OPINION: Part and parcel of any democracy is the right to advocate and lobby your interests. It is provided for in the Constitution, writes Zelna Jansen.
Part and parcel of any democracy is the right to advocate and lobby your interests. It is provided for in the Constitution. It has also been interpreted by the Constitutional Court in the groundbreaking decision in Doctors for Life v the Speaker of the National Assembly (2006) which declared that the legislature has an obligation to involve the public in its business and that such participation must be “meaningful”.
Politicians and political parties must therefore allow themselves to be influenced.
A key aspect of South Africa’s democracy is the developmental characteristic. Because of the legacy of apartheid, South Africa has persistent high levels of inequality. A recent report by the World Bank confirms this. Therefore, every law, policy and programme since 1994 is aimed at reducing inequalities and bringing about restoration. One could say that the aim of the open-door policy to political office-bearers is to bring about development that will reduce inequalities and poverty.
However, the various commissions of inquiry and media reports have shown how this system can be manipulated and abused, particularly, by capturing political office-bearers and political parties. Funding of political parties can be used as a tool for influence and/or bribery. A funder can steer the policy direction of a political party or who a government department awards a tender to, ultimately leading to what has become known as state capture.
In recent years, there have been court applications compelling political parties to disclose the details of all funding that they receive. This was followed by the Political Party Funding Act (2018), which now makes it compulsory for political parties to disclose who funds them.
The matter of funding has also been tested when it comes to donations to campaigns for candidates to contest positions within political parties. The CR17 campaign of 2017 is a good example.
During the question-and-answer sessions in the National Assembly, President Cyril Ramaphosa was asked about a R500 000 donation from Bosasa towards his campaign to become president of the ANC at the party’s 2017 elective conference. The president responded but later sent a letter to the Speaker correcting his response. This led to a complaint to the public protector that the president had misled the National Assembly and breached the Executive Members’ Ethic Code of 2000. The code was established in terms of the Ethics Act of 1998.
The public protector’s report concluded that the president had breached the code by failing to disclose donations to the CR17 campaign and that he personally benefited from the CR17 campaign donations. However, the Concourt in the Public Protector v The President (2021), found the public protector’s report to be fatally defective because she was not authorised to investigate whether the President personally benefited from donations made to the CR17 campaign.
The court also found that the duty of the president to disclose personal benefits under the Code was not triggered without proof that he had benefited. The application was dismissed for lack of evidence that the president had benefited from the donation.
The Concourt again revisited the issue of donations towards politicians for intra-party campaigns. On Tuesday, September 20, in the matter of AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa (2022), the Concourt looked at the legal question of whether the code was constitutionally compliant in the way it dealt with the disclosure of donations to campaigns for positions within political parties.
The Concourt stated that to answer the question, “financial interests” in section 2(2)(c) of the Ethics Act must be interpreted. Does it “include campaign contributions made on an arm’s-length basis to an entity that the office holder neither controlled, ran nor had knowledge of the identities of contributors. By parity of reasoning, if funding is raised through an entity that is separate from the office holder, but which benefits the office holder by supporting her bid for party office, that benefit constitutes a financial interest.”
For this reason, the Concourt found that the code fell short of constitutional and statutory dictates of transparency, accountability and openness. The exclusion from disclosure of donations for internal 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 South Africa.
The Concourt made its decision against the backdrop of corruption and the reality that private funders do not just thoughtlessly throw their resources around. They do so for a reason and quite strategically.
That is either to influence policy direction and advance sectional interests. The Concourt further stated that “…money is the tool they use to secure special favours or selfishly manipulate those who are required to serve and treat all citizens equally”.
A definite win for the principles of transparency and accountability in South Africa’s democracy. But what does that mean for political office-bearers and political parties as their campaigns will require funding? It means that they will have to secure funding from ethical sources. The time for dodgy political party funding is over.
* Zelna Jansen is a lawyer. She is CEO of Zelna Jansen Consultancy.