The Executive Ethics Code is unconstitutional to the extent that it does not require members of the executive to disclose donations made to campaigns for elections to positions within political parties. This was confirmed in the Constitutional Court on 20 September 2022.
Investigative journalism organisation AmaBhungane brought the application to the ConCourt, asking it to confirm an order of constitutional invalidity of the Executive Ethics Code (EEC), made by the North Gauteng High Court in December 2021. The Johannesburg Society of Advocates joined the application as amicus curiae.
AmaBhungane also asked the ConCourt to suspend the order of invalidity for 12 months to allow President Cyril Ramaphosa to remedy the defects in the EEC. The High Court had declared the EEC unconstitutional in that it does not require members of the executive to disclose donations made to their campaigns, and thus impinges on citizens’ constitutional right to make political decisions on an informed basis.
In a unanimous judgment written by Justice Steven Majiedt, the ConCourt noted that under the Executive Members’ Ethics Act, members of the executive must not place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence – this includes the acceptance of undisclosed financial contributions. The ConCourt further held that besides the need for legislation to fight corruption, there is a need to regulate, by legislative means, the funding of candidates and political parties.
The court highlighted section 19 of the Constitution, which bestows on citizens the right to make political choices, including the right to vote in elections, and held that this right must be exercised meaningfully and on an informed basis.
In its conclusion, the ConCourt found that the EEC fell short of constitutional and statutory dictates of transparency, accountability and openness.
“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 to deal with the pervasive corruption bedevilling us.”
The High Court’s order of unconstitutionality and invalidity is thus confirmed. The ConCourt suspended the declaration of invalidity for 12 months to allow the president to remedy the defect.
Fighting for transparency
The case arose from a July 2019 report released by the Public Protector, and titled Report on an investigation into a violation of the Executives Ethics Code through an improper relationship between the President and African Global Operation (AGO), formerly known as BOSASA.
One of the findings of the Public Protector in the report was that Ramaphosa had breached his duties under the EEC by, among others, failing to disclose donations that had been made to his CR17 campaign supporting his election as ANC president. Ramaphosa challenged the report with a review application in the High Court.
AmaBhungane then brought its own constitutional challenge to the EEC by way of a conditional counter-application through an application to intervene in the review proceedings between the president and the Public Protector.
“The application was conditional on the interpretation that the High Court would give the relevant provisions of the Code, but more particularly, on whether the Code required members to make disclosure of donations made to internal party-political campaigns,” explained the ConCourt. “In its conditional application, amaBhungane contended that, to the extent that the Code did not require Cabinet members, Deputy members and Members of the Executive Council to disclose donations made to them for their benefit for political party positions, the Code was unconstitutional.”
Ramaphosa obtained his application to review, but the High Court dismissed amaBhungane’s conditional application on technical grounds, “without considering the merits,” according to the ConCourt.
The Public Protector and several other parties sought leave to appeal, in the ConCourt, the High Court’s findings regarding the review application. The ConCourt saw fit to dismiss the Public Protector’s appeal, and sent amaBhungane’s constitutional challenge back to the High Court, holding that it should have considered the constitutional challenge on its merits.
On further consideration, the High Court found that when a member receives any benefit in his or her personal capacity, including that derived from campaign funding for a member’s internal party election campaign, there is a duty to disclose such receipt. By phrasing it in this manner, the High Court understood, the ConCourt meant that there will be instances where such a duty to disclose is not required – thus the High Court questioned the constitutionality of the EEC’s inherent limitations, meaning that amaBhungane could take its application to the ConCourt.
The High Court upheld the challenge and declared the EEC unconstitutional and invalid. Next, amaBhungane approached the ConCourt for confirmation of the High Court’s order of constitutional invalidity.
AmaBhungane argued before the ConCourt bench that the provisions of the Executive Members’ Ethics Act meant that the EEC had to ensure that members of the executive do not put themselves in positions where their adherence to their sworn duties may be compromised. The organisation further argued that under the Ethics Act. the EEC plainly required members of the executive to disclose all of their financial interests upon and after assumption of office, and to disclose gifts, sponsorships or benefits received by members in their private capacity. This would provide transparency as to which persons or entities extend private financial support or benefits to those who hold public office.
“AmaBhungane contended that, to the extent that the Code did not require the disclosure of all donations made to campaigns for positions within political parties, for the benefit of members of the executive, it breached sections 1, 7(2), 19, 32, 96 and 195 of the Constitution and the Ethics Act,” the ConCourt said.
The president did not oppose the application before the ConCourt, opting to file a notice to abide by its decision.