IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not reportable
Case No: 7630/2023
In the matter between:
MY VOTE COUNTS NPC Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent
MINISTER OF HOME AFFAIRS Third Respondent
INDEPENDENT ELECTORAL COMMISSION Fourth Respondent
AFRICAN NATIONAL CONGRESS Fifth Respondent
DEMOCRATIC ALLIANCE Sixth Respondent
ECONOMIC FREEDOM FIGHTERS Seventh Respondent
INKATHA FREEDOM PARTY Eight Respondent
NATIONAL FREEDOM PARTY Nineth Respondent
UNITED DEMOCRATIC MOVEMENT Tenth Respondent
FREEDOM FRONT PLUS Eleventh Respondent
CONGRESS OF THE PEOPLE Twelfth Respondent
AFRICAN CHRISTIAN DEMOCRATIC PARTY Thirteenth Respondent
AFRICAN INDEPENDENT CONGRESS Fourteenth Respondent
PAN AFRICANIST CONGRESS Fifteenth Respondent
AFRICAN TRANSFORMATION MOVEMENT Sixteenth Respondent
GOOD PARTY Seventeenth Responde nt
AL JAMA-AH Eighteenth Respondent
ACTION SA Nineteenth Respondent
Coram: ERASMUS, J et SLINGERS, J et HOLDERNESS, J
Heard: 18 February 2025
Delivered: 21 August 2025
This judgment is handed down electronically by circulation to the parties’ legal
representatives’ email addresses.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The application is dismissed with no order as to costs.
___________________________________________________________________
JUDGMENT
______________________________________________________________ _____
THE COURT
[1] The applicant describes itself as a campaigner for a more inclusive,
transparent and accountable political and electoral system in South Africa ,
which has as its objective increased accountability, transparency and
inclusiveness of elections and politics in South Africa. The applicant avers
that it strives to achieve its objective by inter alia campaigning for reform of
the political party fundin g system in South Africa through the introduction of
legislation and other measures.
[2] In 2017 the applicant successfully challenged the constitutionality of the
Promotion of Access to Information Act, Act 2 of 2000 (‘PAIA’) to the extent
that it failed to p rovide for access to information on the private funding of
political parties 1. This failure rendered PAIA inconsistent with the
constitutional right to access information, the state’s obligation to protect,
promote and fulfil the rights in the Bill of Rights, the citizen’s political rights.
[3] Subsequent to the applicant’s successful constitutional challenge, Parliament
was afforded 18 months to amend PAIA and to take any other measure it
deemed appropriate to provide for the recordal, the preservation and
facilitation of reasonable access to information on the private funding of
political parties and independent candidates.
[4] This resulted in the enactment of the Political Party Funding Act of 2018 (‘the
PPFA’) and the PAIA amendment Act. In terms of the PPFA, a political party
could not accept a donation from a person or entity in excess of R15 million
within a financial year (‘the donation limitation’)2 and a political party was
1 My Vote Counts NPC v Minister of Justice and Correctional Services and Another 2018 (5) SA 380
(CC) (‘My Vote Counts 2”)
(CC) (‘My Vote Counts 2”)
2 Section 8(2) of the PPFA read with regulation 7 to Schedule 2 thereof
obliged to disclose to the Electoral Commission all donations received above
R100 000 within a financial year (‘disclosure threshold’).3 A juristic person
or entity which donated more than R100 000 within a financial year was
obliged to disclose this donation to the Electoral Commission.
[5] Section 12(2)(d)(ii) of the PPFA obliged the accounting off icer to prepare a
statement showing all donations and membership fees, and any levy imposed
by the political party on its elected representatives during that financial year.
[6] Section 12(3)(c) obliged the auditor to perform an audit of the financial
statements and express an on opinion on those statements inter alia listing
the donations under the disclosure threshold.
