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

The Electoral Matters Amendment Act, 2024 (Act No. 14 of 2024) (EMAA) took effect on 8 May 2024. Upon its commencement, the old regulations governing upper limits on donations to political parties and disclosure thresholds were repealed and replaced with new regulations. However, the new regulations did not contain any upper limit for donations (as previously existed under Regulation 7(1)) or any disclosure threshold for donations (as previously existed under Regulation 9). The President required a resolution of the National Assembly (NA) to determine new upper limits and disclosure thresholds. No such resolution had been passed by the NA, creating a lacuna or gap in the law. My Vote Counts NPC (MVC) approached the High Court on an urgent basis and obtained a rule nisi, effectively seeking interim relief to fill this gap by imposing the previously existing statutory donation limits and disclosure thresholds pending the NA's resolution and the President's determination. On the return date, the Democratic Alliance (DA) sought to intervene as an interested party to oppose confirmation of the rule nisi. The President, Minister of Justice and Correctional Services, Minister of Home Affairs, and Acting Speaker of the NA all abided the court's decision. The Speaker filed an explanatory affidavit outlining measures the NA intended to take regarding a resolution on upper limits and disclosure thresholds.

• Whether the Democratic Alliance (DA) qualified as an 'interested person' with a direct and substantial interest entitling it to intervene in the proceedings.
• Whether it was in the interests of justice to grant the DA leave to intervene, considering factors such as the stage of proceedings, the attitude of the main parties, and whether the DA raised substantially new contentions that could assist the court.
• Whether the rule nisi should be confirmed, requiring the continued application of the previously existing donation limits and disclosure thresholds pending the resolution of the National Assembly and the President's determination.
• Whether section 11 of the Interpretation Act, 1957 could be relied upon to preserve the old upper limits and disclosure thresholds despite the repeal of the old regulations and the absence of any new operative provisions.

The court dismissed the DA's application to intervene with costs on scale B. The court confirmed the rule nisi, subject to a correction substituting 'per annum' with 'per financial year' in the relevant paragraphs. The first respondent (President) and third respondent (Minister of Home Affairs) were ordered to pay costs jointly and severally on scale B.

For a party to succeed in an intervention application in constitutional litigation concerning the validity of a statute, it is not sufficient merely to show a direct and substantial interest in the subject matter. The applicant for intervention must demonstrate that it has a right that is adversely affected or likely to be affected by the order sought, and that the submissions it seeks to advance raise substantially new contentions that may assist the court. The court retains an overriding power to grant or refuse intervention in the interests of justice. Regarding section 11 of the Interpretation Act, it applies as a transitional mechanism where old law has been repealed in circumstances where the intended new law has not yet come into operation; it does not apply to cure a complete legislative gap where no new law exists at all. In such circumstances, the court may grant temporary, just and equitable relief, but the responsibility for filling the legislative gap remains with Parliament and the Executive.

The court observed that politicians, including in the National Assembly, do and say things which, if they had legal advice, would not have been done or said, and courts should be slow to hold politicians and political parties to their word in political debates as this may stifle democratic debate. The court cautioned against the 'judicialisation of politics.' The court further noted that a change of front by a political party on a matter does not necessarily demonstrate lack of bona fides, as it is not unheard of for one to receive conflicting legal advice on the same matter. A political party does not, without more, owe a court an explanation when its political rhetoric outside the courtroom differs from its legal argument in litigation. The court also observed that S v Koopman 1991 (1) SA 474 (NC) is no authority for courts to usurp the functions of Parliament and the Executive through fictitious reasoning to create non-existing laws, and that where courts identify a legislative mistake, the democratic structure requires that the courts pronounce on it and allow the legislature and Executive an opportunity to address it.

This case clarifies the legal test for intervention by interested parties in constitutional litigation, particularly in matters involving the validity of statutes. It emphasises that the mere fact of being subject to legislation does not automatically confer a right to intervene; the intervenor must show adverse effect on its rights and must raise substantially new contentions. The case also provides important guidance on the scope and limits of section 11 of the Interpretation Act, distinguishing between transitional preservation of repealed law pending new operative law and an outright legislative gap or lacuna that cannot be cured by judicial interpretation. It reinforces the separation of powers doctrine by affirming that courts should not usurp the legislative functions of Parliament and the Executive but may grant temporary, just and equitable relief to maintain legal certainty while the political branches address identified legislative gaps.