My Vote Counts NPC v Speaker of the National Assembly and Others

My Vote Counts NPC (the applicant) applied to the Constitutional Court under section 167(4)(e) or alternatively for direct access, alleging that Parliament failed to fulfil its constitutional obligation under section 32(2) to enact legislation giving effect to the right of access to information about the private funding of political parties. The applicant argued this information is required for the exercise of the right to vote under section 19(3). Parliament had enacted the Promotion of Access to Information Act (PAIA) in 2000 in compliance with section 32(2). The applicant contended PAIA was insufficient because it does not require political parties to disclose private funding systematically and proactively. Parliament argued PAIA fully satisfied section 32(2) and that the principle of constitutional subsidiarity required the applicant to challenge PAIA's constitutional validity in the High Court, not seek direct recourse to the Constitution. The applicant denied challenging PAIA's validity, asserting it merely sought additional legislation beyond PAIA.

• Does this Court have exclusive jurisdiction under section 167(4)(e) to determine whether Parliament failed to fulfil a constitutional obligation?
• Does information about private funding of political parties constitute information reasonably required for the exercise of the right to vote under section 19(3)?
• Is PAIA the legislation envisaged by section 32(2) of the Constitution?
• Does the principle of constitutional subsidiarity apply to require the applicant to challenge PAIA's validity in the High Court rather than seek an order that Parliament failed to fulfil its constitutional obligation?
• Has Parliament fulfilled its constitutional obligation under section 32(2) by enacting PAIA?
• Does PAIA adequately provide access to information about political parties' private funding?

The application was dismissed.

Where Parliament has enacted legislation (PAIA) expressly to give effect to the constitutional right of access to information under section 32, the principle of constitutional subsidiarity applies. A litigant who contends that such legislation is deficient in protecting the constitutional right is in substance challenging the legislation's constitutional validity, even if not seeking a formal declaration of invalidity. Such a challenge must be brought in the ordinary way under section 172(2)(a) in the High Court, subject to confirmation by the Constitutional Court. A litigant may not circumvent this requirement by framing the claim as an allegation that Parliament has failed to fulfil its constitutional obligation under section 167(4)(e). To allow otherwise would defeat the purpose of section 172's procedural safeguards, violate the separation of powers by prescribing to Parliament how to legislate, and risk inconsistent findings on whether legislation is constitutionally compliant.

The minority judgment observed that: political parties occupy a unique constitutional position as 'indispensable conduits' for democratic functioning under South Africa's proportional representation system; the right to vote under section 19(3) is not merely formal but encompasses the right to vote in an informed manner; information about political parties' private funding is reasonably required for the exercise of the right to vote because it reveals the interests to which parties are likely responsive; PAIA's mechanisms (reactive, pairwise, confined to recorded information, creating no proactive preservation or disclosure duties) are inherently unsuited to ensuring voters have systematic access to information about party funding; PAIA's definitions of 'public body' and 'private body' leave political parties in a gap, as they are neither clearly public nor private entities; and Parliament may fulfil its section 32(2) obligation through multiple pieces of legislation, not just PAIA alone. The majority noted that even if PAIA has shortcomings, this does not mean it is not the legislation envisaged by section 32(2). The majority also observed that the applicant's complaint about the manner in which Parliament legislated (requiring systematic rather than on-request disclosure) amounts to prescribing to Parliament how to legislate, which violates separation of powers absent an irrationality challenge.

This case is significant for clarifying the scope of the Constitutional Court's exclusive jurisdiction under section 167(4)(e), the application of the principle of constitutional subsidiarity, and the interplay between sections 167(4)(e) and 172 in constitutional litigation. It distinguishes between challenges to Parliament's failure to fulfil a constitutional obligation and challenges to the constitutional validity of legislation. The case has important implications for access to information about political party funding in South Africa and for the procedural requirements litigants must follow when asserting that legislation giving effect to a constitutional right is deficient. The Court's analysis of the separation of powers and deference to Parliament's legislative choices is also significant. The case demonstrates tension between form and substance in constitutional litigation and the boundaries of the Court's supervisory jurisdiction over Parliament.