Donations to internal campaigns for political leadership must be disclosed: ConCourt

Members of the executive should disclose donations to internal party campaigns, the Constitutional Court ruled on Tuesday. 

The case regarding the constitutionality of the Executive Ethics Code was brought by the amaBhungane Centre for Investigative Journalism.

In an unanimous decision, the ConCourt confirmed the order of the high court declaring the code unconstitutional and invalid.

It suspended the declaration of invalidity for 12 months to enable President Cyril Ramaphosa to remedy the defect.

The court also ordered the president — who did not oppose the application, saying he would abide by the outcome — to pay amaBhungane’s legal costs.

The apex court ruling comes after it heard the second round of litigation in the battle arising from the public protector’s report on donations to Ramaphosa’s CR17 campaign, which saw him elected ANC president at the party’s Nasrec elective conference in 2017.

The first round was about the lawfulness of the public protector’s investigation and report, in which disclosure of the campaign’s donors was sought.

The report was set aside by the Constitutional Court last year when it found there was no duty to disclose under the Executive Ethics Code because Ramaphosa did not personally benefit.

The second round, which reached the ConCourt in May, was about whether the code was constitutional and what it would say in the future.

amaBhungane said it unconstitutionally narrowed the disclosure requirements on the president, deputy president, ministers and members of provincial executives.  

The Pretoria high court set aside the code as unconstitutional, but suspended its order for 12 months “for the defect to be remedied”. The case then came before the highest court for confirmation.

In its judgment, the ConCourt held that the purpose of the Ethics Act’s wide-ranging provisions is to ensure members of the executive do not place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence, which includes the acceptance of undisclosed financial contributions.

The ConCourt held that concomitant with the need to enact legislation to fight corruption is the need to regulate, by legislative means, the funding of candidates and political parties.

Until now, the duty to disclose imposed by the code was only activated once a benefit is given to a member of cabinet in his or her personal capacity. 

The court found this partial disclosure obligation is insufficient to meet the relevant constitutional and statutory obligations. This was because the partial disclosure allowed ministers and MECs to avoid having to make disclosures by structuring their campaign funding to place it outside the scope of the “personal benefit” requirement.

Such a disclosure obligation could be easily evaded by the member of the executive by setting up a separate legal entity to collect donations to support his or her campaign, and then ensuring an arms-length relationship with that entity, which he or she could do by ensuring he or she exercises no control over the funds and does not receive them directly.

The ConCourt said section 2(2)(c)(ii) of the Ethics Act must be interpreted to go further than the code by its inclusion of the words “any financial interest”.

It found the exclusion from 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 the country.

TimesLIVE

Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.