The Western Cape High Court. Armand Hough / FILE
SHOULD individuals be allowed to fund political parties up to R15 million per year, despite risks of significant influence over the country’s political agendas?
This is among the key issues being challenged in the Western Cape High Court over the next three days concerning the Political Party Funding Act which currently allows “excessive individual donations of up to R15 million per year, and grants the President unchecked discretion over funding limits”, among others.
My Vote Counts (MVC) had first launched an application in the Western Cape High Court challenging the constitutionality of aspects of the Political Funding Act in 2023.
They argue that political parties and independents should be obliged to disclose all private donations, regardless of the amount; that both natural and juristic persons are obliged to disclose donations they have made in excess of the annual threshold; and the annual upper donation limit of R15 million be significantly lowered.
They also want cumulative donations made by related donors to be regulated and limited; and political parties and independents to be required to disclose the expenditure of all private donations.
“The powers of the President to determine the disclosure threshold and annual upper donation limit be restricted and subject to more stringent guidelines; and private donations above the annual limit received between May and August 2024 are returned to donors and there is full disclosure for this period,” MVC added.
Court papers cite President Cyril Ramaphosa and several members of the GNU as respondents, while ActionSA said they would also be opposing the case.
MVC explains that the Act, formerly the Political Party Funding Act (PPFA), is one of the most important pieces of legislation since 1996 and has gone a long way in “deepening transparency in politics and strengthening the right to vote”.
However, almost four years after its enactment and considering the disclosures published by the IEC, “it is evident that the Act will not meet its constitutional aims of transparency, openness and accountability and needs to be strengthened”.
MVC argues: “The DA and the Ministers argue that the Constitutional Court itself recognised the ‘tedious exercise’ for political parties to have to record and disclose every ‘quantifiable assistance’ received and accepted; Action SA submits that requiring smaller political parties to collect and process a large volume of smaller donations would be a ‘financial and administrative impossibility’ as it would necessitate significant resources, including hiring additional staff; and according to Action SA, the variety of donations methods (ie, online platforms, SMS, and social media) complicates data collection and increases the risk of non-compliance due to practical difficulties.
“The first question is whether full disclosure ought to be subjected to limitation due to the fear of administrative hassle on the part of political parties. The alleged administrative burdens are simply not a basis for limiting rights to disclosure in this case. Acceptance of private donations carries with it responsibilities to ensure that the donations are fully recorded and disclosed.
“The exclusion of natural persons from the reporting obligations under the PPFA fundamentally undermines the constitutional imperatives of transparency, accountability, and the right to an informed vote. The constitutional imperatives underpinning the right to vote and access to information demand that all sources of private funding, regardless of whether they originate from juristic or natural persons, are subject to scrutiny. This is because the influence of large donations is not confined to legal entities; natural persons can exert significant influence over political agendas and elected representatives, shaping policy in ways that serve private interests rather than the public good.”
The executive which includes the President, and the Ministers of Home Affairs and Justice and Constitutional Development argue that the Court is required to balance various rights and interests in both stages of its analysis about the constitutionality of the provisions challenged by MVC.
“MVC naturally focuses on the right of access to information and the right to cast a meaningful ballot. These are of course important constitutional rights. They are however not the only rights and principles in issue in the challenge. The section 19 political rights of persons wishing to contest elections, and to form political parties, as well as associational rights of members of parties and donors in section 18 are implicated in the challenge. Section 14 rights to privacy are also implicated. Democracy too is at play. For without political parties and independent candidates being capable of meaningfully contesting elections and campaigning, there is no democracy. The evidence before the Court bears this out. The Democratic Alliance’s affidavits explain in detail just how much it costs to run a successful political party in modern South Africa and the extent to which public funding has to be supplemented with private funding. The figures are large – many hundreds of millions of rands are used for a number of activities,” the executive argues.
Separately Home Affairs minister, Leon Schreiber on behalf of himself and Justice and Constitutional Development minister Mmamoloko Kubayi said that first, MVC contends that donations below R100 000 can have a material impact on the operations of political parties.
“Of course they can, but with respect, that does not mean that any individual donor can have some outsized and material influence on the party receiving those donations. While My Vote Counts appears to believe that section 9(2) only applies to individual donations, this is plainly a self-serving interpretation of the provision. Properly understood, the donation threshold applies to all donations from any single donor during a financial year.”
Cape Times