Litigation looms after ANC’s ‘unconstitutional money grab’ by passing electoral bill

The Constitution requires the funds to be disbursed proportionally and equitably.

Initially, the funds were allocated with a 90% proportional and 10% equitable split – meaning 10% of the funds were divided equally among all represented parties and the remaining 90% proportionally according to the party’s representation.

The Political Party Funding Act (PPFA), adopted in 2018, changed this formula to a two-thirds proportional and one-third equitable split.

For reasons neither Motsoaledi nor the ANC could explain beyond the disputed claim it is “the only way in which proportional and equitable allocation can be achieved”, the Electoral Matters Amendment Bill brought the 90/10 split back.

This favours the ANC as the largest party.

And it got all opposition parties, bar the EFF and NFP, extremely hot under the collar.

DA MP Adrian Roos started his speech with a quote from American writer John Steinbeck: “Power does not corrupt. Fear corrupts… perhaps the fear of a loss of power”.

He described the bill as a “crude attempt at directing more public and donor funds into the coffers of the ANC to help them to cling to power”.

“The unbridled greed of the ANC has led to increased poverty and inequality in South Africa for the benefit of a few connected cadres,” Roos said.

READ | It’s an election year, so government cuts IEC budget, but finds R200m for parties

IFP MP Liezl van der Merwe added the bill should only contain consequential amendments.

“However, in an act of political expediency, the ruling party took this opportunity to effect massive changes to our political system.

“Going into this election knowing for the first time in 30 years it’s set to lose its grip on power, the ruling party strayed far beyond the scope of what was necessary and expected of us during this process,” said Van der Merwe.

She added:

In what can only be described as an unconstitutional money grab by the ruling party, they are today nullifying the levelling of the playing fields.

Van der Merwe said the bill was unconstitutional and a threat to democracy that would hurt opposition parties, and if the ANC forced it through Parliament, “many will be forced to defend our democracy in court”.

FF Plus chief whip Corné Mulder agreed the ANC was using the guise of independents to go back to a formula that served the ANC, and that would be challenged in court.

He said:

And the irresponsible thing is you are putting the whole election in jeopardy because it is in the same bill.

Mulder added they risked the court determining there should be a 50/50 split.

ACDP MP Steve Swart said the bill “is a cynical and greedy move that is unnecessary and flies directly in the face of the previous Parliament” that spent many months to reach the 66/33 split when it passed the PPFA.

“Why the sudden backtracking now? It is purely unbridled greed – an estimated R50 million extra to the ANC. This the ACDP will never accept.”

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UDM MP Nqabayomzi Kwankwa said the ANC was attempting a “smash and grab” on the funds allocated to parties.

He added the 90/10 split would only benefit the larger parties, while the current funding enabled smaller parties to discharge their constitutional mandate.

Kwankwa said:

We want to make it clear to you, colleagues, this matter is going to go to court. We are going to challenge it, and you run the risk of not being able to get any resources before the elections or any funding, for that matter.

GOOD MP Brett Herron added the bill was a “thinly veiled response by the ruling party” to the impact of new parties.

“It is intended to defund opposition parties, and it must be resisted,” he said.

PAC leader Mzwanele Nyhontso merely stated his party also rejected the bill and would head to court.

The EFF and NFP, however, expressed their support for the bill.

Present in the House and participating in the debate, despite not being on the Portfolio Committee on Home Affairs that processed the bill, EFF MP Naledi Chirwa did not speak much about the provisions of the bill but railed against new parties, particularly those funded by the Oppenheimer family.

“The IEC should be able to audit their [new parties’] books and check if their funding doesn’t come from illegitimate sources and criminal activities,” said Chirwa, whose party’s registration fee to participate in the 2014 elections was paid by confessed tobacco smuggler Adriano Mazzotti.

NFP MP Munzoor Shaik-Emam, who often votes with the ANC, said the bill had some good aspects.

READ | Motsoaledi defends presidential power grab to set party donation limits in new bill

The ANC was dismissive of the opposition’s arguments and accusations that it unnecessarily amended the law in service of its own bank balance.

ANC MP Moleboheng Modise said the bill had nothing to do with “benefitting the ANC”.

“We want to refute the notion that this bill is aimed at assisting the African National Congress to win elections,” she added, without the further substantiation her use of the word “refute” suggested.

“They can smell the defeat.”

ANC MP Brandon Pillay said:

Our conviction is that the proposed formula in the amendment passes this test of being equitable and proportional.

Motsoaledi was defiant in the face of the mooted litigation.

“I don’t know why the ANC is being accused of sneaking in money,” he said. “Why is it a sin to have a party with many members?

“If the word proportional is a sin, it would not have been in the Constitution,” Motsoaledi added, without mentioning the Constitution also contains the word “equitable”.

He said:

Going to court? We have never been scared of going to court in this country. It’s in the Constitution.

“Go to court! We’ll meet there!”

ANC chief whip Pemmy Majodina welcomed the National Assembly passing the bill in a statement released on Tuesday evening.

“The ANC caucus has noted the threats of court action against the passing of the bill by a few small opposition parties.

“We have confidence in the capabilities and wisdom of the minister of home affairs and the portfolio committee to defend the balanced wording of the bill in court as it is in line with the Constitution and the Constitutional Court’s judgment,” she stated.

However, last year, the courts showed scant regard for Motsoaledi’s “capabilities and wisdom”.

In June, a full bench of the Gauteng High Court in Pretoria ruled his decision to terminate the Zimbabwean Exemption Permit (ZEP), which would affect more than 178 000 people living in South Africa, was invalid, unlawful, and unconstitutional.

READ | Motsoaledi fails in bid for leave to appeal ZEP ruling

Applying to the court for leave to appeal its ruling, Motsoaledi argued it had no right to “interfere” with his work.

Leave for appeal was not granted, and he has since approached the Supreme Court of Appeal for direct access, but there too, his application was dismissed with costs last month.

Motsoaledi now wants to approach the Constitutional Court.

In October, the Constitutional Court gave a scathing ruling against Motsoaledi, and his director-general, Livhuwani Makhode, for failing to amend sections of the Immigration Act, six years after a court ordered it.

The court also handed a personal costs order against them.

Motsoaledi also failed to comply timeously with a court order that he had to adjudicate a person’s work permit review application.

Another concern with the bill is if new regulations for the thresholds and limits of donations are not promulgated by the president after the National Assembly adopted a resolution to that effect when the bill becomes a law, there would be a vacuum – as Swart put it – where there would be no thresholds or limits for donations.

This is also a concern of civil society, with My Vote Counts saying in a statement released on Monday this “move is consistent with the ANC’s ongoing campaign to undermine the Political Party Funding Act [PPFA] by expanding its reporting threshold and annual funding limits”.

My Vote Counts called on MPs not to support the bill, as it was “clear that these amendments in the Electoral Matters Amendment Bill are plainly unconstitutional and a grave threat to our democracy”.

But the National Assembly passed the bill with 240 votes to 90, with the ANC, EFF and NFP in support.

The DA, IFP, FF Plus, ACDP, UDM, GOOD – including the party’s leader, Patricia de Lille, who serves in President Cyril Ramaphosa’s Cabinet – Cope and the PAC voted against the bill’s adoption.

The ATM, AIC and Al Jamah-ah were not present.

The bill will now be sent to the National Council of Provinces for concurrence.