The passing of the controversial Electoral Matters Amendment Bill in the National Assembly – which would change the formula of how political parties and independents represented in legislatures receive allocations of state funds – has caused some opposition parties to label the current version as “unconstitutional”. 

They claim it poses a “great threat” to South Africa’s democracy.

On Tuesday 19 March, several parties represented in Parliament held a media briefing to explain why they thought the Bill was “undermining of our democratic order”. 

The Bill, passed by the National Assembly last week, seeks to amend the Political Party Funding Act of 2018 and align various pieces of legislation with the Electoral Amendment Act of 2023, which enables independent candidates to contest elections for seats in the National Assembly and provincial legislatures.

It also makes provision for independent candidates to declare their funding sources.

The Bill passed with 240 votes in favour and 90 against. 

Read more in Daily Maverick: Controversial election legislation rushed through Parliament may head to court if proposed 11th-hour talks fail

IFP chief whip Narend Singh led the media briefing alongside Steve Swart (African Christian Democratic Party), Brett Herron (Good), Corné Mulder (Freedom Front Plus), Mzwanele Nyhontso (Pan Africanist Congress of Azania) and Nqabayomzi Kwankwa (United Democratic Movement).

Although the DA was to be represented, Singh said the party’s chief whip Siviwe Gwarube had been unable to attend.

“Our primary concern with the Bill is that the ruling party has introduced some amendments that go beyond the necessary alignment of laws within the Electoral Act of 2023,” said Singh.

‘Undermines opposition parties’

The Bill was introduced in December 2023 by Home Affairs Minister Aaron Motsoaledi.

Controversially, it proposes a change in the funding formula for political parties.

“The current two-thirds proportional and one-third equitable funding model is now replaced with a 90% proportional and 10% equitable model,” said Singh, describing this as an act of “bad faith” by the ANC.

According to Singh, this would have an immediate impact, with the ANC receiving an additional R52-million for its election budget at the expense of other parties.

“The current two-thirds proportional and one-third equitable funding model formula was negotiated and designed to provide a more even playing field in terms of public funding,” said Singh.

“It was developed to provide smaller or emerging parties with a fair slice of the public funding pie to enhance multi-party democracy.” 

Singh said the current Bill was “unconstitutional and poses a grave threat to our democracy”. 

If the Bill was signed into law, he said, it “will have detrimental consequences and will undermine opposition parties, going against the very spirit of our multiparty democracy”.

The Bill is currently before the National Council of Provinces and, if passed, will go to the President to be signed into law.

“Should this Bill be passed by the NCOP, we then call upon the President not to sign all sections of the Bill into law and to delay the implementation of funding model challenges to allow for further consultation,” said Singh.

As Daily Maverick parliamentary correspondent Marianne Merten previously explained, if the Bill is not signed into law before the elections, or if the threatened litigation unfolds, the 29 May poll is in jeopardy. 

During Tuesday’s briefing, Mulder said he was “convinced” that the ANC wanted to push the Bill through before the elections. He said the opposition parties did not want the bill to affect the poll. 

He said there were other options for getting the Bill passed before the elections, such as signing certain sections into law.

Read more in Daily Maverick: Elections 2024

Legal action is also an option, but, Singh said, “you don’t want to run to court” if there were alternatives.

The ACDP’s Steve Swart said there were options such as petitioning the President, but “one takes it step by step”. 

The parties at Tuesday’s briefing would approach other opposition parties such as the EFF, Al Jama-ah and the NFP to find out if they fully understood the implications of the Bill they had voted for.

Civil society steps in

On Tuesday, hours before the media briefing, around 20 civil society organisations, including the Ahmed Kathrada Foundation, the Council for the Advancement of the South African Constitution, the Defend Our Democracy Movement, My Vote Counts and the Organisation Undoing Tax Abuse, wrote a letter to the NCOP’s select committee on security and justice about what they called the “unconstitutionality” of the Bill. 

They appealed to the committee to reject the Bill in its current form and send it back to the National Assembly for remedy as “several of its proposed amendments are plainly unconstitutional”. 

“If passed in its current form, amendments the Bill makes to the Political Party Funding Act (PPFA) will weaken transparency and accountability in our party funding legislation,” said the civil society organisations.

“While there is a legitimate need to amend certain pieces of legislation to bring independent candidates into the political fold, the attempts to fundamentally alter aspects of the PPFA are opportunistic and make it easier for all political parties to solicit private funding with less public scrutiny.” DM