Johannesburg – The Constitutional Court has declared that the Executive Ethics Code is unconstitutional and invalid as it leaves no room for transparency, accountability and openness.
In a media summary, the court said: “The exclusion from disclosure of donations for internal political-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 added: “My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17; 2018 (5) SA 380 (CC); 2018 (8) BCLR 893 (CC) plainly established the constitutional standard of transparency, and the code, in its current form, failed to meet that standard.
“In light of this, the court concluded that the partial disclosure obligation imposed by the court’s review judgment was insufficient to meet the relevant constitutional and statutory obligations.
“This was so because the partial disclosure allowed ministers and MECs to avoid having to make disclosures by structuring their campaign funding so as to place it outside the scope of the ‘personal benefit’ requirement outlined by the court in the review judgment.“
The matter is in relation to a case that dates back to 2020, when the Pretoria High Court set aside Public Protector Busisiwe Mkhwebane’s CR17 report where she had found President Cyril Ramaphosa to have been in breach of the Executive Ethics Code by not disclosing a donation of R500 000 towards his 2017 campaign for the ANC’s top spot.
The report was set aside as the High Court found that the code did not require that the president disclose the donation as it did not benefit him personally.
Parallel to that, the amaBhungane Centre for Investigative Journalism headed to the High Court regarding the Executive Ethics Code published under Proclamation No. R41 of 2000 (the Code) which was then ruled to be unconstitutional.
amaBhungane extended its application to the Constitutional Court after the High Court had ruled the code to be unconstitutional, in order for the Concourt to confirm that the Executive Ethics Code was indeed unconstitutional and to further call for the president to apply the necessary changes to this code within the period of 12 months.
“The Court confirmed the order of the High Court declaring the code unconstitutional and invalid. It suspended the declaration of invalidity for a period of 12 months in order to enable the president to remedy the defect,” according to the judgment papers.
The president, who was not opposed to the application, has also been ordered to pay amaBhungane’s costs in the Constitutional Court, which included the costs of two counsels.
IOL