The Constitutional Court had already recognised the risks posed by the role of money in politics, and had said in an earlier judgment that the way to mitigate those risks was the mandatory disclosure of donations, the apex court heard on Tuesday.
So when some donations to internal political party campaigns were excluded from the requirement of disclosure by the Executive Ethics Code, it rendered the code unconstitutional, argued counsel for investigative journalism organisation amaBhungane.
The apex court was hearing the second round of litigation in the battle arising from the public protector’s report on donations to President Cyril Ramaphosa’s CR17 campaign, which saw him elected ANC president at the party’s Nasrec elective conference in 2017.
The first round of litigation was about the lawfulness of the public protector’s investigation and report, in which the public protector made a number of findings and directed the disclosure of the donors to the campaign. The report was wholly set aside by the Constitutional Court last year when the court found there was no duty to disclose the CR17 campaign donations under the existing Executive Ethics Code because Ramaphosa did not personally benefit from them.
The second round — which reached the ConCourt on Tuesday — was about whether the code is constitutional and what it would say in the future. AmaBhungane said the code had unconstitutionally narrowed the disclosure requirements on the president, deputy president, minister and members of provincial executives.
The Pretoria high court had already set aside the code as unconstitutional but had suspended its order for 12 months “for the defect to be remedied”. The case then came before the highest court for confirmation.
Counsel for amaBhungane, Steven Budlender SC, said the effect of the code, as interpreted by the Constitutional Court in round one, was that if a president or minister or MEC set up a separate legal entity and left the control of the campaign to others, they would not have to disclose the donations to the campaign — even if donations ran into millions and even if they knew who the donors were.
On the other hand if the president or minister or MEC received as a gift two bottles of wine worth R500, they would have to disclose, said Budlender.
The Executive Ethics Act had “cast the net widely”, said Budlender, by requiring the disclosure of all financial interests” when assuming office and “any financial interest” after the assumption of office. But the code, which was supposed to “provide greater clarity and help people determine what to disclose”, had inadvertently narrowed the scope of the act, he said.
President Cyril Ramaphosa decided not to oppose amaBhungane’s application for confirmation and to “abide” by the outcome. But the apex court asked the Johannesburg Bar for argument from counsel acting as friends of the court.
Playing this role, Stuart Wilson argued amaBhungane’s real problem lay with the act and not the code.
He said the act embodied a decision to “afford a particular kind of policy choice about how to deal with conflicts of interest among members of the executive” and left that policy choice to the president via the code.
If amaBhungane disagreed that the president should have that choice, it should have attacked the act and not the code, Wilson argued. He argued the interpretation of “financial interest” argued for by amaBhungane was overly broad and that there were a number of ways available to safeguard against conflicts of interest — including setting up an arms’ length corporate structure for example, which kept the minister in the dark about who donated.
“The applicant’s submissions completely bypass the very real possibility that a blind trust-type arrangement ... may be a perfectly appropriate way of promoting executive ethics,” said Wilson.
Judgment was reserved.
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