Open letter to justice committee: Voters deserve to know who political donors are
My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17)  ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018)
PAIA Amendment Bill - Working Draft
Promotion of Access to Information Act
Political Party Funding Act
Promotion of Access to Information Amendment Bill: public hearings day 1
Promotion of Access to Information Amendment Bill: public hearings day 2
The Committee met to finalise the Promotion of Access to Information Amendment Bill [B20 - 2019] in accordance with the court judgement in favour of My Vote Counts that found that the Act was constitutionally deficient as it did not provide for recordal, preservation and disclosure of information on private funding of political parties and independent candidates.
The State Law Advisor read out the amended bill to the Committee. A Member expressed concern that sub-paragraph (b) in clause 1(b)(b) would mean that new political parties would not be obliged to keep records until they had representation in a legislature or council. Sub-paragraph (b) provided only for an entity that accepted donations on behalf of a political party to keep records. The intention of the Bill, and the courts, was that all political parties, regardless of representation or not, had to keep records of funding.
After extensive deliberations, 1(b)(b) was amended to read: any registered political party as defined in the Electoral Act.
The Committee unanimously adopted the Promotion of Access to Information Amendment Bill with amendments and the Report on the Bill. The intention was to table the Bill in the National Assembly on 5 November 2019 so that the National Council of Provinces could consider the Bill before the 21 December 2019 deadline for the Amendment as set down in the court judgement.
The Chairperson informed the Committee that the EFF had indicated that it had written to the Speaker to change its representation on the Portfolio Committee on Justice and Correctional Services. Mr T Mulaudzi (EFF) would be replaced by Dr M Ndlozi (EFF).
The Chairperson was unsure as to whether the change was for the purposes of the Deputy Public Protector interviews or whether it was a permanent change.
The Chairperson reminded the Committee that the revised version of the Promotion of Access to Information Amendment Bill would be used. If the Committee finalised and approved the Bill that day, he proposed that the Bill be debated in the House on Tuesday 5 November 2019 so that the National Council of Provinces could process the Bill before the court deadline.
Promotion of Access to Information Amendment Bill Clause-by-clause reading
Adv Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development was supported by Parliamentary Legal Advisor, Adv Noluthando Mpikashe.
Adv du Preez informed Members that he was using the version of the Bill dated 29 October 2019.
Clause 1 amended Section 1 of PAIA by inserting:
1(a) – the addition of a political party to the definition of a “head” of an organisation;
1(b) - The insertion of a definition of “political party” as contained in the Political Party Funding Act, 2018;
1(c) – the addition of “political party” to the definition of a private body.
Clause 2 – Insertion of new section in Act 2 of 2000
It was a short provision that dovetailed with Political Party Funding Act (PPFA).
2. The following section is hereby inserted after section 52 of the principal Act:
“Recording, preservation and disclosure of records on the private funding of political parties
52A. (1) The head of a political party must—
(a) create and keep records of—
(i) any donation, exceeding the prescribed threshold, that has been made to that political party in any given financial year; and
(ii) the identity of the persons or entities who made such donations;
(b) make the records available on a quarterly basis, as prescribed; and
(c) keep the records for a period of at least five years after the records concerned have been created.
(2) For the purposes of this section—
(a) “donation” means a donation as defined in section 1;
(b) “financial year” means a financial year as defined in section 1; and
(c) “prescribed threshold” means the prescribed threshold contemplated in section 9(1)(a), of the Political Party Funding Act, 2018 (Act No. 6 of 2018).”.
Clause 3 was self-explanatory. It was necessary to amend the index to reflect the new clause.
Clause 4 was the short title and provided for the President to determine the date of implementation as regulations had to be drafted to determine the availability of records.
Adv G Breytenbach (DA) stated that she had no serious difficulty with anything, except in clause 2: 52A (1)(a) (i) any donation, exceeding the prescribed threshold, that has been made to that political party in any given financial year. The commas were superfluous.
The Chairperson asked Adv Du Preez to take care of the issue.
Mr W Horn (DA) stated that he was still concerned about the definition of a political party. In the absence of “or” between sub-paragraph 1(a) and 1(b), it created a difficulty for existing parties.
(b) the insertion after the definition of “personal requester” of the following definition:
“’political party’ means—
(a) any entity that accepts donations principally to support or oppose any registered political party or its candidates, in an election as defined in section 1 of the Electoral Act, 1998 (Act No. 73 of 1998);
(b) a party with representation in the national or provincial legislatures or a Municipal Council referred to in section 151 of the Constitution; or
(c) a natural person who is an independent candidate;”;
Adv du Preez did not want to be too technical but “or” at the end of the second last paragraph, meant that all the paragraphs had to be read disjunctively. If a party qualified under any one of the sub-paragraphs, it qualified. Only in older legislation was the “or” and “and” included after every subclause. In some definitions, it did not matter if there was an “or” or an “and” because the definitions in the sub-paragraphs were mutually exclusive so the paragraph was written disjunctively and not subjectively.
Mr Horn was not convinced.
Adv du Preez explained that when any provision was broken into sub-paragraphs, one could write the paragraph in one long sentence and when a political party came to a clause that applied to it, it qualified. He could insert an “or” but then he would be going back to an archaic drafting style which he would prefer not to do.
Adv Mpikashe added that if one put “and” before the last sub-paragraph, one had to meet all the requirements. If one put “or” before the last sub-paragraph, it meant that any one of those descriptions was sufficient for an organised body to be recognised as a political party.
Mr Horn accepted that point but he understood that a party could not sit in a legislature or a council without being registered with the Independent Electoral Commission (IEC), as alluded to in sub-paragraph (a) but he did not understand the need for both (a) and (b) to be there as even if it was read as an “or”, that did not explain why both (a) and (b) had to be included in the legislation. That could lead to lofty arguments in court as to the intent of the legislature.
