About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 302
|
|
Ezulweni Investments (Pty)Ltd v African National Congress (19/32332) [2020] ZAGPJHC 302 (17 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number : 19/32332
IN
THE MATTER BETWEEN:
EZULWENI
INVESTMENTS (PTY) LTD
Applicant
and
AFRICAN
NATIONAL CONGRESS
Respondent
JUDGMENT
BHOOLA
AJ:
Introduction
[1]
The applicant is an integrated marketing agency, which offers a range
of services to exclusive clientele such as
the respondent. Its
services include,
inter alia
, supplying various branded
products including PVC banners, hand flags, street pole flags,
stickers and branded clothing. It supplied
PVC banners to the
respondent ("ANC") during its 2019 election campaign in
terms of an oral agreement entered into with
two ANC officials. The
ANC denies that an agreement was concluded and/or that the officials
had the authority to conclude the agreement
on its behalf.
[2]
The applicant seeks relief in the following terms:
1. Payment in the
amount of R 100 050 000;
2. Interest thereon at
the rate of 15% per annum from 9 May 2019,
alternatively
, 31
May 2019,
further alternatively,
30 June 2019 at the rate of
10.25% per annum to date of payment;
3. Payment of the sum
of R 2 415 000;
4. Interest on the
aforesaid amount at the rate of 10.25% per annum from 9 May 2019
,
alternatively
, 31 May 2019,
further alternatively,
30 June
2019 to date of payment;
5. Costs of the
application;
6. Further and /or
alternative relief.
Factual
background
[3]
In his founding affidavit the Chief Executive Officer of the
applicant, Renash Ramdas ("Ramdas"), alleges
that during
the 2014 general elections he concluded an oral agreement with
Nhlanhla Mabaso ("Mabaso"), the Finance Manager
of the ANC,
to provide it with branded street pole banners for its election
campaign. The contract was not concluded with the applicant
but with
a close corporation of which Ramdas is a member, Gladmod Transport
and Projects 47 CC ("Gladmod"). The agreement
was concluded
when Mabaso, on behalf of the ANC, accepted Ramdas's quotation for
the supply of PVC banners for the ANC's election
campaign. In all its
dealings with the ANC in relation to the 2014 agreement, Mabaso had
represented the ANC. The banners were
supplied and full payment was
made for them by the ANC. At all times in Ramdas's dealings with the
ANC, Mabaso represented the
organisation. This is further confirmed
in a written acknowledgement of debt signed by Mabaso on an official
letterhead.
[4]
Ramdas avers that he is a loyal member of the ANC and his dealings
with the ANC over many years were always concluded
with a handshake
without any written agreement being concluded. The commercial
entities that he represented were always paid by
the ANC for services
rendered by them.
[5]
During January 2019, after Ramdas had contacted Mabaso, they met for
the purposes of a presentation by Ramdas, this
time on behalf of the
applicant, for the supply of branded goods to the ANC for the 2019
election campaign. The meeting ("the
first meeting") took
place at the ANC headquarters at Luthuli House. Mabaso introduced
Ramdas to Lebohang Nkholise ("Nkholise"),
as the person
responsible for procurement on behalf of the ANC for the duration of
the election campaign.
[6]
Ramdas attended a further meeting ("the second meeting")
with Mabaso and Nkholise on 20 February 2019.
Prior to the meeting
Ramdas had forwarded Mabaso a quotation dated 11 February 2019
listing the unit prices of the items that could
be supplied by the
applicant. The quotation listed the price of the PVC banners as R2900
per banner excluding VAT. The banners
are re-useable and are 230cm x
100cm in size and include two metal rods, u-bolts and nuts that fit
onto steel poles.
