Showdown over party funding in South Africa this week

Democracy advocacy group My Vote Counts (MVC) will once again meet the Presidency, the speaker of the National Assembly’s office and various ministries in the Western Cape High Court on 12 August over an alleged lacuna in political funding legislation.

MVC says that a legislative amendment signed into law in May reverses progress in achieving transparency in South African political party (and independent) funding and has created a “political funding free-for-all.”

“For the past three months, we have been in a period of political party funding lawlessness,” said MVC.

Independent election analyst Michael Atkins recently wrote that “the absence of limits could be one of the greatest democratic scandals unfolding quietly in front of us.”

“Or, it could be much ado about nothing… but we don’t know, which should not happen in our constitutional order,” said Atkins.

Despite concerns voiced by civil society, opposition parties, and a Parliamentary Legal Advisor about its constitutionality, President Cyril Ramaphosa brought the Electoral Matters Amendment Act (EMAA) into operation mere weeks before the elections, which amended the Political Party Funding Act (PPFA).

The PPFA previously set donation thresholds and requirements for parties to declare their external income. These included a R15 million a year limit from a single donor and a R100,000 declaration threshold.

The EMAA, signed into law by the President on 7 May 2024, amended the PPFA to allow independent candidates to run for positions in the National Assembly and provincial legislatures and access the Multi-Party Democracy Fund.

However, it also contained amendments that removed the disclosure thresholds in the PPFA, which can now only be set by the President after a resolution from the National Assembly—a matter that, despite promises, remains unset.

“Before the EMAA was brought into operation, MVC and other civil society organisations warned Parliament and the President that amending the PPFA in this manner – without simultaneously setting the disclosure threshold and the annual limit – would create a gap in the law,” said MVC.

Despite these warnings, the EMAA was signed into law, and for the past 93 days, “donations of any amount could have been made to political parties or independent candidates, and there has been no legal obligation for parties or donors to disclose,” added the group.

Consequently, My Vote Counts, which was instrumental in the PPFA, approached the Western Cape High Court seeking urgent relief to reinstate the previous financial thresholds until new regulations in terms of the EMAA had been passed.

On 17 May, MVC’s urgent application was heard in the Western Cape High Court, and on 27 May, the Court agreed with My Vote Counts that there was a gap in the law concerning political funding declarations.

Despite the court agreeing that a lacuna exists, it did not make an order of constitutional invalidity and took no immediate action to close this gap, saying that at this point, doing so would be usurping legislative authority.

However, The court directed that interested parties return on 12 August 2024 to make final submissions on why the requested relief should not be granted.

If no one objects on the 12th, then political funding limits of R15 million a year and the R100,000 declaration threshold are deemed to have continued throughout this saga, according to the previous ruling by Western Cape High Court Judge Daniel Thulare. 

MVC said that it will argue that “without established financial thresholds, there is an ongoing risk of unregulated and undisclosed funding.”

“The situation necessitates prompt intervention to maintain transparency and accountability in political financing.”

Further, “every day that passes without these measures increases the risk of undisclosed and unlimited donations influencing political activities and compromising the integrity of the democratic process,” added MVC.

In an 8 August explanatory affidavit filed by Parliament’s chief legal adviser Zuraya Adhikarie on behalf of National Assembly Speaker Thoko Didiza, Parliament said it did not oppose the relief sought by MVC.

The court papers list the Presidency, the justice, correctional services, and home affairs ministries, as well as the Speaker of the National Assembly, as respondents.

The Democratic Alliance, which has long sported the lion’s share of declared campaign donations, wants to be admitted to the case. It has submitted an intervention application and is listed as an intervening applicant in the papers.

Read: Big trouble for the NHI