My Vote Counts NPC v Speaker of the National Assembly and Others

• Jurisdiction: South Africa

My Vote Counts NPC v Speaker of the National Assembly and Others
2016 (1) SA 132 (CC)

2016 (1) SA p132

Citation	2016 (1) SA 132 (CC)
Case No	CCT 121/14; [2015] ZACC 31
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Heard	February 10, 2015
Judgment	September 30, 2015
Counsel	D Unterhalter SC (with M du Plessis) for the applicant.; W Trengove SC (with V Ngalwana SC and F Karachi) for the first and second respondents.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right of access to information — Details of private funding of political parties — Assertion that Parliament had failed to C fulfil its constitutional obligation to enact legislation giving access to these details — Applicant seeking order that Parliament do so — True nature of applicant's case an attack on validity of PAIA — Failure, contrary to principle of subsidiarity, to attack PAIA's validity — Constitution, 1996, s 32; Promotion of Access to Information Act 2 of 2000.

Headnote : Kopnota

D My Vote Counts (MVC) invoked the exclusive jurisdiction of or alternatively direct access to the Constitutional Court. Its contentions were based on the right of access to information held by another person that was required for the exercise or protection of any right (s 32(1)(b) of the Constitution, 1996). Section 32(2) provides that Parliament must enact legislation giving effect to this right. (Paragraph [2] at 138E – 139B.)

E MVC's assertion was that the details of the private funding of political parties registered for elections to all legislative bodies were required for the exercise of the right to vote; that the Constitution consequently obliged Parliament to enact legislation allowing access to this information; and that it had failed to do so. It sought an order that Parliament fulfil its obligation and enact such legislation. (Paragraphs [1], [120] and [126] – [128] at 138D – E, 181E – G and 182F – 183D.)

F The majority judgment (Khampepe J, Madlanga J, Nkabinde J and Theron AJ)

The judgment proceeded as follows.

(1)

Whether the Constitutional Court had exclusive jurisdiction. Held, that it did: whether a court had jurisdiction depended on the claim made in the G pleadings; the claim here was that Parliament had failed to fulfil the obligation imposed by s 32(2); and under s 167(4)(e) only the Constitutional Court had the jurisdiction to adjudicate it. (Paragraphs [130], [132] and [135] at 183G – I, 184B – C and 184G.)

(2)

Whether Parliament had enacted the Promotion of Access to Information Act 2 of 2000 (PAIA) to give effect to the right of access to information. Held, H that it had. This was suggested unequivocally by its text. Moreover, in previous decisions, both the Constitutional Court and the High Court had reached this conclusion. It had also never been suggested that item 23(3) of sch 6 of the Constitution had not been complied with. (That item required enactment of the legislation envisaged in s 32(2) within three years of the I new Constitution taking effect.) (Paragraphs [130], [141] and [147] – [148] at 183G – I, 185H and 187A – 188B.)

The majority also noted the many other statutes that made provision for access to information. It held that they were not the legislation that had been enacted to fulfil the obligation in s 32(2). This because, in each, provision for access to information was merely incidental to the statute's main focus; J in PAIA it was the focus of the statute. (Paragraph [149] at 188B – E.)

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(3)

Whether granting the order MVC sought would infringe the separation of A powers. Held, that MVC's actual complaint was with the manner Parliament had chosen to legislate (enabling access to funding information only on an individual's request); and that it sought through the Constitutional Court's order to compel Parliament to legislate in the manner it preferred (creating a system of continuous disclosure). Thus to grant what MVC sought would involve entering Parliament's domain, contrary to the separation of powers. (Paragraphs [150] and [154] – [156] at 188E – G and 189E/F – 190D.) B

(4)

Whether the principle of subsidiarity applied. (The principle precludes direct reliance on a right where legislation has been enacted to give effect to it.) Held, that it did. MVC had framed its case not as a challenge to the validity of PAIA but as involving a failure to fulfil the s 32(2) obligation. It alleged that PAIA and other statutes had been enacted to fulfil the obligation, but that C collectively they failed in their reach to give effect to the right. (Paragraphs [179] and [181] at 198B – D and 198G.)

