THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 979/2022

In the matter between:
AFRICAN NATIONAL CONGRESS
APPELLANT
and
EZULWENI INVESTMENTS (PTY) LTD
RESPONDENT

Neutral citation: African National Congress v Ezulweni Investments (Pty) Ltd
(Case no 979/2022) [2023] ZASCA 159 (24 November 2023)
Coram:
GORVEN,
MEYER
and
WEINER JJA
and
CHETTY
and
UNTERHALTER AJJA
Heard:
7 November 2023
Delivered: 24 November 2023
Summary: Contract – conclusion – authority to conclude – test for factual disputes
– evaluation of evidence – bare denials coupled with untenable version – no bona
fide factual disputes.

Civil procedure – evidence on appeal – test – requirements not met.

__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Adams,
Makume and Twala JJ, sitting as court of appeal):
The application to admit evidence on appeal is dismissed with costs.
The appeal is dismissed with costs, including the costs of two counsel where
so employed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Meyer and Weiner JJA and Chetty and Unterhalter AJJA
concurring)
[1] The respondent, Ezulweni Investments (Pty) Ltd (Ezulweni), claimed to have
concluded an agreement on 20 February 2019 with the appellant, the African
National Congress (the ANC).1 This the ANC denied. Ezulweni then applied to the
Gauteng Division of the High Court, Johannesburg (the high court) for payment of
R102 465 000, along with interest and costs. The high court, per Bhoola AJ, granted
the relief sought by Ezulweni. The ANC was granted leave to appeal to the full court
of that division. The full court, per Adams J, with Makume and Twala JJ concurring,
turned down the appeal with costs. This court granted the ANC special leave to
appeal and this is the resultant appeal.

1 All of the events relevant to this matter took place in 2019. Unless reference is made to another year, all dates refer
to 2019.

[2] Two initial matters bear mention. The first is that the appeal had lapsed and
an application was made by the ANC for its reinstatement. After argument was
heard, the panel adjourned briefly, and thereafter made an order reinstating the
appeal. No costs order was sought or made.

[3] The second relates to an application to admit further evidence on appeal
brought by the ANC. It was based on s 19(b) of the Superior Courts Act 10 of 2013.
Once more, after hearing the submissions of the parties, the panel adjourned briefly,
and then made an order dismissing that application with costs. It was indicated at the
time that the reasons for that decision would be furnished along with the judgment
in the appeal. Those reasons are given below after the appeal has been dealt with.

[4] For the sake of brevity, I shall refer to the persons who were involved by only
their surnames after first mention. The undisputed facts follow. At all material times,
the Chief Executive Officer of Ezulweni was one Mr Renash Ramdas. Ramdas
described himself as a long-standing and loyal member of the ANC. Another
company with which Ramdas was associated had provided election banners and
materials to the ANC for the 2014 elections. Ramdas had dealt with Mr Mabaso, the
Finance Manager of the ANC, on that occasion. A general election in South Africa
was called for 8 May. During January, Ramdas approached Mabaso and asked him
to arrange a meeting with Mr Mashatile, the Treasurer General of the ANC. He
indicated that he wished to make a presentation for the supply of election banners,
their placement and removal for the new election campaign. Mabaso arranged a
meeting later in January at the headquarters of the ANC, Luthuli House. There he
introduced Ramdas to Mr Nkholise, the Personal Assistant to the Head of the
Elections Campaign, Mr Mbalula. Mabaso, Nkholise and Ramdas agreed to meet on
20 February.

[5] Thus far there was no dispute. Thereafter, the versions diverged somewhat.
The primary submission of the ANC before us was that the papers exhibited factual
disputes which could not be resolved in favour of Ezulweni. As a result, I shall
summarise each of the versions, in turn, so as to evaluate that submission. Despite
diverging in certain respects, the versions coincide at various points as will become
clear.

[6] The version of Ezulweni was deposed to by Ramdas. In anticipation of the
meeting of 20 February, he sent Nkholise a quote dated 11 February reflecting the
prices of items which could be supplied. The first item was titled ‘Banners’. These
were described as ‘230 cm x 100 cm PVC banner including 2 metal rod U-bolts &
nuts that fit onto street pole’ and the unit price was R2 900.

