ANC secretary general Fikile Mbalula. (Oupa Nkosi/M&G)
ANC secretary general Fikile Mbalula will likely be in the hot seat when the party’s national working committee meets again following a scathing judgment that found that he could have been untruthful in producing evidence to save the party from a R102-million lawsuit.
The Supreme Court of Appeal tore through evidence submitted by Mbalula. The ANC argued that it was not liable for the R102-million suit with the court ruling that the organisation had “fallen woefully short of the accepted test”.
The ANC has made several legal attempts to back out of a contract with Ezulweni Investments having failed to pay for the printing and installation of 30 000 banners across South Africa for the 2019 election campaign.
Ezulweni, a Newcastle-based print company, is now planning to start attaching ANC assets to settle its debt from Monday.
In an interview with the Mail & Guardian, Ezulweni investments attorney Shafique Sarlie said that attachments will start on Monday by first taking funds from ANC bank accounts.
“There are no constitutional points so this can’t go to the Constitutional Court,” he said. “It’s the end of the road for the ANC, they have to pay. We invited them demanding payment by Friday, but they have not paid. We are proceeding on Monday to attach. We have the sheriff on standby to attach. Hopefully there will be some money in the bank accounts so we will attach the money in the bank account first then we will go to Luthuli house, attach there until we have satisfied the full amount.”
Sarlie said that the full costs incurred by the governing party now came up to almost R150-million with interest running from May 2019 at around 10%.
“So it escalated to about R900 000 every month. We have tried to encourage a settlement. It’s been a costly long walk to a settlement for my client and they [ANC] have not been forthcoming. We don’t want any indulgence or favours from them to settle. There is no way out for them at this stage,” Sarlie said.
In a ruling made on Friday, leading Judge Trevor Gorven called into question the validity of the ANC’s evidence.
“The denials of the ANC fall into the category of bald, uncreditworthy denials
designed to create fictitious disputes of fact,” Gorven ruled dismissing the ANC’s appeal with costs. “The version of the ANC accordingly does not raise bona fide factual disputes. It does not warrant the approach that the matter should have been decided on its version. On the contrary, the court of first instance and the full court were amply justified in basing their findings on the version of Ezulweni where the two versions conflicted.”
Gorven said that he had difficulty believing that the evidence provided by the ANC was
was “prima facie truthful”. The judge said that the evidence proffered was all hearsay and the pleadings were made up of the notice of motion and affidavits.
In its argument, Ezulweni chief executive Renash Ramdas argued that an oral agreement was made between then-ANC financial manager Nhlanhla Mabaso and Mbalula’s personal assistant Lebohang Nkholise for the ANC to place an order for 30 000 branded PVC banners at an agreed price of R2 900 per banner.
In addition, a price of R70 per banner was agreed for their placement and removal. These would be employed as a final push to attract voters to the polling stations.
With the ANC under financial strain, Nkholise – who worked in Mbalula’s office during his term as elections head – agreed to an interim funding deal for Ezulweni to incur the expenses. The ANC would pay immediately after the election campaign.
As part of Ezulweni’s evidence, the company produced an internal email sent to then Treasurer General Paul Mashatile for the signing of elections money.
Ramdas had also set up a dedicated WhatsApp group for the project consisting of the two ANC staffer, Mabaso and Nkholise.
“Ramdas sent a message to the other two advising them of the areas where the banners had been placed along with photographs of them. After the election, Ezulweni had the
banners removed and informed Mabaso and Nkholise to that effect, supplying
photographs of the stored banners. The final two invoices were sent but remained unpaid. Various approaches to the ANC elicited unfulfilled promises,” the ruling read.
Ramdas said following a request of payment to the ANC’s top brass – including then secretary general Ace Magashule, president Cyril Ramaphosa and Mashatile – a legal letter was issued by Ezulweni’s attorneys demanding payment.
The ANC’s application to have the R102-million order set aside relied on three arguments. While the party admitted to meetings with Ramdas, it said that no agreement was ever made with Ezulweni.
Mbalula in his affidavit said 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 party denied having any engagements with Ramdas in a dedicated WhatsApp group but admitted receipt of the photographs showing the progress and the installed banners as well as an email to Ramdasl containing the final design for the “Call to Vote” poster.
The ANC said it was sent emails by Ezulweni for information purposes and not to confirm approval of any agreement between the parties.
Gorven said that the ANC gave no explanation for its denial that Nkholise had sent Ramdas a copy of a letter assigning the former as signatory for bookings and money for the duration of the elections campaign.
“It did not explain how this came into the possession of Ramdas.”
The ANC also argued that Mbalula never signed off on any agreement letter stating that Nkholise inserted Mbalula’s electronic signature with an intent to put it before the party leader for his consideration but never did.
Significantly, no communication emanating from the ANC denied that the banners were supplied, placed, and taken down as averred by Ezulweni, the judge stated.
“All of these factors, and more besides, demonstrate overwhelmingly that the
version put up by the ANC as to the interaction between Ramdas, Mabaso and
Nkholise is utterly untenable and without veracity.
“The ANC’s version is not capable of belief in face of the cascade of communications from Ramdas that were met with deafening silence from the ANC. The only credible response of an entity in the position of the ANC, if its version was true, would have been immediately to set the record straight so as to prevent Ezulweni proceeding at risk.
This is especially so since it was submitted before us that the relationship between the ANC and Ramdas was a warm one. Those responsible for the election were provided evidence of the work that was being done to produce the banners and then install them. How did these officials imagine this was happening, save on the basis of an agreement with Ezulweni?” Gorven said.
Govern said that the ANC’s version does not raise bona fide factual disputes.
“It does not warrant the approach that the matter should have been decided on its version. On the contrary, the court of first instance and the full court were amply justified in basing their findings on the version of Ezulweni where the two versions conflicted,” Govern said.
Govern found that there was the inference is “irresistible” that Nkholise was authorised to conclude agreements on behalf of the ANC.
During its plea application to the SCA, the party’s lawyers brought an application for condonation, and an application to introduce new evidence, including a forensic report and copies of a WhatsApp message it claimed proves corruption between Ramdas and Mabaso.
Govern said that the forensic report brought forward was not put up in the papers but only the executive summary was put up.
“The summary was neither signed nor dated and the author was not identified in the founding affidavit. Neither the author, nor the persons to whom statements in the report were attributed, put up affidavits confirming those statements.”
Govern said evidence submitted to argue that corruption took place between Ezulweni and Mabaso was all hearsay calling into question its truthfulness.
The ANC was unable to produce Mabaso’s device to corroborate its claims of corruption for Ezulweni’s IT analysis claiming that it was not in possession of the cell phone.
“This begs the question how ENS obtained access to the message which found its way into the summary. No such information was forthcoming. Nor was any evidence led as to why the device in question was not available for analysis. Ezulweni had contracted a person for the purpose of assessing the authenticity of the message,” Govern said ruling that the ANC’s evidence on appeal fell woefully short of the accepted test.
Sarlie said that they believed evidence by the ANC of corrupt dealings was fabricated. He said that the ANC’s argument of corruption against Ramdas was a desperate and corrupt attempt to save itself.
“It was clear that this was a desperate attempt by someone in the ANC to salvage its case,” Sarlie said.