[7]
At the second meeting, Mabaso and Nkholise expressed an interest in
the PVC banners and placed an order for 30 000
banners to be supplied
to the ANC. They requested that the banners be supplied in the week
prior to the 8 May national elections
for the final push to attract
voters to the polling stations. The parties agreed that the applicant
would also install the banners
in prominent positions on street poles
and at polling stations throughout the country (except the Cape
Province). Ramdas agreed
that the applicant would supply and install
the banners. In addition to the supply and installation of the
banners, the parties
also agreed on the following further terms: the
applicant would remove the banners after the elections for a further
amount of
R70 excluding VAT per banner; and that the ANC would
provide the design work for the banners. Ramdas alleges in his
founding
affidavit that the parties further agreed that payment would
be made to the applicant on finalisation of the elections,
alternatively
within thirty days from date of an invoice in
respect thereof,
further alternatively
within a reasonable
time after the elections.
[8]
Ramdas alleges that it was self-evident to all the meeting
participants that time was of the essence and in order
for the
applicant to properly implement the project, it was necessary to
immediately commence with the manufacturing of the banners.
The
applicant proceeded to order the steel poles and other materials for
the frames and employed additional staff to assist in
production of
the PVC banners.
[9]
Producing the PVC banners required a substantial investment in
procuring of the materials required for their manufacture
as many
suppliers required upfront deposits. These funds were provided by the
directors of the applicant. At one point Ramdas also
approached
Nkholise to request a deposit but Nkholise informed Ramdas that the
ANC was experiencing cash flow constraints as a
result of election
campaigning, but assured him that the applicant would be paid
immediately after the elections.
[10]
Ramdas avers that thereafter he constantly communicated with both
Nkholise and Mabaso and kept them updated on progress with
the
production of the banners. This is not disputed by the respondent.
Ramdas's communications included photographs of the process
of
manufacturing the banners. The printing component of the manufacture
was done in Durban and in China.
[11]
In a letter dated 8 March 2019, the applicant sought a formal order
from the ANC given its substantial outlay of upfront costs.
In reply
the ANC provided it with a letter dated 2 April 2019 ("the 2
April letter") signed by the head of elections,
Mr Fikile
Mbalula ("Mbalula") and addressed to the ANC Treasurer
General Mr Paul Mashatile ("Mashatile"). The
letter appears
on the ANC's letterhead and states as follows:
"To :
Treasurer-General
Comrade
Paul Mashatile
Cc: Cde Bongani
Mahlalela
Cde
Nhlanhla Mabaso
Re Signing of
election's money
Dear Comrades
This communiqué
is to inform the Finance Department that Comrade Lebohang Nkholise
has been assigned as the signatory for
bookings and money for the
duration of the Elections Campaign.
Yours comradely
(signature)
Head of Elections
F.A. Mbalula."
[12]
On 4 April 2019, the applicant forwarded two invoices to Nkholise,
one in respect of the contract price for the manufacture
and sale of
the banners (from which the VAT amount was accidentally omitted), and
another in respect of the installation and removal
of the banners. It
is not in dispute that the ANC received the invoices and at no point
prior to these proceedings raised any objection
to them.
[13]
Consistent with the oral agreement between the parties, on 9 April
2019 Nkholise forwarded to Mabaso an email containing the
ANC's final
design for the banners. Mabaso in turn forwarded the email containing
the final design of the poster to the applicant.
The transmission of
the final design for the banners to the applicant is confirmed in the
answering affidavit.
[14]
On 9 April 2019 the applicant was provided with a further letter
addressed by Mbalula to Mashatile ("the 9 April letter")
in
the following terms:
"
AFRICAN NATIONAL
CONGRESS
HEAD OF ELECTIONS
OFFICE
TO CDE PAUL MASHATILE
TREASURER GENERAL
RE OUTSTANDING PVC
BANNERS
Dear Paul Mashatile
This letter serves to
request your office to assist us with payment for 30 000 PVC banners
required for the election campaign. The
total cost is R 87 000 000,
R2 900 per PVC banner.
This letter is
accompanied by an invoice from Ezulweni Investments.
Comradely yours,
(signature)
Comrade Fikile
Mbalula"
[15]
On 27 April 2019 at 11:18 Ramdas send a WhatsApp message to Nkholise
(whose number he had erroneously saved on his cellphone
under the
name Lebohang Mbalula), confirming that 20 000 of the 30 000 PVC
banners could already be made available. Mabaso and
Nkholise were
part of a WhatsApp chat group formed by Ramdas under the name "ANC
2019" so that all messages sent by Ramdas
and received from
either Mabaso or Nkholise by WhatsApp could be seen by all three of
them.
