IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 10607/24
In the matter between
MY VOTE COUNT NPC APPLICANT
AND
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1st RESPONDENT
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 2nd RESPONDENT
MINISTER OF HOME AFFAIRS 3rd RESPONDENT
ACTING SPEAKER OF THE NATIONAL ASSEMBLY 4th RESPONDENT
And
In the application for intervention of
THE DEMOCRATIC ALLIANCE INTERVENING APPLICANT
In re the matter between
MY VOTE COUNTS NPC APPLICANT
AND
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1st RESPONDENT
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 2nd RESPONDENT
MINISTER OF HOME AFFAIRS 3rd RESPONDENT
ACTING SPEAKER OF THE NATIONAL ASSEMBLY 4th RESPONDENT
Date of Hearing: 12 August 2024
Date of Judgment: 16 August 2024 (to be delivered via email to the respective
counsel)
______________________________________________________________________
JUDGMENT
THULARE J
[1] This is judgment on the return date o f a rule nisi. The Democratic Alliance (the DA)
considered itself an ‘interested person’ called upon to show cause why an order in the
terms prayed for by the applicant (MVC) should not be made final on the return date,
and filed papers to oppose the appli cation. The applicant (MVC) disputed that the DA
was an ‘interested person’. The President, the Minister of Justice and Correctional
Services, the Minister of Home Affairs and the Acting Speaker of the National
Assembly, all abided the decision of the cour t on the return date. The Speaker filed an
explanatory affidavit which explained the measures that the National Assembly (NA)
took and intended taking in relation to a resolution for the President’s consideration
which will include upper limit and disclosure thresholds.
[2] The issues were whether the DA was an interested person, and whether the rule nisi
stood to be confirmed.
THE DA’S INTEREST
[3] The DA’s case on its interest is in substance couched in the following terms at para
15 of its founding affidavit:
“The DA plainly has a direct and substantial interest in the main application. As a
registered political party, it is required to comply with the donation limit in section
8(2) of the Funding Act (“the donation limit”) and the disclosur e threshold in
section 9(1)(a) thereof (“the disclosure threshold”). The relief sought in the main
application relates to the donation limit and disclosure threshold.”
MVC’s position was that the mere fact that a person or entity was required to comply
with legislation did not automatically confer upon them a direct and substantial interest
in litigation concerning the validity of that legislation. It was contended that compliance
with a statutory provision did not inherently grant an interest in legal proc eedings
challenging that law’s validity. It was also contended that the relief that the applicant
sought was what applied as a matter of statute. MVC contended furthermore, that even
in circumstances where the relief sought aimed to temporarily address a g ap in
legislation, it did not grant the DA a direct and substantial interest, as such relief did not
affect any of its legal rights. In particular, the DA could not claim any prejudice to its
rights, to the extent that it had any, because, by its own inter pretation, it accepted that it
was subject to the financial thresholds. If the relief was granted, the DA would continue
to act in accordance with the financial thresholds. MVC’s case was that the DA did not
meet the higher threshold that was required of a party to establish any interest in a
matter where the validity of the law was in issue.
[4] MVC’s view was that even if it was shown that the DA had a direct and substantial
interest in this matter, it would not be in the interests of justice to allow their intervention.
MVC provides five reasons for this view. First, the DA’s case was based on the incorrect
reading of section 11 of the Interpretation Act, a submission which was already made by
the third respondent in the urgent application. MVC’s view w as that the interpretation
was manifestly wrong, misleading and an unhelpful submission to the court. Second,
the DA belatedly sought to intervene. Third, the intervention application essentially
sought to introduce a counter -application at a late stage in the proceedings, and this
would delay the hearing. Fourth, the DA would not suffer any prejudice if the relief was
granted as the DA believed it was currently as a matter of law already subject to the
threshold limits and caps, which the applicant sought by way of interim relief in these
proceedings. Fifthly, the intervention application was not bona fide, and was a
misguided attempt to safeguard its interests in the 2023 application which dealt with a
different subject and was yet to be heard. The non-bona fides of the DA was clear when
regard was had to the fact that the DA’s member of Parliament and its Shadow Minister
of Home Affairs then Mr Adriaan Roos argued, during a Portfolio Committee on Home
Affairs deliberations on the law under consideration, that with the removal of the R15
million limit, political parties could receive unlimited donations with no regulatory
oversight. The DA was on record in the National Assembly stating that there was a
lacuna in the law and that it was a majo r problem that should avoided . It was
inexplicable that the DA now tried to depart from its previous position, in this litigation.
