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 over R102m, plus interest, for the ANC election 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.
The judgment explained how courts deal with disputes of fact when they come up in motion proceedings — as opposed to trial proceedings, where witnesses give oral testimony and their versions are tested through cross-examination.
Sometimes called the “Plascon-Evans rule”, in such cases, the general rule is that a court will accept the respondent’s version, here the ANC’s. But there is a qualification: the respondent’s version will not be accepted if it consists of “bald or uncreditworthy denials, raise[s] fictitious disputes of fact, is palpably implausible, far-fetched or ... clearly untenable”, 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 Mr Nkhosile, the PA to then-ANC head of the 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: an email containing the final design for the “Call to Vote” banners. Second, a photo of a letter, dated April 2, signed by Mbalula and addressed to 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 his assistance for the payment of an invoice sent by Ramdas on April 4.
The third meeting between Ramdas, Mabaso and Nkholise happened four days before the election on May 4. Ramdas also put before the court numerous WhatsApp messages, showing progress of 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, argued the ANC.
“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,” said the judgment describing the ANC’s version.
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, said the ANC.
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,” said Gorven.
The April 9 letter about the invoice was never signed by Mbalula, said the ANC. 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, pointing to 15 questions raised by the ANC’s version, including why there was any need for further meetings if, from the first, the ANC had been clear in its position 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 email sent to Ramdas on April 9?
Gorven said it was claimed there was no response to Ramdas’ 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.”
The judgment also rejected the argument that Nkholise was not authorised to enter into a contract on behalf of the ANC. Assessing the April 2 letter assigning authority to Nkholise, the court said it was clear the assignment took place before the letter was sent and was for “the duration of the election campaign”.
“The campaign had begun well before Ramdas met Mabaso and Nkholise. On the face of it, then, Nkholise had been assigned to this task for the entire duration of the election campaign,” said the court.
The judgment also rejected an attempt by the ANC to introduce new evidence to the SCA — an executive summary of a forensic report by ENS Forensics, which had investigated the relationship between Ezulweni and the ANC.
The summary of the report (the actual report was not put before the court) referred to a WhatsApp message supposedly sent by Ramdas to Mabaso in February 2019, in which — said the summary — Ramdas said that if the ANC confirmed two orders with Ezulweni, they could all make “ten million each”.
This “appears to be indicative of a corrupt relationship between Mr Mabaso and Mr Ramdas”, said the summary.
But, said the judgment, there was no verification that the message was authentic. Nor was the entire message set out in the summary. It was all hearsay.
Ezulweni had requested access to the device on which the message was supposedly received. The response was that it was not in the possession of Mabaso, the ANC or ENS. “This begs the question how ENS obtained access to the message which found its way into the summary. No such information was forthcoming,” said Gorven.
To admit new evidence, there must also be a good explanation why it was not brought earlier, he said. Mabaso had testified for the ANC in the main application and had been silent on receipt of the message. Though the report came out later, “that evidence was available to the ANC in the mouth of its chief witness, Mabaso.”
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