[7] The 20 February meeting took place at the Garden Court Hotel in Eastgate.
The same three persons met on that occasion, along with an additional person from
Ezulweni. An oral agreement was concluded. Mabaso and Nkholise placed 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.
Ezulweni would send designs for approval and place the banners shortly before the
elections. It would remove them thereafter.

[8] After the meeting, Ezulweni set about filling the order. This included
designing and ordering the printing of the banners from entities in Durban and China,
ordering the material for the metal hangers and employing additional staff to assist
in the production. Because some of the suppliers required deposits, Ramdas initially
approached Nkholise, requesting assistance from the ANC in this regard. Nkholise

said that this was not possible due to cash-flow constraints caused by the general
election, but he assured Ramdas that Ezulweni would be paid immediately after the
election campaign. The interim funding was then provided by one Mr Motlekar and
the directors of Ezulweni personally.

[9] Thereafter, Ramdas ‘constantly communicated with [Nkholise and Mabaso]
and kept them abreast of the progress of the project’. He put up photographs ‘which
were shared with’ them and which showed such progress. These two sets of
averments were not denied by the ANC, they were simply ‘noted’.

[10] On 4 April, Ezulweni sent an invoice to Nkholise for R87 million for the
30 000 PVC banners.2 The legend was that these were ‘[as] per samples provided’.
The ANC admitted receipt. After the election, final invoices for R100 050 000 and
R2 415 000 respectively were sent.3

[11] On 9 April, Mabaso and Nkholise forwarded three documents to Ramdas. The
first was an email containing the final design for the ‘Call to Vote’ banners. The
second document was a photograph of a letter dated 2 April over the signature of
Mbalula, addressed to Mashatile, and copied to one Mahlalela and to Mabaso. The
letter was headed ‘Re: Signing of Election’s money’ (the 2 April letter). It informed
Mashatile and the others as follows:
‘This communiqué serves 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’.

2 This was a VAT exclusive amount. The final invoices included VAT.
3 On this occasion, both included VAT. The second invoice was for the placement and removal of the banners.

The third document was a photograph of a letter dated 9 April (the 9 April letter)
addressed to Mashatile containing the signature of Mbalula which requested
assistance with the payment of the invoice of 4 April for R87 million and attached
the invoice. I shall return to these letters in due course.

[12] Ramdas had set up a dedicated WhatsApp group for the project comprising
Mabaso, Nkholise and him. Between 29 April and 3 May, Ramdas sent a large
number of WhatsApp messages (the messages) to the other two. These included:
(a) Photographs of the banners;
(b) A message saying that Ezulweni had paid for the airfreight in the sum of
R1.2 million for importing the PVC banners from China and proof of that payment;
(c) Photographs of the finished brackets of the banners and a message advising that
the banners would be distributed throughout the country, excluding Cape Town;
(d) Photographs of the banners in various locations;
(e) A message advising that, due to the nature of the logistics involved, Ezulweni
had employed 100 teams and that each team would place 300 banners.
The ANC admitted that such a group had been set up and that Mabaso and Nkholise
had received the messages and photographs sent by Ramdas to the group.

[13] On 4 May, four days before election day, a meeting was held at the Garden
Court Hotel between Ramdas, Mabaso and Nkholise. This was admitted. The
meeting included a progress report by Ramdas. By the date of this meeting, the
banners and hangers had all been made. Two days later, on 6 May, Ramdas sent a
message to the other two advising them of the areas where the banners had been
placed along with photographs of them in situ. After the election, Ezulweni had the
banners removed and informed Mabaso and Nkholise to that effect, supplying
photographs of the stored banners.

[14] The final two invoices were sent but remained unpaid. Various approaches to
the ANC elicited unfulfilled promises. On 11 June, Ramdas and Mabaso met at the
Holiday Inn in Eastgate. Ramdas requested payment and claimed that Mabaso
acknowledged indebtedness. By letter dated 1 July, Ezulweni wrote to the Secretary-
General of the ANC, Mr Magashule, requesting resolution of the matter. No
response was received. By letter dated 25 July, Ezulweni wrote to the President of
the ANC requesting payment. No response was received. Two letters, dated 6 and
13 August respectively, were sent to the ANC by Ezulweni’s attorneys demanding
payment. Only the second of these received a response from Mashatile. He
acknowledged receipt and said the ‘matter is receiving attention, I will revert to you
in due course.’ The promised response did not materialise. The ANC admitted the
averments concerning these letters.

