates of transparency, accountability and openness" and that "the exclusion from the disclosure of donations for internal political-party elections undermines the Ethics Act and the conflict-of-interest regime that is essential to promote transparency and deal with the pervasive corruption bedevilling us".
The declaration of invalidity of the Code was suspended for a period of 12 months to enable the President to remedy the defect by enacting a new Code. The President was ordered to pay amaBhungane’s costs in the Constitutional Court, despite not opposing at that stage.
The judgment is a major victory, building on the jurisprudence of the Constitutional Court on openness and transparency in the context of money and politics, especially donations to campaigns for members of the executive for positions within their political party. When the Code is amended in line with this judgment, members of the executive will be required to fully disclose all campaign funding made to them or on their behalf, even if the funding is donated to a separate entity which they do not control.
Our team consisted of Dario Milo, Lavanya Pillay, Kuhle Mavuso, Fatima Ismail and Nqobizwe Shongwe. Our counsel on brief were Steven Budlender SC and Tshidiso Ramogale.