In the matter between PHILIPPUS RUDOLPH DE WET BUSINESS INSIDER SA, A DIVISION OF MEDIA24 (PTY) LTD and sees ai INDEPENDENT ELECTORAL COtiliasION a LITHOTECH EXPORTS, A-DIVISION OF BIDVEST PAPERPLUS (PTY) LTD First Applicant Second Applicant First Respondent ‘Second Defendant NOTICE OF MOTION TAKE NOTICE THAT the abovenamed applicants intend to apply for the following order in terms of section 82 of the Promotion of Access to Information Act 2 of 2000: 5) Setting aside the decision by the first respondent to refuse the applicants’ request for access to the following record:NZ “Bid submission by winning bidder ‘Lithotech Exports — A division of Bidvest Paperplus (Pty) Ltd in tender IEC /LG-03/2017" 2 Directing the first respondent to grant the applicants access to such record within five days. 3 Directing the first respondent to pay the costs of the applicants, such costs to be paid jointly and severally together with the second respondent if it opposes the relief sought in this application, and that the accompanying affidavit of PHILIPPUS RUDOLPH DE WET and the documents annexed thereto and referred to in Rule 3(3)(a) will be used in support thereof. TAKE NOTICE FURTHER THAT the applicants have appointed Willem de Klerk Attorneys, 45 Jan Smuts Avenue, Westcliff, Johannesburg, as the address at which they will accept notice and service of all process in these proceedings TAKE NOTICE FURTHER THAT: i, Notice of intention to oppose this application must be given within 15 days after receipt hereof and must contain an address within eight kilometres of the court to which the application is brought, where notice and service of documents will be acceptedSIGNED at JOHANNESBURG on this & TO: court or the registrar as the case may be Ns Answering affidavits, if any, must be filed within 15 days after service of the notice of intention to oppose the application. In default of your complying with rule 3 (5) of the Promotion of Access to Information Rules, the applicants may request the clerk of the court or the registrar as the case may be, to place the application before the Court for an order in terms of section 82 (b) of the Act. In default of your delivering a notice of intention to oppose, the matter will without further notice, be placed on the roll for hearing after the expiry of the period mentioned in paragraph (i) above, on a date fixed by the clerk of the day of November 2019, WiLL Ss Attorneys for the First and Second Applicants Le Val Office Park North Block 45 Jan Smuts Avenue Cnr The Valley Road Westcliff, Johannesburg Tel 011 486 0242/3 Email: chari@wdklaw.co.za Ref: BI//0169 THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURGAND TO: AND TO: THE INDEPENDENT ELECTORAL COMMISSION FIRST RESPONDENT Election House Riverside Office Park 1303 Heuwel Avenue Centurion 0157 LITHOTECH EXPORTS, A DIVISION OF BIDVEST PAPERSPLUS (PTY) LTD SECOND RESPONDENT Bidvest House 18 Crescent Drive Melrose Arch 2196IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG casero: [9/4OOT4 In the matter between: PHILIPPUS RUDOLPH DE WET First Applicant BUSINESS INSIDER SA, A DIVISION oF MEDIA24 (PTY) LTD Second Applicant and INDEPENDENT ELECTORAL COMMISSION First Respondent BIDVEST PAPERPLUS (PTY) LTD. Second Defendant FOUNDING AFFIDAVIT |, the undersigned, PHILIPPUS RUDOLPH DE WET do hereby make oath and state that:2 1, | am a major male journalist employed as an associate editor by the second applicant at Media Park, 69 Kingsway Avenue, Auckland Park, Johannesburg 2. The facts deposed to in this affidavit are, unless the context indicates otherwise, within my personal knowledge and are to the best of my belief both true and correct, 3. Where I make representations of a legal nature, | do so on the advice of the applicants’ legal representatives. Full legal argument will be advanced on all legal issues at the hearing of this matter. PARTIES 4, Lam the first applicant in this matter. | have worked as a journalist in South Africa for the past twenty years, and | have been employed by the second applicant as an associate editor since 1 February 2018. 5. The second applicant is Business Insider SA, a division of Media24 (Pty) Ltd. Media24 (Pty) Ltd is a publishing group having its head office at 40 Heerengracht Street, Cape Town City Centre, Cape Town. It publishes a wide range of journalistic publications, including newspapers such as Cily Press and Rapport and online publications such as news24.com and fin24.com. Business Insider SA is an online newspaper published by Media24. ue3 All of my conduct described in this affidavit was duly authorised by, and done in the course and scope of my employment by the second applicant (hereafter referred to as “Business Insider SA’). | am also duly authorised to depose to this affidavit on its behalf. | attach hereto as annexure "PD1” the affidavit of Helena Wasserman, editor of Business Insider SA, confirming same. | refer to the applicants in this affidavit as "we" or ‘us’, where relevant. ‘The first respondent is the Independent Electoral Commission ("the IEC"), a public body, established in terms of section 190 and 191 of the Constitution of the Republic of South Africa, 1996, read with the provisions of the Independent Electoral Commission Act 51 of 1996 and regulations thereto. The IEC’s head office is located at Election House, Riverside Office Park, 1303 Heuwel Avenue, Centurion, 0187, The second respondent is Lithotech Exports, a division of Bidvest Paperplus (Pty) Ltd (‘Lithotech’), a private company duly registered in terms of the laws of the Republic of South Africa and having its registered address at Bidvest House, 18 Crescent Drive, Melrose Arch, 2076 (Reg no. 1971/002971/07). The second respondent is cited for such interest as it may have in the relief sought by the applicants. No relief is sought directly against the second respondent, save for a costs order in the event of opposition. ieOVERVIEW 10. 4 12. This is an application in terms of section 78(2)(c)(i) of the Promotion of Access to Information Act 2 of 2000 ("PAIA’), for an order setting aside and correcting the decision by a public body to refuse access to certain records submitted by a bidder in a public procurement process More specifically, the IEC refused the applicants access to bid documentation submitted to it by Lithotech, on the basis of Lithotech’s objections that sections 36(1) and 37(1) of PAIA protected these records from disclosure In short, the applicants contend that: 11.1, the requested records are not protected from disclosure by any grounds of refusal provided for in PAIA, including sections 36(1) and 37(1); 11.2. even if any parts of the requested records are protected from disclosure, the IEC was obliged under section 28 of PAIA t ‘sever" those parts and grant access to the remainder. Accordingly, the IEC is obliged, and must be ordered, to disclose all parts of the requested records to which no ground of refusal is applicable FarBACKGROUND FACTS 2019 elections 13. 14. 15. 16. 47. On 8 May 2019, South Africa held national and provincial government elections ("the 2019 elections") which the IEC was responsible for administering, | was assigned by Business Insider SA to report on, inter alia, any irregularities, in the 2019 elections. On election day, many voters reported on social media that the ink applied to their thumbs by IEC officials when they voted was fading rapidly (within hours) and coming off after simple household activities such as washing the dishes or taking a bath Section 38(5)(b) of the Electoral Act 73 of 1998, read with the regulations of the Act, mandates that the thumbs of voters be marked, to prevent voter fraud (i.e voting more than once). To achieve this purpose, the ink used to mark voters’ thumbs must be indelible (i.e. not readily removable within a day). The IEC was aware of the problem as early as 14h19 pm on voting day. | attach, marked "PD2", an eNCA news report quoting the IEC’s chief executive officer, Sy Mamabolo, as follows:18, 19. “The Electoral Commission has also noted media and social media reports of voters who have attempted or apparently been able to remove the indelible ink on their thumbs. The indelible ink is one of a number of security checks and safeguards built into the election process. “The commission wishes to remind all voters that any attempt to undermine the integrity of the electoral process, including attempting to remove the indelible ink constitutes an electoral offence, which is punishable upon conviction by the sentence of 10 years in jail.” In addition, on 19h51 on voting day, the IEC published a tweet, a copy of which is attached marked “PD3’, stating as follows: "We wish to remind all voters that any attempt to undermine the integrity of the #SAElections2019 election process ~ including removing the ink mark and voting more than once — constitutes electoral fraud and is punishable by up to 10 years in jail.” At 14h00 on 9 May 2019, the IEC released a press statement, a copy of which is attached marked “PD4’, stating that it had ordered a full investigation into the effectiveness of the indelible ink marker pens supplied for the 2019 elections, To the best of my knowledge, | am not aware that the IEC has ever released the final findings of this investigation. aveOriginal PAIA request 20. On voting day, 8 May 2019, | began investigating the origin of the ‘indelible’ ink pens used in the 2019 election, and the tender process through which the IEC. had procured them, 21. Within hours, | found Government Tender Bulletin no, 3000 of 16 February 2018 (attached marked "PDS"), which revealed that the tender for the supply and delivery of indelible finger marking ink pens (tender IEC/LG-03/2017) had been awarded to Lithotech. The value of the tender was R2 683 442, 22. | also obtained, from the IEC’s procurement website, the original invitation to bid for the provision of indelible ink pens to the IEC, a copy of which is attached marked “PD6" ("Invitation"). It included blank forms that prospective bidders had to complete and submit to the IEC. 23. _Itis necessary to note that the bid specifications (clause 3.1 on page 28 of the Invitation) stated as follows: “The service provider need not be the manufacturer of the indelible Ink. The following details of the manufacturer of the indelible finger marking ink pens must also be supplied with the bid submission: = Business name of manufacturer = Address of manufacturer = Related products available24 25. 26, 27. 28. 8 = Details of similar/ related completed and current contracts (name elections for which indelible ink had been provided, if applicable).” The invitation included a blank form for such information, entitled "Schedule B, Manufacturer's Details” (appearing at page 35 of the Invitation) ("Schedule B'). On 9 May 2019, | wrote a news article on this matter, which was published by Business Insider SA that day, a copy of which is attached marked “PD7" My investigation was not complete, however, as | did not yet know, inter alia, the identity of the “manufacturer Lithotech had subcontracted to make the ink pens used in the 2018 elections (which did not appear in the Tender Bulletin). Accordingly, on the same day, | sent the IEC an email (copy attached marked “PDB’), enclosing a PAIA request (copy attached marked "PDS") for access to the following “Bid submission by winning bidder ‘Lithotech Exports - A division of Bidvest Paperplus (Pty) Ltd in tender IEC /LG-03/2017" ‘The IEC acknowledged receipt of the PAIA request on 10 May 2019, both in an email from Mr Nilan Rampershad, of the IEC’s legal services department, and in a formal letter (copies attached marked "PD10" and "PD11") Ke.29, 30, 31. 32, On 5 June 2019, | sent Mr Rampershad an email (copy attached marked “PD12"), reminding him that the 30-day maximum period, referred to in section 25 of PAIA, for the IEC to consider and render a decision on my request, would expire on 9 June 2019. The following day, Mr Rampershad replied (copy attached marked "PD13") that the IEC had invoked the third-party notice procedure contained in section 47 of the Act. He stated that a notice had been sent to Lithotech and that their submissions were outstanding. | immediately responded (copy attached marked “PD14"), asking when Lithotech had been notified Mr Rampershad replied (copy attached marked “PD15") that the third-party notice was only dispatched that very same morning (6 July 2019). In response (copy attached marked "PD16"), | expressed my disappointment at the manner the IEC had dealt with the request, especially as the time period for a third-party notice to be sent had already expired. On 26 June 2019, | received an email from Mr Rampershad (copy attached marked "PD17°) stating: "In light of the response from Lithotech, the Electoral Commission unfortunately cannot accede to your PAIA request.” Attached to this email was a letter from Lithotech’s attorneys to the IEC, dated 24 June 2019 (copy attached marked "PD18") oe10 33. On the same day, 26 June 2019, | sent a further email to the IEC (copy attached marked “PD19"), asking if Lithotech's submissions had informed the entirety of the IEC’s decision. In reply (copy attached marked “PD20"), Mr Rampershad stated as follows "As is apparent from our previous communications, the request has been under consideration by the Commission since 5 June 2019. However as you are also aware, the Commission was also obliged to comply with the provisions of Section 47 of PAIA and further to act in accordance therewith. As the information requested belongs to a third party, the granting of access thereto is subject (0 the consent of such third party. In the circumstances the representations made by, and for and on behalf of the third party in response to the Section 47 notice could not and cannot be ignored." Refined PAIA request 34. Following the correspondence referred to above, | contacted our attorneys to discuss the possibility of litigation in respect of the IEC’s refusal. Notwithstanding the fact that myself and the second applicant considered the IEC's refusal to be unlawful and incorrect, we ultimately took the view that it would be appropriate and prudent to offer the IEC an opportunity to deliver only one part of Lithotech’s bid submission, namely the completed Schedule B. 35. The reasons for doing so were as follows: \"36, 37. 38. 39, I) 35.1. As indicated above, the value of the contract was already known, as was the identity of Lithotech as the winning bidder. We needed information only in respect of the identity and experience of the "manufacturer” of the ink pens subcontracted by Lithotech 35.2, We were further advised that a court application in this matter could take longer than a year to finalise and would be costly. We thought this would be inimical to the public's right to be informed. As is evident from the face of the blank Schedule B (at page 35 of the Invitation, already attached marked "PD6"), only very limited information is required to be submitted in this form. Accordingly, on 5 September 2019, our attorneys addressed a letter (copy attached marked “PD21") to the IEC as well as to Lithotech’s attorneys, making a without prejudice offer to limit the scope of our PAIA request to the completed ‘Schedule B from Lithotech’s bid submission. | confirm that we have waived any privilege that attaches to the correspondence and consent to the letter being brought to the attention of the Court. On 25 September 2019, Mr Rampershad sent my attorneys an email (copy attached marked “PD22"), enclosing a letter from Lithotech's attorneys stating that their client was not prepared to make the completed Schedule B available. "1 -40. 