[15] The version of the ANC follows. It admitted that the meetings testified to by
Ramdas were held with Mabaso and Nkholise, but contended that no agreement was
either negotiated or concluded at any of those meetings. 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. In support
of this contention, the answering affidavit placed heavy reliance on the Supply Chain
Policy of the ANC which was said to provide that such was the case. It had no such
provisions. The ANC abandoned reliance on the Supply Chain Policy in the full
court and did not rely on it in this court. 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.

[16] The ANC denied that the quotation dated 11 February had been sent to
Nkholise prior to the 20 February meeting. It admitted receiving all of the messages
sent by Ramdas on the dedicated WhatsApp group he set up. It said that no responses
were ever sent because none were required. It admitted receipt of the photographs
showing the progress and the installed banners. It admitted sending the email to
Ramdas on 9 April containing the final design for the ‘Call to Vote’ poster. This, it
said, was sent for information purposes and not ‘to confirm approval of any
agreement between the parties.’

[17] It gave no explanation for its denial that Nkholise had sent Ramdas a copy of
the 2 April letter assigning Nkholise 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. As regards the 9 April letter, the following explanation was
given. Nkholise wrote this letter after being approached by Ramdas on 9 April with
an oral proposal. The nature of the proposal was not disclosed. In the letter, Nkholise
requested Mashatile to make payment to Ezulweni of R87 million for 30 000
banners and attached the invoice of 2 April with the legend ‘As per samples
provided’. The letter was not signed by Mbalula. His electronic signature was
inserted by Nkholise, who intended to put it before Mbalula for his consideration.
This never happened. Nor did Nkholise send a copy to Ramdas. ‘As far as [Nkholise]
knows, the letter stayed in his office’ because he ‘never got the opportunity to discuss
the letter with Mbalula before the elections.’

[18] The ANC made much of a letter dated 8 March addressed by Ramdas to ‘The
Executive Council Elections’. The letter thanked that body ‘for the opportunity of
having been requested to quote for the 2019 elections’. It requested the issue of a
formal order ‘so that manufacturing and delivery can begin in earnest’. It said that

Ezulweni could not ‘stress the urgency of our request enough’. The ANC submitted
that this document showed that no agreement had been concluded. In reply,
Ezulweni indicated that it sought assurance in this communication which was
provided by the forwarding of the 2 April letter and the 9 April letter, along with the
final banner design.

[19] The ANC admitted that Mabaso and Nkholise met with Ramdas on 11 June.
It admitted that, at that meeting, Ramdas asked for payment of the invoices. It said
that, although he did so, Mabaso told him that ‘payment would not be possible
without a purchase order and that a purchase order was never issued because there
was no approval by [Mashatile]’. The ANC further admitted that no responses were
given to the various letters requesting payment sent by Ezulweni, apart from the last
one indicating that the ANC would revert to Ezulweni. This, it admits, was not done.
Instead, the ANC stated that the Finance Department had investigated and decided
that there was no agreement. Significantly, no communication emanating from the
ANC denied that the banners were supplied, placed, and taken down as averred by
Ezulweni.

[20] The question arises whether the version of the ANC raises bona fide factual
disputes such that the matter should not have been resolved in favour of Ezulweni
on the papers. The test is a well-worn one. In Stellenbosch Farmers’ Winery Ltd v
Stellenvale Winery (Pty) Ltd, it was held that:
‘. . . where there is a dispute as to the facts a final interdict should only be granted in notice of
motion proceedings if the facts as stated by the respondents together with the admitted facts in the
applicant’s affidavits justify such an order . . . Where it is clear that facts, though not formally
admitted, cannot be denied, they must be regarded as admitted.’4

4 Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-F.

