Johnathan Paoli
THE Western Cape High Court has provisionally upheld an application by civil society organisation My Vote Counts (MVC) to declare sections of the Electoral Matters Amendment Act inconsistent with the Constitution.
The court made its ruling on Monday, with Judge Daniel Thulare criticising the handling by the National Assembly of regulations relating to party funding as well as the failure of the executive to pass presidential resolutions concerning amounts, and making a call that any parties taking issue with the amounts to lodge a complaint by August.
The MVC sought for the court to order that until Parliament passes a resolution on the matter, and the President makes a final determination on these limits, the disclosure threshold should remain at R100 000, and the upper limit R15 million.
The Electoral Matters Amendment Act amended the Political Party Funding Act and regulated the private and public funding of independent candidates and independent representatives.
It removed the R15 million annual cap and R100,000 declaration threshold and conferred the power to the President on instruction from the National Assembly.
However, the President on 8 May operationalised the act without the required resolution from Parliament, causing what some have called a potential political donation free-for-all; and failed to release the regulations by Sunday.
The respondents cited in the matter were the President, the Minister of Justice and Correctional Services, the Minister of Home Affairs, and the Acting Speaker of the National Assembly.
Many have criticised the implementation of the act, which was passed by Parliament two weeks ago, in relation to a gap in the law concerning political party funding declarations and limitations.
The legislation was intended to effect various consequential amendments needed to bring independent candidates into the fold, but in addition to the political funding disclosure changes also altered the funding formula for political parties represented in legislatures.
MVC said that this oversight and misstep by both the national legislature and the executive was unacceptable in failing to maintain transparency and accountability in terms of the upcoming elections.
“The lacuna…presents significant legal challenges, with potential for grave opportunistic abuses of the framework for private funding of political parties. Every day has the potential to bring about irreversibly harmful consequences for South Africa’s constitutional democracy and its voting public,” the organisation said.
The organisation previously referred to the Independent Electoral Commission’s announcement that the R172 million in political donations would be the last time the country would enjoy a fully public disclosure.
“This funding free-for-all may further entrench private interests who now can donate any amount they desire, all out of the public eye. Compliance to and strengthening of the PPFA will bring us closer to a democracy where 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,” the MVA said.
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