UPDATE: The doors were opened for undeclared, potentially hundreds of millions of rands of political donations just ahead of the elections when the National Assembly on Thursday morning stood over an urgently required resolution “for further consultation” until next week.

This resolution was needed for President Cyril Ramaphosa to make the regulations on the political funding declaration thresholds and the annual cap on such donations urgently required after the president operationalised the Electoral Matters Amendment Act on Wednesday evening.

Because this Act is now in force, it requires the president to make these political funding-related regulations – but he can only do so after a resolution by the House.

Until this parliamentary resolution is approved – likely on 16 May – the previous R100,000 declaration threshold and R15-million political funding annual cap no longer are in force. And this means the doors are open for anyone to donate any amount without disclosure. (Update ends)

It’s an all-in legislative package. If one step falls, the whole sequence falls and the Electoral Commission of South Africa (IEC) will be left dangling just ahead of the general election.  

The Electoral Matters Amendment Bill, a cover-all law of various consequential legislative amendments, brings independent candidates into the political funding disclosure regimen. The IEC is on public record saying this law must be in effect before the general election on 29 May. Without it, electoral and political donations declaration systems are at risk.

Read more in Daily Maverick: Elections 2024

Parliament passed the Electoral Matters Amendment Bill in March. On Tuesday, President Cyril Ramaphosa signed off on it, and on Wednesday took the next step to proclaim its commencement date for 8 May.

This has messed up the sequencing and introduced risk to the accountability and transparency of the party political funding declaration regime.

Because the Electoral Matters Amendment Act is now in force, no longer applicable are the political funding disclosure threshold of R100,000 and the annual R15-million donation cap for an individual or entity. That’s because the Act requires the President to gazette regulations on those thresholds and caps — but Ramaphosa can’t do so without a resolution of the House.

And that resolution was on the Order Paper only on Thursday.

So, strictly speaking, if anyone would want to fudge political party donations and hand over millions of rands without having to declare it, Wednesday night — before the National Assembly passes the resolution on Thursday — would be the time.

None of this risk would have arisen had Ramaphosa waited until after the House resolution was adopted on Thursday to proclaim the commencement of the Electoral Matters Amendment Act — say, that evening or maybe a day or two later. And preferably issuing the presidential regulations on political funding then, too.

Tightly choreographed

As always, the devil is in the detail. And in this case, it’s about sequencing — and getting the tightly choreographed lawmaking two-step by Parliament and Presidency dead right.

However, once the President gazettes the updated donation cap and declaration threshold regulations following the National Assembly resolution to enable him to do so, the IEC can pick up the ball to ensure independents are part of a functioning political funding declaration system. 

On Thursday, given the seriousness of the situation, the governing ANC is expected to ensure its numbers are in the House to guarantee the resolution passes. Opposition parties are concerned about the Electoral Matters Amendment Act, not only because it — controversially — also changed the funding formula from state coffers for political parties to one that rewards greater representation in legislatures. 

The Electoral Matters Amendment Act funding formula stipulates 90% proportional funding, according to numbers in legislatures, and 10% equitable funding, more detrimental to smaller parties than the long-standing two-thirds proportional, one-third equitable split.

Opposition parties are getting legal advice on their next steps, including litigation, it emerged on Wednesday.

The possibility that the controversial funding formula would not be put into effect — section 46 of the Act allowed different commencement dates for different provisions — fell off the table on Wednesday evening. Ramaphosa’s gazetted commencement proclamation stipulated the whole law would commence on 8 May.

Messy outcome

Work was under way to complete the task “as soon as possible, hopefully by the end of the week”, the Presidency indicated earlier on Wednesday.

All this is high-pressure, risk-exposed lawmaking, and many would say unnecessarily so. 

It’s the messy outcome of the ANC pushing for the minimum legislative amendments, rather than — as recommended by a ministerial task team — the inclusion of directly elected constituency MPs, after the Constitutional Court in June 2022 ruled independents could contest elections. 

It’s also the messy outcome of the Ramaphosa administration’s grappling to coordinate the signing and the commencement of laws in what’s become a bottleneck of legislation in the Presidency. 

In early April, a Presidency statement indicated Ramaphosa had signed two of 23 Bills in his in-tray. While he has since signed a couple more, Parliament has submitted more laws. A back-of-the-envelope calculation indicates some 30 laws waiting in the presidential in-tray.

The Electoral Matters Amendment Act is not an isolated case.

In December 2023, Parliament passed the Regulation of Interception of Communications (Rica) and Provision of Communication-related Information Act amendment legislation to strengthen the independence of interception authorisation judges and for surveillance notification to journalists and lawyers as the 2021 landmark Constitutional Court judgment stipulated.

But five months later, this Bill is still sitting in the presidential in-tray.

And the controversial General Intelligence Laws Amendment Bill, currently before the National Council of Provinces, incorrectly references the 2002 Rica law.  

Another example is the 2019 Critical Infrastructure Protection Act, which was meant to replace the apartheid National Key Point Act. However, it remains largely inoperative, aside from the provisions for the police minister to establish the statutory council to advise him on critical infrastructure declarations.

For Parliament, serious questions must arise over its oversight rigour to ensure legislation it passes is implemented. If it’s not, reasons for such implementation failure must become publicly known.

Right now, the focus is on Thursday’s resolution in the House as a key step to avoid disruption to the political funding declaration regimen that brought a large measure of transparency and accountability to South African politics.

The IEC is counting on this. DM

This article was updated on Thursday before lunch time to include the morning’s development  in parliament that the planned resolution had been stood over.