The Constitutional Court is on Tuesday set to rule on the need for disclosure of funding for internal political party campaigns in a case that goes to the heart of money and politics in SA.
The case, brought by investigative journalism unit amaBhungane, arose from litigation concerning Public Protector Busisiwe Mkhwebane’s report into a donation to Cyril Ramaphosa’s presidential campaign in 2017. Oral arguments were heard in May.
amaBhungane is seeking confirmation of a high court judgment that declared the Executive Ethics Code unconstitutional insofar as it does not require cabinet members, deputy ministers and MECs to disclose donations for their benefit in political parties’ internal contests.
If the Constitutional Court upholds the ruling it would apply only to those in parliament subject to the Executive Ethics Code. Those with political ambitions who aren’t public representatives could avoid the rule, unless parties choose to amend their constitutions in line with the code.
Political analyst Ralph Mathekga, author of The ANC's Last Decade, believes “senior ANC leaders will be concerned about this judgment, because it might take transparency right inside party campaigns, something that is missing.
“This is unfamiliar territory for ANC leaders who have become accustomed to surviving in an unregulated environment,” Mathekga said.
Political analyst Mike Law agrees. “There can be little doubt that internal elections can be every bit as consequential to the public as general elections, particularly those of the ruling party, but also other parties in provincial and local government,” he said.
Mkhwebane’s report analysed the 2018 answer in Ramaphosa's parliament about R500,000 that the late Gavin Watson, Bosasa’s CEO, donated to his CR17 campaign. Watson also backed the campaign of Ramaphosa’s main rival, Nkosazana Dlamini-Zuma.
In the report, since reviewed and set aside, Mkhwebane found Ramaphosa wilfully misled parliament, and directed the prosecuting authority to investigate him. The Constitutional Court nullified the report, however, finding Ramaphosa had not wilfully misled parliament and Mkhwebane was not legally entitled to investigate money laundering claims.
Last month, an inquiry into Mkhwebane’s fitness to hold office heard testimony that she assigned the probe to anonymous outside investigators. Former COO Basani Baloyi testified she was withdrawn from the investigation after flagging concerns. Baloyi said the office’s chief of staff predicted Mkhwebane would “emerge as a powerful woman in the country” after dealing with the CR17 Bosasa matter.
Whereas litigation brought by Ramaphosa challenged Mkhwebane’s application of different formulations of the Executive Ethic Code in connection with his answer in parliament, amaBhungane has tackled the policy more broadly.
Should SA’s top court find in amaBhungane’s favour, the ruling is likely to send ripples through political circles across party lines. Still, any anxieties in the ANC over possibly having to disclose financing for leadership bids at the party’s elective conference in December would be misplaced as changes to the code could take as long as a year and would not be retrospective.
“We asked them to give the president 12 months to change the code to bring it in line with what we say should be covered, which is what should be disclosed by members of the executive when their campaigns receive millions of millions of rand as we saw in the last ANC election,” amaBhungane executive director Sam Sole explained in an interview with Newzroom Afrika.
Mathekga believes the decision also could enhance electoral reform and transparency. “It’s a significant judgment whichever way it goes,” he said.
Law, who is also a legal strategist, said the decision would “clarify a gap that has long existed in SA’s democratic framework”, adding “the issue of funding of internal political party elections is the natural next step to ensure a fully transparent, accountable and modern system.”
He cited the Political Party Funding Act, effective April 2021, which mandates parties’ disclosure of R100,000 or more in cash or in kind on a quarterly basis. Only two political parties disclosed donations in the last quarter of the 2021/22 financial year.
The ANC declared one donation of R10m from United Manganese of Kalahari (UMK). UMK’s board chair, Mogopodi Mokoena, is also MD of Chancellor House, the ANC's investment vehicle. The DA declared various donations totalling R1.7m, mostly from the Friedrich Naumann Foundation with R120,000 from PolyOak Packaging.
“These are long-term battles. We are seeing the huge impact that the disclosure of party funding has started to have on our politics,” noted Sole.
ANC spokesperson Pule Mabe hadn’t responded to requests for comment at the time of publication.
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