IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN In the matter between: MY VOTE COUNTS NPC and PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA MINISTER OF JUSTICE AND CORRECTIONAL SERVICES MINISTER OF HOME AFFAIRS INDEPENDENT ELECTORAL COMMISSION [AFRICAN NATIONAL CONGRESS DEMOCRATIC ALLIANCE ECONOMIC FREEDOM FIGHTERS INKATHA FREEDOM PARTY NATIONAL FREEDOM PARTY UNITED DEMOCRATIC MOVEMENT FREEDOM FRONT PLUS CONGRESS OF THE PEOPLE [AFRICAN CHRISTIAN DEMOCRATIC PARTY AFRICAN INDEPENDENT CONGRESS CASE NO: ‘Applicant First Respondent Second Respondent “Third Respondent Fourth Respondent Fith Respondent Sixth Respondent Seventh Respondent Eighth Respondent Ninth Respondent Tenth Respondent Eleventh Respondent Twelth Respondent Thineenih Respondent Fourtyenth Respondent akPAN AFRICANIST CONGRESS Fifteenth Respondent AFRICAN TRANSFORMATION MOVEMENT ‘Sixteenth Respondent GOOD PARTY ‘Seventeenth Respondent AL JAMA-AH Eightoonth Respondent FOUNDING AFFIDAVIT |. the undersigned MINHAJ JEENAH do heraby state under oath 41. 11am the Executive Director ofthe applicant and ! am duly authorised to depose to this affidavit on its beh. 2. The content of tis affidavit falls within my personal knowledge, unless the Contrary is stated oF appears from the context, and it is, to the best of my knowledge and belie, true and correct. 3. AB tis application concems principally questions of faw, this affdavit includes the necessary logal grounds to establish the case fo the roll that sought by the applicant. In sting out such grounds, tly on the advice of te applicants legal representatives, which | believe to be corec, The Balance of the legal submissions willbe dealt thn argument atthe hearing ofthis mater.THE PARTIES. 4 et 62 63 7. ‘The applicant is MY VOTE COUNTS NPC, a non-profit company (tog. no. 20141046956/08) with ts registered address at Community House, 41 Salt River Road, Salt River. Cape Town, 7026. The applicants forerunner, My Vole Counts, was founded as a non-profit ‘voluntary association on 28 July 2012 withthe aim of campaigning for a more Inclusive, transparent and accountable poltical and electaral system in South ‘Arica. The applicant was incomorated on § March 2014, ‘According to ts memorandum of incorporation, the applicant's purpose is to improve the accountability, transparency and inclusiveness of elections and politics in the Republic of South Africa generally, including by ‘campaigning for reform of the poltical party funding system in South Africa, through the introduction af legislation and other measures: ‘campaigning for reform of the electoral system in South Attica, s0 as to allow voters to elect individual Members of Parllament from thele constituexcies; and creating platforr's to unite South African citizens and organisations in finding democratic solutions to the challenges of our time, with @ particular ‘ecus on civic, legal and poltical education. The applicant approaches this Honourable Court in terms of4 7-1 section 38(a) ofthe Constitution of the Republic of South Afica. 1996 ("the Constitution), acting in its own interest, in accordance with its purpose ‘and objects, as set out in the memorandum of incorporation; and 7.2 section 38(d) of the Constitution, acting in the public interest, which 1 respectfully submit is manifest from the facts and grounds set forth io this affidavit 8, The fist respondent is THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA ("the President’), elected in terms of section 86 of the Constitution, cited in his capacity as the head ofthe National Executive and the head of State, ‘The second respondent is the MINISTER OF JUSTICE AND CORRECTIONAL ‘SERVICES, appointed by the President in terms of section 91 of the Constitution as the member of the Cabinet responsible for law reform and constitutional development. 10. The thd respondent is the MINISTER OF HOME AFFAIRS, appointed by the President in terms of section 91 ofthe Constitution as the member of the Cabinet responsible for electoral matters. 11. Pursuent to the Uniform Rules of Cour, the first to third respondents will be served care of the STATE ATTORNEY, wilh its offices situated at 4th Floor, 22 Long Street, Cape Town City Centre Cape Town, South Africa. 12, ‘The fourth respondent is the INDEPENDENT ELECTORAL COMMISSION IEC") established in terms of Chapter 9 of the Constitution and the Electoral ‘Commission Act 51 of 1996, and cited by vitue ofthe interest it may have in thesubject matter of these proceedings, The IEC's offices are at Election House, Riverside Office Park, 1903 Heuwel Avenue, Centurion, Pretoria, 18. The ith to eightoonth respondents are the pltical pares curry occupying sealsin the National Assombly. They are cited by virtue ofthe intrest they may have in the subject matter ofthese proceedings. No eles sought against them. ‘Their addresses appear from the novice of motion to which tis dav is attached. NATURE AND PURPOSE OF THIS APPLICATION 14, This is an application for an order in terms of section 172(1) of the Constitution declerng thatthe Political Party Funding Act 6 of 2018 ("the PPFA"), including the Regulations thersto as contained in Schedule 2 to the PPFA (‘the Regulations"), invald and unconstitutional insofar as and to the extert that it (0) fails to require a polical party to disclose all private donations received by and ‘made to it; and (i) fils adequately to impose controls on the private funding of poltical parties. 