My Vote Count NPC v President of the Republic of South Africa and Others

My Vote Count NPC (MVC), a non-profit organisation, brought an urgent application for a rule nisi against the President, the Minister of Justice and Correctional Services, the Minister of Home Affairs, and the Acting Speaker of the National Assembly. MVC contended that the Electoral Matters Amendment Act, 2024 (EMAA), which came into effect on 8 May 2024, had repealed and substituted Regulations 7 and 9 of Schedule 2 to the Political Parties Funding Act, 2018 (PPFA). Previously, Regulation 7 set an upper limit of R15 million per annum on donations a political party could accept from a single donor, and Regulation 9 set a disclosure threshold of R100,000. The EMAA amended these regulations to grant the President the discretion to determine these amounts only after a National Assembly resolution. As of the application date, no such resolution had been passed, and MVC argued that there was consequently no upper limit or disclosure threshold, allowing unlimited and undisclosed donations to political parties on the eve of national elections scheduled for 29 May 2024. The Democratic Alliance (DA) applied to intervene, seeking dismissal of MVC's application. MVC sought interim relief deeming the upper limit at R15 million and the disclosure threshold at R100,000 pending finalisation of proceedings to declare the relevant provisions unconstitutional.

• Whether the application by the Democratic Alliance to intervene at the rule nisi stage was premature.
• Whether MVC was required to join all political parties and the Independent Electoral Commission to the proceedings.
• Whether MVC had established a prima facie case for a rule nisi that the upper limit and disclosure threshold under the PPFA had been repealed by the EMAA, creating a lacuna.
• Whether the court could grant an interim interdict pending the return date under section 172(2)(b) of the Constitution.
• Whether it was competent to make a final determination on the existence of a lacuna and grant final relief at the rule nisi stage.

The DA's intervention application was dismissed. The non-joinder objection was dismissed. The application was heard on an urgent basis. A rule nisi was authorised, returnable on 12 August 2024, calling on interested persons to show cause why the upper limit should not be deemed R15 million per annum and the disclosure threshold deemed R100,000 per annum pending finalisation of constitutional proceedings or determination of the amounts by the President. The prayer for the terms to operate immediately as an interim order was dismissed. The first and third respondents, together with the DA, were ordered to pay MVC's costs jointly and severally on Scale B.

At the rule nisi stage, the test is whether the applicant has placed sufficient justification or a prima facie case before the court for an order calling upon interested parties to show cause on the return date why the relief sought should not be made final. The court is not required to make definitive findings on the merits, including whether a lacuna definitively exists. It is premature for intervening parties to seek dismissal of the application at the rule nisi stage, as affected parties have a right to be heard (audi alteram partem) on the return date. Section 172(2)(b) of the Constitution only empowers a court to grant temporary interdicts or relief once it has made an order of constitutional invalidity, not before.

The court observed that the National Assembly's resolution of 16 May 2024 was 'problematic, if not confusing' because it appeared to rely on the old regulations rather than the new framework, leaving the President without clear amounts to determine. The court also noted that civil society submissions made to the NCOP on 19 March 2024 highlighted the constitutional vulnerability of vesting the President with sole discretion to set donation limits and disclosure thresholds, given his role as a political party leader. The court remarked that the return date would allow a fuller ventilation of issues, perhaps even before a full bench, with an 'expanded festival of ideas' from additional interested parties.

This case addresses the critical intersection of political party funding transparency, the right to vote, and the rule of law in South Africa. It arose in the context of a potential legislative gap that could allow unlimited and undisclosed private donations to political parties on the eve of elections, undermining the constitutional principles of transparency, accountability, and an informed electorate established in My Vote Counts NPC v Minister of Justice and Correctional Services 2018 (5) SA 380 (CC). The judgment also clarifies the procedural boundaries of the rule nisi mechanism, the limited role of a court at the prima facie stage, and the appropriate timing for intervention by interested parties.