15 June 2020
On 5 June President Cyril Ramaphosa signed an important amendment to the Promotion of Access to Information Act (PAIA) into law. Its overall objective is to promote transparency in the private funding of political parties and to combat corruption.
The amendment was enacted to give effect to the Constitutional Court judgment in My Vote Counts NPC v Minister of Justice and Correctional Services. In this case, the court declared PAIA to be unconstitutional to the extent that it did not require political parties (or independent candidates) to publicly disclose the amount and sources of their private funding.
The court found that this unjustifiably violated the constitutional rights to vote and of access to information. Parliament was ordered to fix the constitutional problems with PAIA within 18 months.
According to the amended PAIA, the accounting officer of a political party must keep a record of any person who donates R100,000 or more to the party, and the amount of that donation. In the case of an independent candidate, they must personally keep a record of this information.
Records must also be kept of any loans, any money paid to the party or independent candidate to cover their expenses, any sponsorships and any services or facilities which are provided to them for their own benefit. The records must be kept for a minimum period of five years.
Significantly, it does not matter whether the loan or use of facilities or services are provided on commercial terms. This means, for example, that a political party or independent candidate must still keep records of interest free loans or the name of anyone who allows it to use a building without paying rent or with facilities to print election posters, even if the service is provided free of charge.
Political parties and independent candidates are also required to continuously update the records and publicly disclose them on their social media platforms four times every year. The records must also be publicly disclosed at least two months before any national, provincial or local election or a national referendum. This is significant because the duty to publicly disclose the records rests on political parties and independent candidates. This means it is not necessary for the information to be requested before the duty to publicly disclose them comes into effect.
My Vote Counts, which successfully challenged the constitutionality of PAIA in the Constitutional Court, has raised some criticisms about the amendment. Its primary criticisms relates to the R100,000 threshold for donations, and that political parties and independent candidates are only required to disclose the records on social media platforms.
The R100,000 donation threshold raises problems because a private individual or company could make donations to a political party or independent candidate, and each donation could be for less than R100,000. For example, it could make a donation this financial year for R99,999 and another one next financial year for R99,999. In these circumstances, it is possible that political parties or independent candidates could argue they were not required to keep a record of these donations (or publicly disclose them) because each donation was less than R100,000.
Similar problems arise from the fact that political parties and independent candidates are only required to publicly disclose the records on their social media platforms. My Vote Counts has argued this is insufficient and there should also be a duty to provide physical records of any donation or loan when it is requested. The fact that the records must only be disclosed on social media could also prevent people without proper internet access from accessing them.
Another issue is that the amendment does not contain any clear consequences for an accounting officer of a political party or an independent candidate who fails to publicly disclose records or fails to keep records in the first place.
In its submissions to Parliament, My Vote Counts argued that PAIA should be amended to make it a criminal offence for an accounting officer or independent candidate to not comply with the duties to keep records or publicly disclose them. This suggestion was not taken up by Parliament and does not appear in the amendment.
Despite these criticisms, the amendment is an important development. It will promote greater transparency in political party funding and make it more difficult for private individuals or companies to make corrupt payments or loans to political parties and independent candidates.
It should be noted that while the amendment has been signed by the President, it has not yet officially entered into force. While no date has been set for when the amendment will come into effect, it is hoped that it be before the next elections.