However, PAIA was the legislation enacted to give effect to the right, and MVC's case — more accurately characterised — was that PAIA was insufficient in reach, and invalid to the extent of that insufficiency. Cases were to the D effect that where constitutionally mandated legislation was alleged to be so deficient, subsidiarity compelled a challenge to the validity of the legislation. (Paragraphs [162] – [163] and [171] at 191F/G – 192C and 195F – H.)

Further considerations compelling application of the principle and a challenge to validity were:

(a)

Such a challenge — entailing limitation and justification enquiries — was E necessary to determine if there had been non-compliance with the constitutional obligation. For if the alleged deficiency was justifiable there would have been compliance. (Paragraphs [173] – [175] at 195I – 196G.)

(b)

Permitting bypass of the validity challenge and direct reliance on the right created the possibility of analogous claims being made. (Paragraph [180] at 198D – G.) F

(5)

Whether MVC had challenged the validity of PAIA. (Given that Parliament had enacted PAIA to give effect to the right, subsidiarity compelled MVC to challenge it, and debarred direct reliance on the right.) Held, that MVC had failed to, and had consequently infringed the principle of subsidiarity. (Paragraphs [183] – [184] and [192] – [193] at 199A – C and 201C – E.)

Application accordingly dismissed. (Paragraphs [193] and [195] at 201D and 201F.) G

The minority judgment (Cameron J)

It proceeded as follows.

(1)

Whether the court had exclusive jurisdiction over the claim. Held, as had the majority, that it did. (Paragraphs [20], [25] and [30] at 145C – D, 146D/E – 147B and 149A/B – C.) H

(2)

Whether information on the private funding of political parties was reasonably required for the exercise of the right to vote. Held, that it was (paras [31] and [43] at 149C/D – E and 153H – 154A). This was on the basis that:

(a)

the Constitution had chosen political parties as the means to facilitate democracy, and private funding influenced their actions, and thus the I facilitation of democracy (paras [34] and [37] at 150B/C – 151B and 151G – 152A);

(b)

the right was to cast an informed vote — informed inter alia of the likely actions of a party — and details of a party's funders and their contributions were an aid to predicting such actions (the assumption being that a party would seek to advance the interests of its funders) (paras [38] and [41] – [43] at 152A/B – C and 153A/B – G); J

2016 (1) SA p134

(c)

A such details would allow the identification of post-election favours (paras [42] – [43] at 153C – 154A).

(3)

Whether the principle of subsidiarity applied. Held, that it did not apply. This because the extent of Parliament's fulfilment of its s 32(2) obligation was in issue, not the validity of any legislation — including PAIA — passed in an effort to fulfil the obligation. (Paragraphs [44] – [45], [65] – [68] and [74] at 154B – E, B 163A – I and 166C – E.)

(4)

Whether MVC's application was a challenge under s 172(2)(a) to the constitutional validity of PAIA. Held, that it was not, and that MVC had no complaint with PAIA. Its case — that Parliament had failed to adequately fulfil the obligation in s 32(2) — was brought under s 167(4)(e). (Paragraphs [75] – [76], [80] and [83] – [84] at 166E – 167B, 167G – H and 168D – H.)

(5)

C Whether PAIA gave access to the details of a political party's private funding. Held, that it did not. This, as PAIA did not provide for the systematic and regular release of such information (it allowed one party to request another party to give it access to a specific record); it was restricted to recorded information; it did not provide for its preservation; and it was narrower in scope than s 32 in the bodies to whose information it allowed access. Indeed D political parties appeared to fall outside the categories of entities whose information it allowed access to. (Paragraphs [94] – [97], [99], [102], [106] – [108] and [116] at 171B/C – 172B, 172D/E – 173B, 173E – G, 175B – 176E and 180A – C.)

Cameron J concluded that Parliament had failed to fulfil its obligation to enact legislation giving access to information on the private funding of political E parties, to the extent that the information was required to exercise the right to vote. He would have made a declaration to this effect. (Paragraphs [118] and [120] at 180D – 119B and 120E – G.)

Cases Considered

Annotations

F Case law

Southern Africa

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259; [1990] ZASCA 108): referred to

Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC) (2013 (7) BCLR 727; [2013] ZACC 9): dictum in para [85] applied

Alexkor Ltd and Another v The Richtersveld Community and Others G 2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): referred to

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African...