African National Congress v Ezulweni Investments (Pty) Ltd

Ezulweni Investments (Pty) Ltd (Ezulweni) claimed it concluded an agreement with the African National Congress (ANC) on 20 February 2019 for the supply of 30,000 branded PVC election banners at R2,900 per banner, plus R70 per banner for placement and removal, totaling approximately R102 million. The agreement was allegedly made through Ramdas (CEO of Ezulweni) with Mabaso (ANC Finance Manager) and Nkholise (Personal Assistant to the Head of the ANC Elections Campaign). After an initial meeting in January 2019, subsequent meetings occurred on 20 February, 4 May, and 11 June. Ezulweni claimed it supplied, placed, and removed the banners as agreed, sending numerous WhatsApp messages with progress updates and photographs to Mabaso and Nkholise throughout. A letter dated 2 April 2019 signed by Mbalula (Head of Elections) assigned Nkholise as "signatory for bookings and money for the duration of the Elections Campaign." On 9 April, Nkholise drafted a letter to Mashatile (Treasurer General) requesting payment of R87 million and sent both letters to Ramdas. The ANC denied concluding any agreement, claiming only Mashatile could authorize such agreements and that Mabaso and Nkholise merely informed Ezulweni a purchase order was required. Despite multiple payment demands, the ANC refused to pay.

• Whether an agreement was concluded between the parties on 20 February 2019
• Whether Nkholise had actual authority to conclude the agreement on behalf of the ANC
• Whether the ANC's version raised bona fide factual disputes sufficient to defeat the application
• Whether further evidence (a forensic report) should be admitted on appeal pursuant to section 19(b) of the Superior Courts Act
• The proper test for evaluating factual disputes in motion proceedings

1. The application to admit evidence on appeal is dismissed with costs. 2. The appeal is dismissed with costs, including the costs of two counsel where so employed. The judgment of the full court of the Gauteng Division, which upheld the high court's order requiring the ANC to pay R102,465,000 plus interest and costs, was confirmed.

The binding legal principles established are: (1) Where a respondent's version in motion proceedings consists of bald or uncreditworthy denials that raise fictitious disputes of fact and are palpably implausible or clearly untenable, the court is justified in rejecting them on the papers and deciding the matter on the applicant's version (applying Plascon-Evans and related authorities). (2) In determining whether authority existed to bind a principal, the court must interpret delegation documents (such as the 2 April letter) textually and contextually, considering the entire course of conduct between the parties. (3) A document assigning an agent as "signatory for bookings and money for the duration of the Elections Campaign" confers actual authority to conclude agreements falling within that framework. (4) Prolonged silence in the face of numerous communications asserting contractual performance is inconsistent with a genuine denial of the contract's existence. (5) Evidence will only be admitted on appeal under section 19(b) of the Superior Courts Act where there is: (a) a reasonably sufficient explanation why it was not tendered earlier; (b) prima facie likelihood of its truth; and (c) material relevance to the outcome. Each requirement must be satisfied.

The court made several important observations: (1) It noted that the ANC had abandoned reliance on its Supply Chain Policy in the full court, which had been the "main basis" of its defense in the high court, stating "it is safe to say that this aspect was the main basis on which the ANC sought to meet the claim of Ezulweni in the court of first instance" and that the policy had "no such provisions" as claimed. (2) The court observed that where parties have a "warm" relationship, the failure to immediately correct a misapprehension about contractual obligations is particularly telling. (3) The court commented on the implausibility of holding a meeting four days before an election to inform a supplier that no agreement had been concluded, when that supplier had already manufactured and was installing 30,000 election banners. (4) The court noted that historic WhatsApp messages "can be amended, edited or faked" and that information on how to do so "is widely available and can be achieved reasonably easily," highlighting concerns about the reliability of such evidence without proper forensic verification. (5) The court observed that a defense based on corruption presupposes the existence of an agreement and therefore fundamentally contradicts a defense denying any agreement was concluded, noting this is "impermissible" as it amounts to pleading contradictory rather than alternative defenses.

This case is significant for several reasons: (1) It reinforces the principle that bare denials and untenable versions will not create genuine factual disputes in motion proceedings, particularly where contradicted by extensive documentary evidence and the respondent's own conduct. (2) It demonstrates how silence in the face of multiple communications asserting contractual obligations can be fatal to a defense denying the existence of a contract. (3) It clarifies the interpretation of authority in organizational contexts, particularly regarding mandates for election campaign expenditure. (4) It confirms the strict requirements for admission of evidence on appeal under section 19(b) of the Superior Courts Act, requiring: reasonable explanation for not leading the evidence earlier, prima facie likelihood of truth, and material relevance to the outcome. (5) It illustrates that a party cannot introduce on appeal a fundamentally contradictory defense (here, corruption giving rise to the agreement) when it has pleaded throughout that no agreement existed. The case serves as a cautionary tale about political parties' procurement practices and the binding effect of authority delegated to officials.