IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN In the matter between: MY VOTE COUNTS NPC and PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA MINISTER OF JUSTICE AND CORRECTIONAL SERVICES MINISTER OF HOME AFFAIRS INDEPENDENT ELECTORAL COMMISSION [AFRICAN NATIONAL CONGRESS DEMOCRATIC ALLIANCE ECONOMIC FREEDOM FIGHTERS INKATHA FREEDOM PARTY NATIONAL FREEDOM PARTY UNITED DEMOCRATIC MOVEMENT FREEDOM FRONT PLUS ‘CONGRESS OF THE PEOPLE AFRICAN CHRISTIAN DEMOCRATIC PARTY ‘AFRICAN INDEPENDENT CONGRESS CASE NO: Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Frith Respondent ‘Sixth Respondent ‘Seventh Respondent Eighth Respondent Ninth Respondent Tenth Respondent Eleventh Respondent Twelth Respondent Thirteenth Respondent Fourteenth RespondentPAN AFRICANIST CONGRESS Fifteenth Respondent ‘AFRICAN TRANSFORMATION MOVEMENT ‘Sixteenth Respondent GOOD PARTY ‘Seventeenth Respondent AL JAMA-AH. Eighteenth Respondent FOUNDING AFFIDAVIT |, the undersigned INHAJ JEENAH do hereby state under oath 1. am the Executive Director of the applicant and I am duly authorised to depose to this affidavit on is behalt 2. The content of this affidavit falls within my personal knowledge, uness the: contrary is stated or appears from the context, and it is, to the best of my knowledge and belief, true and correct. 3. As this application concems principally questions of law, this affidavit includes the necessary logal grounds to establish the case forthe relief that is scught by the applicant. In setting out such grounds, rly onthe advice ofthe applicant's legal representatives, which | belive to be correct. The balance ofthe legal ‘submissions will be dealt with in argument atthe hearing of this matter.THE PARTIES. 4. The applicant is MY VOTE COUNTS NPC, a non-profit company (reg. no, 2014/046956/08) with its registered address at Community House, 41 Salt River Road, Salt River. Cape Town, 7825. 5. The applicants forerunner, My Vote Counts, was founded as a non-profit voluntary association on 28 July 2012 withthe alm of campaigning for @ more inclusive, transparent and accountable poitical and electoral system in South ‘Atica. The applicant was incorporated on § March 2014, 6. According to ts memorandum of incorporation, the applicant's purpose is to Improve the accountability, transparency and inclusiveness of elections and poltics in the Republic of South Africa generally, including by: 6.1 campaigning for reform ofthe political party funding system in South Africa, through tn introduction af legislation and other measures: 6.2 campaigning for reform of the electoral system in South Africa, so as to allow volers to elect Individual Members of Parliament from their constituercies; and 6.3 creating platfomms to unite South Aican citizens and organisations in finding democrat solutions to the challenges of our time, with a particular {focus on eivc, legal and poitical education. Pplicant approaches this Honourable Court in terms of72 10. 1" 12 4 section 38(a) ofthe Constitution of the Republic of South Africa 1996 ("the Constitution), acting in its own interest, in accordance with its purpose ‘and objects, as set out in the memorandum of incorporation; and section 38(d) of the Constitution, acting in the public interest, which 1 respectfully submit is manifest from the facts and grounds set frth in this affidavit. ‘The fst respondent is THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA ("the President’), elected in torms of section 86 of the Constitution, cited in his capacity as the head ofthe National Executive and the head of Sate, ‘The second respondent is the MINISTER OF JUSTICE AND CORRECTIONAL SERVICES, appointed by the President in terms of section 91 of he Constitution as the member of the Cabinet responsible for law reform and constitutional development ‘The thed respondent is the MINISTER OF HOME AFFAIRS, appointed by the President in terms of section 91 of the Constitution as the member of the Cabinet resporsible for electoral matters Pursuant to the Uniform Rules of Court, the first to third respondents will be served care of the STATE ATTORNEY, with its offices situated at 4th Floor, 22 Long Street, Cape Town City Centre Cape Town, South Afric. ‘The fourth respondent is the INDEPENDENT ELECTORAL COMMISSION IEC") established in terms of Chapter 9 of the Constitution and the Electoral Commission Act 51 of 1996, and cited by vitue ofthe interest may have in thesubject matter of these proceedings. The IEC's offices are at Election House, Riverside Office Park, 1303 Heunel Avenue, Centurion, Pretoria, 18, The fith to eighteenth respondents are the potical pales currently occupying seats inthe National Assembly. ‘They are cited by Vitue of he intrest they may hhave inthe subject matter ofthese proceedings. No elt is sought against them, Their addresses appear ffom the notice of mation to which this affidavit is attached, NATURE AND PURPOSE OF THIS APPLICATION 14, This is an application for n order in terms of section 172(1) of the Constitution decterng that the Poliical Perty Funding Act 6 of 2018 (the PFA), including the Regulations thereto as contained in Schedule 2 to the PPFA (‘the Regulations"), invalid and unconstitutional insofar a8 and tothe extert that it) fast requir a poltical party to disclose al private donations received by and rade to it; and (i falls adequately to impose controls on the private funding of poitical parties. 