On 16 August Judge Thulare of the Western Cape High Court delivered judgment in the case of My Vote Counts NPC v President of the Republic of South Africa and Others. The Court ruled in My Vote Counts’ favour. This is a victory for transparency and accountability. While it does not advance our party funding laws, it reinstates the two key limits in the Political Party Funding Act (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.  

Why did MVC go to Court? 

This case was about whether a lacuna had been created in our party funding legislation. In May, MVC approached the Court. We contended that the R15m donation cap and the R100,000 disclosure threshold in the PPFA no longer existed, following the Electoral Matters Amendment Act (EMAA) becoming law on 8 May 2024. The impact of the removal of these two limits created a political party funding free for all, where parties could accept donations of any amount, and there was no obligation to disclose this. MVC sought immediate interim relief, asking the Court to reinstate these two limits until new regulations were brought into force. 

As we explained in our founding affidavit in May: 

‘The urgency of this application is underscored by the immediate and ongoing risks posed by the lacuna. Each day without established thresholds permits political parties to receive potentially unlimited donations without any requirement to disclose these contributions. The longer the gap persists, the greater the opportunity for political entities to exploit the absence of financial limits and disclosure requirements. The potential for abuse could lead to unfair advantages for certain parties or candidates fundamentally altering the competitive landscape in ways which would be potentially irreversible. The voters’ right to an informed vote would be taken away’. 

The Judgments 

When the Court delivered its first judgment in this matter (on 27 May), it made a prima facie finding that there was indeed a lacuna in the law. The Court, however, did not grant the immediate relief sought by MVC, on the basis that it would have been overstepping its powers. Instead, it ruled that on the return date of 12 August, parties should show cause why the relief MVC sought should not be granted. 

The first and third respondents (the President and the Minister of Home Affairs) had initially opposed the application. When parties returned to Court on 12 August, these two respondents withdrew their opposition, meaning that all State respondents would abide by the Court’s ruling. The only party that still sought to oppose the application was the Democratic Alliance (DA). The DA had not been cited as a respondent but made an application to intervene in the case. This intervention was ultimately rejected by the Court.  

Final judgment in this matter was handed down on 16 August. The Court found that, ‘when the EMAA took effect on 8 May 2024, it created an unfilled space, or a gap, or lacuna in the law as regard the amount in the upper limit and disclosure threshold for donations.’ This was in breach of the rule of law and required the Court to grant a just and equitable remedy to correct the position on a temporary basis, until Parliament and the President enact a permanent regime. Despite initial opposition from two of the State respondents and the DA arguing that MVC’s reading of the law was incorrect, and that no lacuna existed, the judgment validated our position and our decision to approach the Court.  

What will happen now? 

The handing down of the order by the Court immediately reinstated the donation limit at R15m and the disclosure threshold at R100,000, closing a gap that had been open to abuse for more than 100 days. While this simply puts things back in place where they were before 8 May, it is significant because without MVC’s intervention, parties and independent candidates could have continued to take donations, of any amount, and have no need to disclose them.  

It is crucial that we safeguard our party funding legislation, but 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. We argue that the annual donation cap should be reduced, and that all donations should be disclosed. We will also be seeking retrospective relief for the period of party funding lawlessness that has just come to an end. This is to ensure that we know the donations made during the lacuna period, and that there is no secrecy in the funding of our politics. We expect this case to be heard later in the year. 

Until such time as either our 2023 court case is finalised and new limits are set, or Parliament passes a resolution and the President makes a final determination of new limits, the Court order will be in effect. 

Download or view all the papers related to our May 2024 court case here. 

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Email: Communications@myvotecounts.org.za 

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