South Africa: Public Funding of Represented Political Parties Act (continued)
However, those parties not represented in Parliament would not be entitled to any allocation from the Fund. For example, unlike those parties already represented, non-represented political parties will not be guaranteed participation in election-related activities (important to free and fair elections) expressly mentioned in the Act. Thus, they will not be guaranteed funds 'for bringing the political party's influence to bear on the shaping of public opinion' which can be interpreted as running an election campaign. The same will be true of the other purposes set out in s 5.
Therefore, it can be argued that the Act fails to promote the multi-party democracy enshrined in s 1(d) of the Constitution.
It can also be argued that the words 'political parties participating in' in s 236 allow for two interpretations. The first is the interpretation favoured by the legislature and is reflected in the Act. According to this interpretation only those political parties already represented would be entitled to moneys from the Fund. The second interpretation would be one that construes political parties not only as those already participating, but also, those who in the future, intend to participate in national and provincial legislatures in the future.
The intention of the drafters of the Constitution seems unclear. This section of the Constitution may be seen as ambiguous. Arguably, the second interpretation is the more favourable, since it allows for the multi-party democracy required by the Constitution. In a matter challenging the constitutionality of the statute, should this interpretation be favoured by a court, the Act would be found to be constitutionally invalid.
Although s 19(1) of the Constitution, read with s 9, guarantees every citizen certain political choices and the opportunity to form a political party, an argument that there is an obligation on the state to provide funds to guarantee this right is not well-founded. There can be no obligation on the state to provide the funds to ensure that this right is guaranteed. The omission to provide funds would be seen as a reasonable and justifiable limitation (as provided for in s 36) of the right in s 19(1).
Of more significance is the right provided for in s 19(2) which provides that '[e]very citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. It could be argued that there is no rational basis to draw a distinction between represented and non-represented parties in regard to the allocation of electoral funds received from the state. This is particularly so if the goal of elections is the achievement of multi-party democracy.
A possible basis for drawing the distinction between parties which would receive State funds and which would not could be a reliance on the proven support enjoyed by those parties in Parliament. However, it would be possible and quite simple (through an appropriate poll) for a non-represented party to establish and show the support it enjoys.
Therefore, if a distinction is drawn on the basis of represented and non-represented parties, then the fairness of an election (guaranteed in s 19(2)) will be in issue. This is so, since there would be no rational basis for the denial of allocating funds to unrepresented parties wanting to participate in the multi-party democracy enshrined by the Constitution. Furthermore, there would be no rational basis for allowing the unequal opportunities available to parties for campaigning, and preparing for elections in the manner mentioned in s 5 of the Act.
Any legislative measure which upholds such an arbitrary, non-rational distinction and which denies the fairness of an election would be found to be constitutionally invalid. The Act seems to draw such a distinction between represented, and non-represented political parties and is, therefore, likely to be subject to constitutional scrutiny. Should a court favour the above interpretation, the Act would be rendered constitutionally invalid.
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).