12 | understood this to also be the position of the IEC, as they added nothing to this letter. This was the final correspondence between the parties. We have therefore been compelled to institute this application under section 78 of PAIA for an order setting aside the IEC’s refusal of our request, and directing the IEC to grant us access to Lithotech’s bid submission, alternatively Schedule B thereof (in unredacted, alternatively redacted, form). MERITS OF THIS APPLICATION 4 42, This application has been instituted well within the 180-day period prescribed in section 78 of PAIA In support of this application, we contend as follows 42.1, Lithotech's bid submission, alternatively Schedule B to it, is not protected from disclosure by any grounds of refusal provided for in PAIA, including sections 36(1) and 37(1); 42.2. If any part of the bid submission, or Schedule 8, is so protected, the IEC must still grant us access to the remaining parts (i.e. a redacted version of the bid submission, or of Schedule 8). 1243, 44, IZ | address these contentions briefly in turn, noting that the legal submissions will be amplified in written and oral argument At the outset, we point out that, when interpreting and applying the provisions of PAIA to the specific records requested, the IEC should have (and this Court should) bear in mind that the records form part of a public procurement process, which section 217 of the Constitution requires to be “transparent”. This means that any claims to secrecy must be treated with great ciroumspection The records are not protected from disclosure by any grounds of refusal 45, The relevant portions of the representations made by Lithotech (PD18), which were apparently adopted by the IEC, read as follows: 5. We note the provisions of clause 36 of the bid furnished by our client, dated 18 June 2017, in respect of information provided in the tender process, read together with clause 4.9 of the bid specifications in respect of the confidentiality of the information supplied by our clients in its bid. 6. With reference to sections 36 and 37 of the Act, our client ~ 61 objects to making available the documents requested by Mr De Wet and identified in your letter under reply 62 claims confidentiality in respect of information contained in the bid and which information — in its entirety — relates to our client's trade 13 ‘wy46. 47. 48. 4 secrets, financial, commercial and technical information as expressly contemplated in section 36(1) and 37(1) of the Act. Firstly, the representations fail to clearly identify the provisions of PAIA relied upon for the objection to disclosure. In paragraph 6.2 of its representations, Lithotech, without more, refers to section 36(1) and 37(1) Section 36(1) has three distinct grounds of exclusion. Section 37(1) has two distinct grounds of exclusion, All of these grounds involve different types of records and have differing requirements for their applicability. This would substantially affect the reasons a party seeking to rely on these provisions would be required to give. As it is, the IEC would have been left to speculate about which of these five grounds of exclusion are applicable. We fail to understand how the IEC could have given ‘due regard! (as required by section 49(1)(a) of PAIA) to Lithotech's representations given their vague and unparticularised nature. To the extent possible, however, we now address each of the two sections Lithotech claims to rely on. Section 36/1) 49, In paragraph 6.2 of Lithotech’s representations, it “claims confidentiality in respect of information contained in the bid and which information = in its entirety 1450. Is ~ relates to our client's trade secrets, financial, commercial and technical information’. (emphasis supplied) It would accordingly appear, from the phrasing of the response, that Lithotech relies on section 36(1)(a), which deals with trade secrets, and section 36(1)(b), Which deals with financial, commercial and technical information. We deal with each in turn Section 36(1)(a) 51 52. 53, Lithotech provides no substantiation for its claim that any of the information contained in the bid submission constitutes a trade secret, nor indeed whether a tender bid submission “in its entirety" is capable of constituting a trade secret, At the very least, an information officer faced with such representations must be satisfied that the record sought to be protected is definitionally capable of bearing the meaning of a trade secret. Lithotech should have submitted to the IEC why it contended that its bid submission, ‘in its entirety", was a trade secret. Alternatively, Lithotech should have identified what portions of the information submitted to the IEC constituted a trade secret. In either case, Lithotech would have been required to motivate why this information constituted a trade secret, that is - the reason why the information Fie54, 6 identified constitutes a secret, commercially valuable, plan, formula, process or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort Lithotech gives no such reasons. If the IEC had given “due regard’ to Lithotech's representations, it would surely have faced the above difficulty and would have been unable to make a decision on whether a basis for the applicability of this ground of exclusion had been established. Section 36(1)(b) 56. 56, 87. The reliance by Lithotech on section 36(1)(b) is similarly misplaced. Section 36(1)(b) protects a record from disclosure if it contains financial, commercial, scientific or technical information, the disclosure of which would be “likely to cause harm to the commercial or financial interests of that party’. Again, Lithotech provides no reasons why its bid submission document or any part of it - definitionally — constitutes financial, commercial, scientific or technical information, However, whatever the content of the bid submission may be, section 36(1)(b) only protects information “the disclosure of which, would be likely to cause harm to the commercial or financial interests of that third party’. This is a clear internal requirement for this ground of refusal to apply. 167 58. _Lithotech gives no explanation to the IEC as to the purported harm it will allegedly suffer, should the record (or any part of it) be disclosed. The representations by Lithotech merely repeat the wording of the relevant provision. We are advised that the Constitutional Court has held this practice to be insufficient to make a ground of refusal applicable. It is difficult to understand how the IEC could have found Lithotech’s reliance on this provision well-founded in the total absence of representations regarding a fundamental internal requirement of the ground of exclusion 59. Under the circumstances, the IEC could not have found that a basis for applying the section 36(1) ground of refusal had been established. Section 37(1) 60. The IEC is again left to speculate as to which of the two distinct subsections under section 37(1) Lithotech relies upon. The first subsection, section 37(1)(a), requires mandatory protection of certain confidential information. The second subsection, section 37(1)(b), confers a discretion upon an information officer to refuse a request 61. Section 37(1)(a) only affords protection from disclosure in respect of a breach of a duty of confidence arising from a contract. An existing contract is accordingly a requirement of this subsection. Section 37(1)(b) has at least three bay62. 63, 64, 65, \8 internal requirements which must be met in order for it to provide protection from disclosure. The IEC is left to guess which applies, especially where both the discretions conferred by the grounds of exclusion and the internal requirements differ so vastly The IEC also gave no reasons as to why it exercised the discretion conferred on it by section 37(1)(b) in the manner that it did. Having uncritically adopted Lithotech's submissions, it appears that the IEC did not exercise any discretion at all In its representations, Lithotech invokes clause 35 of the bid submission, read with clause 4.9 of the bid specification. Both these clauses may be found in the Invitation (PD6). Clause 35 reads as follows: Alll information supplied by the Electoral Commission will be in the strictest confidence and will remain the proprietary information of the Electoral Commission. No service provider will be permitted to disclose any such information to any third party without the express prior written authority and/or consent of the Electoral Commission. (emphasis supplied) The relevant portion of Clause 4.9 of the bid specification reads as follows: sO66. 67, 68. 9 The contents of any contract(s) and or service level agreement arising from this tender will be confidential and may not be disclosed by the service provider to any other parties without the prior written consent of the Electoral Commission. (emphasis supplied) To the extent that Lithotech (and the IEC) sought to rely on these clauses, such reliance was misplaced within the context of PAIA, However, it is important to make a preliminary observation about the subject matter covered by these clauses. Clause 35 expressly states that it applies to information supplied by the IEC to the bidder (Lithotech). The subject matter of our PAIA request was not information supplied by the IEC to Lithotech, The subject of my PAIA request was the information, in the form of the bid submission, that Lithotech submitted to the JEC. This clause accordingly does not extend to the subject matter of our request Similarly, clause 4,9 creates a duty of confidence only in respect of "any contracts and/or service level agreement arising from [the tender’. Again, the subject matter of my request was not a contract or service level agreement, but Lithotech’s bid submission. | hasten to add that the record | seek was prepared and submitted to the IEC before such a contract or service level agreement bey69. 70. would even have existed. It makes no sense to suggest that a winning bidder's submission is protected from disclosure, while a losing bidder's is not. Lithotech, when submitting a bid in a public procurement process, could not have had any reasonable expectation of a “duly of confidence” covering the entire contents of its bid submission, Moreover, as already noted, Lithotech’s identity as the winning bidder was publicly disclosed in the tender bulletin. There is no reasonable basis whatsoever for differentiating between the identity of a winning bidder and the subcontractors that a winning bidder appoints. In fact, such a differentiation would allow public tender beneficiaries to hide their identities and particulars from public scrutiny by acting as ‘subcontractors" for front companies who make successful bids, Even though the record we sought does not fall within the ambit of the clauses invoked by Lithotech, as demonstrated above, the reliance on these clauses is also misplaced when regard is had to the grounds of refusal themselves. | deal with each ground of refusal in turn. Section 37(1)(a) ra Section 37(1)(a) requires the existence of a duty of confidence which must arise from an agreement. | note that Lithotech advances no submissions to the IEC ‘on whether Lithotech’s bid submission, which contains these clauses, is capable of constituting an agreement. Self-evidently it cannot. 20 r-72, 73. 74, 75, 2) In any event, the wording of section 37(1)(a) is clear that its protection only comes into play where there would be a breach of a duty of confidence that a public body (the IEC) “owed to a third party in terms of an agreement’. in other words, it would only protect a record from disclosure where the IEC owes a duty of confidence to Lithotech. Clause 35 does not create such a duty of confidence. It states that: “Ail information supplied by the Electoral Commission will be in the strictest confidence ... No service provider will be permitted to disclose any such information to any third party without the express prior written authority and/or consent of the Electoral Commission.” This is clearly @ unilateral duty that Lithotech owes the IEC. With respect to clause 4.9, the duty of confidence created by this clause relates to the contents of a future contract or service level agreement arising from the tender (if and when it is eventually concluded). It does not pertain to the preceding bid submissions. Furthermore, clause 4.9 imposes a duty of confidence only on Lithotech, not the IEC — the contract contents "may not be disclosed by the service provider to any other parties without the prior written consent of the Electoral Commission." It is not a duty of confidence the IEC owes to Lithotech, as contemplated by section 2 MWY22 37(1)(a). This is underscored by the fact that the IEC retains a discretion to allow disclosure of such information to third parties in terms of clause 4.9, Section 37(1)(b) 76. Section 37(1)(b) of PAIA only protects a record from disclosure when information is “supplied in confidence by a third party’, The duty of confidence arises when information is provided to the public body, by the third party. Clause 39 creates a duty of confidence only in respect of information the IEC supplied to Lithotech (the third party), not the other way around. Section 37(1)(b) is clearly not applicable to such a duty of confidence. 77. _ In respect of clause 4.9, the duty of confidence created by the clause is in respect of the contents of a future agreement. This is not information supplied in confidence by Lithotech, as required by section 37(1)(b). 78. | further emphasise that Lithotech has made no submissions whatsoever on the further internal requirements of section 37(1)(b), namely, the requirements dealing with prejudice to the future supply of information (section 37(1)(b)(i)) and the public interest in the continued supply of such information (section 37(1)(b)()). We are advised, in any event, that this provision of PAIA is aimed at disclosures that would jeopardise the future supply of information from police 2279, 80, 81 82. 23 informants or journalists’ sources, and the like — a context far removed from the submission of commercial bids in transparent public procurement processes. Again, we fail to appreciate how the IEC could have given "due regard” to the representations of Lithotech in the absence of submissions on basic intemal requirements of this ground of refusal In conclusion, we submit that Lithotech and the IEC have demonstrably failed to establish a basis for the grounds given for refusing our request. In terms of section 11(1) of PAIA, access to a record of a public body “musf’ be given if the requester complies with all applicable procedural requirements and access is not refused on any ground in Chapter 4 The IEC has never complained that we have failed to comply with a procedural requirement of PAIA, nor is there any basis for doing so. And, for the reasons set out above, there is not ground of refusal applicable to the records requested. Accordingly, we "must’ be granted access to the records. If parts of the records are protected, the remainder must still be disclosed 83, Section 28(1) of PAIA provides as follows: “A84, 86. 