Last month, the Western Cape High Court ruled that the Electoral Matters Amendment Act (EMAA) has created a lacuna in the Political Party Funding Act (PPFA). This lacuna allows donors to give unlimited amounts to political parties without any obligation for either the donors or the parties to disclose this information. This entirely avoidable situation has opened the door for political influence to be bought in secrecy. Now, political parties must resist exploiting this period of funding lawlessness and refrain from engaging in a money-grab. 

Despite our warnings, the President ordered that EMAA come into effect on 8 May, effectively dismantling political party funding transparency laws. The EMAA was introduced as a bill at the end of 2023 and was meant to amend several laws to allow independent candidates to contest elections. However, it contains amendments that remove the disclosure thresholds in the PPFA, which can now only be set by the President after a resolution from the National Assembly. Since the EMAA become law, the President has yet to declare a reporting threshold or upper limits for donations. This has brought about the current lacuna, has opened opportunities for a money-grab, and presents a threat to our democracy. 

Prior to the EMAA being adopted we wrote to members of Parliament and the President warning them of the unconstitutionality of the Bill. After our warnings were ignored, we approached the Western Cape High Court seeking urgent relief. Our application asked the Court to make an immediate order to declare parts of the EMAA, as they relate to the PPFA, unconstitutional. Further, that until Parliament passes a resolution on the matter, and the President makes a final determination on these limits, the disclosure threshold should remain R100k, and the upper limit R15m.  

On 27 May, the Court handed down its judgment and concurred with our position that there is a lacuna in the law and that it is prima facie unconstitutional, in relation to the amendments. 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. The Court’s position is that at this point, it would be usurping legislative authority in doing so. Instead, it ruled that interested parties return on 12 August to show cause why the order should not be granted.  

Given the threat that this period of lawlessness poses to our democracy, we will seek to supplement our May 2023 papers concerning the PPFA. We aim to provide for the setting aside of the EMAA and all actions taken under that legislation. This includes the reversal of all donations exceeding the R 15 million annual limit and the reinstatement of mandatory disclosure for all donations made since May 8, 2024. 

This week, our lawyers wrote to political parties to inform them that accepting any donation above R15 million and the failure to record and disclose any donation are both unlawful, any funds received in contravention of the upper limit will be required to be returned, and such donations are being accepted and spent at the political parties’ risk. 

Read our letter to political parties here. 

Submitted by Robyn Pasensie
My Vote Counts’ Political Party Funding Researcher 

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