—James Fowkes, University of Münster Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
What a difference a few years can make.
Some months back, I wrote here about the change in the air following the departure of former South African President Jacob Zuma. A recent judgment of the Constitutional Court reflects the change, in one respect perhaps more transparently than some judges may like, but also in a way that might signal some deep stirrings in a dominant party system.
My Vote Counts v Minister of Justice and Constitutional Development is a decision about the right of voters to information about political parties’ sources of funding. The judgment recognizes this right, and gives Parliament 18 months to give legislative effect to it.
But the result itself is far from the judgment’s most interesting feature. This is actually the second time the issue has come to the Court, and it got rather different handling last time.
Back in September 2015, with President Zuma’s corruption rampant but his political position not yet dire, the Court, by 7-4, sent the case away. The main reason was subsidiarity: the litigant had sought to rely directly on the s 32 constitutional right of access to information, instead of proceeding via a statute that gives effect to the s 32 right, the Promotion of Access to Information Act (PAIA). The applicant was told to start again in a lower court.
This argument was always running into trouble. PAIA was never intended to be a way to make general information about party donations continuously available to the public at large. In lots of ways it just doesn’t fit; it is for other important things. So this was a case of a legislative omission, a failure to give effect to the s 32 right that wasn’t really about any defect in PAIA itself (which is why the litigant had not challenged PAIA constitutionality). But seven judges nevertheless invoked subsidiarity and sent the 2015 case away.
Without insider information, which I do not have, one can never be sure of the more strategic explanations for judgments. But the 2015 My Vote Counts decision, at least to this observer, always made most sense as an exercise in avoidance. It was not only that Zuma’s corruption scandals made disclosing funders sensitive in relation to the ANC. Most opposition parties were also cautious of disclosure rules, concerned that this would expose their donors to retribution from the dominant ruling party. And the case was about an NGO asking the Court to order Parliament to legislate in quite a specific way, a delicate issue for the separation of powers at the best of times, which these were not.
What a difference a few years can make.
Last month, the matter returned to the Court, duly revised. And now the unanimous Court not only more or less re-wrote the 2015 minority judgment in upholding the substance of the claim, but even conceded at one point that Parliament could give effect to its s 32 access to information obligation by some other legislative means than changing PAIA. With that, the game is rather up: if not a word of PAIA has to be changed, it is tricky to argue with a straight face that the litigant was so strictly obliged to challenge PAIA rather than relying on the s 32 right directly that the whole case had to be thrown out back in 2015.
But I suspect that what has changed is more than just a politically tricky time.
Back in 2005, when the issue first squarely arose in litigation in South Africa, all major political parties, with one small exception, were opposed to disclosure rules. When My Vote Counts took up the issue, enquiries to the Speaker of Parliament produced evasion, and the Court’s response to the 2015 litigation was not perhaps so very different.
Jump to 2018. No political party appeared to argue in the Constitutional Court. The only resistance came from the responsible Minister, and that only on the basis that an order from the Court would interfere with the legislation on the issue that Parliament is already preparing. (Nor is this a mere sop: the bill in question passed in the National Assembly on 27 March 2018 and has gone on to the second, federal chamber). And the Court itself, through the pen of the Chief Justice, is confident and sweeping, apparently unafraid of dominant party government reprisals against opposition donors, which goes entirely unmentioned.
What changed? Simple: everyone in South Africa is now sicker of corruption than they are worried about anything else. The opening paragraphs of the Court’s decision are about how transparency can help everyone – voters, rival politicians, journalists, academics – expose corruption and fight against dictation by those who use money for influence. Everyone knows which former President and his informal colleagues are not being mentioned by name here, and no party, at this time and on this issue, would dare to risk any association.
And perhaps one thing more has changed.
My Vote Counts does not come at a time when everyone in South Africa expects the ANC to be beaten in next year’s elections. Indeed, in the wake of the ANC’s carefully timed substitution of President Ramaphosa, most would see that as a surprise. But perhaps everyone accepts that the ANC is now beatable, because the ANC under Zuma really was – and a dominant party is not one that is merely, at the moment, the most likely to win.
It is for this reason that we might just look back on this judgment, years from now, and see it as a first sign of the court re-positioning its feet. Where before the ANC was never just one of the parties, I now sense a more equal attitude. Whether that equality will prove to be multi-party pluralism, or an equality of corruption in which elections become fights over control of patronage, or something else, remains to be seen. But up or down, it is the sense of levelling that is most striking. The Court has never been one to make arguments openly based on dominant party democracy, to the regret of some of its critics. But that context was never far away. In this judgment, it seems to be.
Suggested citation: James Fowkes, Dominant assumptions: Reading Between the Lines of a New South African Party Funding Decision, Int’l J. Const. L. Blog, Jul. 26, 2018, at: http://www.iconnectblog.com/2018/07/dominant-assumptions-reading-between-the-lines-of-a-new-south-african-party-funding-decision-i-connect-column/
 James Fowkes ‘Zuma’s South Africa: A Constitutional Post-Mortem’ 28 March 2018, http://www.iconnectblog.com/2018/03/zumas-south-africa-a-constitutional-post-mortem-i-connect-column/
 My Vote Counts NPC v Minister of Justice and Correctional Services  ZACC 17 (21 June 2018).
 My Vote Counts NPC v Speaker of the National Assembly  ZACC 31 (30 September 2015).
 As explained by the four dissenting judges: see My Vote Counts (2015), paras 44-93.
 Something that also plays a role in the majority’s decision in the 2015 decision, though it is only briefly commented on: see My Vote Counts (2015), paras 122, 154-59.
 The tangle is especially visible in the attempts to frame with argument as one of PAIA’s invalidity, including in the order – My Vote Counts (2018), paras 68, 76, 85-86, 91 – while simultaneously acknowledging that there is no constitutional problem with the provisions of PAIA per se – Id., para 85-86 – and that Parliament could fulfil its constitutional obligations by legislative changes entirely outside PAIA – Id., para 17.
 Institute for Democracy in South Africa (IDASA) v African National Congress  ZAWHC 30 (20 April 2005). The exception was the African Christian Democratic Party, which has won between 0.45% and 1.6% of the national vote since 1994, and held its peak of seven parliamentary seats (of 400) at the time.
 The parliamentary background is set out by the 2015 minority; see My Vote Counts (2015), paras 9-18.
 Political Party Funding Bill [B33-2017); for its current position see Report of the Ad hoc Committee on the Funding of Political Parties on the Political Party Funding Bill [B33-2017] (National Assembly – Section 75), dated 26 June 2018, available at https://pmg.org.za/tabled-committee-report/3421/.