86. 24 "If a request for access is made to a record of a public body containing information which may or must be refused in terms of any provision of Chapter 4 of this Part, every part of the record which — (a) does not contain; and (b) can reasonably be severed from any part that contains, any such information must, despite any other provision of this Act, be disclosed.” The import of this provision is that, even if a ground of refusal is validly invoked by Lithotech or the IEC (which is denied), it protects only the specific information covered by that ground of refusal — not the record in its entirety. The remainder, according to section 28 of PAIA, "must, despite any other provision of this Act, be disclosed’ (emphasis supplied). Lithotech and the IEC must therefore satisfy this Court that every letter and digit appearing on the bid submission, or indeed on Schedule B, is protected by one or more grounds of refusal under PAIA. In other words, to withhold the records under section 36(1)(a) of PAIA, for example, they will bear the burden to prove, on a balance of probabilities, that every letter and digit on the bid submission, and on Schedule B, is a “trade secret’ Considering the contents of the blank Schedule B in the Invitation, this seems wholly impossible. costs WwW25 87. Subject to what is said in the answering affidavit(s), if any, the applicants intend to make legal argument motivating for a punitive costs order against the IEC, in consideration of its failure to observe the most basic procedural requirements of PAIA, especially in respect of the timing and contents of its notifications CONCLUSION 88. The IEC is arguably one of the most important public bodies created by the South African Constitution. It is charged with a sacrosanct and fundamental constitutional function universal adult suffrage through the holding of regular elections that are free and fair. These elections are meant to ensure accountable, responsive and open government 89. Given the foregoing, it is perhaps no surprise that photographs of the thumbs of voters are frequently posted on social media by South African voters as a celebration of the democratic right of all citizens to vote, and a mark of the fulfilment of a civic duty. 90. Over and above its important constitutional function, the IEC is also a public. body that is subject to the founding values of our Constitution, namely “accountability, responsiveness and openness". The constitutional guarantee of the right of access to information held by the State seeks to give effect to these values. It is impossible to hold accountable a government or an organ of state PW that operates in secrecy.91. 92 93. 94, 95. Of overriding importance in this matter is the fact that the IEC, being an organ of state, is bound by constitutional obligations to conduct its operations transparently and accountably. Once it invites tenders in relation to commercial relationships of a highly public character, like the one at stake here, members of the public are entitled to know who the IEC is doing business with, and the details of such business relationships Lithotech, as a party submitting a tender to such a body, should surely have apprehended in advance that certain information related to its business dealings with the ink manufacturer, if it secured the contract, would of necessity be exposed to public scrutiny. If no grounds of refusal are applicable to Lithotech’s bid submission at all, the IEC must be directed to disclose it as a whole. If Lithotech and the IEC wish to persuade the Court that one or more grounds of refusal are applicable, they must indicate precisely which parts of the records are covered by which specific ground of refusal and why. If these submissions are well-founded, then the remaining parts of the records must still be disclosed. 2696. 97, 98, 99. 27 We note that, if necessary, the Court has the power, under section 80 of PAIA, to take a ‘judicial peek’ at the records in their entirety to determine whether any grounds of refusal are applicable, and if so, to which parts. For the reasons set out above, however, the applicants do not apprehend how any grounds of refusal could possibly be applicable to any part of the records requested Under the circumstances, the IEC’s decision in relation to the PAIA request of 9 May 2019 should be reviewed and set aside and the IEC should be directed to provide the requested record. On behalf of the applicants, | therefore pray for an order in terms of the Notice of Motion, DATED at JOHANNESBURG on this the 4h day of November 2019, lak st PHILIPPUS RUDOLPH DE WET 27The Deponent has acknowledged that he knows and understands the contents of this affidavit, which was signed and sworn to or solemnly affirmed before me at TOLLE on this the “AM day of NOVEMBeL 2019, the regulations contained in Government Notice No R1258 of 21 July 1972, as amended, and Government Notice No R1648 of 19 August 1977, as amended, having been complied with : COMMISSIONER OF 0; THs 7 Pesta Va ho a Weta Jeera Practising Atomey, Commissioner of Oaths. “fwZ POL 7 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG In the matter between PHILIPPUS RUDOLPH DE WET MEDIA24 (PTY) LTD, A DIVISION OF BUSINESS INSIDER SA and INDEPENDENT ELECTORAL COMMISSION LITHOTECH EXPORTS, A DIVISION OF BIDVEST PAPERPLUS (PTY) LTD CASE No. 19 /40074 First Applicant Second Applicant First Respondent Second Defendant CONFIRMATORY AFFIDAVIT ~ SECOND APPLICANT |, the undersigned, HELENA WASSERMAN do hereby make oath and state’4 lam a major female employed as the Editor of Business Insider SA, with Principal place of business at 40 Heerengracht Street, Cape Town City Centre, Cape Town. Media24, as the licensed publisher of the Business Insider SA, is the second applicant in the above matter. 2 The contents of this affidavit are within my personal knowledge, unless the context indicates otherwise, and are to the best of my belief both true and correct. 3, | have read the founding affidavit of Philippus Rudolph de Wet, the first applicant, and | confirm that its contents are both true and correct insofar as it = DEPONENT relates to myself, The Deponent has acknowledged that she knows and understands the contents of this affidavit, which was signed and sworn to or solemnly affirmed before me at a) on this the _1\__ day of Vana -—~/ 2019, the regulations contained in Government Notice No R1258 of 21 July 1972, as amended, and Government Notice No R1648 of 19 August 1977, as amended, having been complied with. 11 NOV 2018 sraiwon Gomenpe® - PINELANDS __ Sa AF RICAN POHICE SEE 30111412018 JEC warns voters not to remove indelible ink or face jal | NCA 2 | IEC warns voters not to remove indelible ink or face jail facebook iter) vem) (hepsi adtoany.comysharetur hits 63A%62P42Fuy.anca com2Fnewssh2Fec mars-voters-notremeve indelibeika-face al Times 20warsZOvotersse20natN2O.oNZOremoveRz0indeblemaGnktZG0r%ZOreceN2GaTPPONTCMDOENCA) Wesmnesdey 8 May 2019-2:199m 1EC CEO Sy Mamabolo briefed the media on the election update ‘More than 2,000 voting stations are open fr 15 hours, fom 7am to 9pm. Courtesy #DSta tps: youtube comresuks?search,query=H2aDSw403) JOHANNESBURG - The IEC has warned voters not to remove the indelible nk from thelr thumbs, “The Electoral Commission has also noted media and social media reports of voters who have attempted or apparently been able to remove the Indelibie ink on their thumbs. The indelible nk is one of a number of security checks and safeguards bull inte election process,” sac IEC CEO, Sy Mamabolo, “The commission wishes to remind all vters that any attempt to undermine the integrity of the electoral pracess, including attempting to remove the indelible ink constitute an electoral offence, which is punishable upon corwiction by sentence of 10,years in jai he added. LIVE BLOG: Election 2019 underway (https://wwrw.enca.com/news/live-blog.election-2019-underway) -Mambolo thanked voters for coming outto vote, He sald voting kicked off on a positive start. Did you know? lta criminal offence to photograph a marked ballot. According tothe IEC this I to protect the secrecy of your vote and that of others, If found gully of this offence, you could face a fine or up toa year in all Source: eNca hitpsstwn.enca.com/newsi cwams-vters-notemovesindolble-inkor-fce jaime Quxtrate TEC wars voters not ta remove indelible ink or face jal eNCA Invest R3000 today. Make profits tomorrow, Misi Marksrng | markeingicom, ‘2eLgreigacengl Stevo Eek 2x8 005HS6iTOAZ2UNTPGAL7p AC: Related News SLECTORN ASS newsie-hol-publichearngs plea party funding-2c) I \newstecderegstersbt-aspoica:party) IEC deregisters BLF as a political party (Inews/lec-daregisters-bi-as-political-party) 2 6 we ‘Negligible risk’ of double voting: Stats SA (/news/negligible-risk-doublewvoting-stats-sa) hitos:ivi.onea,cominewsleo-wams-voters-not-remave-ndelble-ink or face alltime {ips//aeschargeads.convcles/Bt62o4h8|oCaiBV4EUkqs¥dl0OsgcksrOXZy Az? A087. BUNzjmSakgTOEAU not! ZjmNONNLYpeIVEKEK_ GTRWWSZ3VROJUMErSKSS {PwsslrnnbjoPVsK?205 9bSNLVgeNvicrmaGCaKer2opN26aN-ojs23rc30U 1 FinzdYO-untdmaeb VT 7aMibRhy2NONFSKODEmkiLmnengeSCONH p_adgnvgcioacraber2Hvyay2sgauxmsyplaxQ0HXt A peRPSepybS9KC/OMHHGrnmMosvxsF4t0K)iSEHH12QQ0lgDnul MmGeDUBMGTOEOyBrgbMam70}HE BlgyVCz0cvcHdaFcvO)ByRetkAUaOgIaWGa LedOoCda7FWOsuEsKWHeCHZ¥qMoweRPrv6NigUibECOAIShpv{PDKKSUO3S200Pan3DVI)pp3 8 w IEC South Africa ® outhAfrica We wish to remind all voters that any attempt to undermine the integrity of the #SAElections2019 election process ~ including remove the ink mark and voting more than once - constitutes electoral fraud and is punishable by up to 10 years in jail. 7:51 pm: 8 May 2019 + Twitter Web Client 657 Retweets 1.4K Likes 2 a 9 &| s1ar2019 Electoral Commission : News Article PDe a4 | Home > About Us > News > Commission to conduct sample audit of results Commission to conduct sample audit of results | 9 MAY 2019 @ 141100 ‘Tshwane (National Results Operations Centre) ~ The Electoral Commission will urgently conduct an audit of results and votes cast in a sample of voting stations to ascertain if double voting occurred The audit will cover a statistically representative sample of voting stations as well as all voting stations where complaints or allegations of double voting have been received. The final number and selection of the sample will be determined in conjunction with expert statisticians The process was endorsed by political parties in the party liaison committee today. The audit will involve the capture of information showing the ID numbers of voters who cast votes at each voting station from the “zip-zip” scanners and completed VEC 4 forms This data will then be cross-referenced and compared to identify any instances of multiple voting to help establish scientifically whether such instances were isolated or systemic and what the material impact is, if any, to the results In most voting districts the VEC 4 forms and the zip-zips have already been retumed to local offices as part of the roll-back of materials following the conclusion of counting. ‘The Electoral Commission has ordered the urgent docking of the zip-zip scanners to upload what information has been captured relating to voter participation. Additional resources will also be urgently identified and deployed from today to capture the information from the VEC 4 forms and zip-zips into spreadsheets to facilitate comparisons and data analysis. By law the Electoral Commission has seven days in which to announce the results of the elections and is confident this exercise will be completed in time to provide assurance of the integrity of the results within this period The Electoral Commission is encouraged by the rapid arrest of four voters in KwaZulu-Natal in connection with alleged double voting. As noted yesterday, any attempt to vote more than once leaves a clear footprint in the electoral process and the suspects were tracked down using this information The Electoral Commission has also ordered an investigation into the effectiveness of the indelible ink marker pens supplied for the elections, The investigation will be done in conjunction with the CSIR and with the full cooperation and support of the supplier Approximately 200 000 pens were procured through the normal open tender process according to specifications set by the Electoral Commission, In an attempt to increase the effectiveness of the pens, the Electoral ‘Commission had raised the percentage of silver nitrate from 15 percent used in previous elections to 20 percent Meanwhile the results capture and verification process continues and the Electoral Commission gives its assurance to South Africa that it will only announce results for elections where it is 100 percent = in the fy win slectons.orgzalcontentAbaut-UsiNews/Commissionto-conductsample-audt-of-esults!antegrity and legitimacy of those results The Commission calls on political parties, the media and all South Africans to show patience, calm and restraint as the process to ensure confidence is undertaken, ISSUED BY THE ELECTORAL COMMISSION Ensuring free and fair elections For media queries please contact Kate Bapela on 082 600-6386 For media interviews with Electoral Commission officials please email requests to spokesperson@elections.org.za yn electons.orgzlcontentiAbout-UsiNews/Commission-to-conduct-sample-auc-oF-results! DY 22,ssh | i MM i il ee = \- Aw196 No, 3000 GOVERNMENT TENDER BULLETIN, 16 FEBRUARY 2016 WisT —ESRSUSSHERT OFA REL JUNRETOO NTO] WR] wa] ik ESA IRE SUPA ahs Belveny EPIEE due ote Coca coubhicnriegeaecta } | | Foden Saree aeraons 0 POWER SUPFLY EQUIPMENT FOR [rie MEASURE Weird? | ESTAGLISHMENT OF A PANEL. PRE NSTAUENTR | Wa oy FORTHE SUPPLY ANG DeLiveny | TlON AND PRO: | OPsLecIRONIC Oma LoGaING {JECTS ee EQUIPMENT INTEGRATED DATA ESGGING Systems ScNSORS ANO Power SuPer EGUIPMENT Fa ‘Te MEASURE | Wilda? | ESTABLISHMENT OF A PANEL SHES TER TRADING Wik Wi Wa SRUPEN Re Sew | |erelabieaae aaa Pease [Resmaertieaar sa ETE NE 0 | (San spa tart ech rere aaiae Tina? SSIS OER Pe — [TANTS wae a ESP Re Oar oF lee fee oa Och Sedan renaes Sete LOGGING SYSTEMS SENSORS AND. | ean arr naar | ett | | NATIONAL: ELECTORAL COMMISSION: PROCUREMENT AND ASSET MANAGEMENT DEPARTMENT TENDERNO | __ TENOERDEGCRITION | — AWAfOEDTO ANOUNT | BEE] PANTS TECIGP- Gal | STaei Enon Local Ofee Acar —|Vgavahe Warhouse| —R2 70861889 7 oo” [eau ia TEGLLS- 65 | Sophy and Davey a nate Pagar [uetoch Espone A | REESE 7 7% ‘zor | Marking ink Pane. "9°" | vaion of Bev | Excrss tis | TESTES Ga WIS Dor ae Oo fac] li wae | WESTERN CAPE: DEPARTMENT OF HEALTH: TYGERGERG HOSPITAL {TENDER NO. TENDER DESCRIPTION “AWAROED TO AMOUNT | B-BEEE | FONTS oH 50s 2077_| THE APPOINTHENT OF A SERVIE [BECTON BIERNGON] Fo w26 20005 | LEVEL | FONTS Proeen etinceor srewien. [finns datine. ASU ioa PEASAND Slee "OH | oe Contuvaat eer NocraERS RGSS RGA PENS OF BEE L(G) YEARS INVITATION TO REGISTER ON SUPPLIER DATABASE SUBPLIES: MEDICAL OeSCAPTION TLReouneo aT | _Tenbenno [CRBS] FORENSIC BOOTS 99 PAIRS AND T BUNNY JACKET “KwaZulu-Natal 2NO 151/17. 