South Africa: Public Funding of Represented Political Parties Act (continued)
An interpretation of the Act
The 'multi-party system of democratic government', mentioned in s 1(d), should be interpreted to mean democratic government in the broadest sense. In other words the system of government enshrined in the Constitution should be one in which multi-party democracy is an essential feature.
In terms of the constitutional directive in s 236, the national legislature has passed national legislation, the Public Funding of Represented Political Parties Act 103 of 1997 (the Act).
The long title of this Act provides that the Act establishes the Represented Political Parties Fund, with a view to making provision for the funding of political parties participating in Parliament and provincial legislatures; and to provide for the management of the fund by the Electoral Commission... 'The statute, therefore, directly reflects the wording of s 236 of the Constitution and seeks to give effect to that section.
Section 2 of the Act sets forth its objective as establishing the fund for the purpose of funding political parties that participate in Parliament and provincial legislatures. It seems clear that the legislature intended the Act to apply to those parties already enjoying political representation in Parliament rather than those who aspire to participate in the multi-party system envisaged by the Constitution.
According to s 190 of the Constitution the Electoral Commission must manage elections of national, provincial and municipal legislative bodies in accordance with national legislation. Furthermore, it must ensure that the elections are free and fair; and it must declare the results of those elections within as short a period as possible after the election. The Constitution permits the legislature to assign to the Electoral Commission additional powers and functions.
The Act also accords to the Electoral Commission the task of administering and managing the Fund. Allocations from the fund are to be made for the activities set out in s 5 of the Act. Allocations are to be made to parties taking into account the principles of proportionality and equity. Section 5(1)(b) provides that funds may be allocated to a political party for any purposes compatible with its functioning as a political party (which would include participation in an election), and which encompass the purposes set out in sub-paragraphs (i )-(vi) of s 5(1)(b). The activities mentioned in s 5 may be construed as election-related activities. If this construction is correct, then the Commission's task of managing and administering the Fund could be interpreted as a means of ensuring that the elections are free and fair since the purposes mentioned in s 5 may be construed as factors conducive to free and fair elections. The Electoral Commission bears the onus of deciding whether a political party complies with s 5 before it makes an allocation to a party from the Fund. The Act is clear that such political party must be one already enjoying support in the government at national or provincial level.
It is conceivable that this statute could be amended to include other, clearly expressed election-related activities for which allocations from the Fund may be made. It should be noted that the Act already mentions 'the development of the political will of the people' and ' bringing the political party's influence to bear on the shaping of public opinion'. Both of these purposes are related to election campaigns to which moneys from the Fund can be allocated.
CONSTITUTION OF THE REPUBLIC OF SA 1996, [www]http://www.gov.za/documents/constitution/Constitution-Republic-South-Africa-1996-1 [opens new window, incorporates all amendments until 13th Ammendment (2007)] Act No. 108 of 1996; 14-16 Amendments available at http://www.gov.za/documents/constitution-amendments [opens new window] (accessed 16 Jul 2016); approved by Constitutional Court December 4, 1996; took effect February 4, 1997; amended 1996, 1997, 1998, 1999, 2001, 2002, 2003 (accessed 26 Feb 2010).
PUBLIC FUNDING OF REPRESENTED POLITICAL PARTIES ACT 103 1997, [www] http://www.capegateway.gov.za/Text/2003/a103-97.pdf [PDF document, opens new window] (accessed 26 Feb 2010).