[5] The DA was well within its rights, if it believed that it was an interested person as
envisaged in the rule nisi, to answer to the call on the return date. The delay occasioned
by such answer is a necessary consequence of the applicant’s approach to court, the
right to be heard and to fully prepare for litigation and the interests of justice. Moreover,
such delay did not occasion in this matter. This disposes of the second and third ground
upon which MVC relied on why it was not in the interests of justice to allow the DA’s
intervention. There is a vast difference between a political argument and a legal
argument. Politician s, including in the National Assembly, do and say things which if
they had legal advice, would not have done or said. Courts should be too slow to hold
politicians and political parties to their word in political debates, as this may have the
tendency to s tifle democratic debate. It is courts that should assist that there is no
judicialisation of politics. The Speaker’s explanatory note drives the point home. It is
once the judgment in the rule nisi was delivered, in the midst of uncertainty and political
debates, that the NA through its lawyers read and considered the judgment, advised of
its correctness and agreed with it, that the view was that any resolution proposed by the
NA in terms of section 24 of the Act must set amounts on the upper limit and disc losure
thresholds in order to enable the President to apply his mind to the figures and numbers
resolved. In my view, it is proper to reject the invitation to go into political debates in the
Committees of the NA, which may or may not have been informed by prior legal advice,
and use it against the DA. In legal matters, it is not unheard of that one may get
conflicting legal advi ce one after the other on the same matter. I am not persuaded by
the fifth ground, in that a change of front on a matter was necessarily a demonstration of
the DA not being bona fide . I am not persuaded that a political party, without more,
owes a court an explanation when its political rhetoric outside the courtroom differs from
its l egal argument in litigation. Such duty may be owed to its members, supporters,
voters and others interested in consistency in its conversations. It is the first and fourth
grounds that require some closer scrutiny. I will deal with the first last as it is the same
ground that the third respondent argued in the rule nisi.
[6] In Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97
(CC) at para 12 and 13 it was said:
“[12] As was pointed out on behalf of Mr Bell, the considerations appl icable to
Uniform Rule 12 are not necessarily wholly appropriate to a case involving an
order of constitutional invalidity of a statute in terms of s 172 of the Constitution.
The common -law principles relating to intervention of parties applied by the
courts in respect of Uniform Rule 12 deal primarily with disputes in personam,
whereas an order under s 172 is an order in rem . In disputes concerning the
constitutional validity of a statute, it would - so it was submitted - be impractical if
'the test of a direct and substantial interest in the subject -matter of the action is
again regarded as being the decisive criterion' (emphasis added). This Court
would not be able to function properly if every party with a direct and substantial
interest in a dispute over the constitutional validity of a statute was entitled, as of
right as it were, to intervene in a hearing held to determine constitutional validity.
[13] This submission is a convincing one. In every case this Court must ultimately
decide whether or not to allow intervention by considering whether it is in the
interests of justice to grant leave to intervene. Thus, in cases involving the
constitutionality of a statute, while a direct and substantial interest in the validity
or invalidity of the statute in question will ordinarily be a necessary requirement to
be met by an applicant for intervention, it will not always be sufficient for the
granting of leave to intervene. Even if the applicant is able to show a direct and
substantial interest, the Court has an overriding power to grant or to refuse
intervention in the interests of justice. Other considerations that could weigh with
the Court in this regard include the stage of the proceedings at which the
application for leave to intervene is brought, the attitude to such application of the
parties to the main proceedings, and the question whether the submissions
which the applicant for intervention seeks to advance raise substantially new
contentions that may assist the Court.”
An indirect interest in the litigation is not sufficient. The person must have a direct
and substantial interest in the results of the decision [ Standard Bank v Swartland
Municipality 2011 (5) SA 257 at para 9; Collin v Toffie 1944 AD 456 at 464]. In
SA Riding for the Disabled Associat ion v Regional Land Clamis Commissioner
and Others 2017 (5) SA 1 (CC) this was expressed in the following terms in para
9 and 10:
“Intervention
[9] It is now settled that an applicant for intervention must meet the direct
and substantial interest test in o rder to succeed. What constitutes a direct
and substantial interest is the legal interest in the subject -matter of the
case which could be prejudicially affected by the order of the court. This
means that the applicant must show that it has a right adverse ly affected
or likely to be affected by the order sought. But the applicant does not
have to satisfy the court at the stage of intervention that it will succeed. It
is sufficient for such applicant to make allegations which, if proved, would
entitle it to relief.
[10] If the applicant shows that it has some right which is affected by the
order issued, permission to intervene must be granted. For it is a basic
principle of our law that no order should be granted against a party without
affording such party a predecision hearing. This is so fundamental that an
order is generally taken to be binding only on parties to the litigation.”
The DA may have shown that it has an interest in that it was required to comply
with the donation limit in section 8(2) of the Funding Act (“the donation limit”) and
the disclosure threshold in section 9(1)(a) thereof (“the disclosure threshold”) and
that the relief sought in the main application relate d to the donation limit and
disclosure threshold. The DA failed to address, and thereby failed to show that
this one interest it relied on, w ould be adversely affected by the order sought.