18 2018-02-27, Moeungitng Sexson ant 3! eet uu aepiesonscotingie for: 4 asserr svacet. wan entrance | itil’ Sener RECSSN MANDELA DRIVE FORT SHEPSTONE Costa) Doounent. | OFFice-ScM i Pyment Oia Nit Hotes We Wik NOT de KEEPING PARED SEES PEASE UAB OEE vehi oun ones eae Delve Sppleaion i PBAG 2795 PORTSHEPSTONE 4240, SR Sree THN cutee HECCON MANOEL VE, oar Sierstone dso NO BocUMENTS vite SE ACCEPTED SPTER CLOSING DATE ANO TE Fer complain of applction documans plese carts: ZAMA ERGRCR le HES BESO ESSE En a rseain goxse, Hous O70 10 tea PLEASE ATTACH TAX CLEARANCE CERTIFICATES ON THE | Soctieetre:boet sents nce worae Cuates Gn taxeD | Stee oN ors BS cone bmecris Phow our Once, ‘This gate le aval roe online a! ww. gpwontinaco.r,Pos @ ELECTORAL COMMISSION REFERENCE: IEC/LG-03/2017 CLOSING DATE: 9 JUNE 2017 ENQUIRIES TECHNICAL SPECIFICATIONS: Suzette Thato dala Tel: 012 622 5700 Emall: ndalas@elections.org.2a ADMINISTRATIVE ENQUIRIES: Mr Vincent Gwabe Tel: (012) 622-5576 To whom it may concern Manager: Procurement & Asset Management Electoral Commission Private Bag X112 CENTURION 0046 Sir/Madam TENDER IEC/LG-03/2017 PROVISION OF INDELIBLE FINGER MARKING INK Kindly furnish the Electoral Commission (IEC) with a tender for the supply of goods/services as per attached documents. The conditions contained in the Electoral Commission's policy documents and all other conditions stated in this tender, will apply to your submission. This tender, as formulated, contains relevant Electoral Commission’s tender documents/forms that must be completed. A BID BRIEFING SESSION WILL BE CONDUCTED AT 11:00 ON 25 MAY 2017 AT THE FOLLOWING ADDRESS: ELECTION HOUSE, RIVERSIDE OFFICE PARK 1303 HEUWEL AVENUE CENTURION Kindly tender by completing the relevant forms and deposit the tender in the tender box at the Electoral Commission's address as specified on page 2 before the closing date and time. The Electoral Commission takes no responsibility for any late tenders, whatever the reason may be. Yours sincerely c Marius STEYN MANAGER: PROCUREMENT AND ASSET MANAGEMENT ) B-BBEE" means broad-based black economic empowerment as defined in section 1 of the Broad Based Black Economic Empowerment Act; (0) “B-BBEE status lovel of contributor’ means the B-BBEE status received by a measured entity based on its overall performance using the relevant scorecard contained in the Codes of Good Practice on Black Economic Empowerment, issued in terms of section 9(1) of the Broad-Based Black Economic Empowerment Act; (a) "bid" means a writen offer in a prescribed or stipulated form in response to an invitation by an organ of state for the provision of services, works or goods, through price quotations, advertised competitive bidding processes or proposals; road-Based Black Economic Empowerment Act’ means the Sroad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003); (e) (“comparative price" means the price after the factors of a non-fim price and all unconditional discounts that can be utlised have been taken into consideration; (@) “consortium or joint venture" means an association of persons for the purpose of combining their expertise, property, capital, efforts, skill and knowledge in an activity for the execution of a contract; (h) “contract” means the agreement (including a service level agreement) that results from the acceptance of a bid by the Electoral Commission; (i) “EME” means any enterprise with an annual total revenue that is less than the prescribed threshold value} () “firm price” means the price that is only subject to adjustments in accordance with the actual increase or decrease resulting from the change, imposition, or abolition of customs or excise duty and any other duty, levy, oF tax, which, in terms of the law of regulation, is binding on the contractor and demonstrably has an influence on the price of any supplies, or the rendering costs of any service, for the execution of the contract; (k) “functionality” means the measurement according to predetermined norms, as set out in the bid documents, of a service: or commodity that is designed to be practical and useful, working or operating, taking into account, among other factors, the quality, reliability, viability and durability of a service and the technical capacity and ability of a bidder, ()“non-fiem prices” means all prices other than “firm” prices; (m) “person includes a juristic person; (n) “rand value” means the total estimated value of a contract in South African currency, calculated at the time of bid invitations, and includes all applicable taxes and excise duties; (0) “state” means any national or provincial department, national or provincial public entity or constitutional institution within the meaning of the Public Finance Management Act, 1999 (Act No. 4 of 1999), any municipality or municipal entity, provincial legislature, National Assembly or the National Council of provinces; or Parliament; {p) "Service Provider or Supplier’ (used interchangeably) means any individual or entity that has the potential to be contracted by the Electoral Commission to render goods/services. (a) "sub-contract" means the primary service provider/contractor's assigning, leasing, making out work to, or employing, another person to support such primary service providericontractor in the execution of part of a project in terms of the contract. CONTENTS OF THIS PAGE NOTED: or10, " 12 13. 14. 15. 16. 7. 18, Page 6 of 37 t 3 In the event that the primary contractor/service provider is purchasing or renting goods from another entity for the purposes of rendering the services required in respect of this tender the latter shall be deemed not to be a ‘sub-contractor’ (1) “total revenue" bears the same meaning assigned to this expression in the Codes of Good Practice on Black Economic Empowerment, issued in terms of section 9(1) of the Broad Based Black Economie Empowerment Act and promulgated in the Government Gazette on 9 February 2007; () rust" means the arrangement through which the property of one person is made over or bequeathed to a trustee to administer such property for the benefit of another person. ‘The tender forms are drawn up so that certain essential information is to be furnished in a specific manner. Any additional particulars shall be furnished in the enclosed questionnaire/s (where applicable) or in 2 separate annexurels. The tender forms shall not be retyped or redrafted but photocopies may be prepared and used. Additional offers may be made for any item in response to this tender but only on a photocopy of the applicable page/s. Additional offers made in any other manner may be disregarded. Tenders must not be qualified by the service provider's own conditions of tender. Failure to comply with this requirement shall invalidate the tender. Failure on the part of the service provider to sign/initia! all applicable pages of this tender form and thus to acknowledge and accept the conditions in writing shall invalidate the tender submission. Failure on the part of the service provider to complete the attached forms, questionnaires and specifications’ document in all respects shall invalidate the tender submission, ‘All changes/alterations in the tender document should be signediinitialled. Failure on the part of the service provider to sign/nitial any alterations andlor corrections made to information provided in this tender form may invalidate the tender. No correction fluid/tape or similar products will be allowed and the use thereof on any page of the tender document may invalidate your tender submission. ‘Any changes/alterations to pricing that are not signed/initialled are considered material, and shall invalidate the tender submission. Correction fluld/tape or similar products will not be allowed to amend prices and the use thereof shall invalidate the tender submission. Information/detail provided on completed tender forms must be legible and ink must be used. Tender forms completed mechanically, e.g. by means of a typewriterlcomputer are deemed to have been completed in original ink. Pencil must not be used as it shall lead to the disqualification of the tender submission, Service providers shall check the numbers of the pages and satisfy themselves that none are missing or duplicated. No liabilty shall be accepted with regard to claims arising from the fact that pages are missing or duplicated. Incomplete tender submissions (i.e. with missing pages) shall be disqualified. Tender prices must be all inclusive, including VAT in respect of all vendors registered for VAT purposes. ‘Tender prices for supplies in respect of which installation/erection/assembly is a requirement, shall include ALL costs inclusive of VAT on a basis of delivered on site as specified. National Treasury has placed an obligation on all service providers that intend doing business with government to register on its Central Supplier Database (CSD). The Electoral Commission will not contract any service provider that is not registered on the CSD. Its an absolute requirement that the tax affairs of the successful service provider must be in order. Your entity's tax compliance status is indicated in the Central Supplier Database (CSD). The Electoral Commission will only contract service providers whose tax status is compliant. This means that if you were tax compliant during the bidding phase but become non-compliant before the adjudication is completed, your bid will be disqualified. it remains your responsibility to ensure that your taxes are in order, remain in ‘order and that this is reflected on the CSD. You must also ensure that all sub-contractors (if applicable) are tax compliant. CONTENTS OF THIS PAGE NOTE abv19. 20. 21 22, 23, 24, 25. 26. 27. 28. 29. 30. 34 Page 7 of 37 , f Firm tender prices and delivery periods are preferred. Consequently, service providers must clearly state ‘whether prices and delivery periods will remain firm for the duration of the contract or not. When the contract is awarded on the basis of firm prices, contract prices may be adjusted during the contract period only if (2) customs or excise duty or any other duty, levy or tax (excluding any anti-dumping and countervailing duties or similar duties), is introduced in terms of any Act or regulation; or () any such duty, levy or tax is legally changed or abolished; and (c)__ the onus of proof of the effect of such events shall ie with the service provider. Itnon-firm prices are tendered, the following rules shall apply. (a) In respect of any factors which demonstrably have an influence on the production cost of the supplies or the cost of rendering the services which have been tendered on the basis of non-firm prices, price adjustments which become effective during the contract period may be allowed with effect from the date of the change in cost and founded on the actual direct change in the cost as used in the calculation of the tender price, in addition to those provided for. {b) Where the service provider is the manufacturer of the supplies or the provider of the service, or where helshelthey is the accredited agent of the manufacturer or the provider, evidence in support of the price adjustments claimed shall be produced on demand, (©) Asan alternative, the service provider may specify a formula in the tender submission, on the form provided for this purpose, for the purpose of adjusting prices in accordance with published indices. (@) Where the service provider is not the provider of the service, or where he/shelthey is not the accredited agent of the provider, any price adjustment shall be based on the increase or reduction to the service provider in the net cost of the supplies on which the tender price was based. When any such increase or reduction in costs ocours, the service provider shall submit copies of the quotation or price list with reference to which the tender price as calculated, as well as the revised quotation or price list on which the claim is based. Where prices are subject to exchange rate fluctuations, service providers must take that factor into aacount when tendering and, where necessary, should ensure that they have taken the necessary forward cover to provide for possible price increases. When applicable, specific detail to this effect should be included in the tender submission. Discounts offered by any service provider as part of their tender submission may be considered by the Electoral Commission at its sole discretion in the tender adjudication process. ‘The technical tender specifications form an integral part of the tender document and service providers shall indicate in the space/s provided whether the specific services offered are according to specification or not. In cases where the services offered are not according to specification, the deviations from the specifications shall be indicated. Specifications may not, however, be changed in the tender forms provided as that shall invalidate a tender submission. Unless specifically provided for in the tender document, no tenders transmitted by facsimile or email will be considered, Service providers are requested to promote local content as far as possible. A service level agreement (SLA/contract) may be entered into with the successful service provider. Unless otherwise stipulated, all toolslequipment needed must be supplied by the successful service provider. Any service provider found to be influencing the tender adjudication process shall be automatically disqualified and not accepted for consideration. In accordance with the Electoral Commission's policy, the Electoral Commission reserves the right to procure goods/services outside of the contract if, inter alia, an emergency arises; the service provider's point of supply is not situated at or near the place where services are required or, ifthe service provider's services are not readily available. CONTENTS OF THIS PAGE NOTED: rE Bl32 33, 34, 36, 36. 