By Joel Bregman

The Political Party Funding Act, now known as the Political Funding Act (PFA), is one of the most significant laws passed since the advent of South Africa’s democracy. It gives life to key constitutional provisions – the right of access to information, to exercise one’s political rights from an informed position, and to enjoy a political environment free from undue influence and characterised by transparency and accountability.

The PFA empowers us to acquire knowledge of who funds political parties and independent candidates and limits the ability of private interests to capture politics and undermine the public good. The law places an obligation on parties and donors to disclose donations of R100k or more per annum and places an annual donations cap of R15m per political party on donors. Donors can donate to as many parties as they wish.

While the law has weaknesses and loopholes that have already been exploited, its implementation has ushered in a new era of transparency. We now have a deeper understanding of our political funding landscape, and, with this information, we can make more informed political decisions. The PFA has made it more difficult for parties to solicit donations from unscrupulous sources and offer favours in return.

As we reflect on 2024, we will also push for key developments that will shape the future of private political funding in South Africa.

Disclosures: what do the 2024 disclosures tell us about the relationship between money and politics?

In the past year there were three sets of available disclosures, covering the months from January to September and representing disclosures from two different financial years. The disclosures covering the last three months of 2024 will only be published at the end of February 2025.

Using our Whose Vote Counts Tool, we see a total of R364,2m in disclosed private funding in these 9 months. Not surprisingly, Q1 of 2024/25 (April – June 2024), coinciding with last year’s elections, represents the most donations in a single quarter since the inception of the Act, with R189,8m being donated. It is worth noting that donations under R100k are not reflected in this total, and these donations can be significant. For example, in 2022/23, the DA received R14,4m and ActionSA R3m in cumulative donations of less than R100k respectively.

There are hundreds of parties registered with the IEC. While all parties, whether represented or not, are free to receive donations, most private funding flows to a handful of dominant parties. The table below shows the top 5 parties in terms of disclosed private funding over these 9 months.

Perhaps indicative of the shifting political dynamics in the country, new players on the political scene, Rise Mzansi and Change Starts Now, received private funding at comparable levels to far more established parties. Parties such as the Economic Freedom Fighters and uMkhonto weSizwe Party (MKP) ran election campaigns that, one would assume, required significant private donations, yet they made barely any disclosures. Parties are permitted to fundraise amounts under the disclosure threshold and to take loans, and they may have other sources of non-disclosable income. However, questions arise as to whether all parties are complying fully with the Act.

If we turn our focus to the donors for the 9-month period, we see many familiar names from previous disclosures. The table below illustrates the amount that the most significant donors donated for this period. All the top donors donated to multiple political parties.

With almost four years of data to consider, it is clear that private funding is dominated by a handful of wealthy individuals. Further, there are weaknesses in the PFA that allow donors, entirely legally, through different companies they control, or through family networks, to donate in excess of the R15m upper annual limit.

Tellingly, the main donors over the lifespan of the PFA are almost identical to those for the most recent 9-month period referred to above. The fact that a handful of individuals represent an outsized proportion of known private funding is reflective of deficiencies in the law. Lowering the annual upper limit and restricting donations by related entities would create a fairer political landscape and mitigate private influence on our politics as well as the potential for parties to be beholden to donors.

For more information and to analyse private funding disclosures, please refer to our Whose Vote Counts Tool.

Compliance with the law

Last year My Vote Counts (MVC) registered complaints with the IEC to investigate whether Rise Mzansi and MKP had complied with the PFA. A political party, as defined by the PFA, ‘includes any entity that accepts donations principally to support or oppose any registered political party or its candidates, in an election as defined in section 1 of the Electoral Act’. This means that even before a political party is formally registered with the IEC, if it receives donations over R100k, it is obliged to record and disclose this information.  Prior to Rise Mzansi and MKP registering, they were conducting political activities. It is a given that funding would have been required, and we asked the IEC to investigate whether this funding should have been disclosed. We did not receive a response.

Also in 2024, we requested the Information Regulator (IR) to assess compliance with the Promotion of Access to Information Act (PAIA), as it relates to party funding. The IR responded and indicated that in some instances they were not even able to conduct assessments of compliance. Many parties do not fulfil the basic requirements of this law, such as having private funding disclosure information on their websites.

The Electoral Matters Amendment Act and MVC’s 2024 Court Case

As a result of the passage of the Electoral Matters Amendment Act (EMAA; a necessary piece of legislation that amended several laws to bring them in line with the new Electoral Act), the heart of the PFA was removed a few weeks before the elections. And for 100 days, just before the most consequential elections since 1994, the legislation that regulates the private funding of politics in South Africa was, for all intents and purposes, of no force and effect. Political parties could legally receive donations of any amount (no upper limit) and had no obligation to disclose (no disclosure threshold).

During parliamentary hearings before the Portfolio and Select committees managing the Bill, MVC and others raised the alarm that if the Bill were to be signed in its current form, it would remove these two limits and create a glaring lacuna in our law. Despite these warnings, which were also extended to the President and his legal advisors, Parliament adopted the Bill and the President signed it, bringing it into law.