18. Atits core, this application is concerned with strengthening democracy by giving ‘mearingful effect to the constitutional imperatives of transpsrency, openness ‘and accountabilty. To this end, this application seeks affirmation and meaningful realisation of fundamental constitutional imperatives: (i) that citizens be able to ‘access information required forthe effective and informed exercise oftheir right to vote as enshrined in terms of sections 19(1) and (3) of the Constiution: (i) that elections aro free and fair in accordance with section 19(2) of the Consttution; and (ii) to ensure that the state cartes out its dutias to promate, respect and full the Bill of Rights, including the right to vote, an intagial part of6 hich isthe provision of information and proactive measures to mitigate against the undue influence exercised by private interests aver elected representatives ‘and poitical partes, the right to free and fair elections, and the right of access to information, ‘The applicant submits that although the PPFA and the Regulations ostensibly attempt to give expression to the aforesaid constitulonal imperatives, they fall shot of the constitutional standard on account of the fact that they (i) init the disclosure of any single or @ combination of donation by the same donor to ‘amounts over 8 particular threshold, and set that threshold at R100,000.00; (i) do not, in any event, regulate cumulative donations by donors which are rolated to one another; (i) entite poltical patios to accept private direct donations up to an excessive mt of R15 milion: and (v) only require juristic persons, to the exclusion of natural persons, to disclose donations made in excess of the “prescribed threshold". Moreover, the current reporting obligations require poltcal parties only to account for how they have ulilised the public funding received from the Represented Poltical Party Fund (*RPPF") and the Mult-Party Democracy Fund ("MPDF") but not front private sources. The only legtimate basis on which political parties may be allowed to solicit donations from the public is if they put those donations to legitimate political uses. In any event, both the public and the IEC are entitled to disclosure in this regard, The applicant submits that the dictates of the constitutional imperatives, as supported by the Constitutonal Court, render such provisions of the PPFA and associated regulations unconstitutional wh7 47. The PPFA was assented to by the Presklent on 22 January 2019, promulgated in February 2021, and came into effect on 1 April 2021. It wil be cemonstrated that the PPFA is woefuly inadequate in respect of providing access to and the ‘proper disclosure ofall private funding information, and futher falls to safeguard against the that of corruption and ultimately state capture, and in fact leaves the door open for such comuption. Accordingly, the PPFA and the Regulations are unconstituional RELEVANT JURISPRUDENTIAL HISTORY AND LEGISLATIVE FRAMEWORK 18. The applicant tas previously, on two separate occasions, made applications in furtherance of the constitutional imperative that citizens be afforied access to informaticn concerning the private funding of poltical partes. 18, The frst was @ 2015 application made directly to the Consttsional Court seeking an order competing Parament to enact legislation in tems ofa constitutional obligation to gue effect to the right of access to Information to regulate the disclosure of frvate funding information. The applicant argued that such legislation was required in addon fo the Promotion of Access to Information Act PAIR 20. The majorty of the Constitutional Court in the resultant judgment, My Vote Counts v Speater of the National Assembly [2015} ZACG 31 at 147-148 ("My Vote Counts 1"), eld that PIA i tho legislation envisaged inte of section 32(2) of the Gensttuton and was intended fly to give effect tthe ight of 20cess to infomation. Accordingly, the Constiutonal Court nelé that the principe of subsianty dictated thatthe applicants arguments shoud have taken the form of a "ronal challenge" to the constitutional validity of PAIA in an2 application before the High Court of South Aca under secon 172(1) ofthe Constitution, particulary because the applicant had relied on apparent shortcomings with PAIA to justly the relief sought. Pursuant to. this determination, the merits of the applicants arguments were not considered by the majorty ofthe Constitutional Court tn 2017, the applicant, in accordance with the Constitutional Court's decison in My Vote Counts 1, made application tothe High Court (Westem Cape Division) forthe folowing: (i) @ declaration that information about the private funding of political paresis reesonaby requited forthe effective exercise of the ight to Vote in Section 19(3)(a) of the Constitution; and (i) a declaration that PAIA Is unconstitsional insofar as it dons not allow forthe recordal and cisclosure of private funding infomation of poltizal partes. The High Court, in My Vote {Counts NPC v President of the Republic of