AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa

AmaBhungane Centre for Investigative Journalism NPC applied to intervene in review proceedings brought by the President against the Public Protector. The Public Protector had found that the President breached the Executive Ethics Code by failing to disclose donations made to the CR17 campaign for his election as President of the ANC. AmaBhungane brought a conditional counter-application challenging the constitutionality of the Executive Ethics Code (the Code) to the extent that it did not require disclosure of donations made to campaigns for positions within political parties. The High Court granted the President's review but dismissed amaBhungane's constitutional challenge on procedural grounds. On appeal, the Constitutional Court remitted the constitutional challenge to the High Court for determination on the merits. The Full Court (Gauteng Division) found the Code unconstitutional and invalid insofar as it did not require disclosure of donations to internal party-political campaigns, suspending the order for 12 months. The matter came before the Constitutional Court for confirmation of the declaration of invalidity. The President filed a notice to abide the proceedings, and the Johannesburg Society of Advocates was appointed as amicus curiae to assist the Court.

• Whether the Executive Ethics Code is constitutionally compliant insofar as it does not require disclosure of all donations made to campaigns for positions within political parties
• Whether the Code is consistent with the Executive Members' Ethics Act 82 of 1998, particularly section 2(2)(c)
• The interpretation of 'any financial interest' in section 2(2)(c) of the Ethics Act
• Whether the partial disclosure obligation under the Code (requiring disclosure only of donations that constitute personal benefits) meets constitutional obligations of transparency, accountability and openness
• Whether the Code undermines constitutional rights in sections 1(d), 7(2), 19, 32, 96 and 195 of the Constitution

1. The order of the High Court of South Africa, Gauteng Division, Pretoria, declaring the Executive Ethics Code published under Proclamation No. R41 of 2000 to be inconsistent with the Constitution and invalid to the extent that it does not require disclosure of donations made to campaigns for positions within political parties, is confirmed. 2. The operation of the order is suspended for a period of 12 months to enable the respondent to remedy the defect. 3. The respondent must pay the applicant's costs, including costs of two counsel, in this Court.

The binding legal principle is that the Executive Ethics Code must require disclosure of all donations made to campaigns for positions within political parties, not merely those that constitute personal benefits to the member of the executive. The term 'any financial interest' in section 2(2)(c)(ii) of the Executive Members' Ethics Act 82 of 1998 must be interpreted broadly, consistently with sections 1(d), 7(2), 19, 32, 96 and 195 of the Constitution, to include all campaign donations. When an office holder accepts the benefit of a campaign to raise funds for their candidacy—even when conducted through a separate entity over which they exercise no control and receive no direct financial benefit—this constitutes a financial interest that must be disclosed. A partial disclosure obligation that permits members of the executive to avoid disclosure by structuring campaign funding arrangements is inconsistent with constitutional imperatives of transparency, accountability and openness, and fails to adequately guard against corruption.

The Court noted but did not decide the exceptional, borderline case of whether third parties who raised money to promote a candidate without donating to the candidate or the candidate's campaign, and without the candidate's knowledge or blessing, could give rise to a disclosable financial interest. The Court also chose not to address amaBhungane's arguments about vagueness in the Code, or the amicus curiae's arguments about subsidiarity, separation of powers, and whether the Political Party Funding Act would be a more appropriate vehicle for regulation. These issues were rendered unnecessary by the Court's conclusion on the main constitutional question. The Court emphasized that in the fight against corruption, 'it is the connection between the source and the beneficiary that matters and the optics are just as important'—suggesting that the appearance of propriety is constitutionally significant, not merely actual impropriety.

This judgment establishes a comprehensive disclosure obligation for members of the executive regarding donations to internal party-political campaigns. It clarifies that the constitutional imperatives of transparency, accountability and openness require disclosure of all campaign donations, not merely those that constitute personal benefits. The judgment strengthens South Africa's anti-corruption framework by closing a significant loophole that allowed members of the executive to avoid disclosure by structuring campaign funding through separate entities. It affirms the centrality of access to information to the meaningful exercise of political rights, building on the principles established in My Vote Counts II. The judgment also demonstrates the Court's willingness to interpret legislation purposively and broadly to give effect to constitutional values, particularly in the context of combating corruption. It reinforces South Africa's international obligations under conventions against corruption and clarifies the relationship between the Executive Members' Ethics Act and the Executive Ethics Code.