Adv Breytenbach said that she supported Mr Horn. There was no need for (b). The semi-colon could be removed and replaced with “or”. That would make it two sub-sections (a) and (b).
Adv du Preez indicated that he would request a five-minute adjournment at a convenient point during the meeting to check his facts. He was reading the paragraph (a) as any entity that was not yet registered but was accepting donations principally to support or oppose a registered political party as defined in section 1 in the Electoral Act. Section 1 in the Electoral Act included the same paragraph (b).
Mr Horn said that the explanation made it worse because it meant that, for example, if people who had left political parties in the previous week set up a new party, they would at that stage not be obliged to keep records as they did not have representation in a legislature or council and only an entity that accepted donations on their behalf had to keep records. In his view, the sub-paragraph was aimed at closing the loophole of fronting or “Super PACs” that fundraised for political parties and ran a campaign on behalf of a political party. But if a new political party was set up, until they had representatives, there was no obligation on them to keep records while those in legislatures had to keep records. That could not be what the Committee wanted to achieve. Such a party could gain enormous support in the months or years before an election but did not have to keep records.
Adv du Preez requested a five-minute recess to consult on the matter.
The Chairperson agreed that as soon as the Committee had worked through the rest of the Bill, Adv du Preez should be given his five minutes as the matters were fairly weighty and he should be given time to consult. He asked if Members had comments on any other clause.
Adv H Mohamed (ANC) stated that the ANC was quite satisfied with the Bill as the inconsistencies pointed out by the court had been covered in the draft. He stated that the Committee should not be too sophisticated in its use of language in the Bill. The court judgement had been quite clear in that the Amendment should only contain the transparency principle and the keeping of records to identify funders for disclosure and that had been done in the Bill. As pointed out by the State Law Advisor, the principal Act (PPFA) would have to be looked at with regards to other matters. He was satisfied that the current draft was consistent with the judgement.
The Chairperson noted that Members were happy with all other clauses. He suggested a ten-minute break for Adv du Preez to consult on the matter.
After the break, the Chairperson asked for an update following the consultations.
Adv du Preez stated that his initial point was to define political party in para (a) exactly as it is defined in the PPFA. As he had explained to the Committee the previous week, the substantive provisions were contained in the PPFA. Para (b) was a repetition of the definition of election to avoid a person having to go to two different Acts. Strictly speaking, sub-paragraph (b) was not essential. The exception to the rule was sub-paragraph (c) as per the court decision. The substantive provisions were contained in section 12 (1) and (2) of the PPFA. It was not necessary to repeat those provisions because if one looked proposed section 52A, it defined donations, the financial year, and the prescribed threshold. Section 12(1) and (2) required that all income of a political party had to be recorded by an Accounting Officer.
Mr Horn replied that he understood everything that Adv du Preez had said but he proposed that, to tighten up loopholes, sub-paragraph (b) of (b) in section 1 be amended. Rather than saying “defined in section 1 of the Electoral Act of 1998”.
Adv Mohamed stated that he would reserve his opinion until the legal advisors had commented. Was there any implication? It was covered in the PPFA and in the Electoral Act because the moment an entity participated in an election, even if not elected, an entity fell under the definition of the PPFA. He wanted to hear if there were any technical problems before he responded to Mr Horn’s proposal.
Adv du Preez admitted that he saw the concern and agreed with the proposed amendment because Mr Horn argued that a registered party was not necessarily a party with representation in a national or provincial legislature. He apologised for not having seen that earlier. If Mr Horn wanted to tighten the provision, he agreed fully because he saw the gap and the gap was that a party was registered with the Electoral Commission and the party did not have representation in the national, provincial or municipal sphere of government, then that party would not qualify as a political party in terms of the Amendment.
He apologised for wasting the time of Committee Members. He saw where they were going.
The Chairperson assured Adv du Preez that he had not wasted anyone’s time. It was the beauty of democracy – one persuaded and was persuaded. He had enriched the discussions. He had no reason to be apologetic.
Adv Mohamed agreed with the Chairperson.
The Chairperson indicated that some Members had another important meeting to attend which would mean that there would not be a quorum. He suggested that the drafters should address the tightening of the phraseology and come back to the Committee at another meeting as it could not give the drafter free reign. That would be a dereliction of duty.
Adv du Preez informed the Chairperson that he was prepared to read sub-paragraph in its amended form. The Committee could then approve with the Amendment.
The Chairperson asked him to read it.
Adv du Preez read: 1. b(b) any registered political party as defined in the Electoral Act.
The definition of a registered political party in the Electoral Act meant a party registered in terms of section 15 of the Electoral Act.
Ms W Newhoudt-Druchen (ANC) asked Adv du Preez to re-read the proposed change.
Adv du Preez explained that the words in 1(b)(b) had to be deleted. The words would be replaced by the following: “Any registered political party as defined in the Electoral Act.”
The Chairperson put the Bill with the Amendment to the Committee for adoption.
Adv Mohamed proposed the adoption of the Amendment Bill. The proposal was seconded by Adv Breytenbach. The were no objections.
The Committee adopted the Promotion of Access to Information Amendment Bill with amendments.
Committee Report on the Bill
The Chairperson read the Report of the Portfolio Committee on Justice and Correctional Services on the Promotion of Access to Information Amendment Bill [B20 – 2019], dated 30 October 2019.
The adoption of the Report was proposed by Ms Mofokeng and supported by Mr Horn. There were no objections.
The Committee adopted the Report on the Promotion of Access to Information Amendment Bill with no objections.
The Chairperson stated that he would push for the Bill to be debated in the House on 5 November 2019.
The meeting was adjourned.
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