37. Page 8 of 37 4G The Electoral Commission reserves the right to negotiate the extension of the contract at its sole discretion. The Electoral Commission may, at its sole discretion, resolve to procure lesser or additional goods/services as provided through the tender should the need arise. Any such change in the scope of services shall be negotiated with the successful service provider if and when relevant. Tender submissions received by the Electoral Commission and bid evaluation, assessment and adjudication reports that may contain sensitive information relating to specific bids are not available for perusal by the public. All information supplied by the Electoral Commission will be in the strictest confidence and will remain the proprietary information of the Electoral Commission. No service provider will be permitted to disclose any such information to any third party without the prior express written authority and/or consent of the Electoral Commission, Should the service provider fail to comply with any of the conditions of the contract, the Electoral ‘Commission shall be entitled, without prejudice to any ofits other rights, to: (a) arrange for the execution of the servicels not rendered or not in conformity with the specifications of the contract; and (b) recover all costs, losses or damages it has incurred or suffered as a result of the service provider's conduet; or (©) cancel the contract and claim any damages which it has suffered as a result of having to make less favourable arrangement due to such cancellation, All acquisitions for goodsiservices made by the Electoral Commission are subject to the following conditions: (a) No variations from the terms and conditions herein contained, and no contrary stipulation by the service provider shall be valid and binding unless confirmed by the Electoral Commission in writing () The Electoral Commission reserves the right to cancel any order if delivery is not made in due time and the service provider will not be entitled to any cancellation fees, (©) Part deliveries will only be accepted on prior arrangement with the Electoral Commission. (@) If delivery is not met as per agreement, the Electoral Commission reserves the right to cancel the outstanding delivery, and recover all costs, losses or damages it has incurred or suffered as a result of the service provider's conduct. (€) No price adjustments shall be accepted unless stipulated in the tender document received. The service provider will be obliged to sell at tendered prices. (f) The Electoral Commission shall not be responsible for any risk in relation to the goods before delivery (g) The Electoral Commission shall not be obliged to pay for any goods with any deviation from the agreed specification and quality. (h) The Electoral Commission shall be entitled to return any goods with defects or deviations from the agreed specification without consent from the service provider. (i) The service provider shall submit a valid tax invoice where the service provider is VAT registered, or fa valid invoice if the service provider is not VAT registered, conforming to tax law requirements, to the Electoral Commission. The invoice amount shall correspond with the order amount and shall be VAT inclusive, where applicable. () Detail provided on invoices issued to the Electoral Commission must correspond to the detail of the service provider as registered on the Central Supplier Database (CSD). It remains the service provider's responsibility to ensure that details are correct to enable the Electoral Commission to effect any payments due to the service provider. {k) Payment shall be effected within 30 days of receipt of a valid invoice/s together with a statement of the Electoral Commission's account in your book. Every effort shall be made to take advantage of special discounts, CONTENTS OF THIS RAGE NOTED: FO38. 29, 40. 44 42, 43, 44, 48, 46. 47. 46 No damages shall be claimable by the Electoral Commission in respect of any reasonable period of delay which the service provider can prove to the satisfaction of the Electoral Commission to be directly due to unforeseen events and/or any force majeure. Page 9 of 37 IF the execution of any contract entered into is likely to be delayed or isin fact being delayed on account of any reason, full particulars of the circumstances shall be immediately reported in writing to the Procurement and Asset Management Department, and at the same time the service provider shall indicate the extension of the delivery/completion period which will then be required. If information required in respect of any item in the tender document cannot be adequately inserted in the space provided, additional information may be provided on a separate sheet of paper with a clear and accurate reference to the item and page of the tender document. Service providers may, at the discretion of the Electoral Commission, be requested to submit samples, make presentations and/or writen submissions in order for the Electoral Commission to assess compliance with tender conditions and specifications. Scoring in respect of this tender will be based on the provisions of the Preferential Procurement Policy Framework Act, 2000 (PPPFA) and Preferential Procurement Regulations, 2017. These regulations require service providers to submit valid original or certified copies of their B-BBEE Status Level Certificates from accredited verification agencies or an applicable affidavit. The following preference point systems is applicable to all bids: (2) the 80/20 system for requirements with a Rand value of up to 50,000,000 (all applicable taxes included); and (b) the 90/10 system for requirements with a Rand value above R50,000,000 (all applicable taxes included), The value of this tender is estimated to not exceed RS0,000,000 (all applicable taxes included) and therefore the 80/20 scoring system shall be applicable. If itis unclear which preference point system will be applicable, then either the 80/20 or the 90/10 preference point system will apply and the lowest acceptable tender will be used to determine the applicable preference point system, Preference points for this bid shall be awarded for: (2) Prive (80 or 90 as applicable); and (b) 8-BBEE Status Level of Contribution (20 or 10 as applicable). ‘A maximum of 80 or 90 points is allocated for price on the following basis: of ore Pmin 80/20 or 90/10 Ps Where Ps Points scored for comparative price of bid under consideration Pt ‘Comparative price of bid under consideration Pmin = — Comparative price of lowest acceptable bid CONTENTS OF THIS PRGE NOTED: au48, 49, 50, 5t 52 53, 56 56 87 58, 59, 60. Page 10 of 37 { 7 In terms of Regulation § (2) and 6 (2) of the Preferential Procurement Regulations, preference points must be awarded to a bidder for attaining the B-BBEE status level of contribution in accordance with the table below: B-BBEE Status Level of | Number of points Number of points Contributor (90/40 system) (80/20 system) = 1 40 20 z 2 8 18 3 : 6 mneae oa 5 izes | 5 : 4 oi (a 3 6 7 2 a seas i 2 Non-compliant contributor ce0 0 Bidders who qualify as EMEs in terms of the 8-BBEE Act must submit a certificate issued by an Accounting Officer as contemplated in the Close Corporation Act (CCA), or a Verification Agency accredited by South African Accreditation System (SANAS) or a Registered Auditor. Registered auditors do not need to meet the prerequisite for Independent Regulatory Board of Auditors (IRBA) approval for the purpose of conducting verification and issuing EMEs with B-BBEE Status Level Certificates, Bidders other than EMEs must submit their original and valid B-BBEE status level verification certificate or fa certified copy thereof, substantiating their B-B8BEE rating issued by a Registered Auditor approved by independent Regulatory Board of Auditors (IRBA) or a Verification Agency accredited by South African Accreditation System (SANAS). Failure on the part of a bidder to complete andior to sign this form and submit an original or a certified copy of a B-BBEE Verification Certificate from a Verification Agency accredited by the South African ‘Accreditation System (SANAS) or a Registered Auditor approved by the Independent Regulatory Board of ‘Auditors (IRBA) or an Accounting Officer as contemplated in the Close Corporation Act (CCA) together with the bid, wil be interpreted to mean that preference points for B-BBEE status level of contribution are not claimed. A trust, consortium or joint venture, will qualify for points for its B-BBEE status level as a legal entity, provided that the entity submits its B-BBEE status level certificate, ‘A trust, consortium or joint venture will qualify for points for its 8-BBEE status level as an unincorporated entity, provided that the entity submits its consolidated B-BBEE status level certificate as if it were a group structure and that such a consolidated B-BBEE status level certificate is prepared for every separate bid. Tertiary institutions and public entities will be required to submit their B-BBEE status level certificates in terms of the specialised scorecard contained in the B-BBEE Codes of Good Practice. ‘A person will not be awarded points for B-BBEE status level if tis indicated in the bid documents that such a bidder intends sub-contracting more than 25% of the value of the contract to any other enterprise that does not qualify for at least the points that such a bidder qualifies for, unless the intended sub-contractor is an EME that has the capability and ability to execute the sub-contract. ‘A person awarded a contract may not sub-contract more than 25% of the value of the contract to any other enterprise that does not have an equal or higher 8-BBEE status level than the person concerned, unless the contract is sub-contracted to an EME that has the capability and ability to execute the sub-contract The Electoral Commission reserves the right to require of a bidder, either before a bid is adjudicated or at any time subsequently, to substantiate any claim in regard to preference points, in any manner required by the Electoral Commission. In the event that no response is received from the issuer of the certificate after 48 hours no B-BBEE points will be allocated in the final scoring, The bidder obtaining the highest number of total points will be awarded the contract subject to complying with all the other requirements, such as, meeting the technical specifications and satisfying the due diligence audit. Preference points shall be calculated after prices have been brought to a comparative basis taking into account all factors of non-firm prices and all unconditional discounts. Points scored will be rounded off to the nearest 2 decimal places, CONTENTS OF THIS PAGE NOTED: F Pe61 62, 63, 64, 65. 66 Page 11 of 37 { In the event that two or more bids have scored equal total points, the successful bid will be the one scoring the highest number of preference points for B-BBEE. However, when functionality is part of the evaluation process and two or more bids have scored equal points including equal preference points for B-BBEE, the successful bid will be the one scoring the highest score for functionality. Should two or more bids be equal in all respects, the award shall be decided by the drawing of lots. ‘Any legal person, may make an offer or offers in terms of this invitation to bid (includes a price quotation, advertised competitive bid, limited bid or proposal) In view of possible allegations of favouritism, should the resulting bid, or part thereof, be awarded to persons employed by the state, or to persons connected with or related to them, it is required that the bidder or his/her authorised representative declare his/her position in relation to the evaluating/adjudicating authority, where — (a) the bidder is employed by the state; and/or (b) the legal person on whose behalf the bidding document is signed, has a relationship with persons/a person who are/is involved in the evaluation and/or adjudication of the bid(s), or where it is known that such a relationship exists between the person or persons for or on whose behalf the declarant acts and persons who are involved with the evaluation and/or adjudication of the bid. ‘The Public Administration Management Act 11 of 2014 prohibits public servants from conducting business with the state or being a director of a public or private company that conducts business with the state, This Act will take effect on a date sill to be determined by the President. Should your bid be submitted on 2 date afier such determination by the President, you may be isqualified in terms of this Act. CONTENTS OF THIS PAGE NOTED: OvPage 12 of 37 { q TENDER SUBMISSION This standard document must be completed by the service provider and must form part of all bids. In the case of a consortium or joint venture, every member of the consortium or joint venture must ‘complete the questionnaire. In the case of subcontractors, where more than 25% of the work will be done by such subcontractor/s each subcontractor must complete the questionnaire. Separate forms must be used in each case. Failure to complete and sign/initial this document shall invalidate your bid, Where the space provided is insufficient, annexes must be submitted with the relevant information, False documents shall and/or the omission of information may invalidate your tender. This form also serves as a declaration to ensure that when goods and services are being procured, all reasonable steps are taken to combat the abuse of the supply chain management system, Any bid may be disregarded if the bidder or any of its directors or shareholders has- ‘* abused the Electoral Commission's supply chain management system, * committed fraud or any other improper conduct in relation to such system; or + failed to perform on any previous contract, PROSPECTIVE BIDDERS MUST REGISTER ON THE NATIONAL TREASURY CENTRAL SUPPLIER DATABASE (CSD) PRIOR TO SUBMITTING THEIR BIDS. FAILURE TO REGISTER ON THE CSD SHALL INVALIDATE YOUR TENDER. IF YOUR TAX STATUS IS INDICATED AS BEING NON-COMPLIANT ON THE CSD IT SHALL INVALIDATE YOUR TENDER. ALTHOUGH NOT ALL THE INFORMATION REQUESTED HEREUNDER MIGHT BE RELEVANT TO THE SPECIFIC REQUIREMENTS OF THIS TENDER, YOU ARE REQUESTED TO COMPLETE THE DOCUMENT WITH AS MUCH RELEVANT DETAIL AS POSSIBLE. THE INFORMATION MAY BE USED DURING THE BID EVALUATION PROCESS OF THE TENDER. CONTENTS OF THIS PAGE NOTED: A7 7 00 TENDER QUESTIONNAIRE (INCLUDING THE CERTIFICATE OF INDEPENDENT BID DETERMINATION (SBD9), DECLARATION OF BIDDER'S PAST SUPPLY CHAIN PRACTICES (SBD8), DECLARATION OF INTEREST (SBD4) AND THE ENTERPRISE DECLARATION ‘AFFADAVIT) Important note: Where more space is required for additional information please use photocopies of the applicable page's. 1. Name of business entity (bidder): ......sccssseeesseeees | Company CIPC registration number (if applicable)... 3. Central Supplier Database (CSD) registration number: Your unique registration number as provided above will be used to capture your company detals as a vendor tothe Electoral Commission, The Electoral Commission will draw your registration deta rom the National Treasury Central Supplier Database (C80) and any changes (Including banking details) you affect to your registration on the CSD will automatically ‘update your registration as a vendor to the Electoral Commission. Ostall provided on invoices Issued to the Electoral Commission must correspond to the detail of your company as registered on the Central Supplier Database (CSO). It remains your responsibilty to ensure that detalls are correct fo enable the Electoral Commission to effect any payments due to you. MIA|A|A Contact number Contact person (person representing bidder). eMail address:... Noose Type Of Company/ Firm | Partnership/Joint Venture / Consortium One person business/sole propriety 1 Close corporation a Company 3 (Pty) Limited [Tick APPLICABLE BOX] 8. Desoribe Principal Business Activities 9. Company Classification Manufacturer Supplier Professional service provider ‘| Other service providers, e.g. transporter, etc [TICK APPLICABLE BOX] 10. Total number of years the companyffirm has been in business:...............0000:00008 CONTENTS OF THIS ay NoTeD:"1 12. 13. 14, 16, 16. 