ConCourt rules Executive Ethics Code is unconstitutional, unlawful and invalid

The Constitutional Court (ConCourt) has ruled that the Executive Ethics Code is unconstitutional, unlawful and invalid.

Justice Steven Majiedt handed down the judgment on Tuesday.

The highest court in the land on Tuesday upheld a ruling from the Pretoria High court that the Executive Ethics Code is unconstitutional because it does not require members of the executive to disclose donations they receive for internal party political campaigns.

The case will have a bearing on donations to the campaigns of politicians seeking positions in their parties.

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It found “this code falls short of the constitutional and statutory requirements of transparency” and the lack of a requirement of the disclosures of internal party donations severely undermine the Political Party Funding Act.

“In summary – the Code falls short of constitutional and statutory dictates of transparency, accountability and openness. The exclusion from disclosure of donations for internal 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.”

Ramaphosa’s CR17 campaign

The ruling by the ConCourt, however, is not retrospective, meaning donations made to Cyril Ramaphosa‘s “CR17” campaign for the ANC presidency won’t have to be made public.

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’s challenge came after the Executive Ethics Code was found to be unconstitutional as it did not require members of the executive to disclose “donations made to campaigns for their election to positions within political parties”.

The Pretoria High Court, in December 2021, ordered that the Act’s declaration of invalidity “shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be corrected”.

This meant that the source of Ramaphosa’s CR17 campaign would remain undisclosed.

CR17 report

amaBhungane’s case stemmed from Ramaphosa’s successful bid to challenge Public Protector Busisiwe Mkhwebane’s report on the CR17 campaign finances.

The ConCourt in July 2021 dismissed Mkhwebane’s application for leave to appeal.

The Public Protector had approached the ConCourt after her report into the CR17 campaign was set aside in March 2020 by the Pretoria High Court.

She released the report on the CR17 campaign in July 2019.

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