By Lehlohonolo Lehana.
The Constitutional Court has confirmed a ruling by the Gauteng High Court judgment that the Executive Ethics Code, in its current state, is unconstitutional and invalid.
This means that members of the cabinet, MECs and deputy ministers are not required to disclose donations for internal political party campaigns.
Delivering the judgment at the Constitutional Court on Tuesday, Justice Steven Majiedt said in the review judgment, the Constitutional Court held that the duty to disclose imposed by the Code was only activated once a benefit was given to a member of cabinet in his or her personal capacity.
“As such, the Constitutional Court’s review judgment imposed only a partial disclosure obligation on members of the executive. The Constitutional Court then had to consider whether the partial disclosure in question was constitutional.”
It found “this code falls short of the constitutional and statutory requirements of transparency” and the lack of a requirement of the disclosures of internal party donations severely undermine the Political Party Funding Act.
In summary, the Code falls 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 us.
It suspended the declaration of invalidity for a period of twelve months in order to enable the President to remedy the defect,” he said.
The ruling by the ConCourt, however, is not retrospective, meaning donations made to Cyril Ramaphosa’s “CR17” campaign for the ANC presidency won’t have to be made public.
The case, brought by investigative journalism unit amaBhungane, arose from litigation concerning Public Protector Busisiwe Mkhwebane’s report into a donation to Ramaphosa’s presidential campaign in 2017.
The Pretoria High Court, in December 2021, ordered that the Act’s 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”.
This meant that the source of Ramaphosa’s CR17 campaign would remain undisclosed.