[16]
Mabaso and Nkholise admit receiving the messages from Ramdas but deny
that they responded to them. However, on the same day
(27 April 2019)
at 12:00 Nkholise responded with a "thumbs up" emoji,
clearly indicating their approval for the 20 000
banners. There is a
text note to confirm that he was responding specifically to Ramdas's
message.
[17]
On 29 April 2019 Ramdas sent another WhatsApp message to Nkholise and
Mabaso attaching photographs of the banners that were
awaiting
installation along with photos of the banners already erected on
street poles.
[18]
On 30 April 2019 Ramdas sent (again by WhatsApp) photographs of the
posters that were erected on street poles that day. On
the same day
he sent another message advising Mabaso and Nkholise that the
applicant had paid the balance in the amount of R1.2
million to cover
the cost of importing the PVC banners from China. Proof of payment
was also forwarded to them by WhatsApp. The
double blue ticks confirm
that this message was received and read by Mabaso and Nkholise.
[19]
On 2 May 2019 Ramdas sent a further WhatsApp message to Mabaso and
Nkholise containing photographs of finished brackets for
the PVC
banners and confirming that the banners would be circulated
throughout the country, except for Cape Town. Again the blue
ticks
confirm that the messages were received and read by Mabaso and
Nkholise.
[20]
On 2 May 2019 Ramdas sent WhatsApp messages to Mabaso and Nkholise
informing them that the logistics involved in the installation
were
huge and that the applicant had employed 100 teams with each team
having to install 300 banners. Again the double blue ticks
confirm
receipt of these messages.
[21]
Between 3 and 6 May 2019, further WhatsApp messages were sent by
Ramdas to Mabaso and Nkholise to keep them informed of progress
with
the huge logistical task involved in erecting the banners onto street
poles. They were also sent photographic proof of the
installation at
various points. Again the receipt of these messages is indicated by
the double blue ticks on WhatsApp, but this
time Nkholise also
replied in the form of a clenched fist emoji, thereby confirming his
approval of the actions of the applicant
in accordance with the
contract between them.
[22]
On 4 May 2019 a meeting ("the third meeting") was held at
the Garden Court hotel in Eastgate between Ramdas, Mabaso
and
Nkholise at which they discussed the progress with banners and Ramdas
updated them on the progress with installation of the
banners.
The ANC admits that the meeting took place but claims that the
discussion was about Mabaso and Nkholise conveying
to Ramdas that no
contract could be concluded without the approval of the Treasurer
General and a purchase order.
[23]
On 8 May when the elections were held all the banners were in place
in accordance with the terms of the agreement. Furthermore,
as agreed
between the parties the applicant also caused all the banners to be
removed after the election and placed in storage.
The applicant
states that they are still available to the ANC for future use.
[24]
On 9 May 2019, the day after the elections, the applicant re-sent the
two invoices it had submitted to the ANC on 4 April,
this time
correctly including the VAT amount it had excluded in error from the
first set of invoices. The combined statement reflected
the total
amount due as being R102 465 000. No response or payment was
forthcoming from the respondent.
[25]
The ANC has since than refused to pay the applicant and admits that
it refused to pay. Ramdas made various further attempts
to resolve
the issue with the ANC,
inter alia
, as follows:
25.1
A meeting was held with Mabaso on 11 June 2019 at which he
acknowledged
the ANC's indebtedness and undertook to resolve the
matter.
25.2
On 1 July 2019 the applicant addressed a letter to the Secretary
General of the ANC, which was hand delivered to him. No response was
received.
25.3
On 25 July 2019 the applicant again addressed and hand
delivered
a letter to the President of the ANC Mr Cyril Ramaphosa
seeking his assistance. No response was received.
