ActionSA to consider legal action against IEC

8 June 2021

Note to Editors: An audio clip by Lerato M-Ngobeni, ActionSA National Spokesperson, can be found here. Please download the file to access the clip.

ActionSA has received a response from the Chairperson of the IEC in respect of our position that it has violated the Constitution by actively fundraising for the Multi-Party Democracy Fund (MPDF).

The response by the IEC is inadequate, constitutionally concerning and leaves ActionSA with no option other than to consider legal action against the IEC.

Last week, ActionSA wrote to the Chairperson and CEO of the IEC, issuing demands that the IEC cease actively soliciting donations for the MPDF.

We issued these demands because such activities violate the IEC’s Constitutional mandate to remain impartial, given that the funds from the MPDF are exclusively distributed to political parties represented in legislatures. In other words, when the IEC solicits donations for the MPDF, a defined group of parties (who legislated for their own benefit), receive the funds while other political parties do not.

The basis of these demands is that nothing in either the Political Party Funding Act or its Regulations empowers the IEC to actively solicit donations for the MPDF. The Act limits the role of the CEO of the IEC to managing and administering the fund. The Act does not empower the IEC to target donors and solicit funds from them on behalf of political parties. In this respect, the IEC’s response only refers to vague and general responsibilities, none of which are codified in the regulations of the Act. In contrast the Constitution is explicit in Section 190(1)(a):

“The Electoral Commission must manage ensure that those elections are free and fair.”

ActionSA contends that political parties that are launched between national and provincial elections are prejudiced when proceeds of the MPDF are distributed to their competitors. It should be noted that political parties represented in legislatures already receive billons of rands in taxpayer funding. ActionSA does not believe that political parties should be funded by either the South African taxpayer or the IEC.

As a matter of law, it is worth noting that Section 87(1)(b) of the Electoral Act 73 of 1998, makes it a criminal offense to “interfere with the independence or impartiality of the Commission…”

In the Chairperson’s response, the IEC refuses to provide the recording of the virtual meeting of the National Party Liaison Committee (NPLC) meeting, during which the revelations of their fundraising activities emerged. The only logical conclusion is that the IEC does not want to release the recordings that reveal the admissions that the IEC has actively soliciting donations from prospective donors.

It is worth noting that the IEC, like any public institution, would have to provide the recording in response to a PAIA application. If the Chairperson of the IEC truly considered its actions to be lawful and constitutional, what reason would they have to withhold the recording?

Our letter to the Chairperson has given the IEC to close of business tomorrow to confirm that no further funds will be disbursed to represented political parties by the MPDF until such time as the matter has been dealt with in court. If we do not receive such an undertaking, given that the funds are due to be disbursed at the end of June, ActionSA will have no other option other than to approach the courts.

ActionSA engaged the IEC, in good faith, and in the interests of affording this critical Chapter 9 Institution the opportunity to remedy its error. The IEC’s response should be of great concern to the people of South Africa because it shows blatant disregard for the Constitution.

We will now work with our legal team to explore all possibilities, with the absolute focus being on preventing further funds being raised and distributed by the IEC for the benefit of some political parties.

The IEC must focus on running elections that are free, fair and safe in the complex environment of a global pandemic. It should leave fundraising for political parties to political parties.

Issued by Michael Beaumont, National Chairperson, Action SA, 8 June 2021