By Lauren Gildenhuys and Joel Bregman

On 17 and 18 February 2025, My Vote Counts’ application challenging the constitutionality of the Political Party Funding Act — now the Political Funding Act — was argued in the Western Cape Division of the High Court.

The application has placed South Africa’s political funding regime firmly back in the spotlight, reigniting debate about the role of private donations in our politics, and their potential to both undermine and strengthen our democratic dispensation.

In light of recent suggestions by ActionSA’s Michael Beaumont that My Vote Counts’s application, if successful, would “throttle” emerging parties, impoverish South Africans’ choices at the ballot box, entrench the party political status quo, and ultimately weaken our democracy, we revisit some of our core arguments.

At the outset it is necessary to clarify that Beaumont has focused on only one aspect of the relief My Vote Counts has sought. This is our claim that the legislation prescribing the annual private donation disclosure threshold of R100,000 be declared unconstitutional, and that the court remedy this unconstitutionality by reading in a provision requiring parties to disclose all donations (all references to donations made to political parties should be read to include donations to independent candidates and representatives).

However, My Vote Counts’ application is much broader. For example, we also ask the court to remedy Parliament’s unlawful delegation of its authority to determine the threshold and upper donation limit to the president, who currently has sole discretion to determine these limits.

Relief sought

As many commentators have noted, this is possibly the most pressing aspect of the relief sought: that the president has final say over the funding limits risks rendering the entire act ineffective.

My Vote Counts’ application also seeks to remedy a glaring loophole in the legislative scheme, which fails to regulate donations made by related entities. This leaves the door open to wealthy donors to funnel millions to parties through shelf companies while evading the legislative limits.

Instead of drawing the public’s attention to these and other serious flaws in the act, ActionSA has opted to levy untruthful and nonsensical ad hominem attacks on My Vote Counts, questioning our motives and implying that since My Vote Counts — like all other civil society organisations — is funded by donors, our application is somehow hypocritical and ill founded.

This obfuscation is disappointing, because it represents a missed opportunity to engage in nuanced debate about South Africa’s political funding model.

The Constitution has bestowed upon South Africans not only the right to vote — a right which the Constitutional Court has confirmed is a right to an informed vote — but concomitantly, the right to access information necessary for the proper exercise of this right.

It imposes on the state the obligation to respect, promote and fulfil these rights and stipulates that our democracy is founded on the values of accountability and openness.

What emerges from this carefully considered constitutional scheme is a right on the part of citizens to the disclosure of private donations made to political parties. Any limitation of this right must be reasonable and justifiable.

This is the crux of My Vote Counts’ application: Parliament has failed to justify the limitation of the aforementioned rights, and has failed to adduce evidence justifying its decision to set the disclosure threshold at R100,000. The Portfolio Committee on Home Affairs is presently seized with deliberations to set new thresholds. Whether adequate justification will be provided this time remains to be seen.

Analysis

Until Parliament produces an analysis that demonstrates why the right to vote and the right of access to information should be limited to allow for the non-disclosure of private donations below a certain amount, My Vote Counts will continue to campaign for the vindication of these rights and of the constitutional imperatives of accountability and openness, some of the most basic tenets of any functioning democracy.

Though it is convenient for ActionSA to misconstrue the import of the application and paint My Vote Counts as hellbent on sacrificing multiparty democracy on the altar of total transparency, the reality couldn’t be more different.

My Vote Counts accepts that there may be an amount below which disclosure is not required, and that the associated limitation of constitutional rights in these cases is justified. However, it is not for My Vote Counts to dictate what this amount should be.

Moreover, My Vote Counts has recognised the vital role that private funding plays in our politics. Our aim is to ensure that this funding is regulated, that political parties are accountable to voters regarding their funding sources (along with much else), and that the financing of our politics is characterised by transparency rather than secrecy.

Without these safeguards, our democracy risks devolving into a US-style donor bonanza where policy platforms are for sale and the wealthy increasingly view campaign financing as a prudent investment in a regulation-free, tax-system-breaking future that will deliver handsome returns at the expense of the electorate.

ActionSA’s claim that My Vote Counts’ application constitutes a grave threat to our multiparty democracy is ostensibly founded on the argument that requiring disclosure of all donations  will “throttle” emerging parties, which rely exclusively on private donations.

Hidden premise

This argument’s hidden premise — that requiring all private donations to be disclosed would disincentivise private donors, starving new parties of early funding — bears further scrutiny. Since the Political Funding Act came into effect in 2021, countless private donors have donated millions of rand to political parties, with the R100,000 disclosure threshold seemingly no deterrent.

Indeed, the proliferation of new parties post the introduction of the Political Funding Act brings ActionSA’s claims into doubt: Rebecca Oppenheimer was clearly not put off by the disclosure threshold when she donated R30-million to Rise Mzansi, nor was Martin Moshal so dissuaded when he donated R15.5-million to Build One South Africa.

Whether the disclosure threshold is R100,000 or R100 will ostensibly make little difference to affluent funders. This is why My Vote Counts’ application also argues that the upper donations limit of R15-million be lowered: disclosure alone is clearly insufficient for limiting the influence of private wealth on our politics.

As for Action-SA’s speculative argument that lowering the disclosure threshold will deter smaller donors concerned about the privacy of their political preferences, we reiterate our acknowledgment that there may be some small amount below which disclosure is not constitutionally required. Beaumont’s example of requiring Mrs Khumalo from Soweto to disclose her R10 donation makes a straw man out of My Vote Counts’ principled argument that any limitation of the rights giving rise to the disclosure requirement be justified and constitutionally sound.

Indeed, ActionSA’s emphasis on its own reliance on private funding to emerge as a viable electoral contender points precisely to a fundamental problem with the South African political funding model: emerging parties rely on significant donations from wealthy backers to establish themselves, and it is reasonable to speculate that such funding comes with conditions attached.

Exacting conditions

Anyone paying even the slightest attention to developments unfolding across the Atlantic will be aware of how exacting such conditions can be. This is why one arm of My Vote Counts’ research agenda is to explore, assess and present alternative party funding models that decrease reliance on wealthy backers.

To pre-empt a familiar argument that the public funding of political parties favours incumbents, it bears mentioning that several democracies, including Estonia, Cabo Verde, Maldives, Mexico and New Zealand have devised innovative and inclusive systems for providing funding to first-time electoral contenders.

ActionSA has argued at length that the “real” problem with the Political Funding Act is a lack of enforcement. It points to apparent failures to disclose donations by the uMkhonto Wesizwe party and Economic Freedom Fighters, and the Electoral Commission of South Africa’s lack of institutional capacity to conduct investigations into such failures.

ActionSA is right to highlight the manifold issues accompanying the enforcement of the Political Funding Act, and My Vote Counts welcomes its efforts to draw attention to these apparent compliance failures. We also recognise ActionSA’s own consistent compliance with the act.

But lobbying for more stringent enforcement of the act and seeking to strengthen its provisions through approaching the courts for relief are not mutually exclusive efforts: both must be pursued if we are to guard against the subversion of our newly enacted political funding regime.

In a country still marked by deep inequality and social strife, the need to protect, deepen, and reimagine democracy has never been more urgent.

Rather than painting legislative amendment and enhanced compliance as alternatives in a zero-sum game, we ought to combine our energies to collectively advocate for a more transparent, accountable political funding framework that ensures that parties are responsive to the electorate.

Ownership of our democracy must remain in the hands of the people — and not the privileged few. DM

Originally published on Daily Maverick