25.4
The applicant's attorneys sent a letter of demand to the respondent
on 6 August 2019. The Treasurer General of the ANC sent a reply on 13
August 2019 stating that the matter was receiving attention
and he
would revert in due course. No further response was received.
25.5
On 23 August 2019 a further letter of demand was sent. Again no
response was received.
The
issue
[26]
The issue to be determined is whether the applicant and the
respondent concluded an oral contract for the purchase, supply,
installation and removal of PVC banners during the 2019 elections.
The
ANC's defence
[27]
The ANC's defence is twofold. It denies the existence of the oral
agreement as well as Mabaso and Nkholise's authority to conclude
the
agreement on its behalf. It further asserts that the supply of
materials and services related to the election has to be approved
by
the Treasurer General after due process in following its supply chain
policy. As such, it alleges that in relation to the applicant's
claim, no approval was obtained and the prescribed internal procedure
was not followed, hence no agreement was concluded.
The
authority of Mabaso and Nkholise
[28]
It is trite that:
"In order
to conclude juristic acts on behalf of another person so as to affect
that person's legal relationships, that person
has to have the
necessary authority".
[1]
[29]
The applicant has to prove that Mabaso and Nkholise were authorised
to act on behalf of that ANC,
"[s]ince
one person is not by nature endowed with the power of concluding
juristic acts on behalf of another person, the existence
of authority
will have to be proved by the person who alleges that the person
concluding a juristic act for another person has
the authority to do
so
".
[2]
[30]
The fact that they were employees of the ANC is insufficient, on its
own, to prove that they had the requisite authority to
conclude the
oral agreement with the applicant on behalf of the ANC. Authority may
be proven by direct proof of an express authorisation
or by
inference: see
Inter-Continental
Finance v Stands 56 and 57 Industria Ltd & Another
[3]
where Botha J remarked as follows:
"[h]owever,
the other possibility, namely 'actual' authority, requires some
further observations. Its existence may be evidenced
by the direct
proof of an express authorisation by A to B to enter into the
particular agreement in question with C. Failing that,
it seems to me
that the existence of 'actual authority' can be established by one
means only, and that is by way of inference,
on a balance of
probabilities, on all the admissible facts given in evidence."
[31]
The applicant submitted that in the 2 April letter the ANC’s
head of elections expressly confirms Nkholise's authority
in writing
and this is clear evidence of direct authorisation of Nkholise. Even
if this conclusion is incorrect, the ANC's conduct
by way of the 2
April letter clearly constituted conduct from which an inference of
direct authority could be drawn. The authenticity
of the letter and
fact that it was provided to the applicant are not disputed by the
ANC. On this issue I am in agreement
with the applicant's
submissions that by providing a copy of the 2 April letter to it, the
ANC sought to convey that Nkholise,
the very person who had ordered
the banners together with Mabaso, had the necessary delegated
authority to deal with the matter
and to bind the ANC in respect of
election related expenditure during the election campaign.
[32]
Applicant further submitted that the letter of 9 April from Mbalula
to Mashatile is written on an ANC letterhead and is signed
by
Mbalula. It represents a clear acknowledgement by Mbalula as the head
of elections of the ANC's liability in terms of the invoice
that had
been received from the applicant. The fact that it corresponds with
the invoice is appears from the fact that it, like
the invoice,
reflects the amount due in respect of the banners of R 87 million
exclusive of VAT. This corresponds with the erroneous
omission of VAT
in the first invoice sent by the applicant. The applicant submits
that this letter was clearly provided to it in
order to give it
reassurance that the ANC accepted liability in terms of the oral
agreement.
[33]
In its answering affidavit the ANC avers that the letter was compiled
by Nkholise, that the signature was an electronic signature
of
Mbalula attached by Nkholise, and that the letter had in fact never
been placed before Mbalula. It was also never seen by the
elections
committee or the Treasurer General and was never sent to them.
