Law firm Webber Wentzel noted on Thursday that should President Cyril Ramaphosa decide to sign the Electoral Matters Amendment Bill (EMAB) into law, its client, My Vote Counts, will launch an urgent application to challenge the constitutional validity of the Bill, and obtain interdictory relief to prevent its implementation. 

The Bill was sent to Ramaphosa for assent after the National Council of Provinces (NCOP) passed it without amendments on Tuesday.

The Bill is a sequel to the Electoral Amendment Act that was passed last year to provide for independent candidates to stand for election in Parliament and provincial legislatures.

It provides for the regulation of the private and public funding of independent candidates and independent representatives, among other things.

In My Vote Counts’ submissions to Parliament, it argued that, in its current form, the Bill is “unconstitutional, and undermines” the constitutional duties in respect of transparency and accountability in political party funding legislation.

PUBLIC PARTICIPATION AND PRESIDENTIAL SOLE DISCRETION

The organisation explained that the version of the Bill that has been passed, has not been subject to public participation, which is in breach of Section 72 of the Constitution.

It noted that not just the process before the NCOP, but the entire enactment of the EMAB, including the President's assent, could be deemed invalid owing to the fundamental breach of constitutional procedure.

The Bill allows the President discretion to establish the funding upper limit and the disclosure threshold places a substantial amount of political influence within the grasp of one individual.

My Vote Counts added that this essentially allows the President to set rules that could disproportionately benefit his own party’s political interests, creating an unequal playing field for other political entities. 

My Vote Counts argues that this is unconstitutional because the President, as the leader of a political party, inherently possesses a vested interest in the outcomes of such decisions. 

“The ability to influence the financial dynamics of political competition, including the flow of private donations, can significantly impact the political landscape to favour the President's party,” it says.

The organisation highlights that there is presently no National Assembly resolution authorising the President to determine the upper limit and disclosure threshold and any such resolution is unlikely to be passed before the elections scheduled for May 29. 

This, My Vote Counts explains, will place South Africa's constitutional democracy and party accountability in peril, and will facilitate the undue influence by certain companies and actors in South Africa's political and governance system.

The organisation notes that in light of the constitutional defects, Ramaphosa should not sign the Bill into law, instead he should refer the Bill back to the National Assembly and the NCOP for reconsideration.  

“If the reconsidered EMAB does not cure the constitutional defects, then, in terms of Section 79(4) of the Constitution, the President should refer the EMAB to the Constitutional Court,” it says.

The President can only sign the Bill into law after the Constitutional Court determines it to be constitutional, said My Vote Counts.

It is requesting that Ramaphosa provide confirmation in writing by no later than Wednesday regarding his intentions in respect of the Bill.