17, S| The names of directors / members of companies are drawn from the Central Supplier Database (CSD). Please provide the detail of any trustees/shareholders/owners and their individual identity numbers that do not appear on your CSD registration in the table below. Page 14 of 37 Full Name Identity Number | ‘SMME Classification (Tick one applicable to your company) [ Non-SMME I Very Small Medium Micro ‘Small EME Please stipulate the B-BBEE status level of contribution as it appears on the certificate/affidavit for your entity | Is the entity an exempted micro enterprise (EME) for the purposes of the Preferential Procurement Regulations, YES NO 2017? Has a B-BBEE status level verification certificate/affidavit been submitted? YES No If yes, who issued the certificate? Commissioner of Oaths in the case of an applicable sworn affidavit ‘A verification agency accredited by the South African Accreditation System (SANAS) An IRBA registered auditor vice providers must submit eriginal or certified copies of thelr status lovel cerfieates together with their bid entation in support of and confirming the 8-BBEE status level indicated above Failure to submit the certificate will result ina bidder being deemed as a non-compliant contributor and a status level of zere (0) will be allocated, Al Legal status of bidder (tick one box) Principal service provider [Subcontractor % of work will be subcontracted™ ‘Consortium Joint venture (JV) Other, specify In the case of subcontractors, where more than 25% of the work will be done by such subcontractor/s, each subcontractor must complete the tender questionnaire (including the certificate of independent bid determination (SBD9), declaration of bidder's past supply chain practices (SBD8), declaration of interest (SBD4) and the enterprise declaration affidavit.) Separate forms must be used in each case The tax affairs of subcontractors must also be in order on the Central Supplier Database (CSD), CONTENTS OF THIS\PAGE NOTED:18. Page 15 of 37 SZ In the event of subcontractors being used to render the services required in terms of this tender, the principal service provider must complete the schedule below in order to clearly indicate which entities will be subcontracted as well as the percentage of work to be subcontracted to each of these entities in relation to the total value of the contract. Name of Company to be Subcontracted % Value of Total Contract Allocated to Subcontractor The B-BBEE status level of the sub- contractor is the sub- contractor is an EME or QSE (Please indicate EME, QSE, or ‘nla Total % of Work to be Sub- contracted* -% CONTENTS OF THIS RAGE NOTE! Ae19, 20. 21 Page 16 of 37 FINANCIAL INFORMATION $3 What is the company's annual average turnover during the previous three financial years or such lesser period during which the business has been operating? (e.g. 2015, 2016, 2017) Financial Year Annual Turnover | Gross asset value | Net asset value R R R R R R Is your company listed on the Stock Exchange? | YES NO Are the prices quoted firm for the full period of the | veg No contract? If the tender prices are not firm for the full period, provide details against the appropriate category(s) below: Non-firm prices, i.e. prices linked to statutory adjustments and other proven adjustments. Ve | Ne | epee Prices linked to fixed period adjustments. [ves No Prices linked to escalation formula adjustments. yes | [No Explanation: Note that fr the purpose of price comparisons, the actual price inclusive of VAT that the Electoral Commission will have to pay ‘over the conract period wil be used, unless otherwise stipulated inthe cetalled specifications ‘CONTENTS OF “ NoTeD:Page 17 of 37 S4 22, 23. 24, DELIVERABLES AND GUARANTEES Is the delivery period stated in the tender firm? Is the equipment guaranteed? Do you confirm that the required services are guaranteed in terms of any specific guarantees that may be required in the tender specification? ‘Are you the accredited representative in the Republic of South Africa of the manufacturer of the equipment offered by you? YES NO YES NO | YES NO YES NO CONTENTS OF THIS I N joTeD: CheSY Page 18 of 37 25. 26. 27. 28. PAST SUPPLY CHAIN PRACTICES (SBD8) Is the bidder or any of its directors listed on the | National Treasury's Database of Restricted Supaliers | veg io 28 companies or persons prohibited from doing business with the public sector? (Companies or porsons who are listed on this Database were informed in writing oF tis restriction by the Ascounting Officer/Authority ofthe institution that Imposed the restriction after the aud alferam partem rule was applied). ‘The Databaso of Restricted Suppliers now resides on the National Treasury's website (wurw.treasury.gov.2a) and ean be accessed by clicking on Its link atthe bottom of the home page. If so, furnish particulars: Is the bidder or any of its directors listed on the Register for Tender Defaulters in terms of section 29 of | Veg fo the Prevention and Combating of Corrupt Activities Act (No 12 of 2004)? ‘The Register for Tender Defaulters can be accessad on the National Treasury’ wabsTta (www 1reasury.gov.za) By clicking ons link atthe bottom of the home page. If so, furnish particulars: Was the bidder or any of its directors convicted by a court of law (including a court outside of the Republic of | yg Ay South Africa) for fraud or corruption during the past five years? If so, furnish particulars: Was any contract between the bidder and any organ of state terminated during the past five years on account | YES No | of failure to perform on or comply with the contract? | IF so, furnish particulars: CONTENTS OF THIS PAE NOTE ALPage 19 of 37 DECLARATION OF INTEREST (SBD4) 23. 30. 34 Are you or any person connected with the bidder presently employed by the state? If so, furnish the following particulars: Name of person/director/trustee/shareholder/member: ...... Name of state institution to which the person is connected: Position occupied in the state institution: .......cscscessessssseeesesesseee Any other particulars: Was appropriate authority to undertake remunerative | veg work outside employment in the public sector obtained? Did you attach proof of such authority to the bid document? Ifo, furnish reasons for non-submission of such proof: Did you or your spouse, or any of the company’s directorsitrustees/shareholders/ members or their YES spouses conduct business with the state in the previous twelve months? IF so, furnish particulars, Do you, or any person connected with the bidder, have any relationship (family, friend, other) with a person | Veg ‘employed by the state and who may be involved with the evaluation and/or adjudication of this bid? | Yes No No | Yes No No Ne) If so, furnish particulars. ‘CONTENTS OF THIS PAGE NOTED: Au32, 33. Page 20 of 37 Are you, or any person connected with the bidder, aware of any relationship (family, friend, other) between any other bidder and any person employed by the state who may be involved with the evaluation and/or adjudication of this bid? If so, furnish particulars. Do you or any of the directors/trustees/ shareholders/members of the company have any interest in any other related companies whether or not they are bidding for this contract? If so, furnish particulars. YES No I ! YES NO CONTENTS OF THIS PA IE NOTED: AvSE Page 21 of 37 CERTIFICATE (SBD1, SBI 8, SBD9) |, the undersigned, in submitting the accompanying bid! TENDER: IEC/LG-03/2017 in response to the invitation for the bid made by The Electoral Commission do hereby make the following statements that | certify to be true and complete in every respect. | certify, on behalf of that: 1. 2 | have read and | understand the contents of this Certificate, | certify that the information furnished in this tender submission is true and correct. | accept that the Electoral Commission may reject the bid or act against me should this declaration be found not to be true and complete in every respect. Each person whose signature appears on the accompanying bid has been authorised by the bidder to determine the terms of, and to sign the bid, on behalf of the bidder. | hereby tender to render all or any of the services described in the attached documents to the Electoral Commission on the terms and conditions and in accordance with the specifications stipulated in the tender documents (and which shall be taken as part of, and incorporated into, this tender) at the prices including VAT and on the terms regarding time for delivery and/or execution inserted therein. agree that a) the offer herein shall remain binding upon me/us and open for acceptance by the Electoral Commission during the validity period indicated and calculated from the closing time of the tender; b) this tender and its acceptance shall be subject to the terms and conditions contained in the general tender conditions of the Electoral Commission with which | am/we are fully acquainted; ¢) live agree that my/our tender shall be valid for a period of 180 days; and d) the law of the Republic of South Africa shall govern the contract created by the acceptance of my/our tender. | furthermore confirm that liwe have satisfied myselffourselves as to the correctness and validity of myfour tender, that the price(s) and rate(s) quoted cover all the worklitem(s) specified in the tender documents and that the price(s) and rate(s) cover all my/our obligations under a resulting contract/service level agreement and that I/we accept that any mistakes regarding price(s) and calculations will be at my/our risk. | hereby accept full responsibility for the proper execution and fulfilment of all obligations and conditions devolving on me/us under this agreement as the Principal(s) liable for the due fulfilment of this contract | agree that any action arising from this contract may in all respects be instituted against me/us and liwe hereby undertake to satisfy fully any sentence of judgement which may be pronounced against me/us by a court of law as a result of such action. Confirmation is granted that SARS may, on an ongoing basis during the contract term, disclose my/our (including that of subcontractors, partners and undisclosed principals) tax compliance status to the Electoral Commission for purposes of verifying my/our tax compliance status with SARS. CONTENTS OF THIS PAGE NOTED:89 10. We have arrived at the accompanying bid independently from, and without consultation, communication, agreement or arrangement with any competitor. However, communication between partners in a joint venture or consortium’ will not be construed as collusive bidding. 14, For the purposes of this Certificate and the accompanying bid, | understand that the word “competitor” shall include any individual or organisation, other than the bidder, whether or not affiliated with the bidder, who: a) has been requested to submit a bid in response to this bid invitation; b) could potentially submit a bid in response to this bid invitation, based on their qualifications, abilities or experience; and c) provides the same goods and services as the bidder and/or is in the same line of business as the bidder. 12. In particular, without limiting the generality of paragraph 10 above, there has been no consultation, communication, agreement or arrangement with any competitor regarding: Page 22 of 37 a) prices; b) geographical area where product or service will be rendered (market allocation); c) methods, factors or formulas used to calculate prices; d) the intention or decision to submit or not to submit, a bid; @) the submission of a bid which does not meet the specifications and conditions of the bid; or ) bidding with the intention not to win the bid 13. In addition, there have been no consultations, communications, agreements or arrangements with any competitor regarding the quality, quantity, specifications and conditions or delivery particulars of the products or services to which this bid invitation relates. 14. The terms of the accompanying bid have not been, and will not be, disclosed by us, directly or indirectly, to any competitor, prior to the date and time of the official bid opening or of the awarding of the contract. 15. | am aware that, in addition and without prejudice to any other remedy provided to combat any restrictive practices related to bids and contracts, bids that are suspicious will be reported to the Competition Commission for investigation and possible imposition of administrative penalties in terms of section 59 of the Competition Act No 89 of 1998 and/or may be reported to the National Prosecuting Authority (NPA) for criminal investigation and/or the bidder may be restricted from conducting business with the public sector for a period not exceeding ten (10) years in terms of the Prevention and Combating of Corrupt Activities Act No 12 of 2004 or any other applicable legislation, 16. | certify that the points claimed, based on the B-BBEE status level of contribution indicated in the tender documents, qualifies the bidder for the preference shown and | acknowledge that: a) The information furnished is true and correct; b) The preference points claimed are in accordance with the General Tender Conditions as indicated in this form; and ¢) In the event of a contract being awarded as a result of points claimed | may be required to furnish documentary proof to the satisfaction of the Electoral Commission that the claims are correct. * Joint venture or Consortium means an association of persons forthe purpose of combining ther expertise, property, capital, efor, skill and knowledge in an activty for the execution of a contrac. CONTENTS OF THIS PAGE NOTE Ay17. 