The DA accepted that it was subject to the donation limits and discl osure
thresholds as a matter of law, which the applicant sought through an interim relief
in this matter to ensure continued transparency by ensuring compliance with
existing transparency requirements. The absence of any prejudice of the order
sought, is fortified by the DA itself in what it sought as an alternative to its prayer
for dismissal of MVC’s application. The DA sought the retention of the donation
limit and the disclosure threshold retrospective to the date the amendments
came into operation.
[7] I am not persuaded by the DA’s case for intervention. Following Gory’s factors
included to be considered, I have already dealt with the stage of the proceedings at
which the application for leave to intervene was brought, and on the return date as
regards the stage, it favours the DA. The President, the two Ministers in Cabinet and the
Speaker of the National Assembly abide the deci sion of the court. MVC is opposed to
the intervention. The DA’s submissions sought to be advanced do not raise substantially
new contentions that may assist the court. They are the same contentions raised by the
Minister of Home Affairs, the third respondent, in the rule nisi, which for all intents and
purposes have been abandoned, if regard is had to the Minister’s decision to abide on
the return date. It is reliance on section 11 of the Interpretation Act, 1957 (Act No. 33 of
1957) (the IA). My analysis of section 11 appears in paragraphs 7 to 13 of my judgment
on the rule nisi. It is sufficient to refer thereto. The DA brough t no new contentions that
may assist the court. Its proposition that they were the first to file papers raising section
11 of the IA, and therefore must be afforded an opportunity to be heard on it, is simply
flimsy and insubstantial. The DA’s answer to th e call upon all interested parties to show
cause on the return date why the order sought by MVC should not be final stood to be
dismissed. The DA is a party with an interest. The DA has however failed to show that it
had a right adversely affected or likely to be affected by the order sought. The DA also
failed to show that the submissions it sought to advance raised substantially new
contentions that may assist the court.
THE MERITS
[8] Absent the DA, all the other res pondents elected to abide the decision of the court .
The matter stands unopposed. Upon the Electoral Matters Amendment Act, 2024
(Act No. 14 of 2024) (the EMAA) taking effect on 8 May 2024 there was no upper limit to
donations in Regulation 7(1), and there was no disclosure threshold for donations in
Regulation 9. The old regulations were repealed and had been substituted by the new
regulations. The President required a resolution of the NA to determine the new upper
limits and the disclosure thresholds. There was no resolution of the NA that authorized
the President to determine the upper limit and the disclosure threshold. When the
EMAA took effect on 8 May 2024, it created an unfilled space, or a gap, or lacuna in the
law as regards the amounts in the upp er limit and disclosure threshold for donations.
Section 11 of the IA , upon which the Minister of Home Affairs relied in the rule nisi, is
applicable to old law which was repealed, in circumstances where the intended new law
has not yet come into operatio n. It is a transitional mechanism to ensure that between
the date of repeal of the old law and the date of effect of the new law, there was legal
certainty. I remain unpersuaded that S v Koopman 1991 (1) SA 474 (NC) was authority
for section 11 of the IA to cover mistakes like the present, made by the NA, Cabinet and
the President. Koopman would save the day for the NA, Cabinet and the President, if
the NA had debated and resolved figures and numbers in relation to t he upper limit and
disclosure threshold and passed resolutions thereon , and the President had made a
determination, but the mistake related to that part of the law not being put into effect on
8 May 2024. The mistake where such new law does not exist at al l, and is obviously
pending, is simply beyond the reach of Koopman or section 11 of the IA. Koopman is no
authority for the courts to usurp the function of Parliament and the Executive through
some fictitious reasoning and create non -existing laws. Where t he courts identify a
mistake, our democratic structure is that the courts should so pronounce, and allow the
legislature and the Executive an opportunity to attend to such identified mistake. It is
Parliament’s responsibility to resolve the upper limits an d disclosure thresholds, and the
President’s responsibility to make the determination. This court can only go as far as
making an order that is just and equitable to provide temporary relief. The Speaker is
thanked for her explanatory affidavit, and this court is satisfied that Parliament would
attend to the matter, on behalf of the people of the Republic, in the robust and urgent
manner such a matter deserves.
ORDER
For these reasons I make the following order:
(a) The application to intervene, by the Democratic Alliance, is dismissed with
costs on the basis of scale B.
(b) The rule nisi is confirmed, subject to the corrections in (c) hereunder.
(c) The words “per annum” in paragraphs 1.1.1 and 1.1.2 of the rule nisi are
substituted with the words “per financial year”.
(d) The first and third respondent are to pay the costs jointly and severally, the
one to pay the other to be absolved, on the basis of scale B.
________________________
DM THULARE
JUDGE OF THE HIGH COURT