MY Vote Counts NPC v Minister of Justice and Correctional Services and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J
• Judgment Date: 21 June 2018
• Citation: 2018 (5) SA 380 (CC)
• Docket Number: 249/17 [2018] ZACC 17
• Hearing Date: 21 June 2018
• Counsel: M du Plessis (with J Thobela-Mkhulisi) for the applicant. T Masuku (with L Dzai) for the first respondent.
• Court: Constitutional Court

MY Vote Counts NPC v Minister of Justice and Correctional Services and Another
2018 (5) SA 380 (CC)

2018 (5) SA p380

Citation	2018 (5) SA 380 (CC)
Case No	249/17; [2018] ZACC 17
Court	Constitutional Court
Judge	Mogoeng CJ, Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J
Heard	June 21, 2018
Judgment	June 21, 2018
Counsel	M du Plessis (with J Thobela-Mkhulisi) for the applicant.; T Masuku (with L Dzai) for the first respondent.

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right of access to information — Details of private funding of political parties and independent candidates — Disclosure C required for exercise and protection of right to vote and freedom of expression — State obliged to ensure that such information be recorded, preserved and disclosable in a reasonably accessible manner, and for free — Constitution, s 32(1), read with ss 7(2), 16 and 19.

Constitutional law — Legislation — Validity — Promotion of Access to Information D Act 2 of 2000 — Unconstitutional and invalid to extent that it does not allow for disclosure of private-funding details of political parties — Constitution, s 32(1), read with ss 7(2), 16 and 19.

Constitutional practice — Courts — Powers in constitutional matters — Order suspending declaration of constitutional invalidity — When appropriate — E Not appropriate where continued operation of invalidated provision would not adversely affect rights or interests facilitated by invalidated provision — Constitution, s 172(2)(b)(ii).

Headnote : Kopnota

The High Court, at the instance of My Vote Counts NPC (MVC), declared the Promotion of Access to Information Act 2 of 2000 (PAIA) constitutionally F invalid to the extent of its failure to provide for access to information on the private funding of political parties. This in that such deficiency rendered PAIA inconsistent with the constitutional right of access to information (s 32); the obligation of the state to protect, promote and fulfil the rights in the Bill of Rights (s 7(2)); and citizens' political rights (s 19). It suspended the declaration of invalidity for 18 months in order to allow Parliament an G opportunity to remedy the defect.

MVC had also applied for the court's order to include a declaration providing for the 'continuous and systematic' recordal and disclosure of information on private funding of political parties, but the High Court refused this relief on the ground that to do so would amount to prescribing to Parliament how to execute its constitutional mandate, thus impermissibly encroaching on its H exclusive domain.

The Constitutional Court, in the application for confirmation of the High Court's order and an application for leave to appeal against its refusal to order 'continuous and systematic' recordal:

Held

A I citizen's constitutional right to vote necessarily entailed the right to cast an informed vote. Information on the private funding of political parties and independent candidates was essential for the effective exercise of the right to make political choices and to participate in elections. An informed vote included the obligatory recordal and preservation of, and simplified yet effective and reasonable access to, information on the private funding of political parties and independent candidates. (At [5], [35], [37] and [58].)

2018 (5) SA p381

The right of access to information, read with the entitlement to exercise or A protect the informed right to vote, and the state's s 7(2) obligation to respect, promote and fulfil the rights in the Bill of Rights, including freedom of expression (s 16), implicitly demanded that information on the private funding of political parties and independent candidates be recorded, preserved and made reasonably accessible to the public. The cumulative effect of these responsibilities yielded an outcome requiring the state to pass B legislation providing for the recordal, preservation and reasonable accessibility of information on private funding. (At [43] – [44], [58] and [69].)

The existing regulatory framework for the exercise of the right of access to information did, however, not enable a voter to enjoy real access to that critical information. In sum, PAIA was deficient because it did not provide that information on the private funding of political parties and independent C candidates be recorded and preserved; it be made reasonably accessible to the public; and that independent candidates and all political parties were subject to its provisions. (At [5] and [68].)