[7] The donation limitation and disclosure threshold are viewed as
unconstitutional by the applicant which is sees as negatively impacting on:
(i) the effective and informed exercise of citizen’s rights to vote as
enshrined in sections 19(1) and (3) of the Constitution ;
(ii) free and fair elections in accordance with section 19(2) of the
Constitution; and
(iii) ensuring that the state carries out its duties to promote, respect and
fulfil the Bill of Rights, including the right to vote, the right to free and
fair elections and the right to access to information.
[8] Therefore, it instituted these application proceedings wherein it sought an
order for the following substantive relief :
(i) declaring sections 8(2), 9(1)(a), 12(2)(d)(ii), 12(3)(c), 22 and 24(1) of,
and regulations 7 and 9 in Schedule 2 to the PPFA inconsistent with
the Constitution and invalid;
(ii) to the extent necessary, declaring the PPFA and the Promotion of
Access to Information Act, 2000 to be inconsistent with the Constitution
3 Section 9(1) of the PPFA read with regulation 9 to the Schedule thereof
and invalid to the extent set forth in its founding affidavit dated 11 May
2023, alternatively the Court’s judgment;
(iii) suspending the above declarations of invalidity save to the extent set
forth in (a) and (b) below, for 12 months and directing Parliament to
remedy the defects in the PPFA (including Schedule 2 thereto), in
accordance with the Court’s judgment, within the suspension period:
(a) the declaration of invalidity of section 9(1)(a) of, and regulation 9 of
Schedule 2 to the PPFA shall be effective as from the date of the
Court’s Order with full retrospective effect;
(b) during the suspension period, section 9(2) of the PPF A shall read
as ‘A person or entity that makes a donation must disclose that
donation to the Commission in the prescribed form and manner.’
(iv) in the event that Parliament does not remedy the constitutional defects
in accordance with the Court’s order and/or judgment, within the
suspension period, paragraph (a) and (b) shall continue to apply; and
(v) directing the first to third respondents, jointly and severally with any
other respondent who may oppose the relief sought in this application,
to pay the applicant’ s costs, including the costs of two counsel.
[9] The applicant approache d this court in terms of section 38(a) and 38(d) of the
Constitution for an order in terms of section 172(1). The applicant argued that
it instituted the application to affirm and to mean ingfully realise the
constitutional imperatives that:
(i) citizens be able to access information required for the effective and
informed exercise of their right to vote as enshrined in section 19( 1)
and (3) of the Constitution;
(ii) elections are free and fair in accordance with section 19(2) of the
Constitution; and
(iii) the state carries out its duties to promote, respect and fulfil the Bill of
Rights, including the right to vote and other constitutional rights.
[10] It is the applicant’s ca se that access to accurate information about the private
[10] It is the applicant’s ca se that access to accurate information about the private
funding of political parties is reasonably required for the effective exercise of
the right to vote and to make political choices as envisaged by sections 19
and 32(1) of the Constitution. It also a rgues that the absence of proper
disclosure and regulation mechanism endangers the fundamental democratic
values and that transparency in the funding of political parties is required for
the effective prevention and detection of corruption.
[11] The applicant a rgues that the PPFA and the impugned regulations thereto
limit the disclosure of any single or a combination of donation s by the same
donor to amounts over the threshold of R100 000.00 and do not regulate
cumulative donations by donors which are related to one another and entitles
political parties to accept private direct donations up to an excess of R15
million and only requires juristic persons to the exclusion of natural person to
disclose donations made in excess of the prescribed threshold.
[12] The applic ant contends that the setting of a threshold on the disclosure of
private donations is not constitutionally permissible as the constitutional
imperatives dictate that all donations must be disclosed. Furthermore, even if
the setting of a threshold was permissible, the current threshold is too high.
[13] The applicant also complains that there is no provision in the legislation to
address the cumulative sums of donations from donors who are related to one
another.
