Muddied political funding provisions allowing potential donation free-for-all now in court

The National Assembly on Thursday adopted a resolution to allow President Cyril Ramaphosa to regulate new political funding declaration thresholds and annual donation limits.

The resolution was adopted despite objections from the DA, IFP, Freedom Front Plus, African Christian Democratic Party and Pan-Africanist Congress. It’s now over to the courts.

Ramaphosa could issue these political funding disclosure regulations which he’s now empowered to gazette as soon as Thursday evening. The regulations close the gap in the declaration regimen that emerged when the president operationalised the Electoral Matters Amendment Act on 8 May without the National Assembly resolution having been passed for him to make these regulations.

Effectively, this legislative gap was brought about by missteps in sequencing the law which, among others, brought independents into the declaration fold, and opened the door to a potential political funding free-for-all shortly before the 29 May elections.

Until the regulations are gazetted, or the courts deem otherwise, the gap in the law over which My Vote Counts (MVC) approached the Western Cape High Court would continue. MVC is a not-for-profit organisation advocating for transparency on money in politics and democracy.

On 10 May, MVC asked the court to order that the previous R100,000 political donation threshold and R15-million annual limit remain in place. And it wants the court to declare unconstitutional and invalid those sections of the Electoral Matters Amendment Act that relate to party political donations.

In its court papers, MVC argued that those who “would prefer for their contribution to have a veil of secrecy and may wish to contribute huge amounts” could do so because of the gap in the law.

“The lacuna also means that political parties are presently under no obligation to disclose private funding in any amount. This, coupled with the fact that the upper limit is non-existent, effectively means that political parties would be able to accept private donations in staggering amounts, without the Electoral Commission and the public ever coming to know who made such donations and in what amounts”.

The DA intervened in court papers to oppose the MVC application. In a narrow legalistic argument, the DA says no gap in the law existed because the 1957 Interpretation Act meant previous limits and thresholds continued.

“MVC’s application is an exercise in hysterics. It seeks to stoke panic where there is no basis for it. Instead of interpreting legislation to avoid unconstitutionality, it adopts an obviously absurd interpretation in order to justify this self-serving application.”

But echoing MVC, the DA in its alternative relief “seeks that this court issue a declaratory order stipulating that the pre-amendment status quo remains”.

Pending Friday’s hearing, court papers were expected from Parliament and the Presidency, even if just to say they’d abide by the court’s decision.

But in the House on Thursday, it was a rocky start to proceedings on the resolution needed for Ramaphosa to issue regulations on political funding thresholds and limits.

Whatever “further consultations” were cited by the ANC on 9 May to withdraw an earlier version had clearly not involved opposition parties.

IFP Chief Whip Narend Singh said he was surprised by this resolution 30 minutes before the sitting, and that time was needed to discuss and gain an understanding of what the resolution aimed to do.

The DA and ACDP agreed, as did the ANC. The resolution was scheduled for later in the day when it was adopted with the opposition’s objections.

The resolution on Thursday’s Order Paper was wholly different to what had been tabled and then delayed “for further consultations” a week earlier.

It now tells the president what to consider when setting political funding declaration thresholds and annual donation limits, including “constraints on the fiscus” to fund political parties and independents, inflation, the cost of participating in elections, and “the need to allow sufficient donations (which must be disclosed) to political parties, independent representatives and candidates in order to deepen participatory democracy”.

The president should “on an urgent basis” set political funding annual caps and donation thresholds, but is allowed six months to submit comprehensive regulations to Parliament.

The 9 May resolution was to the point. It stipulated a R100,000 political donation declaration threshold and a R15-million annual donation cap for individuals and entities, effectively continuing what’s in place already.

The reasons for the significant redrafting of this resolution were not immediately clear, except it was not over consultations with opposition parties represented in Parliament.

Meanwhile, on other matters electoral, the House on Thursday approved the Electoral Reform Consultation Panel whose nine members include Pansy Tlakula, the Information Regulator boss and ex-IEC chairperson; current IEC chief electoral officer Sy Mamabolo; Public Service Commission deputy chairperson Richard Sizani, and ex-eThekwini municipal manager and former Demarcation Board head Michael Sutcliffe.

This panel was established at the last moment of law-making after a widespread public outcry that the Electoral Amendment legislation did not introduce constituencies of directly elected MPs.

The panel, whose independence was questioned by the opposition on Thursday, must independently investigate, consult and make recommendations on potential reforms of South Africa’s election system.

Meant to have been established within four months of the Electoral Amendment Act being passed by Parliament in June 2023, it took a year longer, including two calls for nomination. But the House managed to get this panel approved on the back of ANC numbers present on the last sitting of the last day before it rises for the 29 May elections. DM