Applicant submits that this evidence is hearsay, no confirmatory
affidavits from Mbalula or Mashatile are attached, and this version
is in any event implausible. If it is correct however, it confirms
that Nkholise considered the ANC to be bound to pay the invoice
received from the applicant pursuant to the oral agreement as at
9
April 2019. It gives the lie to Mabaso's assertions that he and
Nkholise conveyed to Ramdas at the meeting that they had no authority
to represent the ANC, and that the ANC would only conclude a contract
once there was approval by the Treasurer General as well
as a
purchase order. It also demonstrates that the ANC's assertions that
the meetings held between the parties were meetings at
which it was
reiterated to the applicant that it needed to comply with the ANC's
internal procurement policy, were factually incorrect.
[34]
As applicant submitted, and I agree, the direct authorisation of
Mabaso and Nkholise can further be inferred from the following
facts
:
34.1
Mabaso, the ANC's finance manager, duly represented the ANC in the
2014 election campaign when he orally accepted a quotation from
Ramdas on behalf of the ANC. When Mabaso met with the applicant's
representative in 2019, there was no suggestion by him that he was no
longer authorised to do so.
34.2
Mabaso also chose to attend meetings together with Nkholise, whom
he
had introduced to the applicant, without either inviting the
Treasurer General or any other senior officials to the meetings,
and
without referring Ramdas to the Treasurer General or any other senior
officials. This warrants an inference that both he and
Nkholise had
direct authority. In this regard the answering affidavit confirms
that they were the only two officials from the ANC
who engaged with
the applicant.
34.3
Mabaso and Nkholise provided the applicant with the final design
of
the banners on 9 April 2019, and the ANC's contention that this was
sent purely for information purposes is patently implausible.
This
was the final design that appeared on the PVC banners throughout the
country and it was never suggested that the design was
not approved
by the ANC.
[35]
Furthermore, the numerous WhatsApp messages sent by Ramdas to Mabaso
and Nkholise, attaching photographs and reporting on progress
with
the banners, providing proof of having paid R1,2 million in respect
of airfreight, and six days before the election indicating
that 100
teams had been deployed to install the 30 000 banners and the areas
where they were installed; as well as the third meeting
(a few days
prior to the elections) at which Ramdas reported on progress with the
banners, did not at any stage meet with objections
or admonitions
from either Mabaso or Nkholise to stop the activities or to caution
that the applicant will not be paid for them.
On the contrary, their
responses to all the WhatsApp messages, in the form of emojis,
confirmed that the applicant should proceed.
This is further evidence
from which direct authority on their part to represent the ANC can be
inferred. As applicant submitted,
these facts are inconsistent with
the version in the answering affidavit that Mabaso and Nkholise
repeated on every occasion in
which they engaged with Ramdas "
that
without TG approval and a purchase order, the ANC did not agree to
the supply of election materials."
[36]
It is also significant that neither Mabaso nor Nkholise responded,
when applicant sent the first invoices on 4 April 2019,
by denying
that they had the authority to contract with the applicant or
disputing that there was any need to supply the materials
or install
the banners. On the contrary, on the ANC's own version, Nkholise
prepared the 9 April letter in which he inserted Mbalula's
electronic
signature requesting the Treasurer General to make payment for the
installation and supply of the 30 000 banners. As
was submitted on
behalf of the applicant, this is not the conduct of someone who is
not authorised to act as such. Furthermore,
no explanation is
forthcoming from ANC to the effect that the purport and preparation
of this letter was for reasons other than
to request payment in terms
of the oral agreement concluded with the applicant. I agree
with the applicant's submission therefore
that the 9 April letter in
itself fortifies the inference of Nkholise's direct authority. The
ANC's assertion that it does not
know how the applicant came into
possession of the letter is disingenuous. On its own version Mabaso
and Nkholise were the only
two officials dealing with the applicant.
[37]
The ANC also disputes that the final design of the banner was sent to
Ramdas for the purposes of designing the banners and
alleges that it
was sent only for information purposes. This allegation is not borne
out by any documentary evidence, nor does
it appear to be factually
correct in the circumstances, given the proximity of the elections
and the urgency with which the applicant
was required to act. It is
also in any event at odds with the probabilities.
