by Jan Gerber
- The Western Cape High Court reinstated the donation limit for political parties and independent candidates at R15 million and the disclosure threshold at R100 000.
- These regulations were removed when President Cyril Ramaphosa enacted the Electoral Matters Amendment Bill and meant parties could receive any amount in donations and would not have to declare it.
- My Vote Counts, who brought the application to reinstate the limit and the threshold, hailed the ruling as a victory for transparency and accountability.
The Western Cape High Court plugged a gap in the law left by Parliament that allowed political parties to receive untrammelled funding they would not have to disclose.
Last week, Judge Daniel Thulare granted NGO My Vote Count’s requested remedy to the lacuna created by the Electoral Matters Amendment Bill by reinstituting the threshold of R100 000 – the amount from which parties and independent candidates must declare donations – and limit of R15 million that parties and independent candidates may receive from one donor per year.
When President Cyril Ramaphosa, weeks before the elections, enacted the Electoral Matters Amendment Bill in May, this threshold and cap were scrapped.
The Electoral Matters Amendment Act was necessitated by the Electoral Amendment Act, which allowed independent candidates to participate in national and provincial elections.
The Electoral Matters Amendment Act’s intention was to make consequential amendments to bring other electoral legislation, like the Political Party Funding Act, in line with the Electoral Amendment Act by including independent candidates.
But, former home affairs minister, now Health Minister Aaron Motsoaledi also thought it wise to tinker with the provisions for the limit and the threshold.
Before the Electoral Matters Amendment Act’s enactment, the Political Party Funding Act allowed the president to make regulations concerning the limits on donations parties may receive and the threshold of which donations they must declare to the Electoral Commission of South Africa (IEC), “acting on a resolution of the National Assembly”.
Initially, the Electoral Matters Amendment Bill would have changed this to give the president the sole power to change the threshold and limits for donations.
Upon legal advice that this would be unconstitutional, the Portfolio Committee on Home Affairs removed this provision, but in the process, it created the situation whereby there is not a threshold and limit in place after the bill came into effect without new regulations approved.
READ | Parliament gives Ramaphosa a blank cheque to set donation limits
The Sixth Parliament’s senior MPs were warned by the legislature’s legal services that this gap would be created if the National Assembly did not pass a resolution to empower the president to make the regulations for the limit and threshold.
A motion for such a resolution was on the National Assembly’s order paper for the day after the act came into effect, but the ANC withdrew the motion. This motion would have reinstated the R100 000 threshold and R15 million limit.
The following week, another motion was on the order paper, this time removing the R100 000 threshold and the R15 million limit, effectively giving the president sole discretion to set a limit and threshold.
Furthermore, it required that the president must make regulations for a threshold and a limit on an “urgent basis” and must “within six months from the date of this resolution, table comprehensive draft regulations for consideration by the National Assembly, and for a resolution to be made in terms of Section 24[1][a] of the act”.
These regulations have not been made.
READ | How it came to be that for a week there are no limits on the donations parties can receive
My Vote Counts subsequently litigated, asking the court to reinstate the threshold and limit until new regulations are promulgated.
In May, the court issued a rule nisi – an interim order – in which the court found their prima facie was a lacuna – gap in the law – created by the Electoral Matters Amendment Act and ordered that the opposing parties should show cause why the relief My Vote Counts sought should not be granted.
This was heard earlier this month. However, the opposing parties – the minister of Home Affairs and the president, withdrew their opposition.
The Speaker, which indicated it would abide by the court’s ruling, meanwhile filed an explanatory affidavit following the rule nisi, in which it indicated the National Assembly had been advised it is correct any resolution proposed by the National Assembly in this regard must set amounts for the threshold and limit to “enable the [president] to apply his mind to the figures and numbers resolved”, according to a presentation to the Portfolio Committee on Home Affairs by parliamentary legal advisor Telana Halley-Starkey on Tuesday.
The DA wanted to be admitted as an opposing party, but Thulare dismissed its application.
This meant there was no opposition to My Vote Counts’ requested remedy, and Thulare issued an order to that effect on Friday. He also awarded costs against the president and the minister of Home Affairs.
Thulare’s ruling handed down on Friday read:
Where the courts identify a mistake, our democratic structure is that the courts should so pronounce and allow the legislature and the executive an opportunity to attend to such identified mistake.
“It is Parliament’s responsibility to resolve the upper limits and disclosure thresholds, and the president’s responsibility to make the determination.
“This court can only go as far as making an order that is just and equitable to provide temporary relief.
“The Speaker is thanked for her explanatory affidavit, and this court is satisfied that Parliament would attend to the matter, on behalf of the people of the Republic, in the robust and urgent manner such a matter deserves.”
My Vote Counts, in a statement issued on Tuesday, hailed the ruling as “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,” read the statement.
