The Western Cape High Court has reinstated the limits and thresholds for political parties to declare funding from private donors until new thresholds have been determined.
The court has also slammed parliament for failure to propose amounts to President Cyril Ramaphosa to consider in making the determinations.
Judge Daniel Thulare issued an interim order on Monday reinstating the limits which had fallen off when the Electoral Matters Amendment Bill (Act), which regulates among other things funding of political parties, came into effect on May 8.
The matter will return to court on August 12 where the parties — president, home affairs minister, justice minister and parliament − will have to explain why the order should not be made permanent.
Civil society group My Vote Counts (MVC) approached the court on an urgent basis earlier this month to make an immediate order declaring parts of the act, as they relate to the Political Party Funding Act (PPFA), specifically to the R100,000 disclosure threshold and the R15m donation limit, inconsistent with the constitution and invalid.
MVC’s case was that the new act removed the R15m annual limit on donations a political party may receive from a single donor, and the R100,000 threshold over which individual donations to political parties must be disclosed.
MVC’s argument was that since May 8, when the act came into effect, there was no upper limit and disclosure threshold and that political parties could now receive these amounts without disclosing this to the public.
It was against this premise that MVC sought an interim interdict that would revive the upper limit and the disclosure threshold.
Previously, the Political Party Funding Act provided that “a political party may not accept a donation from a person or entity in excess of the prescribed amount within a financial year”.
The “prescribed amount” was previously stipulated in the regulations (R15m limit of donations per financial year) and for a political party to disclose every donation received above R100,000 within a financial year.
Six days after MVC approached the court, the National Assembly passed a resolution which granted the president the discretion to determine the upper limit and disclosure thresholds amounts.
The amended electoral law requires the National Assembly to pass a resolution empowering the president to write the new regulations on party funding and sizes of donations that can be declared by parties represented in parliament, legislatures and councils.
Initially, the resolution for the assembly’s consideration proposed a R15m limit for donations a year and R100,000 threshold for declaration. That resolution was scheduled to be discussed in the house on May 9, but was postponed.
When it eventually went to the house on May 16, it no longer contained the proposed upper limit and threshold.
“The developments in the National Assembly on May 16 are somewhat problematic, if not confusing,” said Thulare in his judgment.
“Up until that date, it is safe to accept that the National Assembly would have shared the view with MVC that there was a lacuna and that the National Assembly needed to begin the filling of the gap in the law by resolving on the amounts to be forwarded to the president to consider determining for purposes of regulations of the upper limit and the disclosure threshold.
“In other words, the National Assembly was to write on a new slate of the new legislation regulating upper limits and disclosure threshold from May 8 2024. However, what the National Assembly did, now suggested that it shared in the view that there were amounts contemplated in section 8(2) and 9(1)(a) set out in Regulations 7 and 9 of Schedule 2 of the PPFA.
“A reading of the Regulation 7 and 9 since May 8 does not provide one with the amounts, which would enable the president to determine the amounts on the advice of or after a resolution of the National Assembly.”
Thulare said to make sense, the resolution of the National Assembly must be a resolution on an amount for purposes of regulations 7 and 9 of schedule 2 of the PPFA.
“The only way that the National Assembly resolution may not be confusing, is if the National Assembly still relied on regulation 7 and 9 as it read before May 8 2024.
“If the National Assembly did not rely on the regulations before May 8 2024, and sought to rely on them as they read after that day, then the National Assembly had not been helpful to the first respondent (president) with its resolution of May 16 2024.
“The first respondent still did not know what the amounts for the upper limit and the disclosure threshold which were resolved by the National Assembly for his consideration were.”
Thulare said he was persuaded by the MVC’s case that the old regulations had been repealed and substituted and that the upper limits and threshold have been repealed, adding that the NGO had established a prima facie case.
The respondents — Ramaphosa, home affairs minister Aaron Motsoaledi and acting speaker of the National Assembly Lechesa Tsenoli — had extremely truncated times within which to consider the matter and fairly engage with it, said Thulare.
He said careful reading of their answering affidavits left him with an impression that they may have pinned their hopes on the possibility that the National Assembly would “advise on or recommend” amounts to the president through a resolution on the amounts to be determined, to enable him to apply his mind to the figures and numbers resolved.
The opportunity of a return date allows the president and home affairs minister, in the interests of justice, an opportunity to help fully ventilate the MVC’s cause of complaint, including by supplementing their papers. It may well be that the return date court is convinced otherwise.
Until the president makes a determination, on the recommendation of the National Assembly or the court finalises proceedings which are scheduled to start on August 12, the upper limit shall be deemed to have been determined at R15m per annum and the disclosure threshold shall be deemed to have been determined at R100,000 per annum, said the court.
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