Baldwin Ndaba, Mashudu Sadike and Tshwarelo Hunter Mogakane
Pretoria - The Constitutional Court has confirmed the Gauteng High Court, Pretoria, ruling against President Cyril Ramaphosa, that the Executive Ethics Code was unconstitutional.
The unanimous Concourt judgment was passed in the court yesterday, following an application by AmaBhungane Centre for Investigative Journalism, which challenged the validity of the code.
The court application followed the release of Public Protector advocate Busisiwe Mkhwebane’s report on July 19, 2019, titled: “Report on an investigation into a violation of the Executives Ethics Code through an improper relationship between President Ramaphosa and African Global Operation (AGO), formerly known as BOSASA” (the Report).
One of the findings of the public protector in the report was that the president had breached his duties under the code, in that, among other things, he had failed to disclose donations that had been made to an internal party-political campaign (the CR17 campaign) that supported his election as president of the ANC in December 2017.
Aggrieved by the findings made in the report, Ramaphosa launched an application in the High Court to review it.
AmaBhungane then brought a constitutional challenge to the code by way of a conditional counter-application through an application to intervene in the review proceedings between the president and the public protector.
In its conditional application, AmaBhungane contended that, to the extent that the code did not require Cabinet members, deputy members and Members of the Executive Council to disclose donations made to them for their benefit for political party positions, the code was unconstitutional.The High Court granted the president’s application to review the findings in the report, including the finding that he had breached the code by failing to disclose donations to the CR17 campaign.
The High Court, however, dismissed AmaBhungane’s conditional application on technical grounds, and did so without considering the merits.
The public protector, as well as several other parties, sought leave to appeal to the Constitutional Court against the findings of the High Court in the review application.
On appeal, the Constitutional Court dismissed the public protector’s appeal and remitted AmaBhungane’s constitutional challenge to the High Court. The Constitutional Court held that the High Court ought to have considered the constitutional challenge on its merits as it was properly before the High Court.
Upon remittal, the High Court found that the duty to disclose arises when any benefit, including that derived from campaign funding for a member’s internal party-political campaign, was received by the member in his or her personal capacity. Additionally, the High Court understood the Constitutional Court’s judgment in the review application to mean that there will be instances where such finding will not give rise to a duty to disclose. This, in the view of the court, gave rise to a question concerning the constitutionality of the inherent limitations of the code, and thus the condition set by AmaBhungane for its application was satisfied.
The High Court upheld the challenge and proceeded to declare the code unconstitutional and invalid.
AmaBhungane then applied to the Constitutional Court to confirm the order of constitutional invalidity.
In a unanimous judgment penned by Majiedt J, the Constitutional Court held that the purpose of the Ethics Act’s wide-ranging provisions is to ensure that members of the executive do not place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence, which includes the acceptance of undisclosed financial contributions. Central to this objective is the fight against the endemic corruption that pervades our body politic.
The Constitutional Court further held that concomitant with the need to enact legislation to fight corruption, was the need to regulate, by legislative means, the funding of candidates and political parties which was premised on both international and domestic obligations.
The Constitutional Court highlighted that section 19 of the Constitution affords citizens the right to make political choices, including the right to vote in elections. The court held that those rights must be exercised meaningfully and on an informed basis.
However, the ruling could not be made retroactively – a major victory for Ramaphosa, who who did not oppose the application, but was ordered to pay AmaBhungane’s legal costs. The code was suspended for 12 months to allow Ramaphosa to remedy the defect.
Pretoria News