The Constitutional Court on Tuesday ruled that the Executive Code of Ethics was unconstitutional in so far as it does not require Members to disclose donations made to internal party-political election campaigns.
The ruling followed an application brought by the amaBhungane Centre for Investigative Journalism NPC for the confirmation of a high court order of constitutional invalidity in respect of the Executive Code of Ethics.
Confirming the high court’s decision that the Code is unconstitutional in so far as it does not require members of the executive to disclose donations made to internal party-political election campaigns, the apex court found that, in its current form, the Code failed to meet the constitutional standard of transparency.
Commenting on the ruling, the Public Protector South Africa (PPSA) said it welcomed the ruling and said it takes note of the judgment of the Constitutional Court.
The court said: “Placed in context, the purpose of the wide-ranging provisions of the Ethics Act is to ensure that members of the executive do not place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence, which includes the acceptance of undisclosed financial contributions”.
However, the court held that the operation of the order is suspended for 12 months to enable the President to remedy the defect.
The amaBhungane applications to both the high court and the Constitutional Court followed the Public Protector Report 37 of 2019/2020 on an investigation into an alleged violation of the Code through an improper relationship between the President and African Global Operation, formerly known as BOSASA.
The report was released on 19 July 2019. It has since been reviewed and set aside. The enforcement of the Code is the exclusive domain of the Public Protector.
The PPSA said it “welcomes the judgment to the extent that it seeks to bring legal certainty on an important aspect of the Code in so far as it will in future apply to internal party-political campaign funding”.
The PPSA added: “As the Court stated, the funding of candidates and political parties are associated with the risks of members of the executive placing themselves in compromising positions, a situation central to the question of ethical conduct at the highest level, and therefore, the fight against endemic corruption, in line with both international and domestic obligations.
“The President’s imminent review and amendment of the Code presents an opportune moment to reflect on repeated calls for the overhaul of the executive ethics enforcement regime, including the Executive Members’ Ethics Act.”
The PPSA said the review of the Act to provide better guidance regarding integrity, including the avoidance and management of conflict of interest has been on the agenda of Parliament for some time.
Ìt was part of the long overdue implementation of the remedial action taken by the PPSA pursuant to the “State of Capture” report of 2016.
“The Speaker of the National Assembly was reminded of this in a letter dated 24 June 2022,” said the public protector.