Blow to ‘secret’ political funding in South Africa
The Western Cape High Court has handed democracy advocacy group My Vote Counts (MVC) a substantial legal victory in their case against the Presidency, the speaker of the National Assembly’s office and various ministries over a lacuna in political funding legislation.
The Court addressed a legal gap concerning the removal of political donation disclosure thresholds and upper limits for political funding, which stemmed from the Electoral Matters Amendment Act (EMAA).
The court reinstated the repealed provisions of the Political Party Funding Act (PPFA), which set a R15 million annual donation limit of a single entity to a political party within a financial year and the R100,000 disclosure threshold.
“This is a victory for transparency and accountability,” said MVC.
“While it does not advance our party funding laws, it reinstates the two key limits in the PPFA that, since their removal, had rendered the law virtually meaningless and, on a practical and constitutional level, created a dangerous gap in our legislative framework,” added the group.
The history of the legal standoff traces back to the drafting and signing of the EMAA.
Despite concerns voiced by civil society, opposition parties, and a Parliamentary Legal Advisor about its constitutionality, President Cyril Ramaphosa implemented the EMAA weeks before the elections, which amended the PPFA.
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.
The PPFA previously set donation thresholds and requirements for parties to declare their external income, which included a R15 million a year limit from a single donor and a R100,000 declaration threshold.
However, the EMAA contained amendments that removed the disclosure thresholds in the PPFA, which could only be set by the President after a resolution from the National Assembly—a matter that, despite promises, remained unset.
When this happened, MVC took the President, Speaker of the National Assembly, and the Ministers of Home Affairs and Justice and Correctional Services (before it was split up) to court to immediately fill this lacuna.
The Court delivered its first judgment on 27 May, making a prima facie finding that there was indeed a lacuna in the law. However, it did not grant the immediate relief sought by MVC, on the basis that it would have been overstepping its powers.
It ruled that on the return date of 12 August, parties should show cause why the relief MVC sought should not be granted.
On 12 August, after initially opposing an application, the President and the Minister of Home Affairs withdrew their opposition, leaving the Democratic Alliance (DA), who continuously sports the lion’s share of declared donations, as the sole opponent.
The DA’s attempt to intervene was rejected.
In the final judgment on 16 August, the Court found that the introduction of the EMAA on 8 May 2024 created a legal gap regarding donation limits and disclosure, a situation that violated the rule of law.
The handing down of the order by the Court immediately reinstated the donation limit at R15 million and the disclosure threshold at R100,000.
The respondents said that they would abide by the decision of the Court.
“While this simply puts things back in the place where they were before 8 May, it is significant because without [our] intervention, parties and independent candidates could have continued to take donations, of any amount, and have no need to disclose them,” said MVC.
Parliamentary legal adviser Telana Halley-Starkey told the Home Affairs committee that the Electoral Commission (IEC) would have to decide how to deal with the disclosure and receipt of donations made in the period between the day the act became operational on May 8 and the decision of the court.
Independent elections and political analyst, Michael Atkins wrote that “the three-month ‘gap’ in the donations limits and reporting threshold is a stain on our democracy that is receiving almost no comment or concern.”
“A challenge to political parties: Will you declare all donations received between May 8 and August 16 as though the law had been in place?” he added.
MVC said that while they are pleased with the judgement, they believe that a lot more needs to be done to deepen transparency and accountability in the private funding of politics.
“This is why, in a separate process that began in 2023, we filed papers challenging the constitutionality of several aspects of the PPFA.”
“We argue that the law in its current form does not go far enough to promote the right of access to information and the exercise of political rights from an informed position [and] that the annual donation cap should be reduced, and that all donations should be disclosed.“
MVC is also seeking retrospective relief for the period of the lacuna that has just come to an end to ensure “that there is no secrecy in the funding of our politics.”
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