This approach was later clarified and qualified by Corbett JA in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd:
‘It seems to me, however, that this formulation of the general rule, and particularly the second
sentence thereof, requires some clarification and, perhaps, qualification. . . [T]here may be
exceptions to this general rule, as, for example, where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them
merely on the papers . . .’.5
Harms DP elaborated, holding that where a ‘version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-
fetched or . . . clearly untenable’,6  the court is justified in rejecting it merely on the
papers. And Heher JA explained that a ‘real, genuine and bona fide dispute of fact
can exist only where the court is satisfied that the party who purports to raise the
dispute has in his affidavit seriously and unambiguously addressed the fact said to
be disputed’.7 With that in mind, the version of the ANC must be evaluated.

[21] It is not disputed that meetings between the three persons involved took place
in January, 20 February, 4 May and 11 June. The ANC denied that the purpose of
the meetings was to negotiate an agreement and denied that Mabaso or Nkholise
were authorised to conclude the agreement contended for by Ezulweni. At all of the
meetings, the two of them simply informed Ezulweni of the need to obtain a purchase
order and that only Mashatile could authorise the conclusion of an agreement.

5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd  [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H-635D;
[1984] 2 All SA 366 (SCA).
6 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361;
2009 (4) BCLR 393; [2008] 1 All SA 197 para 26.
7 Wightman t/a JW Construction v Headfour (Pty) Ltd [2008] ZASCA 6; 2008 (3) SA 371 (SCA); [2008] 2 All SA
512 para 13.

[22] There are serious difficulties with this version. If such was the case, it begs
the question why:
(a) Any further meetings were held after the initial one if they explained the clear
position at that meeting.
(b) In the face of that communication, Ezulweni went to the expense of ordering
materials and printing for the banners.
(c) Ezulweni ‘constantly communicated with’ Mabaso and Nkholise to keep them
abreast of progress.
(d) Mabaso and Nkholise did not respond to those messages by immediately
disabusing Ramdas of his belief that there was an agreement to supply the banners.
(e) Ezulweni sent photographs of the progress of the project.
(f) The photographs did not elicit a response from Mabaso and Nkholise denying the
agreement.
(g) Ezulweni sent an invoice for R87 million to Nkholise on 4 April.
(h) In response Nkholise drafted the 9 April letter to Mashatile requesting payment
of the R87 million rather than enquiring from Ramdas why an invoice had been sent
when no agreement had been concluded.
(i) Despite having said that he intended to raise this with Mbalula, Nkholise did not
do so.
(j) Nkholise intended to raise the letter with Mbalula if there was no agreement.
(k) A copy of the 9 April letter was sent by WhatsApp from Mabaso to Ramdas that
day.
(l) An email was sent to Ramdas on 9 April containing the final design for the ‘Call
to Vote’ banners if it was sent for information purposes only.
(m) Ezulweni would have had any interest in this design if there was no agreement.
(n) The 2 April letter came into the possession of Ramdas.

(o) Ramdas sent Mabaso and Nkholise numerous messages between 29 April and
3 May with photographs of the banners, information that Ezulweni had paid the
airfreight charges for them to be sent from China, photographs of the finished
brackets, information that Ezulweni had employed 100 teams which would each
place 300 banners, and photographs of the banners in various locations.
(p) The meeting which took place between the three of them on 4 May was for the
sole purpose of informing Ramdas that any agreement for the supply of such material
required a purchase order and the approval of Mashatile. This only four days before
the elections.
(q) It was claimed that there was no response to the message with photographs sent
in early May but Ezulweni was able to put up in reply an emoji sent by Mabaso of a
clenched fist in response to that message. This did not prompt an application to put
up a further affidavit in order to rebut this.
(r) The three of them held a meeting on 11 June where Ramdas requested payment
and Mabaso told him that no payment would be forthcoming because no purchase
order had been issued and Mashatile had not approved the agreement.
(s) The letters requesting payment were not immediately responded to stating that
there was no agreement between the parties. The only letter sent in response said
that the matter would be looked into.

[23] 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 instal them. How did these
officials imagine this was happening, save on the basis of an agreement with
Ezulweni?

[24] The denials of the ANC fall into the category of bald, uncreditworthy denials
designed to create fictitious disputes of fact. 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.

