Controversial election legislation rushed through Parliament may head to court if proposed 11th-hour talks fail

Opposition parties in Thursday’s programming committee meeting appealed for discussions among parties to stave off potential legal action over the Electoral Matters Amendment Bill. The legislation controversially changes the funding formula of how political parties and independents represented in legislatures receive allocations from state coffers.

If those talks among chief whips do not happen or are unsuccessful, court challenges against the Electoral Matters Amendment Bill may well unfold. Because that legislation must be in place ahead of the 2024 elections, any delays may impact on the poll.

While Freedom Front Plus chief whip Corné Mulder on Thursday suggested taking the foot off the pedal over this draft law, ANC chief whip Pemmy Majodina said this was putting the cart before the horse. Any legal challenge should be dealt with separately from parliamentary processes, she said.

“We are working against time here… elections are pronounced,” Majodina said.

Read more in Daily Maverick: Elections 2024

But Mulder’s appeal for discussions was supported by IFP chief whip Narend Singh and UDM chief whip Nqabayomzi Kwankwa, who said: “(I)f the ANC is not willing to hear various opinions on this matter, we are more than willing to challenge this in the courts”.

Parliamentary legal adviser Charmaine van der Merwe told MPs that time pressure meant special measures such as early briefings to the National Council of Provinces (NCOP).

“It (the Bill) impacts on the elections and we understand the urgency,” she said, adding it was difficult to say how litigation would affect elections unless an interdict was issued.

Changing the formula

The Electoral Matters Amendment Bill is needed to bring independent candidates, who can now contest national and provincial elections, into the funding and disclosure regime.

The Electoral Commission of South Africa (IEC) previously told Daily Maverick, “... it would still be in order to have the enactment done any time before the elections”.

But the draft law from Home Affairs Minister Aaron Motsoaledi also included a controversial change to the funding formula for represented political parties and independents to a proportional 90% allocation according to strength and a 10% equitable allocation, or 90:10.

Following a legislative amendment in 2018, those represented in Parliament and in the provincial legislatures receive financial support from state coffers, split into one-third equitable and two-thirds proportional allocations.

This arises from Section 236 of the Constitution: “To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislature on an equitable and proportional basis”.

Thursday’s programming committee discussion follows the 1 March home affairs committee approval – on the back of ANC numbers – of the Electoral Matters Amendment Bill. The committee report reflects objections from the DA, IFP, ACDP and Freedom Front Plus.

It has been an unusually fast pace in law-making – four months since the draft law was tabled in Parliament to the scheduled vote on 12 March.

In earlier public hearings, the opposition, civil society and others argued against this funding formula change as substantive and new. Or as the Council for the Advancement of the South African Constitution (Casac) put it in its submission:

“The amendment is not a consequential one and there’s no need for it at this stage. It also disadvantages smaller parties... (T)he existing division of funding allocations should be retained and the proposed amendment should be rejected.”

In a rare submission to parliamentary processes, the governing ANC, backed by its alliance partner, Cosatu, argued that the funding formula was for the committee to decide. The IEC agreed. 

The ANC, which currently holds the most seats in Parliament and eight of the nine legislatures, wanted 0.25% of what’s available from state coffers for each legislature seat. 

Its own calculation showed the biggest party would get the most money – more even than on the 90:10 proportional/equitable formula, which was ultimately approved.

For the Freedom Front Plus chief whip, the changes to the funding formula were problematic, as was the “rush” to pass the Electoral Matters Amendment Bill, as public hearings were truncated.

“There is no way the opposition parties are going to allow the ANC by stealth to try to steal more money,” Mulder told Daily Maverick by voice note.

“We believe this Bill would be unconstitutional. There is strong support from all the opposition parties to take this to court. That will play out sooner rather than later if the ANC persists... to push it [the Bill] through.”

DA MP Adrian Roos had unsuccessfully argued for further public consultations, particularly on the changed funding formula the home affairs committee adopted on 1 March.

Controversial proposal ditched

On the upside, proposals to allow the President to circumvent Parliament in the funding of represented parties and independents, which Casac had described as “a regressive step for executive accountability”, were ditched.

In place remains the current approach that the National Assembly decides by resolution when the President may amend regulations on funding criteria and thresholds. This means Parliament continues to have a say.

On Tuesday 12 March, the Bill is scheduled in the House for a vote if the mooted chief whips’ talks do not materialise or fail. When the ANC – on the back of its numbers – gets this draft legislation approved, it goes to the NCOP, whose delegates sat in the National Assembly committee briefings. 

This has shortened, but not annulled, the NCOP deliberation process to pass the legislation without changes so it can reach the President’s in-tray.

If the Electoral Matters Amendment Bill is not signed into law by the President before the elections, or if the threatened litigation unfolds, the 29 May poll remains in jeopardy. DM