[14] The applicant avers that there is no evidence that the legislature has done
any analysis on the propriety and reasonableness of the R100 000 disclosure
threshold and on whether disclosure of donations above this limit is necessary
to exercise the right to vote in an informed fashion . It argues that there is no
analysis on whether donations only above R100 000 and would have a
material influence on political discourse or the policies of a political parties .
Therefore, the threshold of R100 000 is arbitrary.
[15] The applicant argues that even if it is found that there has to be a limitation on
[15] The applicant argues that even if it is found that there has to be a limitation on
donations, that the upper donation limit of R15 million is excessive and
unjustifiable. The applicant argues that the prescribed limit of R15 million
gives wealthy private donors the undue ability to influence political parties in a
manner that undermines the right to vote, as it leave the door wide open for
private interests to direct the course of politics.
[16] On 8 May 2024 the Electoral Matters Amendment Act (‘EMAA’) became
operational, amending the PPFA. This resulted in the applicant amending its
notice of motion wherein it sought the following amended relief:
(i) declaring section 8(2), 9(1)(a), 9(2), 12(2)(d)(ii), 12(3)(c), 22 and
24(1) of, and regulations 7 and 9 in Schedule 2 to the PPFA, as
amended by the EMMA, alternatively in their pre amendment form
to be inconsistent with the Consti tution and invalid;
(ii) declaring sections 27, 29(g) and 29(h) of the EMMA to be
inconsistent with the Constitution and invalid;
(iii) the to extent necessary:
(iii)(a) declaring that the failure by the President to determine the upper
limit and the disclosure threshold immediately upon the enactment
of the EMMA or within a reasonable time thereafter in terms of
regulation 7 and 9, respectively is irrational, unlawful and
unconstitutional and invalid, and that the failure by the National
Assembly forthwith after the enactment of the EMMA to enable the
President to do so is likewise irrational, unlawful, and
unconstitutional and invalid;
(iii)(b) directing the disclosure thresholds (R100 000 per annum) and
upper limits (R15 million per annum) which were provided in
regulations 7 and 9 under the PPFA prior to its amendment by the
EMMA shall be effective as from 8 May 2024 onwards, the date
that the EMMA entered into force; and
(iv) directing that all donations accepted or received by political parties
and independent candidat es – or made by any person or entity to
any political party or independent candidate, from the date of the
enactment of the EMAA to the date of this Court’s order, above
R15 million annual limit in terms of section 8(2) of the PPFA, read
together with regu lation 7 to schedule 2 of the PPFA (the R15
million limit), alternatively such parts of such donations as breach
the R15 million limit, shall be p aid back by such political parties
and independent candidates to the relevant donors whence the
donation emana ted. All terms in this paragraph are defined in the
PPFA;
(v) directing that all donations accepted or received by political parties
and independent candidates (as both terms are defined in the
PPFA), from any person or entity (alternatively, those donations
which are beyond the R100 000 per annum disclosure threshold in
terms of section 9(1)(a) of the PPFA be repaid.
[17] Following the applicant’s amended notice of motion, the speaker and the
chairperson of the National Council of Provinces were joined to the
proceedings in terms of an order taken by agreement on 17 October 2024.
[18] Section 24(1) of the PPFA, as amended, provides that:
‘(a) The President, acting on a resolution of the National Assembly, may by
proclamation in the Gazet te make regulations in respect of matters in Section
6(2), 7(2)(e), 7(3)(d), 8(2), 8(5) an 9(1)(a).’
[19] Regulation 7 addresses the upper limit of donations and provides that:
‘7(1) The President may, from time to time after a National Assembly
resolution and by notice in the Gazette, determine the amount
contemplated in section 8(2) of the Act.’
Section 8(2) simply provides that ‘ a political party may not accept a donation
from a person or entity in excess of the prescribed amount with a financial
year.’
[20] Regulation 9 addresses the disclosure limit and provides that:
‘The President must, from time to time after a National Assembly resolution
and by notice in the Gazette, determine the threshold referred to in section
9(1)(a) of the Act.’
