The Political Party Funding Act: key implications and considerations

Abstract

The Department of Home Affairs (DHA) appointed the Developmental, Capable and Ethical State research division (DCES) within the Human Sciences Research Council (HSRC) in April 2022 to assess the impact of the Political Party Funding Act 6 of 2018 (PPFA). The aim and purpose were to undertake research on the current and future impact of the Act on political parties in South Africa. The PPFA regulates the provision of public and private funding to political parties, in particular, the establishment and management of funds for represented political parties: to prohibit certain donations made directly to political parties; to regulate disclosures of donations accepted; to determine the duties of political parties in respect of funding; to provide for powers and duties of the Independent Electoral Commission; to provide for administrative fines; to create offences and penalties; to repeal the Public Funding of Represented Political Parties Act, 1997; and to provide for transitional and related matters. The study was primarily prompted by two decisions of the Constitutional Court (CC). (1) In the New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11 (11 June 2020), the Constitutional Court (CC) mandated independent candidates for election to the national and provincial legislatures. (2) In My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17 (21 June 2018), the CC held that it is necessary for legislation to provide for the recordal, reservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates. The PPFA was adopted by Parliament in response to the My Vote Counts decision. The PPFA was promulgated and came into effect on 1 April 2021. However, it needs to be amended to address the CC???s ruling in the New Nation Movement case to make provision for independent candidates. On 10 January 2022, the Minister of Home Affairs introduced the Electoral Amendment Bill 2021 to the National Assembly and National Council of Provinces. The Bill seeks to amend the Electoral Act 78 of 1998 in order to comply with the CC???s decision in the New Nation Movement case which held that the Electoral Act is unconstitutional for requiring citizens to contest national and provincial elections only through their membership of political parties. As a result of the Electoral Amendment Bill, there will be consequential amendments to the PPFA, which must cater for independent candidates. With respect to the My Vote Counts decision, the provisions of the PPFA do not prohibit donations to independent candidates or compel them to disclose donations because it does not mention independent candidates. The need for amendment coincides with a need to understand the impact of the PPFA since its implementation in April 2021.