INDEPENDENT ELECTORAL COMMISSION

10 November 2005

From : BH BAM: CHAIRPERSON :ELECTORAL COMMISSION


To : Mr MP Mentor : CHAIRPERSON OF THE COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS


Dear Mr Mentor,


PROPOSAL
DOCUMENT FROM MR PF SMITH (MP)


1 As requested in your letter dated 3 September, 2005 but received on 3 November, 2005, the following comment on Mr Smith's proposals is hereby submitted.


2. To enhance multi-party democracy, Section 236 of the Constitution of the Republic of South Africa, 1996, provided that national legislation must provide for the funding of political parties participating in national and provincial legislatures.


3. To give effect to this constitutional imperative, the Public Funding of Represented Political Parties Act, 1997 (the Act) was adopted. The Act established the Represented Political Parties Fund. The Fund is credited with -


a. moneys appropriated by Parliament;


b. contributions and donations from within and outside the Republic,


c. interest earned on moneys deposited or invested by the Fund; and


d. money accruing to the fund from any other sources.


In practice, however, the Fund's sole source of income is moneys appropriated by Parliament. R66 653 000 were so appropriated for the financial year 2003/2004 and R70 652 000 for the 2004/2005 financial year.


4, Allocations from the Fund are made to every political party represented in the National Assembly or in a provincial legislature or in both. The amount allocated to each party annually (paid over quarterly) is determined in accordance with a prescribed formula based in part on proportionality of representation and in part on the principle of equity.


In the financial year 2004/2005 R70 844 435 were allocated and paid over to ten parties. The amount paid over per party varied between R526 950 and R46 238 905.


5. in the memorandum on the "Public Election Funding of Represented Political Parties Bill" (Private member's bill), it is said that -


"The proposed legislation is also intended to remedy a perceived shortcoming in the application of section 236 of the Constitution, in terms of which Parliament in 1997 unnecessarily restricted the present funding of political parties to exclude election expenses."


6. Section 5 (1)(b) of the Act describes the purposes for which the moneys allocated to a political party may be used as follows:


"(b) Subject to subsection (3), the moneys so allocated to a political party may be used for any purpose compatible with its functioning as a political party in a modern democracy. These purposes include, amongst others -


(i) the development of the political will of the people;


(ii) bringing the political party's influence to bear on the shaping of public opinion:


(iii) inspiring and furthering political education;


(iv) promoting active participation by individual citizens in political life;


(v) exercising an influence on political trends; and


(vi) ensuring continuous, vital links between the people and organs of state."


7. Section 5(3) sets out the purposes for which allocated moneys may not be used. These purposes can be summarised as follows:


a. The topping up of the remuneration of a member of parliament, a provincial legislature or a municipal council or of anyone holding any other office of profit under the State.


b. Financing any cause in contravention of any national or provincial representatives' code of ethics.


c. Establishing a business or buying an immovable property (except for a property to be used solely for party-political purposes)-


d. Any purposes incompatible with the functioning of a political party, as may be prescribed (none has been prescribed).


8. As can be seen from paragraphs 6 and 7 above, "...the present funding of political parties" does not "exclude election expenses" as alleged in the Private Member's Memorandum. Also, in practice, political parties have always been using funds allocated under the Act for election expenses. Perhaps the member is alluding to the requirement that every party must repay the unspent balance of allocated moneys as at 21 days before an election following the dissolution of parliament and the provincial legislatures at the end of their terms (section 9(3) of the Act). This provision is necessary to cater for any changes in party representation after the elections. It, however, does not prevent parties from paying out election expenses before the 21 day cut-off date, nor from settling outstanding election commitments incurred during the 21 day period from cost-election allocations.


9. According to clause 5 (1)(b) of the draft bill and the Memorandum it is proposed that allocations from the new "Election Fund" will also be made to every political party represented in a municipal council and which contests a municipal election during a general election of municipal councils. This will of course take the public funding of political parties beyond the scope of section 236 of the Constitution and therefore probably render unconstitutional such a provision in national legislation, Moneys allocated from the present Fund can in any event already be used for municipal election expenses.


10. In our annual report to the National Assembly for the year ended 31 March, 2005, we remarked as follows on Election Campaign Funding:


"Section 236 of the Constitution provides for the funding of political parties participating in national and provincial legislatures to enhance multiparty democracy. However, in terms of the Public Funding of Represented Political Parties Act, 1997, these funds do not assist new parties in an election, and nor do they provide substantial assistance to smaller parties who are already represented. The question is whether some kind of campaigning assistance can be made available to these new or small parties.


Examples exist in other systems such as postage for pamphlet distribution, sponsoring advertising time or space in the media, sponsoring posters, and sponsoring halls or other venues for meetings."


Conclusion

11 We, accordingly, do not support the proposed Private Member's Draft Bill for the following reasons:


11.1 Elections expenses are covered by the present Fund.


11.2 Extending public funding of political parties to parties represented in municipal councils will probably be unconstitutional.


11.3 We cannot support any move towards increasing the public funding of represented political parties, especially by way of the creation of a special election fund, while not affording new and smaller parties some form of assistance with their election expenses.


Yours sincerely

BH BAM