Section 9(1)(a) o f the PFFA, as amended provides that a political party,
independent representative or independent candidate must disclose to the
Commission all donations received above the prescribed threshold.
[21] In its amended form, the PPFA did not provide specific amounts in respect of
the donation limit or disclosure threshold but provides how it is to be
determined. It is common cause that until 18 August 2025 no donation limit
or disclosure threshold has been determined in terms of section 24(1).4
[22] Although the PPFA in its pre -amendment form no longer exists , the applicant
persisted with its constitutional challenge thereto. Not only was this evident
from the submissions made during the hearing of the matte r, but it is also
evident from the relief it sought in its amended notice of motion.
[23] The challenge to the donation limitation and disclosure threshold as contained
in the PPFA in its pre -amended form no longer exists and ha s been rendered
moot. Consequent ly, the determination of any constitutional challenges
hereto will have no practical effect. As a court of first instance, it is not for us
to determine issues which have become moot.5
[24] The EM AA came into effect and removed the donation limitation and
disclosure threshold without the President making new regulations in respect
thereof in terms of section 24(1) of the PPFA, as amended.
[25] This resulted in the applicant approaching the court on an urgent basis during
May 2024. The matter came before Mr Justice Thulare who found that the
EMAA was prima facie unconstitutional as it created a lacuna in respect of the
donation limitation and disclosure threshold. To resolve this lacuna, Mr
4 On 19 August 2025 the President acting on a resolution taken by the National Assembly raised the
limit for private donations to political parties to R30 million a year and increased the declaration
threshold to R200 000.
5 Minister of Justice and Correctional Services v Estate Late Stransham -Ford 2017 (3) SA 152 (SCA)
Justice Thulare granted interim reli ef which resurrected the R15 million
donation limitation and R100 000 disclosure threshold.
[26] In granting the interim relief, it was found that the EM AA is prima
unconstitutional as a result of the lacuna it created.
[27] We turn now to the applicant’s challenges to the PPFA, as amended.
[28] The applicant challenged the validity of the public participation process in
respect of the Electoral Matters Amendment Bill, which was introduced during
December 2023, becoming law in May 2024.
[29] This public participation challenge must be evaluated in terms of section
167(4)(e) of the Constitution which provides that:
‘Only the Constitutional Court may decide that Parliament or the President
has failed to fulfil a constitutional obligation.’
[30] In Doctors for Life International v Speaker of the National Assembly 6 the
Constitutional Court held that:
‘[27] A construction of s167(4)(e) which gives this Court exclusive
jurisdiction to decide whether Parliament has complied with its
constitutional obligation to facilitate public participation in its legislative
processes is therefore consistent with the principles underlying the
exclusive jurisdiction of this Court. An order declaring that Parliament
has failed to fulfil its constitutional obligation to facilitate public
involvement in its legislative process and directing Parliament to
comply with that obligation constitutes judicial intrusion into the domain
of the principal legislative organ of the State. Such an order will
inevitably have importa nt political consequences. Only this Court has
this power.’
6 2006 (6) SA 416
[31] Therefore, this court does not have the jurisdiction to determine the
applicant’s public participation challenge.
[32] As seen from paragraphs 1 6 to 18 above, the president has been delegated
the disc retion to determine the donation limit and the disclosure threshold.
The applicant argues that not only is this an impermissible delegation of
legislative power to the president but that it is unconstitutional because the
president, as the leader of the m ain political party, has a vested interest in the
setting of the donation limit and disclosure threshold. Furthermore, it argues
that this discretion is unconstitutionally vague as there are insufficient
meaningful guidelines for the exercise of this discretion.
[33] We deal firstly with the issue of whether the delegation by parliament to the
president was constitutional or not. While Parliament may delegate regulatory
authority, it may not delegate legislative authority.