The amendments also give wider powers to the President to determine these two key limits. This gives the President, who is the head of government but also of their political party, and therefore biased, the power to make fundamental decisions about South Africa’s political funding framework – decisions that should instead be determined through an open, deliberative process by citizens’ political representatives in Parliament. Most consequentially, when it was signed into law, the EMAA failed to include adequate transition provisions, and effectively removed the disclosure threshold and upper limit entirely – leaving the door wide open for political corruption.

As soon as the President signed the EMAA, MVC launched an urgent application in the Western Cape High Court, requesting relief that would reinstate the abovementioned limits. In August 2024, more than 3 months since the law had been operational, judgment was handed down vindicating our position. There had indeed been a lacuna; parties could have accepted donations, of any amount, and had no obligation to disclose them. The Court order reinstated the limits as they were previously. It was revealed soon afterwards that the IEC had met with parties during this period and there had been an agreement that they would comply with the upper limit and disclosure rules even though there was no law in place. There are disclosures for this period, but whether all parties complied fully is currently unknown.

Resolution process in Parliament

On 3 and 4 December 2024, and following the judgment referred to above, the Portfolio Committee on Home Affairs embarked on a process to develop a resolution for the upper limit and disclosure threshold. The planned process was that the Committee, and then Parliament, would adopt the resolution, and it would be sent to the President for final determination. The public participation process highlighted the divisive nature of this law. On the one hand are parties, who want less transparency and want to be able to receive larger donations from single donors, and on the other, civil society organisations, who want to strengthen transparency and limit the potential of private influence by lowering the annual limit.

Several parties and civil society organisations made submissions or participated in the deliberations. Their positions are as follows:

It emerged at the hearings that Parliament itself did not know the rationale behind the R15m upper limit or the R100k disclosure threshold or how these limits had been arrived at. The Committee held off on passing a resolution and instead instructed the Parliamentary Budget Office to do more research and undertook to restart the process in 2025.

MVC’s 2023 Court Case

On 17, 18 and 19 February 2025, My Vote Counts will be back in court, challenging the constitutionality of the PFA. Our application was lodged in May 2023, and is now finally being heard in the Western Cape High Court. Following the passage of the EMAA, our application was amended to deal with new issues that had arisen.

In summary, we argue that the Act in its current form is unconstitutional and fails to give effect to its own objectives and the constitutional imperatives and rights that underlie it.

Therefore, our court application seeks to amend the PFA, so that it provides for:

  • the disclosure of all private donations, not only those above R100k;
  • the reduction of the upper annual limit of R15 million per donor;
  • the disclosure of financial information related to all expenditure of private donations;
  • regulation on donations from related entities or persons; and people or entities who are related, to prevent circumvention of the upper limit; and
  • restriction of or further guidance for the President’s discretion to determine the disclosure threshold and upper limit. (This did not form part of our original application. We supplemented our papers after the EMAA unconstitutionally expanded the powers of the President to determine these limits).

MVC has also asked the Court to grant retrospective relief and order that any donations made during the lacuna period that exceeded the R15m limit be paid back to donors.

As we explain in our Heads of Argument:

‘At its core, this application is concerned with strengthening democracy by giving meaningful effect to the constitutional imperatives of transparency, openness and accountability. To this end, this application seeks affirmation and meaningful realisation of fundamental constitutional imperatives: (i) that citizens be able to access information required for the effective and informed exercise of their right to vote as enshrined in sections 19(1) and (3) of the Constitution; (ii) that elections are free and fair in accordance with section 19(2) of the Constitution; and (iii) that the state carries out its duties to promote, respect and fulfil the Bill of Rights, including the right to vote and other constitutional rights, an integral part of which is the provision of information and the enactment of measures to mitigate against corruption and the undue influence exercised by private interests over elected representatives and political parties’.

Strengthening the PFA will bring us closer to a democracy in which our politics is transparent and open, public representatives are accountable to the people, and money is not used to influence decisions that should be made for the public good.

For more information, read our Founding Affidavit, Supplementary Affidavit, and Heads of Argument.

Conclusion

That we have legislation that regulates private political funding is an enormous achievement and there is no denying that it has contributed to a more transparent and accountable political environment. But it is clear this will remain a site of contestation largely informed by one’s position in the political system. While many parties value transparency and accountability, their positions on this point are dictated by their need to survive and raise funds, and the two do not always go hand in hand. Donors that dominate the private funding landscape may want to wield influence in a less restrictive legislative regime.

The past year, as is the case for previous years, reinforces the fact that a handful of donors are responsible for a disproportionately large percentage of private funding. It is a reality that political donations, especially significant ones, are often made with certain expectations. Parties and public representatives may be more likely to be influenced by powerful donors than party members, or the public, respectively. Private funding can play an important role in deepening our democracy without polluting the political system. To mitigate private funding exerting undue influence on our politics, we need stronger legislation that facilitates maximum levels of transparency and accountability.

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We will be sharing updates and more information about our court case in the coming weeks. For more information, please contact Joel at joel@myvotecounts.org.za.