[38]
Another issue raised by the applicant is that while it has produced
evidence of its strict compliance with the terms of the
contract, the
ANC has not produced an iota of documentary evidence to show that it
responded to the numerous messages regarding
the banners and the
installation thereof by disputing the existence of a contract between
the parties. On the contrary, all the
responses conveyed approval and
support for the applicant's compliance with the terms of the
contract. If there was indeed no contract,
and no authority to
conclude any contract, there is no explanation why this would not
have been pointed out the applicant in the
severest of terms. The
failure to do so in the context of the factual background and
circumstances, gives rise to the inference
that there was indeed an
agreement concluded, that Nkholise and Mabaso had the authority to
conclude it, that the applicant complied
with its obligations under
the agreement and that the respondent has failed to comply with its
obligations.
[39]
Moreover, there is no evidence that the ANC, at
any stage prior to filing its answering affidavit, ever challenged
the authority
of either
Mabaso or Nkholise to bind it, despite
receiving various letters requesting payment and a letter of demand.
The fact that the denial
of authority first emerges in the answering
affidavit speaks for itself.
The
supply chain policy
[40]
The ANC submits that during the election campaign the procurement of
goods and services was regulated by its supply chain policy.
The
applicant's failure to comply with its provisions rendered the
agreement invalid. The applicant submits that the following
is
relevant in this regard;
40.1 The policy dates
from 2008. It clearly applied to the 2014 election campaign and the
ANC ought to have been able to produce
documentary proof of
compliance in the 2014 contract with Ramdas and other instances where
procurement was made in compliance with
the policy in 2019. It failed
to do so.
40.2 The policy makes no
reference to the four requirements the ANC relies upon for its
defence based on the policy i.e. the supplier
presents a proposal to
the election committee; the election committee forwards the proposal
recommending approval to the Treasurer
General; the Treasurer General
approves, and; the finance department issues a purchase order to the
supplier.
40.3 The policy makes no
reference to "election", "elections' or "election
committee" and hence it can
only be assumed that it relates to
ordinary procurement management within the ANC.
40.4 The procedure
envisaged in the policy would not be capable of meeting the
requirements of the speedy and extraordinary procurement
required
during an election campaign, and as was shown to have been required
from the applicant;
40.5 The policy makes no
reference to the function attributed to the Treasurer General by the
ANC. Instead, his functions are described
as being to determine the
effective date of the policy; approve amendments to the policy;
prevent abuse of the supply chain management
system and investigate
abuse; approve re-order levels and appoint an independent person to
resolve disputes between the ANC and
a supplier and in the absence of
such appointment resolving disputes himself.
40.6 No reference is made
in the policy to the finance department or the issuing of purchase
orders.
[41]
I agree with counsel for the applicant that the policy clearly
contains guidelines for procurement and provides for sanctions
for
staff who fail to comply, nothing more. It is furthermore, on its own
terms, an internal document, "
confidential and intended
solely for use by the ANC and its employees and those authorised with
the written consent of the ANC".
The applicant and its
directors could not in these circumstances be expected to have been
aware of the policy or its provisions,
at the very least Ramdas as an
ordinary member of the ANC. This confirms the veracity of Ramdas's
evidence that the applicant was
not aware of the policy and that
there is no basis for the assertion that the agreement concluded did
not comply with it.
[42]
Furthermore, insofar as the ANC seeks to rely on its conduct related
to the 2014 agreement as being distinguishable from the
2109
agreement, it has produced no documentary evidence to prove this. Its
assertion therefore, that in 2014 the supply chain policy
was
complied with and a purchase order was created, and that the same is
not true of the 2019 claim, must therefore be rejected.