South Aiica and Others 2018 (2) SACR 644 (WCC) (the High Court deciaton’, grand the relief sought by the _eppicant, and refered its decison to the Consttutonal Court for entation in accordance with section 172(2) ofthe Constitution. (©n 21 June 2018, the Constitutional Court unanimously confirmed the High Court decision in My Vote Counts NPC v Minister of Justice and Correctional Services ‘and Another 2018 (5) SA 380 (CC) (‘My Vote Counts 7). The relevant part of the Order handed down by Mogeang CJin My Vote Counts 2 provided as follows: "The order of consttutiona' invalidity made by the Western Cape Division of the High Court, Cape Town is confirmed, i these terms:1.4 Ik fs declared that information on the private funding of political parties and independent candidates Is essential for the effective exercise ‘ofthe right to make paltical choices and to participate in the elections. 1.2 It's declared that information on private funding of poltical partios. land independent candidates must be recorded, preserved and made reasonably accessible 1.3. It is also declared thatthe Promotion of Acc@ss to Information Act 2 ‘of 2000 (PAIA) is invalid to the extent of its inconsistency with the Constitution by failing {0 provide for the recordol, preservation end reasonable disclosure of information on the private funding of poltical patios and independent candidates. 14 Parlament must amend PAIA and take any other measure i deems ‘appropriate to provide for the recerdal, preservation and facitetion of ‘reesonabie access fo information on the private funding of political parties «nd independont candidates within a period of 18 months” 23. Ultimately, following My Vote Counts 2, two legislative changes were effected to ‘provide for the regulation of access to information conceming the private funding Of polical partes. The primary legislation enacted was the PPFA, with effect from Ap%l 2021, although the bill giving rise to the PPFA, the Poltcal Party Funding Bil ("the Bil), was fst tabled to Pariament on 29 Novernber 2017 - ater the second application was instituted by the appcant, bu before the High ‘Court derision and My Vole Counts 2 were delivered, In addon, and asa diect result of My Vole Counts 2, the PAIA Amendment Act 3 of 2019 wes enacted also with effec from April 202110 24. The Constitutional Court in My Vote Counts 2 took into account the potential interplay between an amendment to PAIA arising out of the judgment and the PPFA (or rather, at that stage, the Bil), noting the folowing: *[15] In any event, the content ofthe Bil and its possible impact on the Issues before us was not part of the case that culminated in the High Court ‘order. The case that was presented tothe High Court, that we are grappling with in these confirmatory proceedings, has to do with a frontal attack that ‘was launched on the constitutional validly of PAIA. That isso because, In @ previous case, this Court correctly ruled that PAIA is the legislation envisaged by section 32/2) of the Constitution to regulate access 10 Information. And the long tte of PAIA makes this abundantly clea, Itrefers {othe right of access o information and that PAIA isthe national legislation “enacted to give effect fo this right" It was for that reason, that this Court hheld that PAIA’s constitutional vality had to be attacked frontally. And this, ‘is what My Vote Counts did successfully in the High Court. The case was ‘about the need to regulate the recordal and disclosure of information on the private funding of poltical parties and independent candidates and was ‘specifically grounded on section 92 read with sections 7(2) and 19 of the Constitution as well as PAIA. 116] The ongoing law-making process may comfortably run paral 0 this Judgment without the one being undermined by the other in any way. This {is 80 because the Bilis intended to provide exclusively and uniquely forthe recordal and disclosure of information on the private funding of poliicar“ pares ~ not to give effect to the High Court order sought to be confirmed here. 117] Pastament enjoys functonel independence inthe discharge of ts law ‘making obligations oven in relation to the regulation of private funding. Whether it dows so through one, wo or more pisces of legislation falls squarely within its discretionary powers. may for exemple moot that obligation trough an eppropriatelyrecalbrated PAIA alone, PAIA and nother legislation ra diferent mechanism afogether” 25. As it tumed out, the PPFA was enacted asthe primary mechanism by which poltcal parties and donors to peltcal parties would be required to record and ‘close private donations and funding information. The objectives ofthe PPFA ‘extend beyond region of private funding and ts disclosure, however, and are described as folows in the Preamble: "PREAMBLE WHEREAS the Constitution establishes the foundational values of accour enness in a mul ac AND WHEREAS itis important to deepen democracy, promote the national inferest and to protect the sovereignty ofthe Republic; AND WHEREAS tho Republic's public international aw obligations requite fn the of we p funding of artes; AND WHEREAS Section 236 of the Constitution, in promating that ‘Principle, requires national legislation to provide for the funding of political ‘parties participating in national and provincia! legisiauires on an equitable and proportional basis fo enhance mult-party democracy;26. 