15. Atitscore, this application is concemed with strengthening democracy by giving ‘meaningful effect to the constitutional imperatives of transparency, openness ‘and accountability. To this end, this application seeks affirmation and meaningful realisation of fundamental constitutional imperatives: () that citizens te able to ‘access information required forthe effective and informed exercise of thelr right to vote as enshrined in terms of sections 19(1) and (3) of the Constiution: (i) that elections are free and fair in accordance with section 19(2) of the Constitution; and (i) to ensure that the state caries out is duties to promote, respect and full the Bill of Rights, Including the right to vote, an integral part of6 \which is the provision of information and proactive measures to mitigate against the undue influence exercised by private interests over alectad representatives ‘and politcal partis, the right to free and fair elections, and the right of access to information ‘The applicant submits that although the PPFA and the Regulations ostensibly attempt to give expression to the aforesaid constitutional imperatives, they fal short of the constitutional standard on account of the fact that they (i) imit the disclosure of any single or a combination of donation by the same donor to ‘amounts over @ particular threshold, and set that threshold at 100,000.00; (i) do not, in any event, regulate cumulative donations by donors which are related to one another, ii) entitle political paties to accept private direct donations up to an excessive limit of R15 millon; and (v) only require juristic persons, to the ‘exclusion of natural persons, to disclose donations made in excess of the “prescribed threshold". Moreover, the current reporting obligations requite poltcal parties only to account for how they have utilised the public funding received from the Represented Poltical Party Fund (*RPPF") and the Mult-Party Democracy Fund (‘MPDF") but not front private sources. The only legitimate basis on which political parties may be allowed to solicit donations from the public is if they put those donations to legitimate politcal uses. In any event, both the Public and the IEC are entitled to disclosure in this regard. The applicant submits that the dictates of the constitutional imperatives, as supported by the Constitutional Court, render such provisions of the PPFA and associated regulations unconstitutional7 117, The PPFA was assented to by the President on 22 January 2019, promulgated in February 2021, and came ino effect on 1 Apri 2021. It will be demonstrated that the PPFA is wosfully inadequate in respect of providing access to and the proper disclosure of al private funding information, and further failsto safeguard against the thieat of comuption and uimately state capture, and in fat leaves the door open for such comupton. Accordingly, the PPFA and the Regulations ‘are unconstituional RELEVANT JURISPRUDENTIAL HISTORY AND LEGISLATIVE FRAMEWORK 18. The applicant tas previously, on two separate occasions, made applications in furtherance of the constitutional imperative that citizens be afforded access to informaticn concerning the private funding of poltical parties. 19, The first was a 2015 application made directly tothe Constitutional Court seeking ‘an order compelling Parliament to enact legislation in terms of a constitutional ‘obligation to give effect to the right of access to information to regulate the disclosure of private funding information. The applicant argued that such legislation was required in ation to the Promotion of Access to Information Act CPAIAY, 20. The majority of the Constitutional Court in the resultant judgment, My Vote Counts v Speater of the National Assembly [2015] ZACC 31 at 147-148 ("My Vote Counts 1°) held that PAIA is the legislation envisaged in tems of section 32(2) of the Constitution and was intended fully o give effect tothe right of ‘access to information. Accordingly, the Constitutional Court held that the principle of subsidiary dictated thatthe applicant's arguments should have taken the form of rontal challenge" to the constitutional valdty of PAIA in ana application before the High Cout of South Aca under section 172(1) of the Constitution, partculary because the applicant had relied on apparant shortcomings with PAIA to justly the relief sought. Pursuant to this determination, the mers ofthe applicants arguments were nat considered by the majority ofthe Constitutional Court. tn 2017, the appicant, in accordance with the Constitutional Courts decision in ‘My Vote Counts 1, made application tothe High Court (Westem