[34] In Executive Council, WC Legislature v President of the RSA 7 the
Constitutional Court held that the test as to whether legislative or regulatory
powers have been delegated is:
‘...whether what is challenged as an unauthorised delegation of parliamentary
power is more than the mere giving effect to principles and policies which are
contained in the statute itself. If i t be, then it is not authorised; for such would
constitute a purported exercise of legislative power by an authority which is
not permitted to do so under the Constitution.’
[35] The setting of the donation limitation and disclosure threshold gives effect to
the principles and policies set out in the PPFA, as amended and the
delegation is thereof of a regulatory nature and is constitutional.
7 1995 (4) SA 877 (CC) at paragraph [54] ; See also South African Reserve Bank and Another v
Shuttleworth and Another 2015 (5) SA 146 (CC)
[36] The applicant also objects to the delegation to the president as being
inappropriate as he is the leader of the main political party with a vested
interest in the setting of the donation limit and disclosure threshold . However,
the exercise of this discretion would be subject to review if exercised
improperly. The mere possibility that the exercise of a discretion may be
exercised improperly or for improper reasons does not per se render it
objectionable.
[37] We turn now to the argument that the absence of clear and enforceable
guidelines for the exercise of the president’s discretion violates the rule of law
which require laws to be precise and predicta ble to ensure fairness and
accountability.
[38] Section 24(1)(b) sets out the following factors which the president must
consider when determining the donation limitation and disclosure threshold .
These are:
(i) the amount of money previously appropriated by Acts of Parliament for
the Political Representatives Fund within the previous five financial
years;
(ii) the effects of inflation on the value of money over time; and
(iii) the costs associated with participating as a political party, independent
representative or independent candidate in elections and the
democratic process in South Africa.
[39] Furthermore, the exercise of the discretion is guided by the general law
principle that relevant factors must be considered. The exercise of the
presidential discretion would also be circumscribed by the policies and
objectives of the PFFA.
[40] The president’s delegated discretion to set the donation limit and disclosure
threshold remains subject to the National Assembly’s direct supervisory role.
[41] Although it is the applicant’s case that there are no clear and enforceable
guidelines for the exercise of the presidential discretion, it has not set out any
facts and/or reasons why the factors set out in section 24(1)(b), together with
the policies and objectives of the PPFA, as amended are inadequate for the
proper exercise of the discretion. Nor has it set out what further factors are
required for the proper and competent exercise of the presidential discretion.
[42] Therefore, we are of the view that there is no merit in this challenge.
[43] After the coming into effect of the EM AA on 8 May the disclosure threshold
and the upper limit was removed. However, the President did not issue
simultaneous proclamations to set new upper limits and disclosure threshold s,
which he has recently done
[44] As a result of the ersthwile lacuna, the applicant launched an urgent
application. On 27 May 2024 the court as per Thulare J held that the EMAA is
prima facie unconstitutional on account of the lacuna it created and on 16
August the Court confirmed the rule nisi issued on 27 May 2024 and it granted
the interim relief. This resulted in the upper limit and disclosure threshold
being reinstated pending the either the finalisation of these proceedings or the
determination of the upper limit and disclosure threshold by the President.
[45] Thulare J, in reinstating the donation limitation and disclosure threshold , found
that there was a rational and reasonable basis for the disclosure threshold
and donation limitation.
[46] The disclosure threshold and donation limitation constitute legislative facts
which a court should be slow to interfere with.
[47] The President and the National Assembly ha ve recently set a donation
limitation and disclosure threshold, which currently stands unchallenged.
[48] The applicant sought an order declaring the president’s failure to determine
the upper donation limit and disclosure threshold upon the enactment of the
EMAA or within a reasonable time thereafter in terms of regulation 7 and 9
irrational, unlawful, unconstitutional and invalid, and that the failure by the
National Assembly forthwith after the enactment of the EMAA to enable the
president to do so is likewise irrational, unlawful, unconstitutional and invalid.