18, 19, 60 Page 23 of 37 If the B-BBEE status level of contribution has been claimed or obtained on a fraudulent basis or any of the conditions of contract have not been fulfilled, the Electoral Commission may, in addition to any other remedy it may have a) disqualify the person from the bidding process; ) recover costs, losses or damages it has incurred or suffered as a result of that person's conduct; c) cancel the contract and claim any damages which it has suffered as a result of having to make less favourable arrangements due to such cancellation; d) restrict the bidder or contractor, its shareholders and directors, or only the shareholders and directors who acted on a fraudulent basis, from obtaining business from any organ of state for a period not exceeding ten (10) years, after the audi alteram partem (hear the other side) rule has been applied; and @) forward the matter for criminal prosecution. Notice has been taken of the tender document including all the relevant forms and the General Tender Conditions contained in this tender document, the content of which is understood itis confirmed that the required tender forms have been completed in full and signed Name and Surname in print Signature Rolin Name of Bidder (Service Provider) Date. CONTENTS OF THIS PAGE NOTE6) Page 24 of 37 BID EVALUATION CRITERIA IMPORTANT NOTIC! The under-mentioned criteria form an integral part of the bid assessment and evaluation process that will be followed by the Electoral Commission. Please note that tenders that do not conform to the primary compliance criteria indicated in Section A will not be considered. The bid evaluation criteria below must be read together with any additional evaluation criteria that may form part of the bid specifications. A____ Acceptance or Rejection of Tender (Primary com ince verification criteria) Legality of tender document: (2) Non-compliance with tender rules - The following shall lead to disqualification: + Failure to attend a compulsory briefing session (if applicable). ‘+ Failure to retum all pages of the tender document that must be signed/initialled. + Failure to complete tender forms in original ink. «Failure to sign/initial all applicable pages of the tender document. ‘© Any changesfalterations to pricing that are not signediinitialled and/or the use of correctional fluiditape or any similar product in respect of pricing in the tender document. ‘© Any changes to the tender specifications (unless formally agreed to by the Electoral Commission and recorded as such before the closure of the tender). + Failure to complete and sign all affidavits, certificates, declarations and annexures contained in the tender in original ink. «Failure to register on the Central Supplier Database (CSD). + Non-compliant tax status on the Central Supplier Database (CSD). (b) Non-compliance with tender rules — In addition to (a) above, the following may lead to disqualification: + Failure to sign/nitial any other alterations and/or corrections to the information submitted by the service provider, which the Electoral Commission may consider to be material Incomplete tender submission: (©) The following shall lead to disqualification: + Rates and Prices - Schedules not completed as required. © Failure to submit obligatory written proposals/explanations/samples/prototypesicertificates or similar requirements. © Inrespect of subcontractors or joint ventures or consortiums, failure to complete and submit the required tender forms (pages 13-23 of the tender document) or to submit evidence that your tax affairs are in order, B Evaluation (Technical criteria) Inability to evaluate the tender: (a) _ Incomplete Schedule of Rates and Prices. (b) Prices and information not furnished as specified and/or required. (c) _ Incomplete written proposals/submissions where required. Service providers should note that ALL information requested in terms of the tender submission is required and may be used for tender evaluation purposes.Page 25 of 37 62. General questionnaire to ensure compliance with tender requirements/rules/conditions! specifications: Question iFYES, please tick* IFNO, please tick* ‘Are you duly authorised to sign the tender? Has the Declaration of Interest Questionnaire been duly completed and included with the other tender forms? Has the Certificate been completed and signed? Have separate forms (pages 13-23) been completed for each member of a consortium, joint venture or subcontractor as specified in the tender document? Ts the tender document complete - i.e. are all pages as well as compulsory retumables included/returned with your tender submission? ‘The use of pencil to complete the tender forms will invalidate your tender. Have all applicable pages of this document been completed and signed or initialled in original ink by the signatory of the tender document? Have all corrections/alterations to information and or prices made on this document been certified/signed/ initialled by the signatory of the tender document? Have you noted that the use of correction fluid/tape or any | such products to amend prices shall invalidate your tender submission? Is your company (and any potential subcontractors) registered on the Central Supplier Database (CSD)? Please include a copy of your registration form in your bid submission. ‘Are your tax affairs in order and reflected as being compliant on the Central Supplier Database (CSD)? Has an original or certified copy of your valid B-BBEE certificate/affidavit been attached to the tender document? Have the General Tender Conditions been noted? Have the Bid Evaluation Criteria been noted? Has the Scope of Services been noted? Have prices been quoted VAT inclusive? Have a comprehensive written proposal and/or samplesicertificates/et cetera as called for in this tender been prepared and submitted with the tender document? CONTENTS OF THIS) PAGE NOTED: BuyBree 63 Bid Specifications | | | IEC/LG-03/2017 IEC/LG-03/2017 INDELIBLE FINGER MARKING INK PENS covrents oF his aayao 6+ 1 BACKGROUND The Electoral Commission (IEC) requires visible indelible finger marking ink pens for the purpose of marking voters’ fingers during voting as required in terms of section 38 (5) (b) of the Electoral Act 73 of 1998. The Electoral Commission's Logistics Department is charged with the responsibility of managing the logistics operations supporting all the electoral activities. The provisioning of the indelible finger marking ink pens forms part of this responsibility. indelible ink typically has a fairly limited shelf life (approximately 6 months) which necessitates replenishment of stock on a regular basis. The objective of this tender is to appoint a service provider that can provide the indelible ink on a regular basis and in sufficient quantities to support by-elections (on average a monthly event) as well as the upcoming National and Provincial Elections in 2019. The Electoral Commission wishes to have access to an effective and reliable indelible finger marking ink pens. In addition, alternative methods of application will also be considered, The scale of activities will vary according to circumstances. In general the ongoing by-election activity is of low-intensity, while the upcoming National and Provincial Elections in 2019 will require sufficient ink to mark the fingers of approximately 26 million voters at approximately 24,000 voting stations. 2 TENDER REQUIREMENTS IMPORTANT NOTE: EACH BID SUBMISSION MUST BE ACCOMPANIED BY SAMPLES OF THE PRODUCT OFFERED. FAILURE TO COMPLY SHALL INVALIDATE THE BID. + ATLEAST TWO (2) SAMPLES OF EACH TYPE OF PRODUCT OFFERED: THE SAMPLES WILL BE TESTED FOR COMPLIANCE WITH THE SPECIFICATIONS SET OUT IN THE SECTION BELOW. * EACH SAMPLE MUST BE PACKED IN AN INDIVIDUAL SMALL CARDBOARD BOX OR INDIVIDUALLY SEALED PLASTIC WRAP TO ILLUSTRATE THIS PACKAGING REQUIREMENT AS STATED IN THE FIRST BULLET UNDER SECTION 3.3 BELOW. + NO PRESCRIBED LABELLING IS REQUIRED FOR SAMPLE PURPOSES. + SAMPLES MUST BE CLEARLY MARKED WITH THE NAME OF THE BIDDER. THE ELECTORAL COMMISSION WILL NOT BE RESPONSIBLE FOR THE LOSS OF UNMARKED ‘SAMPLES. 2.1 Ink formulation + The indelible finger marking ink pens must create a visible “permanent” localized stain on the fingerinail of a voter when applied. + The stain must be immediate, and must dry within 30 seconds of application, and must not require any specialized action in order to be achieved. + ‘Permanent’ in this context means that the mark remains easily visible for a period of at least 7 days. CONTENTS OF THIS PAGE NOTED: ~~ OlPage 28 of 37 65 + The indelible finger marking ink pens must be a unique ink with an inherent ability to withstand removal by washing, rubbing, or other mechanical means, after application: + The indelible finger marking ink pens must be non-inflammatory and should contain anti- viral and anti-bacterial disinfectants. * The formula of the ink must be kept secret, and must not be readily commercially available or reproducible. 2.2 Application method + The indelible finger marking ink pens are required with a nib-type applicator, to permit application of a suitable mark of ink to the voter's finger. A mark no longer than 5mm is required + The nib-type applicator must operate in a neat and non-mess manner. * Each indelible ink dispensing pen must contain a suitable volume of finger marking ink, capable of marking up to 1,000 fingers without failure, clogging, dryness or spillage. * The pen must be leak-proof in its sealed state as delivered. This means that it must not leak during delivery and storage. + The indelible finger marking ink pens must carry brightly coloured labels with “Voting Ink” and the date ofmanufacture printed on it. * The indelible finger marking ink pens must remain usable ~ i.e. capable of marking a finger — with the cap removed for a continuous period of at least 6 hours. 2.3 Risks to be avoided The risks to be avoided in the design of the marker pens are as follows + Unnecessary quantity of ink applied to the voter's finger/nail, resulting in unsightly stains and/or spillage onto clothing, ete. * Spillage onto the hand(s) and/or clothing of the person applying the ink. + Premature dryness of the ink on the nib of the applicator resulting in the ink not being able to be applied on the finger of the voter. + Unnecessary play of the polyester cylinder inside the marker body. * Poor sealing of the cap resulting in leaks during transportation. 3 GENERAL SPECIFICATIONS 3.4 Objectives The Electoral Commission requires a supplier of indelible finger marking ink pens on a continuous basis until after the National and Provincial Elections in 2019. The service provider need not be the manufacturer of the Indelible Ink, but must have some experience in the overall supply of goods and related services ~ recommended minimum of 3 years — and specific experience in the supply of similar goods and services recommended minimum of 4 year. A written proposal, indicating the company profile as well as details of the applicable experience must be submitted with each bid submission. The following details of the manufacturer of the indelible finger marking ink pens must also be supplied with the bid submission: * Business name of manufacturer * Address of manufacturer + Related products available * Details of similar / related completed and current contracts (name elections for which indelible ink had been provided, if applicable). CONTENTS OF THIS PAGE NOTED: ‘impact Falurets comets iti hs a9 nana! ink wine your ent6 * Written confirmation from the manufacturer that the ink is non-hazardous and non-harmful for use on human skin must also be submitted with the tender submission. Page 29 of 37 It is essential that the service provider guarantees the specified service levels, as non-compliance will be penalised strict. 3.2 Scope The indelible finger marking ink pens will be required in sufficient quantities to cater for by- elections as well as for the upcoming National and Provincial Elections in 2019, The estimated monthly by-election requirement would amount to approximately 600 indelible ink over a 6 monthly period for use during by-elections. The frequency of supply will be determined by the shelf life of the product, Requirements for National and Provincial Elections in 2019 are estimated at approximately 165,000 pens for estimated delivery in January/February 2019. This is a total of 167,400 indelible finger marking ink pens over a two year period, 3.3. General extent of the service The service required includes the packaging and delivery of the product as follows: + Each pen must be securely packed in an individual small cardboard box or sealed in a plastic wrap. = The box or wrapping must carry a label (directly printed or adhesive) stating the contents, volume and date of manufacture. = All other packaging requirements will be as agreed on and specified in the Service Level ‘Agreement. + All stocks for by-elections will be delivered to the Electoral Commission at: Election House Riverside Office Park 14303 Heuwel Avenue Centurion 0157 + All stocks for NPE2019 will be delivered to the Electoral Commission Warehouse currently located at: 288 Kwanbi Crescent Icon Industrial Park Sunderland Ridge Centurion 3.4 Duration of the contract The duration of the service contract will be for a period of two (2) years from the conclusion of the necessary Service Level Agreement. ‘CONTENTS OF THIS PAGE NOTED: SERVICE PROVIDERS INITIALS / SIGYATURE l/s noel ran ink wl vaat your tender ale nil ay terns corns yan natalie tent67 ‘The contract may be extendable, subject to performance and at the discretion of the Electoral Commission, for a period not exceeding, twelve (12) months. Page 30 of 37 3.5 Time Frame It is estimated that new supplies of indelible ink will have to be provided on a six monthly basis (standard shetf life of indelible ink is normally 6 months) and delivery for NPE2019 to be completed by not later than 6 ~ 8 weeks before voting day. The Electoral Commission reserves the right to change these dates but undertakes to inform role players of revised dates as and when they become available. 3.6 Response Time | The desired response time from date of order to delivery is 6 ~ 8 weeks, depending on the size of the order. Please state your offer in Schedule B (7) of this tender document. 4 GENERAL CONDITIONS 4.1 Service Level Agreement The award of this tender will be subject to the successful conclusion of a service level agreement between the Electoral Commission and the recommended service provider. The SLA will inter alia formalise the following milestone dates: + Date for commencement of project. + Agreed quantities and product details (marker pens) for by-elections. + Completion date/s for delivery of by-election shipments. + Estimated dates and quantities of each product required for NPE2019. + Any other milestones required for effective management of the contract. Due to the national importance of the election programme and the strict deadlines proclaimed in the legislation concerning elections, the Electoral Commission requires guarantees for the services in this tender, which shall be recorded in the Service Level Agreement. Non-compliance on service levels will be penalised. Penalties may be applied for non-conformance to service requests in the following manner. In the event of the service provider failing to maintain continuity of service as requested, the Electoral Commission shall have the right to appoint an alternative Service provider to make good the shortfall in service. Any extra costs incurred by the Electoral Commission in obtaining such corrective services from another source will be for the account of the defaulting service provider. 4.2 Penalties Should any of the milestone dates defined under service levels not be met, a penalty of 1% per calendar day calculated on the total contract value may be applied by the Electoral Commission, to a maximum of 20% of the total contract value. Penalties may also be applied for specific criteria not being met in the detailed specifications. CONTENTS OF THIS PAGE NOTED: (DERS IN =e aly SERVICE | morant alee compat sgn/ ik i age inka your eet Fre sig iin wy aeration= 68 4,3. Pricing Service providers must submit pricing as required in Schedule A. The guidelines provided in Schedule C- Evaluation Criteria are intended to facilitate uniform responses to the tender and is recommended as the basis for pricing submissions. The cost structure may be linked to variables under direct Electoral Commission's control - for example the number of voting stations and resultant number of parcels and weight of material, Changes to these factors are not anticipated, but unavoidable circumstances may require such. The Electoral Commission will not consider claims related to variables that are not under the direct control of the Electoral Commission. The service provider must ensure that the pricing will cover the full extent of the contractual obligations as the Electoral Commission will not pay for additional time or costs. Other guidelines for pricing include the following + The price structure must be clearly defined and unambiguous. + The unit cost of all the available products that the tenderer wishes to present for consideration in the allocation of this tender. + The service provider must price the services to be in compliance with the requirements given in the detailed specifications of the services. ‘+ No claims for hidden costs will be accommodated. Failure to comply with these requirements shall invalidate the tender. 