Cape Division) forthe folowing: (i) declaration that information about the private funding of political patos Is reasonably requited forthe effective exercise ofthe right to ‘vote in Section 10(3Xa) of the Constitution; and (i) a declaration that PAIA is unconstitutional Insofar as it doos not alow for the recordal and dlaclosure of Private funding information of political partes. The High Court, In My Vole Counts NPC v President of the Republic of South Aca and Others 2018 (2) SACR 644 (WCC) ("the High Court decision’), granted the role sought bythe applicant, and referred its decision tothe Constitutional Court fr confmation, in ‘accordance with section 172(2) ofthe Constitution, (On 21 June 2018, the Constitutional Court unanimously confirmed the High Court {decision in My Vote Counts NPC v Minister of Justice and Correctional Services ‘and Another 2018 (5) SA 380 (CC) ("My Vote Counts 2°). The relevant part of the Order handed down by Mogeang Cu in My Vote Counts 2 provided as folows: “The order of constitutona’ invalidity made by the Western Cape Division of the High Court, Cape Town is confirmed, in these terms:1.4 I is declared that information on the private funding of political parties and independent candidates is essential forthe effective exercise ‘ofthe right to make poltical choices and to participate inthe elections. 1.2 It’s declared that information on private funding of poltical parties land Independent candidates must be recorded, preserved and made reasonably accessible. 1.3 tis also declared thatthe Promotion of Access to Information Act 2 (of 2000 (PAIA) is invalid to the extent of ts Inconsistency with the CCansituion by failing 10 provide for the recordal, preservation and reasonable disclosure of information on the private funding of poltical pares and independent candidates, 14 Parlement must amend PAIA and take any other measure it deems ‘appropriate to provide for the recordal, preservation and facitetion of reasonable access fo information on the private funding of potical parties ‘and independent candidates within a period of 18 months.” 23, Utimataly, following My Vote Counts 2, wo legislative changes were effected to. provide fo the regulation of access to information concering te private funding of poltical parties. The primary legislation enacted was the PPFA, wih effect ftom Apil 2021, although the bil giving ise to the PPFA, the Poltical Party Funding Bil ("the BIT), was fst tabled to Pariament on 29 November 2017 - ater the second application was instituted by the applicant, but before the High ‘Court derision and My Vote Counts 2were delivered In addition, and asa direct result of My Vote Counts 2, the PAIA Amendment Act 31 of 2019 was enacted, also with effect rom Api 202110 24, The Constitutional Court in My Vote Counts 2 took into account the potential interplay between an amendment to PAIA arising out ofthe judgment and the PPFA (or rather, at that stage, the Bil), noting the following: "(18] In any event, the content ofthe Bil and its possible impact on the (ssues before us was not part ofthe case that culminated in the High Court ‘order. The case that was presented tothe High Cour, thal we are grapoing wi in these confirmatory procoodlngs, has todo wih a frontal attack that was launched on the constitutional vaity of PAIA. That isso because, in @ previous case, this Court conecty ruled that PAIA Is the legislation ‘envisaged by section 32(2) of the Constitution to regulate access to information. nd the fong tle of PAIA makes this abundantly clear, refers {0 the right of access to information and that PAIA is the national legislation “enacted to give effect fo this righ’ It was for that reason, that this Court held that PAIA's constitutional vali had tobe attacked frontal. And this {is what My Vote Counts did successfuly in the High Court. The case was about the need o regulate the recordal and aisclosure of information onthe Private funding of political partes and independent candidates and was spectcaly grounded on section 32 read with sections 7(2) and 19 of the Constitution as well as PAIA. 16] The ongoing lan-mking process may comfortably run paral to this judgment without th one boing undermined by the other in any way. This | s because the Bilis intended to provide exclusively and uniquely forthe recordal and disclosure of information on the private funding of potical" parties ~ not to give effect to the High Court order sought to be confirmed here. {171 Parliament enjoys functional independence inthe discharge ofits aw. ‘making obligations even in relation to the regulation of private funding Whether 1 does so through one, two or more pieces of legislation falls squarely within is discretionary powers. It may for exemple moot that ‘obligation trough en appropriately recaltvated PAIA alone, PAIA and another legisation ra citfrent mechanism altogether” 25. Ast tumed out, the PFA was enacted as the primary mechanism by which Poltical parties and donors to poltical partes would be required to record and