This challenge has been render ed moot by the President’s re cent
determination of the upper donation limit and disclosure threshold.
[49] In light of the uncontested submissions by the DA that its operating expenses
run to hundreds of millions of rand and that the preparations of elections a re
enormously expensive – the DA spent approximately R322 million on
campaigning for the 2024 elections and approximately R550 million on the
2019 elections, the argument cannot be sustained that the donation limit of
R15 million is unreasonably high or ca pable of influencing the behaviour of
political parties.
[50] Furthermore, it must be recognised that donations to political parties allow
citizens to participate in the party’s activities thus giving expression to section
19(1)(h) of the Constitution.
[51] Donations to political parties also impact on section 16 of the Constitution as it
amounts to a general expression of support for the candidate and his/her
views. This accords with the ruling that the right to freedom of expressions
should not be interpreted narrowly.8 Furthermore, it was held that the ability to
donate to political parties gives expression of the right to freedom of
association, as set out in section 18 of the Constitution .
[52] The applicant also seeks an order declaring s ection 12(2)(d)(ii) of the PPFA ,
as amended inconsistent and constitutionally invalid. This section required
the accounting officer appointed by a political party to prepare a statement
showing all donations and membership fees, and any levy imposed by the
political party on its elected representatives during that financial year.
political party on its elected representatives during that financial year.
8 De Reul v Director of Public Prosecutions (Witwatersrand Local Division) [2003] ZACC 19; 2004 (1)
SA 406 (CC) at paragraph [48]
[53] The challenged provisions of the PPFA, including section 12( 2)(d)(ii) can only
be struck down if it is found to limit constitutional rights and if that limitation
cannot be justified. This is an o bjective enquiry. It is trite that the applicant
would have to establish facts on which it relies for its claim of infringement of
the particular rights in question. 9
[54] On the papers filed on record, t he applicant has failed to establish any facts
that show why or how section 12(2)(d)(ii) of the PPFA, as amended infringes
particular constitutional rights. Similarly, with sections 12(3)(c) and 22 of the
PPFA, as amended.
[55] The applicant also c hallenges the PPFA, as amended on the basis that it
does not address related parties who make donations. However, the
applicant does not set out what would constitute related parties or how this
should be established or how a shared intention of related parties is to be
ascertained or establi shed. This challenge is speculative and so vague as to
prevent a proper response thereto, let alone regulation thereof.
[56] The applicant requires that all donations be disclosed because the aggregate
thereof can affect party behaviour. The relief sought in this regard is defective
as it relies on speculation in the absence of established facts.
[57] Furthermore, the Electoral Commission published the sum of small donations
received by a political party each year. Thus, a voter can ascertain how much
a political party receives in small donations. This is not good enough for the
applicant, who want the identity of the donors to be disclosed without showing
why this disclosure is necessary for the exercise or protection of constitutional
rights.
[62] It follows, therefore, that the application stands to be dismissed.
9 Ferreira v Levin NO 1996 (1) SA 984 (CC) at paragraph 44
[63] Regarding costs, the applicant argued that if it were successful , it would have
been entitled to costs on a punitive scale. Conversely, they argued that the
principle set out in Biowatch Trust v Registrar Genetic Resources and others1
(‘Biowatch’) applies.
[64] The first , second, third, 20th and 21st respondents do not seek any costs
against the applicant. The only other respondent that participated in these
proceedings is the 19th respondent . Although we are of the view that
Biowatch does not apply and that costs should ordinarily follow the result , as
the 19th respondent participated in these proceedings o f their own accord,
and exercising our discretion insofar as it relates to costs , we are of the view
that no order as to costs should be made.
Order
[65] The following order shall issue:
1. The application is dismissed with no order as to costs.
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N ERASMUS
JUDGE OF THE HIGH COURT
I agree
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HM SLINGERS
JUDGE OF THE HIGH COURT
I agree
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M HOLDERNESS
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: