The funding of political parties is notorious as being a noxious source of influence, for bad people, and bad policy that cannot stand on its own merits. When elections come around, jamborees and posters try to sway the electorate one way or the other, and the amount of cash thrown at voters in this way makes a difference. Of course, political power is also a source of money, and the stakes are high. Political parties don’t much like transparency around their funding; most of them in South Africa have rejected such legislation in the past or tap danced around it. Without majority party political support, it’s not going to be passed. Smaller parties have endorsed the idea, or made their own funding records available, but in particular the official opposition has argued that too general a transparency around donations to them will jeopardise their donors, or their businesses, and that their donors give under conditions of confidentiality.

In the excitement about the State of the Nation address this week, you might overlook the Constitutional court hearing a case on Tuesday which will ventilate the question of whether there should be a law which makes the private funding of political parties transparent, and if so, who is responsible for the fact that there isn’t one.

The NGO My Vote Counts has embarked on litigation to get the courts to direct that Parliament fix this gap. They will argue that there is a section in the Constitution which gives us access to information, and tells Parliament to pass a law giving effect to that. They will say Parliament hasn’t completely done so, because the Promotion of Access to Information Act was found not to allow access to party funding records in a case brought by IDASA against the big five political parties at the time. Parliament will say they did too pass a law, which was exactly the Promotion of Access to Information Act, and that it’s not their fault the judge got the law wrong, and didn’t allow IDASA access to the records. So is there a law that properly enacts section 32, or isn’t there?

Which way the court goes will be fascinating, and worth some attention. Eminent silks will argue both sides. But the case is not important only because the question of party funding is so central in a democracy. Its also because it shows a trend towards what Judge Kollapen called last year in a meeting of public interest lawyers, the politicisation of the judiciary, and the judicialisation of politics. I apply the label to this case myself – he did not refer to it as such – and I would argue it applies to a number of other cases making their way through the courts.

The question is essentially what you do when you can’t get a solution to a problem via the politics of the day, and you have to rely on the courts to do the work for you. Nature abhors a vacuum – and into a policy vacuum something will come to try and upset the logjam, and the courts are particularly powerful at breaking logjams. So lawyers and activists look to the courts for solutions, and bring cases that they think will provide solutions to difficult problems. But solving difficult problems is what politicians are elected to do. As Mr Piketty concludes in his book, Capital in the Twenty-First Century, issues like tax rates are decided by the democratic process precisely because the ‘right’ answers are so highly contested. So politicians try to keep the political issues in their domain, and the judges try to keep the judicial issues in their domain. But where the one bleeds into the other, what ends up happening is that people look for answers to hard questions to judges. Which then starts an entire cascade effect, which starts to require interrogation of the politics of judges.

Politicians in the Judicial Services Commission hearings repeatedly ask potential judges about their attitude to the “separation of powers”. This is basically code for saying “Will you keep your nose out of politics?” Judges usually try and say that they will judge by the law, and that they will adhere to the Constitution. But of course, the Constitution gets you into all sorts of places where the idea of a line between judicial decisions and political decisions starts to collapse. Politicians know that, and they try to get judicial prospects to give them a hint as to how they will venture into the transformative project of the Constitution. Mostly candidates say they will, but under very strictly defined circumstances, which is what the courts say in their judgments as well.

In this party funding case the politics are right up front, and the court is being asked to do what the majority party won’t, and order that legislation dealing with the regulation of party funding be passed. The order would be granted against the Speaker. We don’t know what the substance of the law would be. There are a lot of issues to sort out, including the fears of minority parties around disclosure and their funding, which experts do give some credence to. The question of probably unlawful donations to parties by local and provincial governments would have to be dealt with, and the generous funding of parties by the National Assembly for ‘constituency’ work would have to be scrutinised. The abuse of government money and staff to canvass for political parties, and the rather shaky divide between party and state in canvassing before elections would also be a good thing to consider.

The court, made up of an unusual number of acting judges, will get to figure out how to set this all to rights. What they don’t get is to not make any decision, which is both really good and really problematic. The good bit is that the party funding issue will get more of the bandwidth of politicians battling on many fronts. The bad bit is that citizens are having to ask courts to make politicians to do their job, and Parliament in particular, which is exactly the risky business of the judicialisation of politics, and the politicisation of the judiciary. DM

Alison Tilley is the head of advocacy at the Open Democracy Advice Centre, and in the interests of transparency, discloses that she was an attorney for IDASA in the case referred to above.