ANC faces R100m bill after losing appeal
● The Supreme Court of Appeal has rejected an appeal by the ANC in a multimillion-rand contractual dispute, calling its version of events “utterly untenable and without veracity”.
Unless the ANC tries to appeal further, the judgment means it must pay Ezulweni Investments more than R102m, plus interest, for the ANC banners it produced and put up ahead of the 2019 general election.
On behalf of a unanimous court, justice Trevor Gorven said the ANC’s version — that no contract had been negotiated or reached — was “not capable of belief”.
“The denials of the ANC fall into the category of bald, uncreditworthy denials designed to create fictitious disputes of fact,” said Gorven.
He evaluated the contradictory versions of Ezulweni Investments and the ANC.
Ezulweni’s Renash Ramdas described three meetings he had with a Mr Mabaso and a Mr Nkhosile, the personal assistant to the head of the ANC’s election campaign, Fikile Mbalula.
At the second meeting — on February 20 — said Ramdas, an oral agreement was reached for 30,000 banners at an agreed price of R2,900 per banner. They also agreed to R70 for the placement and removal of each banner.
Ramdas said that on April 9 Mabaso and Nkholise forwarded three documents to him.
One was an e-mail containing the final design for the “Call to Vote” banners.
The second was a photo of a letter dated April 2 signed by Mbalula and addressed to the then ANC treasurer Paul Mashatile, informing him that Nkhosile had been “assigned as the signatory for bookings and money for the duration of the election campaign”.
The third document was an April 9 letter, also signed by Mbalula, asking for Mashatile’s assistance for the payment of an invoice sent by Ramdas on April 4.
The third meeting between Ramdas, Mabaso and Nkholise took place four days before the elections on May 4.
Ramdas put before the court numerous WhatsApp messages showing progress in delivery of the contract terms.
After the elections, and after having delivered on all the terms of the contract, the ANC simply did not pay him, said Ramdas.
While the ANC admitted to all the meetings, it said there had never been an agreement. Alternatively, Nkholise had not been authorised to contract on behalf of the ANC, the party argued.
The court judgment said the ANC’s version was that: “The sole content of the meetings, and the sole purpose of Mabaso and Nkholise attending them, was to convey to Ramdas that only Mashatile could authorise election material, and that a purchase order had to be issued before any agreement could be concluded.”
The ANC admitted to sending the email on April 9 containing the final design for the “Call to Vote” poster. This was sent for information purposes, it said.
The ANC denied that Nkhosile had sent Ramdas a copy of the April 2 letter assigning him as elections campaign signatory, but “gave no explanation for its denial”, said the judgment. “It did not explain how this [letter] came into the possession of Ramdas.”
The ANC said the April 9 letter about the invoice was never signed by Mbalula. It was an electronic signature inserted by Nkholise “to put before Mbalula for his consideration”. But this “never happened”. Nor did Nkhosile send a copy to Ramdas, the ANC said.
Gorven said there were “serious difficulties” with the ANC’s version, which raised 15 questions, including why there was any need for further meetings if, from the first, the ANC had been clear in its position that only Mashatile could authorise an agreement.
Why, asked Gorven, didn’t the ANC disabuse Ezulweni of its belief that there was a contract in the face of its consistent communications on progress? Why was the e-mail sent to Ramdas on April 9?
Gorven said it was claimed there was no response to Ramdas’s message with photographs, sent in early May, but Ezulweni submitted to the court an emoji sent by Mabaso of a clenched fist in response to that message.
Gorven said: “The only credible response of an entity in the position of the ANC, if its version was true, would be immediately to set the record straight so as to prevent Ezulweni proceeding at risk.”