27. Fa AND WHEREAS effect 's given to this Section through money made available fo those poltical parties from a fund created by law for that purpose; AND WHEREAS Section 44 of the Constitution affords Partiament legislative authority to pass legistation with regard to any matter, which would include tor ate funding of arto AND WHEREAS effect is given to this by- ‘+ establishing an additional fund to recelve funding from private ‘sources subject fo certain restrictions; + prohibiting certain donations being made directly to poltical parties; and + coving fo the disclosure of donations, BEIT THEREFORE ENACTED by the Parliamant of the Republic of South ‘Africa, as folows:-* (own emphasis added). ‘As Ihave mentioned above, PAIA was also amended to give effect to My Vote Counts 2, To this end, the PAIA amendment resulted in PAIA being extended to political parties (as "private bodies") and requiting that poltical partes keep ‘records ofboth donations excooding the prescribed threshold (as defined in the PPFA) and the Wentites of donors. Such information, pursuant to the “amendments roquired to be made avaiable on a “quarterly basis as prescribed (by the PEAY. PAIA, as amended, ishowever reliant on the PPFA. The recordal and disclosure ‘of donation information mandated by PAIA depends on the provisions of the PFA. If those provisions of the PPFA. specifically the provision conceming @a "prescribed threshold for disclosure, are declared unconstitsional, that would have a knock-on offect onthe operation ofthe correlating PAIA provisions. The lepisiture has chosen to give effect othe right of access t information to and limits on private funding of poltical parties primarly through the PPFA as read with PAIA and thus the frontal challenge is brought against PPFA as the relevant legislation intended to cover the subject-matter ofthis application, Once the ‘defects in PPFA are addressed, PAIA can operate in a constitutionally complant fashion, ‘THE IMPUGNED PROVISIONS: SECTIONS 8(2) AND 9(1)(a) OF THE PPFA, AND REGULATIONS 7 AND 9 OF THE REGULATIONS 28. tis apparent from the Preamble o the PPFA that Pafiament acknowledges (i} the vitality to democracy of ensuring transparency in the funding of poltical Parties; (i) the fact that certain direct and private donetions must be arobibited ‘altogether; and (il) that the disclosure of donations is beneficial and in fact essential. These considerations, as set forth in the Proamble, are premised on the foundational constitutional values of transparency and openness in a mult. party democracy and are, in fact, critical to facilitating the abllty of ctizens to ‘cast an informed vote, and o ensure our poltical system isnot subject to undue ‘oF clandestine influence, 29. When Ireferto the PPEA, this must be taken tobe a reference to the PPFA and the regulations purporting to set the thresholds contemplated in sections 8(2) and 0(1)(2) of the PPFA (o, regulatione 7 and 0 ofthe Regulations),“4 30. The PPFA nevertheless fais to give affect to its very Preamble, let alone the 30.4 302, constitutional imperatives and rights that undorie it, for reasons I traverse later. For present purposes, it sufices to note that the falure of the PPFA is manifold, Ets, it places a threshold on the disclosure of private donations accepted by poliical parties in circumstances where the constitutional imperatives dictate that all donations must be disclosed. Such a threshold is not constitutionally permissible and defeats the purpose of the disclosure Second, even if any threshold were permissible (wish is denied), the threshold chosen is t00 high, is legislated to be per donation(s) from precisely the same donor and is set by the head of the national executive (ie the President); Moroover, there fs no provision in the legislation to deal ‘wih cumulative sums of donations frm donors who are related to one another (eeffoctively the same person sable to make separate donations Personally and also through one or more logal enlles, thereby Srcumventing the threshold provisions). Further, thers sno evidence that the legislature has done any analysis on the propriety ans reasonableness othe R 100,000 limit and whether only donations above his mit would be necessary to exerlse tho right to vote in an informed fashion and would have a material influence on pital discourse othe polces of a polical ares, The R 100,000 limits thus arbitrary. But any event inthe socio- economic contest of South Africa, where the average monthly salary of ‘hose in employments R 26,032 (according to Stats South Afi), with large number of people (around 32.7% according to Stats South Afca) ‘unemployed, is threshold is unduly high and without any justification. 