An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Can political parties in a multi-party democracy rightfully claim that they have a right to privacy and can such political parties refuse to share information with the public at large regarding their inner-workings or about dealings between their leaders and private individuals or institutions? Should political parties not be legally compelled to be more open, democratic and accountable to ensure that voters are adequately informed about their actions inside and outside government?
For example, should voters be able to gain access to information about donations made to political parties and about how that money is spent? If voters want to find out whether Premier Helen Zille does receive a second salary from the DA as claimed by Tony Eihrenrich, should voters not be entitled to get access to this information? And if voters wish to know whether the ANC has taken donations from the Gupta’s or from Muhammar Ghadaffi, should they not be entitled to this information?
Political parties seem reluctant to share information about their finances as well as other information that might show them or some of their leaders in a bad light. When Idasa requested information about party funding from the DA and the ANC both parties refused to provide such information and when Idasa went to court to compel the parties to provide such information the Cape High Court, in the case of Institute for Democracy in South Africa and Others v African National Congress and Others, rejected this application.
Access to such information is regulated by the Promotion of Access to Information Act (PAIA). PAIA was adopted to give effect to section 32 of the Constitution, which states that everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.
The Act makes a distinction between public bodies (whose information – in theory at least – is easier to access) and private bodies (whose information is more tightly guarded by the Act). The practical significance of the distinction is that, as far as private bodies are concerned, one can only gain access to information if, inter alia, one can show that the information is “required for the exercise or protection of any rights”.
In the Idasa case, the High Court – after analysing the relevant sections of PAIA – found that the definition of “public body” is a fluid one and that the division between the categories of public and private bodies is by no means impermeable.
The Act recognises the principle that entities may perform both private and public functions at various times and that they may hold records relating to both aspects of their existence. The records being sought can thus relate to a power exercised or a function performed as a public body, in which event Part 2 of PAIA is applicable, or they can relate to a power exercised or a function performed as a private body, in which event Part 3 of PAIA is applicable.
As information that was sought by Idasa related exclusively to the fundraising activities of the political parties, the High Court found that when a political party dealt with its fundraising it was acting as a private body. It also concluded – wrongly in my opinion – that this information sought by Idasa was not required for the exercising or protection of any rights. (What about the right to vote, I would ask? Surely one cannot exercise that right properly if one is not informed about the funding sources of political parties?)
This history came back to me when I read in the media that the ANC is opposing an application lodged by the Cape Argus to compel the party to hand over documents in its possession that relate to the so called brown envelope journalism scandal. The “brown envelope” saga relates to an allegation made in an affidavit by former Cape Argus journalist Ashley Smith that he and former colleague Joseph Aranes had been paid by then ANC office-bearers in the Western Cape administration, under former premier Ebrahim Rasool, to write articles designed to promote the “Rasool faction” in the party’s regional branch.
It seems to me that the ANC is on shaky grounds in refusing access to these documents. As the documents relate to actions allegedly taken by ANC officials while in government, I suspect that it would not be possible to argue that in this case the documents relate to or was generated by the ANC when it was performing a private function. As Premier, Ebrahim Rasool is alleged to have used public funds to influence positive coverage of a particular ANC faction in government.
Chapter 4 of PAIA does contain a long list (too long to discuss here) of grounds on which a body can refuse access to information and I would guess that the ANC would rely on one of these grounds to justify its refusal to part with documents that could incriminate some of its leaders.
But the larger question remains: why would the ANC refuse to hand over such information of they have nothing to hide? And why would both the ANC and the DA refuse to provide information about their donors if they have nothing to hide? Political parties – especially parties like the ANC and the DA who are in government – are hungry beasts who require donations and positive publicity. The temptation for such parties to be corrupted to gain such donations and publicity are great. The present scandal in the UK regarding the untenable influence of Rupert Murdock and his media empire on politicians in that country, reminds us of just how democracy can be corrupted by money and by the influence of the media.
It seems to me what is needed is separate legislation on democracy and political parties which will compel political parties to adhere to a degree of openness and transparency regarding their finances as well as their internal workings and which will set minimum norms and standards for political parties to ensure internal party democracy, openness and transparency. As we vote for parties and not for individual candidates at national and provincial level, the manner in which political parties select candidates are crucial for our democracy. Such a law may help to limit the potential corruption associated with both party funding and – related to this – with the selection of candidates that will appear on party electoral lists.
In all of this, the most important principle must be openness and transparency. As the Rasool saga and the Idasa funding case have both shown, these things are in short supply in our political system.BACK TO TOP