[25] One must therefore proceed on the basis that an agreement was reached on
20 February on the terms contended for between Ramdas, on the one part, and
Mabaso and Nkholise, on the other. That does not lead ineluctably to the conclusion
that a binding agreement between the parties was struck. It leads to the enquiry as to
whether Ezulweni made out the case that Nkholise was authorised to conclude such
an agreement on behalf of the ANC. The ANC submitted that Ezulweni failed to
prove either express or ostensible authority on the part of Nkholise to conclude such
agreement.

[26] The 2 April letter is central to the submission of Ezulweni that Nkholise had
actual authority to conclude the agreement. The ANC raised two arguments to
counter this:
(a) Properly construed, the 2 April letter did not confer authority on Nkholise;

(b) If it did so, the authority was conferred after 20 February, the date on which
Ezulweni claimed that the agreement was reached.
These shall be dealt with in turn.

[27] The first question relates to the interpretation of the 2 April letter. The letter
was titled, ‘Re: Signing of Elections Money’ and reads in its body:
‘This communiqué serves 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.’
The document stated that Nkholise ‘has been assigned’. The task to which he was
assigned was to be the ‘signatory for bookings and money’ relating to the election
campaign. The agreement clearly fell within that framework. The assignation clearly
took place prior to the date on which the letter was drafted or sent. No specific date
was given as to when the assignation took place, but it was said to be ‘for the duration
of the Elections Campaign’. The campaign had begun well before Ramdas met
Mabaso and Nkholise. On the face of it, then, Nkholise had been assigned to this
task for the entire duration of the election campaign.

[28] The context supports this textual interpretation. It was drafted and sent during
the election campaign. It appeared over the signature of Mbalula, the Head of
Elections, and was addressed to Mashatile, the Treasurer General, to Mabaso, the
finance manager and to one Mr Mahlalela whose  position was not explained. It was
not denied that the 2 April letter was sent to those addressees.

[29] That Nkholise was authorised for the entire campaign is buttressed by other
facts. The meeting in January, where Mabaso introduced Ramdas to Nkholise, was
arranged because Ramdas requested a meeting with Mashatile. Ramdas told Mabaso

that he wanted to ‘make a presentation on behalf of the [respondent] for the supply
of branded goods to the ANC for the 2019 election campaign.’ Mabaso brought
Nkholise to the meeting for that purpose. Mabaso did not bring Mashatile. The ANC
did not explain why this was done if Mashatile alone could conclude agreements on
behalf of the ANC. The overwhelming probability is that Nkholise was brought to
that meeting because he was the person authorised at that time to conclude an
agreement concerning election campaign related matters.

[30] The subsequent events also bear out this conclusion. At the meeting, Nkholise
placed an order, based on the quotation sent on 11 February, for the election banners.
Nkholise and Mabaso were kept abreast of the steps taken by Ezulweni to fulfil its
obligations under the agreement by way of numerous uncontradicted messages.
Ramdas sent an invoice dated 4 April based on the existence of the agreement. That
prompted Nkholise to draft the 9 April letter to Mashatile saying:
‘This letter serves to request your office to assist us with the payment for 30 000 PVC Banners
required for the elections campaign. The total cost is R87 000 000.00 (R2 900 per PVC banner).
This letter is accompanied by an invoice from Ezulweni Investments.’
That was clearly a letter which assumes an agreement. It annexed the invoice without
in any way disputing that it had been furnished pursuant to a binding agreement. It
simply requested payment from the Treasurer General. That is not the action of an
unauthorised official. If Nkholise had not been authorised at the time the agreement
was concluded, the letter was likely to have requested Mashatile to ratify his actions
or would, at the least, have explained the background to his submission of the invoice
for payment.

[31] Both the 2 April letter and that of 9 April were sent to Ramdas in order to
reassure him that the agreement would be fulfilled and that Ezulweni would be paid.

If the case of the ANC was that Nkholise was authorised to conclude agreements
only after 2 April, it lay in the mouths of the officials of the ANC to say so. There
would presumably have been a resolution or, if not, a minute of a meeting at which
the decision took place. Both would have shown the date on which the decision was
arrived at. The ANC put up no such evidence. The inference is irresistible that, by
20 February, Nkholise was authorised to conclude agreements such as the present
one on behalf of the ANC.

