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Four years after a KwaZulu-Natal-based marketing company scored a R102-million contract to supply election posters and banners for the ANC, it has still not received a cent.
The ruling party has lodged an appeal in its bid to overturn court rulings that it must pay Ezulweni Investments.
And the ANC’s latest appeal bid to the Supreme Court of Appeal (SCA), has now “lapsed” because it did not file documents on time.
In correspondence with Moroka Attorneys, which acts for the ANC, SCA registrar CL de Wee said: “Your heads of argument for this appeal was due on the 28th of March 2023. To date, we have not received Heads of Argument. The appeal has therefore lapsed.”
Ezulweni attorney Shafique Sarlie said he had now lodged a writ of attachment of assets with the Johannesburg High Court registrar “and we expect it to be issued within days”.
The writ would authorise the Sheriff to attach removable goods from the ANC’s Luthuli House headquarters in Johannesburg to the value of R102,465,000 and sell them at public auction.
Sarlie said if the debt could not be met this way, he would launch liquidation proceedings against the party.
“This has never been done before. But their behaviour has been unconscionable. And my client is struggling to keep afloat and pay salaries.”
The writ has been issued after two judgments in Ezulweni’s favour. One was handed down in September 2020 and the other was an appeal heard by a full bench of three judges in the Johannesburg High Court in June 2022.
In their ruling in the appeal, the three judges said the ANC’s defence was “far-fetched”.
Judge Leicester Adams, writing on behalf of Judges Motsamai Makume and Mpostoli Twala, said on all the available evidence, the ANC was liable to pay the debt on the basis of a verbal agreement.
The ANC had sought to distance itself from the verbal agreement, claiming that the two officials who had negotiated with Ezulweni boss Renash Ramdas, had no authority to do so.
Judge Adams said the material facts were supported by uncontested and unchallenged WhatsApp messages sent between 29 April and 6 May 2019, which reported on the progress of the project.
On the chat group named “ANC 2019”. Ramdas had given continuous updates on the order of the banners and posters and had sent pictures of them before and after they were erected. He advised that he had employed 100 teams to install them.
Ramdas said a Mr Mabaso, the ANC’s financial manager, had introduced him to a Mr Nkholise, the person responsible for procurement on behalf of the party for the duration of the election campaign. They had placed the order with him.
In March of that year, because of the substantial financial outlay, Ezulweni sought assurance from the ANC that the contract was valid.
Ramdas said the party provided it with a letter on an ANC letterhead signed by the head of elections, Fikile Mbalula, and addressed to the treasurer-general, Paul Mashatile, in which Mbalula confirmed that “Comrade Lebohang Nkholise has been assigned as the signatory for bookings and money for the duration of the Elections Campaign”.
Judge Adams said the letter “and more importantly” the fact that it had been provided to Ezulweni, was not disputed by the ANC. It was also not disputed that in April Ezulweni had forwarded two invoices to Nkholise.
The ANC claimed the letter was prepared by Nkholise who had attached Mbalula’s signature to it “electronically”.
Judge Adams said: “The idea was, so Mabaso alleges, that the letter would at some point be placed before Mbalula for confirmation. This apparently never happened … this then meant, so the version of the ANC continues, that the order and the contents of the sale letter was never confirmed, or approved.”
The judge said this version was implausible, far-fetched and stood to be rejected.
He said it could be “confidently said” that the conduct of the parties, especially that of the ANC, supported the conclusion that there was an agreement and there was “no credence” to the ANC’s version.
The three judges subsequently refused to grant the ANC leave to appeal against their order that it must pay up, but on a petition to the SCA, that court granted special leave to appeal.
ANC media spokesperson Amos Phago did not respond to a WhatsApp message for comment.
This article first appeared in @GroundUp and is republished with permission.
