'Thresholds too high' — My Vote Counts challenges Political Party Funding Act in court

My Vote Counts has approached the high court to declare the threshold for disclosure and annual limit on the law that governs how political parties receive financial donations to be declared unconstitutional.

The non-profit organisation (NPO) believes there is no reason disclosures should be made only on donations over R100,000. It wants every cent to be disclosed.

The annual limit of R15m a party may receive from a single donor is also too high, My Vote Counts argues in court papers filed this week.

This court application before the Western Cape high court comes as the ANC instructs its MPs to do the exact opposite of what My Vote Counts argues for.

TimesLIVE in February reported that the ANC’s treasurer-general, Gwen Ramokgopa, told the party's national executive committee (NEC) meeting that the ANC caucus in parliament should immediately start amending the Political Party Funding Act (PPFA).

The ANC wants the requirement to declare donations changed and the minimum amount that can be declared increased from R100,000 to R250,000 or R500,000.

It wants the ceiling of R15m a year a party can receive from a single donor pushed up to either R50m or R100m, or for the limit to be scrapped.

The party has blamed the funding act for its financial woes.

My Vote Counts, however, believes the R100,000 threshold and R15m limit were already too high and could lead to potential corrupt relationships with donors.

“... the PPFA is woefully inadequate in respect of providing access to and the proper disclosure of all private funding information, and further fails to safeguard against the threat of corruption and ultimate state capture, and in fact leaves the door open for such corruption. Accordingly, the PPFA and the regulations are unconstitutional,” My Vote Counts argues.

The organisation says there is no justification for the threshold, especially given the average income and unemployment levels in South Africa.

It says the parliamentary committee responsible did not present any analysis on how it arrived at R100,000 as the disclosure threshold.

“The applicant’s primary submission is there ought not to be any threshold limiting the disclosure of donations, irrespective of the amount of a donation, and that any threshold is therefore unconstitutional,” My Vote Counts argues. “To the extent that the PPFA does not require disclosure of all private donations, it is unconstitutional.”

The NPO challenges the administrative burden argument that was made when considering the R100,000 threshold.

“There would be no administrative burden to a publication of all the donations, as these in any event have to be recorded by the political party in question and will (or may be required to) be transmitted electronically to the IEC. All of this renders the primary and delegated legislation unconstitutional.”

The NPO argues that donors could make several cumulative donations of less than R100,000 to avoid disclosure and that there is no mechanism to detect this.

“The PPFA allows the creation of a disclosure limit per donation. Thus, multiple donations in a year may be made below the R100,000 limit without detection or disclosure. The PPFA does not provide any mechanism to track or require disclosure of donations from related people/entities which may cumulatively exceed any threshold set.”

There was also no mechanism to detect and stop donors from using their different companies to make several donations to parties that would exceed the R15m limit.

Mining magnate Patrice Motsepe, for instance, who through his companies African Rainbow Minerals and Harmony Gold has made donations to political parties, including the ANC, could easily go beyond the R15m limit if he so wished and there would be no mechanism to stop it.

Motsepe donated R11m to the ANC in the 2021/22 financial year using two of the companies linked to him. In total, his donations to political parties amounted to more than R19m, meaning donations from companies linked to him accounted for 6.8% of the total donations for that financial year.

“For the year ending March 2023, Mr Motsepe donated R10m to the ANC through another one of his companies, Botho Botho Commercial Enterprise. While this is the only donation declared for Mr Motsepe for the year 2022/23, it is still a cause for concern because through three different companies thus far (African Rainbow Minerals, Harmony Gold and Botho Botho), Mr Motsepe has been able to donate millions to the ANC and is thereby able to circumvent the R15m upper limit because each of these three entities can donate up to that threshold amount.

“Thus, the upper limit for entities and individuals with great wealth and influence, such as Mr Motsepe, is only limited to the number of entities or companies they are in control of.”

TimesLIVE