Johannesburg – In a badly written and poorly argued judgment, judge Cassim Sardiwalla dismissed the case of the EFF to unseal the records of the CR17 campaign, which brought President Cyril Ramaphosa to the top leadership of the ANC.
I have no interest in defending or arguing against the order of the judgment.
The judge dismissed “the application by the applicant to have the directive by Ledwaba DJP in the review application under case number 55578/2019 made on August 15 2019 to seal the FIC record, uplifted”.
The EFF was also ordered to pay costs, which suggests that, not only was the judicial officer unconvinced by the applicant’s arguments, he also didn’t think there was a compelling reason not to award costs.
In all cases, but particularly so in cases that are closely observed by the public, it is important for judgments to be well-reasoned and clearly explained.
This judgment does neither. And, sure, it might be possible to arrive at the same order and conclusions but do so more cogently and explaining one’s legal reasoning better. This judgment isn’t that.
The relevant cluster of constitutional rights at issue in this case is our political rights in section 19 of the constitution.
The judgment spends two quick, vague paragraphs – 14 and 15 – analysing why the EFF case supposedly does not demonstrate how section 19 is violated by the sealing of the CR17 campaign records.
But this is where the poor reasoning jumps out. Sardiwalla ends the “analysis” with a rhetorical question that cries out for proper engagement: “Does [the right to make political decisions] include knowing the private sources of rival political parties’ funding?”
He leaves his poorly framed question hanging as if it is a well-formulated question with an obvious answer.
There is not even an attempt here at proper hermeneutics. Here are more precise further problems.
First, although the applicant is the EFF, once the judge has – correctly – cited section 19 as the key section of the constitution to test for against the facts before him, he must be faithful to the text when he does textual analysis.
Every clause in section 19 refers to “every citizen” and not “every political party”, so the nexus question is whether every citizen, rather than “rival political parties”, can meaningfully exercise their political rights without access to the CR17 campaign records.
The answer might still be “no, you can as a citizen enjoy your political rights without this information”, but there is nothing in the judgment that gets us that far.
That is the sense in which the judgment falls short of being a well-reasoned piece of legal adjudication.
Second, the judgment recognises the general importance of a free flow of information as a requirement for political rights to be exercised.
This, in a sense, is why civil society is vigilant about lids being placed on information that citizens must have access to. Transparency is not to be taken lightly.
It is crucial to an open democracy. And this is constitutionally enshrined.
Which brings me to another example of the judgment’s disappointment. In paragraph 26, Sardiwalla argues that he is “unable to identify any right on behalf of the applicant or the interest of justice that warrant disclosure”. Okay, I am being too kind.
This is an assertion without any reasoning to explain how he arrived at it. A mere two sentences later, we have the order.
This is lazy.
There are many obvious “interest of justice” considerations that needed to be puzzled through, most obviously the constitutional imperative, raised before the court, to entrench openness because of the centrality of an open society to a flourishing democracy.
Again, you might end up, on a balance of rights, still dismissing the EFF’s case but you can surely only do so after a far more careful consideration of the patently obvious justice, and societal, considerations.
A large portion of SA’s problems are due to the influence of money on our politics.
This judgment should be appealed so that we can have another judicial look at whether an overriding democratic interest, that of entrenching openness as a default norm, was adequately puzzled through.
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