Former ANC secretary general, Ace Magashule. File photo by Delwyn Verasamy/M&G
In a remarkable turn of events, expelled former ANC secretary general Ace Magashule has emerged as the trump card being played against the governing party in its attempt to have a R105 million debt judgment set aside.
Magashule has made out an affidavit in support of the attempt by Ezulweni Investments to stop the ANC to lead new evidence in its attempt to have the supreme court of appeal (SCA) set aside a high court judgment in the company’s favour.
In the affidavit, filed in the SCA this week, Magashule said he, then-ANC treasurer general Paul Mashatile and then-ANC elections head Fikile Mbalula were “all aware” of the contract to erect 30 000 PVC street banners for the 2019 national and provincial elections.
Magashule said Mashatile, now the ANC’s deputy president, had repeatedly communicated with the leadership about the payment dispute to inform them that “the matter was being attended to and would be resolved”, before Ezulweni first went to court.
In an even more shocking development, Ezulweni chief executive Renash Ramdas has laid charges of defamation and defeating the ends of justice against Mbalula, now the ANC’s secretary general, and the party, over claims that he had attempted to defraud them in the contract.
Ezulweni, a Newcastle-based print company whose owner has long-standing links to the ANC in KwaZulu-Natal, went to court after the ANC failed to pay for the printing and installation of the 30 000 banners across South Africa for the 2019 election campaign.
The company claimed R102 million plus interest, and successfully secured a judgment against the ANC in September 2020.
The party didn’t pay and Ezulweni has since secured two writs of execution to seize assets — including properties in South Africa and abroad — from the ANC, which also failed to approach the SCA within the prescribed period to lodge an appeal.
The party’s lawyers brought an application for condonation, and are in the process of applying to introduce new evidence, including a forensic report and copies of a WhatsApp message it claims proves corruption between Ramdas and then-ANC financial manager Nhlanhla Mabaso.
In his affidavit in response to the ANC application, Ramdas said Magashule’s affidavit affirmed their argument that the party’s leadership was well aware of the contract and Mabaso had acted with authority delegated to him through Mbalula.
“He is certain that Mbalula had been apprised of the progress of the procurement of the street banners. His office was asked for assistance and intervention by Ezulweni on 1 July 2019. He was informed subsequently by the TG [treasurer general, Mashatile] that the matter was being attended to,” Ramdas said.
“Ezulweni submits, therefore, that Magashule’s evidence gives the lie to Mbalula’s version of events.”
Ramdas told the court that the ANC had not filed the full forensic report, but rather an executive summary, and had not provided affidavits from the investigators and legal firm involved, or affidavits from Mabaso.
“This court is not placed in a position to determine when the ANC unearthed the so-called new evidence in order to decide at what state of the proceedings the ANC were required to act on it,” Ramdas said.
The ANC had also failed to produce the phone on which the WhatsApp it alleged Mbaso had received an offer of a R10 million bribe from Ramdas, or the messages themselves, which raised concerns that it might have been fabricated to try and undermine his claim for payment.
“The mobile device … is not in the possession of Mabaso, ENS [the lawyers] or the ANC,” Ramdas said. “I find this implausible.
“The offending message prompted the investigation, with the device taking centre stage. Surely it presents as the vital link in the evidentiary chain, and as such requires to be secured and preserved?”
Ramdas said he was “exceedingly offended” by the “false” bribery claim, which was “nothing more than a desperate and nefarious attempt by the ANC to avoid the consequences of the judgment”.
As a result, he had laid a charge of criminal defamation and perverting the course of justice with the police in Newcastle and had engaged an electronic forensic specialist to prove to the court that the WhatsApp messages were fake.
Ramdas said the offending message, in which he had allegedly offered the bribe to Mabaso, had allegedly been sent on 23 February 2019, three days after the contract between Ezulweni and the ANC had been signed.
“Why would Ezulweni (or for that matter I), after having already secured the contract, approach Mabaso with such a nonsensical and incriminating message?” Ramdas asked.
“To post such an incriminating message on a widely used and known social media platform is beyond reason and belief.”
Mabaso had also failed to mention the WhatsApp message in his earlier affidavit in support of the ANC’s case, made in October 2019, and it was “improbable” that he would have forgotten about it by then, if it actually existed.
In his affidavit, information technology forensic expert Hermann Geldenhuys said Ramdas believed that a “criminal mind” had created the message by altering a copy of a legitimate communication between him and Mabaso about the contract which he had sent on 23 February.
Geldenhuys said the messages “appear to be suspicious” and could easily have been fabricated using a method “even a layman could employ” and a number of freely available apps.
Geldenhuys referred the court to six online tutorials on how to fake WhatsApp messages, and the apps to make use of in doing so, to demonstrate this.
He also presented the court with a string of messages between Ramdas and Mabaso which he had fabricated himself — without access to either of their phones — to demonstrate how easy it was to do so.
“In my opinion, the messages … could have been produced by employing any of the two methods,” Geldenhuys said.
This article has been updated