15 attach extacls from relevant Stats SA publications, marked "FAI" and "FA2". There would be no administrative burden toa publiaten of al the onations, 2s these in any event have to be recorded by the pltical party in question and wil or may be required to) be tranamited electonically to the IEC. All of this renders the primary and delegated legislation ‘unconstiutional; and 303 Thi, it leaves the door open fr poticel partes to be beholder to the intrest of single lage donors to the detriment of voters by faclitaing the nefarious objectives of compton and capture, by allowing the head ofthe: national executive to set the overall imi on donattons from a single source and bythe reguiations setting tha lint at an unreasonably high R Simin er annum; 30.4 Fourth, it excludes naturel persons from reporting obligations in respect of {donations made in excess ofthe preseribed threshold, without any basis 31, The aforesaid failures ofthe PPFA largely stem from the following provisions, S11 Section 8(2) of the PPFA provides that "a political party may not accept a donation trom a person ox entity in excess of the prescribed amount withio 2 financial year” The “prescribed amount is stipulated in regulation 7 of the Regulations, as follow: 7. Upper limit of danations ‘The amount contemplated in section 8(2) of the Act is teen milion rand within a financial year."6 312 Section 9(1}a) of the PPFA provides that a political party must disclose ‘every donation received “above the prescribed threshold.” Regulation 2 of the Regulations defines the "prescribed threshold" as: 2. Disclosure fit The threshold referred to in section 9(1\a) of the Act is R100 000,00 within a financial year” 31.3 Section 9(2) of the PPFA excludes natural persons from the obligation to disclose donations made above the prescribed threshold in ‘subsection(1)(a). To this end, section 9(2) reads as follows: “A juristic person or entity that makes a donation above the threshold prescribed in torms of subsection (1)(a) must disclose that donation {0 the Commission in the prescribed form and manner.” 32, Section 12(2)4)) provides for polical partes to produce financial statements, ‘books and records to account both for the income and expenditure of party funding received from public sources (le, the RPPF and MPOF), but the ‘comparable section 12(2X4{) relating to private funding only requires an ‘accounting for income, not expenditure. The IEC's report delivered under section 22 thus also does not contain the detall relating to party expenditure of private funding. 33. The applicant challenges the above provisions ofthe PFA as follows: 93.1 its in respect of section 9(1}(a), the applicant's primary submission is that there ought not to be any threshold Imiting the disclosure of donations, wh32 33.24 w irespectve ofthe emount of@ donation, and that any threshold is therefore Unconstitutional, AS | shal traverse latr inthis affidavit, the constitutional imperatives underyng the right to vole in South Arica, a informed by tho right of access to information bearing on the right to vole, requires that private donations in any amount must be disclosed, As such, there fs no basis for any prescribed limit In any event, he faire to disclose the total mount of donations means that people are in the dark as to how many donations are made to a political paty and how solvent and Nqul it ‘Thus, indicators ofthe basis and extent of ts support are missing, a8 1s information which would indicate to what extent donations are tkely to influence the party’ platform. For instance, we simply do not know if the ‘ican National Congress (‘ANC") or Demecratic Allance (DA) obtains the majority of its funds rom smaller donors or the big corporates, and thus ‘Lis not possible reasonably fo gauge the iluence that large individual donors may wield. To the extent that the PPFA does not require the disclosure of al private donations, it is unconstitutional; ‘Second, even fa minimum kmit may be consitutional, the framework in the PPFA and the determination of the current limit of R 100,000 per donation {s unlawful and unconstitutional. This ls because: the limit fs too high and donations far below this lit may have 2 ‘materia impact on poltical decision making. This is bome out by the fact that only 12 out ofthe 1540 repistered poltcal parties disclosed any donations since the inception of he PPFA in 2021. Those partes ‘must thus be receiving no donations or donations below the imi. A33.23 18 donation below R 100,000 will thus clearly be material to their ‘operations. Without full transparency, however, which is to be ‘achieved by full disclosure of all donations, voters are unable to evaluate what is and Is not material insofar as private funcing Is ‘concerned; ‘apart from the ANC, the DA and ActionSA, who have consistonty received donations totaling milfons, i is noteworthy that the Economic Freedom Fighters ("EFF"), a potkical party with $3 of the 400 members ofthe National Assembly only received two donations above R 100,000 in the 20223 year, totaling R352,600. Donations bolow R 100,000 are plainly materia inthis contest, Even the other ‘mater poltical partes which have received some donations above R 100,000 have not received much more than one or a few hundred thousand Rand in total in donations above R 100,000, Thus, donations below that amount would clearly be very material such paris and potomally ther polices. They can also be iniuenced in ‘an outsized manner by even relaively small donations, But, the ‘eppicant submits that donations below R 100,000 would be material to all partis, incuing ANC, DA and ActonSA, and should be