The Gauteng High Court in Pretoria has found that members of Parliament should be required to disclose donations they receive in internal political party campaigns – but the judgment will have no impact on President Cyril Ramaphosa's CR17 donations.
On Thursday, a full Bench led by Judge President Dunstan Mlambo found that the Executive Ethics Code, which compels MPs to disclose benefits they receive, was "unconstitutional, unlawful and invalid" because it did not require them to disclose "donations made to campaigns for their election to positions within political parties".
The court found: "The only way in which effectively to meet the constitutional objectives of accountable, transparent and open government, and to ensure that members are not put at risk of a conflict between their official responsibilities and their private interests is for the code to make it clear that members are obliged in all instances to make disclosures of internal campaign donations received from members of the public.
"It is through such required disclosure by members that the public's constitutional right to information and the right to engage in political activities is promoted and fulfilled. We find the code to be constitutionally deficient in this respect."
The court ordered that the declaration of invalidity "shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be corrected". That means that the ruling will have no impact on President Cyril Ramaphosa's CR17 campaign, which birthed investigative journalism body amaBhungane's challenge to the Executive Ethics Code.
amaBhungane launched the constitutional challenge in response to Ramaphosa's successful bid to invalidate Public Protector Busisiwe Mkhwebane's report on his CR17 campaign finances. That case confirmed that, under the current prescripts of the code, Ramaphosa was not under any legal duty to disclose the donations he received for internal party elections because he had not personally benefitted from them.
In a ruling delivered earlier this year, the Constitutional Court's majority found that neither Mkhwebane or the EFF produced any evidence that Ramaphosa had personally benefitted from the CR17 campaign, meaning that – under the Executive Ethics Code as it currently stands – he was not obliged to disclose those donations as benefits.
"It is a leap in logic to hold that the president personally benefitted from the donations made to the CR17 campaign," Justice Chris Jafta wrote.
Jafta added, "That campaign, on the undisputed evidence, existed separately from the president. And there was no evidence that it was appointed to act as his agent. There is therefore no basis in law to regard donations to the CR17 campaign as personal benefits to the president."
In its evaluation of the Constitutional Court's ruling, the High Court found that this meant that "financial donations in support of a member's election to a position in his or her own party are not per se disclosable under the [Executive Ethics] Code."
"Equally, however, they are not per se exempt from disclosure…. The reason why the CR17 donations did not attract a duty to disclose under the code is that, on the facts before the court, they lacked the characteristics necessary to establish them as personal benefits."
Ramaphosa argued that the High Court should not consider amaBhugane's constitutional challenge to the Executive Ethics Code because the Constitutional Court had found that disclosure could be required if private political campaign donations if such donations amounted to a "personal benefit", but the High Court rejected that argument.
"As things stand at present, we know that the code requires disclosure of internal part-political campaign funding by members if this constitutes a personal benefit," Mlambo and his colleagues stated.
"However, what members and the public do not know with certainty is that constitutes a personal benefit beyond the obvious case where money is given directly to, or placed at the disposal of, the member herself. In at least this respect, the code is not an effective means of achieving accountability, transparency and openness, which is specified as an objective of the Constitution and the Member's Act."
The court added that the Constitution expressly "requires a code of ethics for members of the executive that prohibits them from exposing themselves to any risk of a conflict between their official responsibilities and their private interests.
"One of the most effective means of achieving this objective…is the disclosure of campaign funding donations. This objective cannot be achieved effectively if it is unclear under the code when such donations will be disclosed and when they will no."
The ruling will now go to the Constitutional Court for confirmation.