[32] In the result, I find that on 20 February Nkholise had actual authority to
conclude the agreement in question. That is the end of the matter. No purpose would
be served in considering the submissions on the alternatives of ostensible authority
or estoppel raised by Ezulweni. These were only relied upon if this court did not find
that Nkholise had actual authority.

[33] It remains to deal with the reasons why the application to lead further evidence
brought by the ANC was dismissed with costs. As indicated, it was based on s 19(b)
of the Superior Courts Act 10 of 2013. This empowers this court to ‘receive further
evidence’ on appeal.8 The further evidence sought to be introduced was the ‘forensic
report and findings prepared by ENS Forensics (Pty) Ltd (ENS) which investigated
the procurement process involving’ the two parties. The report itself was not put up
in the papers. Only the executive summary (the 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.

8 It also empowers high courts exercising appeal jurisdiction to do so.

[34] The nub of the application appears from the following sentence in the
summary:
‘On 23 February 2019, Mr Ramdas sent a WhatsApp message to Mr Mabaso in which he stated
that if the ANC confirmed two orders with Ezulweni Mr Ramdas had worked out the figures and
that they could all make “ten million each”.’
That was stated as a fact. The conclusion drawn was that this ‘appears to be
indicative of a corrupt relationship between Mr Mabaso and Mr Ramdas’. The
ultimate conclusion was that the conduct of Mr Mabaso appeared ‘to be negligent
and/or irregular and/or potentially corrupt’. Both of these conclusions are founded
on the statement of fact mentioned above. If there was no evidence supporting that
statement, the conclusions would of necessity fall away. There was no verification
that the message was authentic, or, indeed, sent in the form in which it appeared in
the report. Nor was the entire message set out in the summary.

[35] The test for the admission of evidence on appeal was stated in Pepkor
Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others:
‘There must be a reasonably sufficient explanation why the evidence was not tendered earlier in
the proceedings. The evidence “must be weighty and material and presumably to be believed”.’9
These principles followed time-honoured ones set out in S v De Jager:
‘(a)   There should be some reasonably sufficient explanation, based on allegations which may be
true, why the evidence which it is sought to lead was not led at the trial.
(b)   There should be a prima facie likelihood of the truth of the evidence.
(c)   The evidence should be materially relevant to the outcome of the trial.’10

9 Pepkor Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others [2020] ZASCA 134; 2021 (5) SA 115
(SCA); [2021] 1 All SA 42 (SCA) para 49. The quote is from Colman v Dunbar 1933 AD 141 at 161–163. It is noted
in this matter that the Constitutional Court adopted a similar approach in the matter of Rail Commuters Action Group
v Transnet Ltd t/a Metrorail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 paras 42 and
43 under the Supreme Court Act 59 of 1959.
10 S v De Jager 1965 (2) SA 612 (A) at 613C-D.

[36] As to why the evidence was not led at the outset, the ANC submitted that the
report only came to light recently. There was no evidence as to when the final report
had been completed. The ANC testified that there had been a delay in obtaining the
report because payment for the report had been delayed. That may be so but it fails
to account for the fact that Mabaso, who testified in the main application, was the
person said to have received the message. Mabaso was reported to have said that he
‘did not respond to the message and stated during our interview that he did not recall
this message’.

[37] The answering affidavit of Mabaso was deposed to on 11 October 2019, less
than eight months after the message was said to have been received by him. It is
highly unlikely that Mabaso would not have been able to recall the message at the
time he deposed to the answering affidavit. After all, it must be supposed that an
invitation to participate in a corrupt transaction was not an everyday occurrence for
him. Despite this, Mabaso was silent on the receipt of the message. This can hardly
be said to make out a case that the evidence was not available at the time the
application was argued. As has already been noted, he actively mounted the case that
no agreement had been concluded rather than that he had received this message. He
was totally silent on that point. That evidence was available to the ANC in the mouth
of its chief witness, Mabaso.

