In July this year, the Constitutional Court overturned the Ombudsman’s findings that President Cyril Ramaphosa had acted illegally 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 of Members of the Executive Act 1998, to disclose such donations because, according to the court, he did not personally benefit from these donations.
The current Code requires disclosure of gifts, sponsorships or benefits received by a member of the executive 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 CR17 campaign ).
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 only “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 redress against the president, nor did he seek to argue that the president was wrong to maintain, as he did in his successful request for a review of the Québec Ombudsman’s conclusions. against him, that the Code did not require disclosure of donations. made to the CR17 campaign because these donations were not made to him personally but rather to a political campaign.
What amaBhungane requested, however, was a statement that the Code was unconstitutional in that it did not require members of the executive branch to disclose donations made in support of 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 branch campaigns, especially when such campaigns are successful. finally to the accession of the member to a high public office. AmaBhungane’s challenge to the Code was therefore intended to ensure that private funds were not used to unduly influence elected officials to public office, that power could not be “bought” through secret campaign donations and that politicians were not unable to use the civil service to favor those who fund their campaigns in the dark.
The president objected to amaBhungane’s challenge to the Code, arguing that no amendment was necessary because the Code already requires disclosure of donations from which executive members derive personal benefit and most donations from campaigning for internal party elections would constitute a “personal benefit”, which could be disclosed under the Code.
The tribunal de grande instance, however, considered that:
“[A]As it stands, we know that the Code requires disclosure of internal campaign funding of political parties by Members if it is of personal benefit. What MPs and the public do not know for sure, however, is what constitutes a personal benefit beyond the obvious case where the money is given directly to or made available to the MP.
The High Court upheld amaBhungane’s argument that article 96 of the Constitution requires a code of ethics for members of the executive branch that preserves the risk of conflict between a member’s official responsibilities and private interests and that an effective way to achieve this is to require disclosure of campaign fundraising donations:
“The only way to effectively achieve the constitutional goals of accountable, transparent and open government, and to ensure that Members do not run the risk of a conflict between their official responsibilities and their private interests, is for the Code to clearly state 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 constitutional right of the public to information and their 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 in that it does not require the disclosure of donations made to political campaigns for positions in political parties. Parliament has 12 months to correct this flaw. AmaBhungane must now apply to the Constitutional Court to confirm the statements of the High Court on the unconstitutionality of the Code.
High Court ruling is landmark victory in fight against covert capture of executive members – members must now disclose all political campaign donations in support of their election to party positions and can no longer keep these donations a secret from the public.
Greater transparency regarding the private funding of politicians can only offer better protection against undue private influence on public officials and deter politicians from serving the interests of their private donors to the detriment of the public. DM
Dario Milo is a partner and Lavanya Pillay is a senior partner at Webber Wentzel. They represented amaBhungane in the litigation.