The Electoral Commission
Mr Terry Tselane, Vice-Chairperson
Re: Victor Dlamini : Unpaid Fees for Services Rendered
1. After numerous attempts to get you and the IEC to pay me the money you owe me, I have been left with no choice but to bring this matter to the attention of the Public Protector. I believe the Public Protector will establish the truth and restore to me the payment that has been unjustly withheld from me by you and the IEC.
2. I have forwarded to the office of the Public Protector this account of what I believe constitutes a gross abuse of the office of the Deputy Chairperson of the IEC.
3. In August of 2013 you personally approached me and enquired if I would be willing and available to assist the IEC with strategic communications consulting services. I also received a WhatsApp message from the Deputy Electoral Officer, Dr Nomsa Masuku to the same effect
4. You asked me to meet with you at the residence of Sello Chicco Twala in Athol, Sandton. At this meeting you impressed upon me the urgency of the situation and the pressure that the IEC was facing in dealing with this unusual negative perception so near to the holding of the Provincial & National Elections in 2014
5. In terms of your requirement, you wanted me to use my skills as a reputation management expert to help restore the image & reputation of the IEC after the report of the Public Protector into the lease of the IEC offices in Centurion
6. You confided in me that you believed that the actions of the then Chair of the IEC, Advocate Pansy Tlakula had brought the IEC into disrepute and you wished to reinforce the readiness of the IEC for the elections & to distance her problems from the prospects of the IEC to deliver Free & Fair Elections
7. I met your team and we entered into a signed agreement and I began working on this IEC project at the beginning of October 2013. The agreed fee was R150 000 per month, exclusive of VAT
8. As you know, I used my company, Chillibush Communications which I chaired from 2004 for the purposes of the legal agreement. But for the purposes of the delivery of the services, I was personally responsible for fulfilling the relevant strategic consultancy services
9. Throughout the period in question I worked with you and various members of your executive team, including Dr Nomsa Masuku, Ms Lydia Young, Mr Marco Granelli as well as your commission members including the commissioners, Reverend Bongani Finca & Raenette Taljaard
10. Throughout the period in question you used to call on me to meet you at the IEC offices in Centurion as well as at various restaurants including Signature in Sandton. You also relied much on telephonic briefings, especially when you were travelling. You would even give your hotel room numbers so that I could call you for the regular briefings
11. I was present at many of your public media announcements at your offices in Centurion, at Gallagher Estates, at Montecasino as well as the Elections Results Centre in Pretoria
12. I had card access to your offices and an office at your offices in Centurion as well as card access to the Elections Results Centre at the Pretoria Show Grounds. This should indicate beyond any doubt that you considered me an integral part of your team and thus gave me unfettered access to your offices and operational areas
13. My nightmare began when I presented my invoices for payment for the services rendered from January 2014 to June 2014. At first I was told that my payment was being processed. I made several calls to Dr Masuku who assured me that the payment would be processed and as a key contact person I trusted her assurance.
14. But as the days and weeks turned into a month and more and no payment was forthcoming from the IEC, I became worried. When I started my enquires I phoned Dr Masuku again, I phoned you (Mr Tselane) and I also phoned the CEO, Mr Mosotho Moepya. Still no clear answer was provided as to why there was a delay in the payment
15. To date I have never been paid for the services I rendered in good faith to the IEC. I believe that this is a gross violation of my rights. It is furthermore incomprehensible to me why the IEC would call on me to sort out its reputation crisis at the time and then renege on its agreement to pay
16. I am baffled why the IEC was happy to pay me the services I provided to you for the period 1 October 2013 until 31 December 2013 but then turned around and refused to pay me for the period starting in January till the end of the elections
17. I am not a lawyer, but the simple fact that you and the IEC continued to use my services during the period in question was a clear indication that the agreement was still in effect
18. It is also worth noting that the IEC only gave me an office in February of 2014. If it did not consider the agreement to be in force, why would it allocate me an office on the second floor, in close proximity to the Commissioners
19. What was particularly vexing and painful to me is why you would deny via your lawyers that you had received the services you had so urgently sought me to deliver to the IEC. Your lawyers wrote this to me: Our client denies that your client rendered any of the services referred to in Appendix A to the written agreement (being the scope of services) during the period after 31 December 2013 as alleged in paragraph 6 of your letter, or that it did so at our client’s instance.
20. I have made many attempts to extract the payment from your organisation, including calls to the CEO Mr Mosotho Moepya, yourself, Dr Masuku. But you have never paid me
21. At one point I called Mr Moepya and he didn’t take my call. When I eventually spoke to him he told me that when my call came through he was sitting with you and you said he should not take my call. I was baffled by this because I had considered you my primary contact on the IEC matter.
22. I would like to quote paragraphs 12 and 19 of the agreement below as they are presently relevant :-
“12. The agreement will be reviewed on month to month basis shall commence on 01 October 2013 and shall terminate on 31 December 2013. The parties, however, may agree to extend it on a month to month basis until (2) weeks after the 2014 National Provincial Elections, subject to clause 17.1. The services shall be commenced and completed at the times or within the periods stated in the Particular Conditions subject to any extensions in accordance with the agreement.
19. The client (the Electoral Commission) shall pay the consultant (Chillibush Communications) for Normal Services in accordance with the Terms and Conditions of this agreement. The Consultant will be paid an amount of R150 000,00 (one hundred and fifty thousand Rand) per month, which amount is exclusive of VAT. All applicable statutory rules and regulations as determined by the South African Revenue Services are to apply:-
i) Payment shall be executed monthly by the Client in arrears on conditions, and in a manner which the offer designated by the Client may from time to time specify …”
23. In my last formal meeting between myself and your organisation, Dr Masuku advised me to meet your CFO, Ms Fiona Rowley. I was baffled as I had never had any prior contact with Ms Rowley. When I met her in her office, she advised me that the IEC was unable to pay the sum claimed as there was “no contract” due to the contract having expired on 31 December 2013
24. Further Ms Rowley claimed that in December of 2013 the treasury had outlawed retainer fee payments. I explained to her that our agreement had been finalised in October, prior to this claimed lapse of such agreements & therefore such a proclamation could not have any effect on our retainer based agreement
25. She then asked me to submit a time sheet so that, in her own words, ‘the IEC could determine, what, if anything, it owed me’. I obviously refused this attempt to change an agreement that I had entered with the IEC on a clear basis
26. Up to this day I cannot believe that the IEC, an organisation charged with the responsibility for furthering our constitutional democracy would actually refuse to pay for services I delivered with such care and diligence.
27. One does not need to be a lawyer to know that it is simply unbecoming of the IEC to demand and receive my services and then turn around and claim that the contract had expired.
28. Even if you want to argue about the validity of the contract, morally, once you received my services, you are obliged to pay for them. It was your responsibility to ensure that any contractual issues were addressed and in any case not at my expense.
29. If as you allege the contract was not extended, then the IEC would have to explain why it was only too happy to continue using my services. Who did you expect to pay for your continued use of my services?
30. There is no doubt in my mind that the way you have treated me and disregarded my justifiable claims for payment constitutes a gross abuse of your position, your office and the trust I had in the agreement you entered with me.
31. I still hope that this matter will be resolved and that you will not only pay me for the monies due to me but also the interest and the legal fees and the suffering I have endured as a result of your utterly unreasonable and irrational refusal to pay for the services I delivered to the IEC