[38] This leads to the next question of whether the evidence was prima facie
truthful. There are a number of difficulties with this aspect. In the first place, the
evidence proffered was all hearsay. Secondly, in application papers, the pleadings
are made up of the notice of motion and affidavits. The existing pleaded defence was
that no agreement had been concluded. The alternative defence was that, if it was
found that a deal was struck, Nkholise did not have the requisite authority to bind

the ANC. To aver that a corrupt relationship gave rise to the agreement presupposes
the existence of an agreement and would be destructive of this pleaded case. The
ANC was not able to say how this new defence could stand alongside of the pleaded
case. It would amount to pleading not alternative, complementary, defences, as was
done in the existing papers, but one which fundamentally contradicted those
defences. That is impermissible.

[39] Thirdly, Ezulweni requested access to Mabaso’s device on which the message
was supposedly received. The response was that it was not in the possession of
Mabaso, the ANC or ENS. 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. The person contacted was an expert in IT matters,
including the forensic analysis of electronic information, transmission, storage and
the like. As a result, he was not in a position to assess its authenticity. He did testify,
without challenge, that historic WhatsApp messages can be amended, edited or
faked. He stated that information on how to do so is widely available and can be
achieved reasonably easily. In the light of the above, the ANC failed to show the
prima facie truthfulness of the factual assertion relied upon.

[40] The final enquiry is whether the evidence, if admitted, would be materially
relevant to the outcome of the application. In this regard, the message was
purportedly sent on 23 February. The agreement has been found to have been
concluded on 20 February. That being so, any such message cannot have led to the
conclusion of the agreement, even accepting the executive summary at face value.

[41] These factors present insuperable difficulties in the way of the application to
admit the report as evidence on appeal on each of the three requirements. All of this
means that the case mounted by the ANC for the admission of this evidence on
appeal fell woefully short of the accepted test. It is for these reasons that the order
was made dismissing the application with costs.

[42] Dealing, then, with the costs in the main application, it is appropriate that costs
should follow the result. Both parties employed two counsel and this was warranted.
The costs of two counsel will be awarded where two counsel were employed.

[43] In the result, the following order issues:
The application to admit evidence on appeal is dismissed with costs.
The appeal is dismissed with costs, including the costs of two counsel where
so employed.

____________________
T R GORVEN
JUDGE OF APPEAL

Appearances

For the appellant:
F J Nalane SC with E Muller
Instructed by:
AMMM Incorporated, Alberton
Moroka Attorneys, Bloemfontein

For the respondent:
A R Bhana SC with J Lubbe (Heads of argument
prepared by A Dodson SC and J Lubbe)
Instructed by:
Sarlie & Associates Incorporated, Johannesburg
Symington De Kok Incorporated, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
24 November 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
African National Congress v Ezulweni Investments (Pty) Ltd (Case no 979/2022) [2023]
ZASCA 159 (24 November 2023)
Today the Supreme Court of Appeal dismissed with costs of two counsel an appeal from a
judgment of the full court of the Gauteng Division of the High Court, Johannesburg (the full
court) in which it had, in turn, dismissed an appeal from a single judge of that court. The appeal
arose from an application by Ezulweni Investments (Pty) Ltd (Ezulweni) for an order that the
African National Congress (the ANC) pay to it a total of R102 465 000 along with interests
and costs. The court of first instance, per Bhoola AJ, had granted this relief.
The matter arose from a contract which Ezulweni alleged had been concluded with the ANC
for the supply, placement and removal of banners in support of the 2019 general election
campaign of the ANC. The ANC denied that any such agreement had been concluded. In the
first place, it contended that there were factual disputes which could not be resolved in favour
of Ezulweni. Secondly, it submitted that their two officials who were alleged to have concluded
that contract did not have the authority to do so. The Supreme Court of Appeal evaluated the
first of these and found that the ANC had not raised bona fide factual disputes. Those raised
were untenable and fell to be rejected on the papers. On the second aspect, the Supreme Court
of Appeal found that one of the two officials concerned had been expressly authorised by the
ANC to conclude contracts relating to election matters. As a result, it was found that the full
court had correctly dismissed the appeal before it.
The ANC sought to introduce evidence on appeal of a report compiled by ENS Forensics (Pty)
Ltd. The Supreme Court of Appeal found that the evidence which the ANC sought to introduce
did not meet the accepted requirements and dismissed the application with costs.

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