Indeed, as
the applicant submitted, one would expect that if this assertion were
indeed true, documentary evidence would have been
provided of such
compliance in 2014 as well as in respect of procurement in the 2019
election. In its replying affidavit
the applicant challenged
the ANC to produce this documentary evidence in relation to the 2014
contract. It also issued notices
in terms of Rules 35(12) and 35 (14)
calling upon the ANC to produce for inspection the following
documents : the delegation of
authority referred to in the supply
chain policy; documents relating to the 2014 election proving
proposals to the election committee;
the Treasurer General's approval
thereof and subsequent issuing of purchase orders and contracts to
the successful service provider/s;
any amendments to the supply chain
policy; supply contracts and purchase orders between the ANC and any
third party service provider
in the 2019 election; documentary
evidence of any disciplinary proceedings taken against Mabaso and
Nkholise given the ANC's claim
that they acted without authority; as
well as documentary evidence to support any invitation to service
providers inviting them
to tender for the supply of the election
material that the applicant provided. The ANC failed to respond to
the Rule 35 notices
or the invitation in the replying affidavit. I
agree with the applicant's submission therefore that the only
inference that can
be drawn in the circumstances is that no such
documents exist.
[43]
The averment that the purpose of the third meeting was to reiterate
the ANC's internal requirements for procurement, is moreover
patently
untrue if regard is had to (a) the content of the WhatsApp messages
(b) the fact that the election was four days away
and (c) the absence
of any requirement to this effect in the supply chain policy.
[44]
Ramdas states in his founding affidavit that the ANC never disputed
its indebtedness to the applicant and that in every conversation
he
had with Mabaso and Nkholise they acknowledged and confirmed the
ANC's indebtedness to the applicant. There can be no other
conclusion
but that the ANC's claim that they denied the existence of the
contract and disputed its indebtedness is factually incorrect
and
manifestly implausible, having regard to the evidence provided by the
applicant and the ANC's own supply chain document. Its
defence is, at
best for it, disingenuous. The facts clearly establish that:
44.1 An oral agreement
was concluded between the applicant and the ANC in terms of which the
applicant was contracted to supply,
install and remove 30 000 PVC
banners at a cost of R2900 per banner for installation and R70 per
banner for removal;
44.2. The applicant duly
performed on its obligations in terms of the agreement by supplying,
installing and removing (after the
elections) 30 000 PVC banners;
44.3 The ANC failed to
honour its obligations in terms of the agreement by refusing and
failing to pay the contract price.
Conclusion
[45]
Accordingly, in my view the evidence establishes firmly that Mabaso
and Nkholise were directly authorised by the ANC, which
authorisation
was express in the case of Nkholise and tacit in the case of Mabaso.
They were therefore authorised to act on behalf
of the ANC and to
bind it, as they did, by concluding the oral agreement with the
applicant and the ANC is (with effect from 9
May 2019 when the
corrected invoices were submitted to it), liable to make payment to
the applicant.
Order
[46]
In the premises, I make the following order:
The
respondent is ordered to make payment to the applicant as follows:
1. Payment in the
amount of R 100 050 000;
2. Interest thereon at
the rate of 15% per annum from 9 May 2019, to date of payment;
3. Payment of the sum
of R 2 415 000;
4. Interest thereon at
the rate of 10,25% per annum from 9 May 2019, to date of payment;
5. Costs of the
application.
_______________________________
U. BHOOLA
Acting Judge of the High
Court of South Africa
Gauteng
Local Division, Johannesburg
Date
of hearing: 25 August 2020 - Matter determined on the papers as per
agreement between the parties.
Date
of judgment: 17 September 2020 - Judgment handed down electronically
by circulation to the parties’ legal representatives
by email
and uploaded onto Caselines and released to Safli. Judgment deemed to
have been handed down at 10:00 on 17
September 2020
Appearances:
Counsel
for the Applicant: A Dodson SC with J Lubbe
Instructed
by: Sarlie and Ismail Inc.
Counsel
for the Respondent: T Bruinders SC with MM Ka-Seboto
Instructed
by: Mncedisi Ndlovu & Sedumedi Attorneys
[1]
LAWSA
Agency and Representation (Volume 1 Third edition) [137].
[2]
LAWSA
op cit. See also
Rosebank
Television and Appliance Co (Pty) Ltd v Orbit Sales Corporation
(Pty) Ltd
1969 (1) SA 300 (T).
[3]
1979
(3) SA 740
(WLD) at 748 G-H.