LOCAL printing company, Printnest Printers and Stationery, has sued the Independent Electoral Commission (IEC) to force the electoral body to accept about 22 000 t-shirts worth M3.1 million it was contracted to supply.
It wants the High Court to order the IEC to honour the contract for the t-shirts in full because the contract was never officially terminated.
The 22 000 branded t-shirts were to serve as uniform for officials manning the IEC’s voting stations during the 7 October 2022 general elections. The t-shirts were however delivered a day late and the IEC rejected them, forcing Printnest Printers to opt for court action.
The company wants the High Court to compel the IEC to accept the t-shirts, arguing they could still be used during the upcoming local government elections.
The IEC had signed a contract with Printnest on 9 September 2022 to produce and deliver the 22 000 t-shirts to serve as voting officers’ uniform by 3 October 2022.
However, the printing company only delivered the consignment on 5 October 2022, explaining to the IEC that it delayed submitting due to load shedding in South Africa. That challenge was beyond its control as it had affected the company subcontracted to print the t-shirts.
Nonetheless, the IEC rejected the consignment on the grounds that Printnest had failed to meet the agreed 3 October 2022 deadline.
The matter was then escalated to the Public Procurement Advisory Division (PPAD) in the Ministry of Finance which, on 25 November 2022, made a finding that the IEC had not acted in good faith . PPAD director, Likotsi Leseli, advised the IEC to accept the consignment. The one day delay was inconsequential as the t-shirts could still have reached the voting stations before polling. But the IEC, through its director of elections, Mpaiphele Maqutu, refused.
Mr Leseli said in his verdict – attached to Printnest’s application – that Mr Maqutu’s decision to reject the consignment after a short delay was incomprehensible.
“…I maintain that such items/consignment could have reached all the national polling stations before the national election day if other options were considered and utilized. ….Furthemore, Printnest was not given a first or second warning of contract termination if it could not meet the said date (sic). The letter came as a final warning that if Printnest does not deliver by a certain date of 3 October 2022, its contract will be terminated (sic),” Mr Leseli’s verdict reads.
“The PPAD’s observation on this matter is that IEC has acted a bit harsh and it did not act in good faith towards the company’s contract, given the reasons and circumstances that was beyond the company’s control. Therefore, I request the IEC office to review its decision by accepting the consignment from Printnest as per the order. …It is the responsibility of the IEC procurement unit to technically assist suppliers ……from day one when the supplier has received the order.”
Printnest now argue in its court papers that Mr Maqutu was wrong in his refusal to follow the PPAD’s advise. The company’s managing director, Azael Ranyali, argues the PPAD’s recommendations were binding on the IEC.
“The Director of Elections flatly stated that he does not agree with the binding administrative decision of PPAD by saying this: ‘l wish to conclude by advising you that we do not entirely agree with the opinion of the Director of PPAD especially taking into consideration the fact that election administration is a very sensitive material event requiring strict adherence to set standards and international pennon’,” Mr Ranyali submitted.
He insists that Mr Maqutu was wrong.
“I have been advised and believe the same to be true that the decisions of PPAD were and are binding on the IEC. The IEC officials informed us point-blank that the decision of PPAD would not be implemented at all or considered for that matter. There was never any termination letter of the applicant’s contract with the IEC. I have been advised and believe the same to be true that the refusal to comply and or implement the decision of the PPAD was grossly erroneous and legally reprehensible,” Mr Ranyali states.
Printnest had solicited a M2.4 million loan from the Lesotho Post Bank to honour the IEC tender. The bank was now demanding payment of the loan and Mr Ranyali’s says he risks losing his family home which he had put up as collateral and M360 000 which had been deposited with the bank for the same purpose.
“The Lesotho Post Bank has already realized the M360 000 which was a collateral amount to maintain the loan. It is also exploring to start the process of taking our family house which was also collateral for the loan,” he pleads.
He therefore wants the court to order the IEC to honour the contract. He argues the electoral body can still use the t-shirts in the local government elections due in September 2023.
“We tried to negotiate and give alternative means to dispose those election t-shirts as they were already branded with the IEC logos and we could not just sell them on the streets to recover our cost. They also bore the logo of the IEC and hence not for sale…,” Mr Ranyali states.
“The plan was that we can remove the 2 on 2022 and replace it with 3 to make it 2023 as we are expecting local government elections. This proposal was met with a strong response (from Mr Maqutu) where the proposal was downrightly rejected. This was accompanied by what the IEC termed as blacklisting which is not to be found in any of the legal instruments which govern procurement by the entity.
“The relevant t-shirts are still in a storage facility as arranged by the applicant and a prompt arrangement can be made to facilitate the speedy adjustment of their branding to accommodate the upcoming local government elections.
“Another option which was on the table and which has since been overtaken by events was to use some for Stadium Area by-elections which were held on 17 December 2022.”
Mr Ranyali therefore wants the High Court to order that his company be allowed to “reprint the same items and to have them utilized for purposes of the local government elections”. He also wants the court to find the PPAD recommendations binding on the IEC.