Implications and who the ruling will impact on

• What is the Executive Members Ethics Act and what is it supposed to achieve?

The executive ethics code is promulgated by the president to regulate the conduct of members of the national and provincial executive in performing their official duties. The code is passed in terms of the Executive Members Ethics Act of 1998 and sets out the ethical rules and standards all members of the executive must meet, including the obligation to always act honestly and in good faith, and not to expose themselves to any situation which has the risk of a conflict of personal or private interests. The requirement for executive members to disclose their private property, gifts and assets is in line with those ethical rules and clause 6.4 of the code.

• Who is affected by this code?

The code affects all members of the executive arm of government at the national and provincial level. That is, cabinet ministers, deputy ministers and MECs (members of the executive council at provincial level).

• When does the ruling go into effect?

The Constitutional Court’s yesterday ruling confirmed an earlier ruling by the North Gauteng High Court that the code is constitutionally invalid insofar as it doesn’t obligate executive members to disclose donations made to them for internal political party campaigns. However, the declaration of constitutional invalidity is suspended for 12 months from September 20 2022 for the president to draft a new code. That means the ruling goes into effect from September 21 2023.

• Who will be impacted by this decision?

The ruling primarily affects current and future members of the executive, who will have an additional responsibility to now disclose donations made to their internal campaigns for party positions. Importantly, the ruling has wider implications for our democracy and electoral system as we will have further insight into who is putting money into SA’s politics. Hopefully, this ruling eliminates a loophole that may easily be the gateway to corruption and state capture.

• Will a person who enjoyed a donation before they were a member of the executive be required to disclose that benefit and name of the beneficiary after they are appointed to the executive?

The Constitutional Court was clear that the ruling does not apply retrospectively. That means that only donations made after a new code is promulgated by September 21 2023 will need to be disclosed. Because the code applies to members serving on the executive, and not those who aspire to serve in those positions, it would seem that a person who enjoyed a donation prior to serving in the executive need not disclose. However, the president may clarify this in the new code drafted in compliance with the ConCourt ruling.

• Whose responsibility is it to ensure that the law is enacted?

The president has the responsibility to ensure that a new code is enacted by September 21 2023.

• Does it have implications for political parties that are not in government?

The code places legal obligations on members of the executive individually and not necessarily on political parties. But it is not hard to imagine that it will have an indirect impact on political parties, as the ruling forms part of the broad architecture of laws that require disclosure and transparency in political funding. Political parties in and out of government are specifically required to disclose their funding in terms of the Political Party Funding Act of 2018.

• Does the law apply to other tiers of government like local and provincial governments?

The code only applies to the national and provincial spheres of government. For local government, there is a code of conduct for councillors, which is enacted in terms of the Municipal Structures Act of 2000.

• What happens if there is still no new law in place at the end of the period prescribed by the ConCourt?

If the president fails to enact a new code by September 21 2023 then he will be in contempt of the Constitutional Court order and may be liable, on conviction, to a fine or imprisonment or both.

• What do you think is likely to be misunderstood about the ruling and how would you clarify this misunderstanding.

Most people would likely misunderstand this ruling to be an insignificant victory as it will not necessarily apply to internal party contests in the short term (like the ANC’s electoral conference in December) but it has huge implications for similar contests going forward. It’s likely to remove the incentive for dark money to enter our politics.

•  Benjamin is a researcher at the Democratic Governance and Rights Unit at the UCT Law Faculty