Section 7(2) imposed an obligation on the state to facilitate the enjoyment of rights in the Bill of Rights, and s 32(2) required the enactment of national legislation to essentially provide for the recordal or 'holding' and disclosure D of required or needed information. It thus fell to the state to honour its s 7(2) obligations. On a proper reading of s 32 with ss 19 and 7(2), it was obliged to make this information reasonably accessible to the public. It did, however, not fall within the remit of this court to prescribe how this was to be done, ie whether by an amendment to PAIA or by other legislation or a combination of both. It was enough to lay down a principle requiring the E state to ensure that the information be recorded, preserved and disclosable in a reasonably accessible manner, and that it was not to be paid for. (At [72] – [76].)

The application for leave to appeal against the High Court's exclusion of 'continuous and systematic' recordal would be granted (on the basis of a reasonable prospect of success) but the appeal itself would be dismissed. F It was not for this court to insist on Parliament having to provide for a 'continuous and systematic' recordal and disclosure of information on private funding. It sufficed to require of Parliament to provide for the holding, preservation and reasonable disclosure of information on private funding. (At [77] – [80].)

As to the High Court's suspension of the order of invalidity, it was necessary to G reflect on the rationale for such an order. Declarations of constitutional invalidity were often accompanied by a suspension, but it should never be done without a purpose. Remedies given by our courts must after all be effective. The underlying reason for suspension was that a failure to do so would otherwise yield consequences adverse to the rights or interests hitherto enjoyed or advanced. The nature of the defect must be such that H the enjoyment of benefits provided for by the invalidated provision would cease to flow if the order of invalidity were not suspended. It would therefore be necessary to suspend an order of invalidity in circumstances where its continued operation would otherwise have a detrimental effect on the rights or interests whose enjoyment was facilitated by the invalidated provision. In this case, no consequence would flow from a failure to I suspend the declaration of invalidity. No provision of PAIA was declared invalid in the sense that it would, barring the suspension, ordinarily be required not to apply to the extent of its inconsistency with the Constitution. The extent of the inconsistency was nothing but a lamentation of the lacunae in PAIA. An order directing Parliament to address the deficiencies of PAIA within a specified period would thus be made. (At [81] – [90].) J

2018 (5) SA p382

Cases cited

Southern Africa A

August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) (1999 (4) BCLR 363; [1999] ZACC 3): referred to

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): B referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): referred to

Matatiele Municipality and Others v President of the RSA and Others (No 2) 2007 (6) SA 477 (CC) (2007 (1) BCLR 47; [2006] ZACC 12): referred C to

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (5) SA 171 (CC) (2008 (10) BCLR 969; [2008] ZACC 10): referred to

My Vote Counts NPC v President of the Republic of South Africa 2017 (6) SA 501 (WCC): confirmed

My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) D (2015 (12) BCLR 1407; [2015] ZACC 31): applied

NSPCA v Minister of Agriculture, Forestry and Fisheries 2013 (5) SA 571 (CC) (2013 (10) BCLR 1159; [2013] ZACC 26): referred to

President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC) (2012 (2) BCLR 181; [2011] ZACC 32): dictum in para [10] applied.

United States E

Buckley v Valeo 424 US 1 (1976): dicta in paras [66] – [67] applied.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, ss 7(2), 16, 19, F 32(1) and 172(1)(b)(ii): see Juta's Statutes of South Africa 2016/17 vol 5 at 1-27, 1-28, 1-29 and 1-51.

Case Information

M du Plessis (with J Thobela-Mkhulisi) for the applicant.

T Masuku (with L Dzai) for the first respondent.

An G application for confirmation of a declaration of constitutional invalidity of a statutory provision, made by the High Court of South Africa, Western Cape Division, Cape Town (Meer J).

Order

1.

The order of constitutional invalidity made by the Western Cape H Division of the High Court, Cape Town, is confirmed, in these terms:

1.1

It is declared that information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and to I participate in the elections.

1.2

It is declared that information on private funding of political parties and independent candidates must be recorded, preserved and made reasonably accessible.

1.3

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