4.4 Ad Hoc Work / Special services The Electoral Commission requires the flexible option of ad-hoc additional orders to deal with unforeseen situations that may arise. Should any such orders be deemed necessary, prior written approval must be obtained from the Electoral Commission before any such orders may be processed. Cost estimates for ad hoc orders must be submitted in advance. Failure to comply with the above requirement may result in non-payment, 4.5 Procedure and documentation for Payment Invoice(s) for payment must be submitted to the Manager: Logistics at Election House, Centurion, for approval and payment. Payment will be made within 30 days of receipt of the valid original tax invoice and copies of signed delivery notes from the service provider, provided that the Electoral Commission is satisfied with the quality and standard of the service provider's performance. Fallure to submit the specified documentation may lead to non-payment. No payment will be made without an original invoice and copies of signed delivery notes. Only services authorised by the Electoral Commission will be paid. The Electoral Commission reserves the right to deduct penalties applicable to any service provided from any outstanding invoices. 4.6 Third Party / Manufacturers The specialised product called for in this tender may require bidders to engage manufacturers as a third party in the supply process. CONTENTS OF THIS PAGE NOTED: SERVICE IRE re ne NS ae Me47 48 49 5 Page 32 of 37 69 ‘Any such arrangement must be explained fully in the bid submission. It must however be noted that the service provider will be the only contact to the Electoral Commission. At no stage will the Electoral Commission personnel enter into discussions with regards to the contracted business, with any third party or manufacturer affiliated to the official Electoral Commission service provider(s) with whom the tender agreement has been signed Exclusivity of the Contract The service provider(s) will be considered as a “Preferred Supplier(s)" and will not have ‘exclusive rights to the procurement decisions made by the Electoral Commission. It remains the right of the Electoral Commission to choose or select alternative suppliers for procurement if and when the circumstances make it necessary. Lien The service provider will accept an agreement whereby it shall waiver any lien, hypothec or other right of retention or security that it may have over any materials or equipment to be transported or warehoused, The Electoral Commission is and therefore shall remain the owners of all goods warehoused and conveyed. As such, the Electoral Commission shall be entitled to enforce any rights that it may have in law, arising out of its ownership of the goods. Confidentiality and Security The contents of any contract(s) and/or service level agreement arising from this tender will be confidential and may not be disclosed by the service provider to any other parties without the prior written consent of the Electoral Commission. The Electoral Commission reserves the right to subject selected service provider to security clearance checks as part of the tender adjudication process. The Electoral Commission reserves the right to, prior to the award of any contract arising from this tender, require from the service provider a declaration of any political affiliation or any other information that may affect the impartial execution of any of the services specified in the tender. Firm/Non-Firm prices Where the tenderer chooses to include escalation and/or adjustment clauses — that is, non-firm prices as described in Section 9 of the Tender Rules — this must be clearly stated in the submission, Clear definition of the proposed formula, portion(s) subject to escalation, indexes to be used, official source of reference information, ef cetera, must be provided. Tenderers are therefore required to indicate the exact impact relevant factors such as the fuel price, inflation rate, exchange rate, etc. (as may be applicable) will have on the quoted price. The formula to be used to adjust the price/s must be provided. CONTENTS OF THIS PAGE NOTED:7o Neglect to state whether prices are firm or non-firm, or failure to appropriately define escalation and/or adjustment, or ambiguous submissions on the subject, may lead to the disqualification of the bid. Requests by the service provider for adjustment of rates after award of the tender will not be entertained, unless specified in the e-tender submission. Page 33 of 37 All prices provided in response to this bid must be valid for a minimum period of 180 days from closing date of this tender. 6 Summary of technical submission requirements To assist bidders in submitting complete tender submissions which conform to all requirements, the following checklist is provided. It remains, however, the sole and definite responsibilty of every bidder to thoroughly scrutinize the entire document and to ensure that all requirements in terms of the tender specifications are complied with. Failure to do so may lead to the tender submission being disqualified! TENDER REQUIREMENT “section _| CHECK Written proposal Section 3.1 {| Submission ofink samples (at least two) —i ay applicable ‘Sample individual small cardboard box or plastic. UW | weap (Packaging requirement Seen = Written confirmation thatthe ink is non-hazardous \V | and can be safely used on human skin Soe! v_ | Pricing schedule completed Schedule A vi | Manufacturer details provided Schedule 8 CONTENTS OF THIS PAGE NOTED: SERVICE ui sure tlg/inin any ahertion or cress rad aya vate yo tender Important Faurete compl signin hi pag ogni wiPage 34 of 37 SCHEDULE A: PRICING 7! + COMPLETION OF THIS PRICING SCHEDULE IN THE PRESCRIBED FORMAT IS COMPULSORY. FAILURE TO DO SO WILL INVALIDATE THE SUBMISSION. + THE INFORMATION PROVIDED shall BE USED IN THE EVALUATION OF ‘THE TENDER. + STATED PRICES MUST INCLUDE MANUFACTURE, PACKAGING AND DELIVERY OF THE GOODS TO THE ELECTORAL COMMISSION. + ALL STATED PRICES MUST INCLUDE VAT. Estimated Price per. | Price per unit | Price per unit | Price per unit | Price per unit number of unit Incl. VAT | Incl. VAT | incl. VAT | Incl. VAT | Incl. VAT SAMPLE | SAMPLE, | | votore (marked | (Quantity t=, | (Quanity 101 | (Guantty | (avantty | (vanty fingers) served | 100.units) | - 1000units) | 1001-10,000 | 10,001 - 100,000 and - # per unit units) 99,999 units) | above) | (einimum 1000) 1 | indelible finger marking pen ie . . “ N.B for the purpose of evaluation, the bid evaluation committee will work on the estimated quantity of 167,400 indelible finger marking ink pens Additional comments (escalation clauses, variation factors, etc.)*: Escalation clause for year two (2) expressed in terms of percentage of total of 167,400 indelible finger marking ink pens ("IF SPACE IS INSUFFICIENT, ATTACH A SEPARATE CLEARLY LABELLED SHEET) Do you agree to the requirements stated in item 4.4 - Ad Hoc work? YES] / NO SERVICE CONTENTS OF THIS PAGE NOTED: Important: Faure coast page nr! wiinvaeta your tena Free g/l any aon coretins ae maya vaseage 35 of 37 72 SCHEDULE B: MANUFACTURER DETAILS COMPLETION OF THIS SECTION IN THE PRESCRIBED FORMAT IS COMPULSORY 4. Name of Ink Manufacturer: 2. Address of Ink Manufacturer: 3. Details of Ink Manufacturer's experience in the provisioning of indelible ink: 4, Does the Indelible ink pen meet any internationally recognised standards for inks or stains (example: Bureau of Indian Standards IS 13209:1991)? YES] / (NO) It yes, state details: 5. Does the manufacturer guarantee that the indelible ink is not harmful to human health and skin when applied externally? YES] / NO) (lfyes, please attach written guarantee to this submission) 6. Whatis the guaranteed shelf life of the product/s? (Indicate period’) 7. What is the delivery time-frame of the product (from date of order to delivery in Tshwane, South Africa) CONTENTS OF THIS PAGE NOTED: Inport Fae to compton ts pge nora nk wnat yourSIAWSS ee vez ON aDva STHL 40 SIN3LNOD (ZIRE 2 ORBAS) PaNAAS dean onsed pateas/xog uBexoed fenpinpul wy) @z voqoes) zdeo mow srou 9 | 2 ft yee9} 8 Jo) Buyup ou24 “sseUhip aumeuidig . 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UIEIS OU S| Pyeiing bz woes) 2 ues -Juauewed, 219)siA @ eee] Yul ay) $20q, ‘ONILSSL TWOISAHd zz LE 0 Lg 98gsaroia BUSINESS INSIDER. TENOING BUSINESS BUSINESS INSIDER [TRENDING MONEY & MARKETS TECH The pens that marked voter thumbs cost millions - here's why their secret ink may have failed Philip cle Wet, Business inser SA May 08, 2019, 10:08 AM (Photo by Gallo Images/Letty Shivambu) ‘Some political parties say a failure of the “indelible” ink used to mark voters’ thumbs allowed double voting, and the IEC is, investi 9. The pens used cost R2.7 mi subsidiary of Bidvest, tender documents show. and were bought froma The formula of the ink used is a secret, but an expert says cutting corners when it comes to silver can be one reason indelible" ink turns out to be not so indelible. For more, go to Business Insider South Africa. ‘The Independent Electoral Commission (IEC) has said it will demand answers from its supplier about what could have gone wrong with the "indelible" ink pens used in Wednesday's election ~and which some parties say were not indelible at all. htfps:iNwiw.businessinsider.co.zaindelibte-nk-pons-fr-vatingsrombidvast-socr formula 2010-5 ‘The pens that marked voter thumbs cost millions - here's why thelr secret ink may have falled / IS Life your EXECUTIVE CAREER momentum — ~~ rear F ie ‘veinetsnona Steet s Infographic: The medium-term budget ina nutshell PARTNER CONTENT INDICATORS. = ZARIUSD 1482 © ZAR/IGBP 1917 *ZAREUR 1656 Goid/oz $1510.28 vallshare — seasike 0.41%wia2019 BUSINESS trenoinc BUSINESS MONEY & TECH INSIDER MARKETS ‘Terms Condtlons Privacy Policy Advertise with us Just what may have gone wrong with the ink is not yet clear - and the formula used is strictly secret by design - but both experts and tender documents suggest there are multiple ways indelible ink can fail, especially if you skimp on the silver. See also: Here's how house prices reacted to previous South African elections - and what you can expect this year ‘Tender documents show that the IEC awarded a tender worth R2.7 million for the supply of the pens in February 2018. The supply contract went to Lithotech Exports, a division of the JSE-listed Bidvest, which beat out six other security-product and printing companies. Neither Lithotech nor its parent company Bidvest could be reached by phone, email, or WhatsApp on Thursday morning At the time the IEC estimated it would need a total of 167400 indelible ink pens over the two-year period of the contract, of which a small number would be used during by-elections while the 2019 national and provincial election would require a stockpile of 165,000. ‘Those numbers suggest a pet-unit price of just over R16 per pen, a price that raised eyebrows among experts as low, perhaps implausibly so, According to tender documents the pens had to be capable of delivering a mark that remains "easily visible for a period of at least 7 days". “The indelible finger marking ink pens must be a unique ink with, an inherent ability to withstand removal by washing, rubbing, or other mechanical means, after application," the IEC told its bidders, Italso demanded secrecy. the formula of the ink must be kept secret, and must not be readily commercially available or reproducible,” the tender specifications document read.” Because of the specialised nature of the product its bidders may have to work with third parties, the IEC said, and any such arrangements — such as importing ink or completed pens ~ had to be declared in bid submissions, hitps:/iww.businessinsider.o.zalindolible-ink-pans-fr-vating-rom-bidvest-secre-ormula-2019-5 Lire your CAREER EXECUTIVE Contacts x UPDATE Get the best of our site delivered to your inbox every day. Follow us on Recommended You May Like How a R150 million gift toa South African model is helping fuel Lebanon... Nando’s says sorry for racist’ black people in a toaster How To Invest In Property Once Hollywood Legends, Now They're Working Regular Jobs Diegoswuaro19 ‘The pens that marked voter thumbs cost millns - here's why thelr secret ink may have failed 7 7 INSIDER MARKETS CAREER Terms Conditions Privacy Policy Adverusewithus Contact us x Howard of specialist voting-ink manufacturer AP Africa, which has previously supplied the IEC but was not involved in the current contract. Voting ink pens can fail because of mechanical problems with the pen itself, or because the ink is not properly applied, of even if voters’ fingers are oily enough, Howard said, If everything else is working properly, however, a low level of silver BUSINESS jrenoine BUSINESS MONEY & TECH LIFE YOUR EXECUTIVE nitrate is worth investigating, Like with baking, Howard said, good ingredients are key, and | silver nitrate is "the main active part" of the formula, with a recommended 13% minimum in any ink intended to be hard to. remove, Receive a single WhatsApp every morning with all | our latest news: click here, ‘Also from Business Insider South Africa: Scientists are trying to 'bribe' South African penguins with sexy decoys and enticing bird calls Restoring South Africa is going to be a hard task ~ ask anyone who's been to Home Affairs ‘Aman was bitten in the face by a snake, and the horrifying moment was captured on a doorbell cam Adidas has launched a collection of sneakers inspired by Marvel, superheroes From golden visas to airplane deals ~ what we've learned from Steinhoff’ ‘real’ results A woman was reportedly thrown off a flight in New Zealand after she ‘put her fingers in her ears’ and refused to watch air safety instructions Tagged In bidvest elections 2018 hitps:nwn-businessinsider.cezafindelble-ink-pens-for-veing-rom-bidvest-secret-ormule-2018-5 5swaszote ‘he pone ta marked oar ube ot millon her's why taser inky hav aed 72 | BUSINESS rrenoINc BUSINESS MONEY& TECH «LIFE YOUR EXECUTIVE INSIDER MARKETS CAREER ‘ems Conditions Privacy Polley Advertsewith us Comactus x | How te wordrespondodte South Hore'show house plesrescteato Tis the acon outcome that bisexs 2019 actions pevaus South Attean lecions~ may wgger ara nthe rand a U.S. Government Announces Opening of the Registration for the Green Card Lottery! Check your eligibility! Is This the Solution To South Africa’s Mosquitos We've All Been Looking For? oounator| Sees Not Everyone Will Dare To Wear Such Mini Skirts Coleimeed Siu Sponsors No One Expected Fitness Star Denise Austin To Turn Out Like This Leoni Spnsras ‘Take a look: Durban's new R380 million beachfront promenade upgrade is nearly done Bruce Whitfield: Things are so bad in South Aftica people aren't even drinking anymore It's time to augment your marketing reality BUSINESS INSIDER SOUTH AFRICA tps ww-businessinsidr co za/indalible-nk-pans-for-voting-rom-bidvest-secreormula-2019-5 aistta2019 ‘The pons that marked voter thumbs cost millions - here's why ther secret nk may have falod 7 i BUSINESS jrenoinc BUSINESS MONEY.& = TECH LIFE YOUR EXECUTIVE INSIDER MARKETS CAREER ‘Terms Conclitions Privacy Polley Advertise with ws Contact us “Copyright © 2019 Business Insider Inc Alrghts reserved Registration on or use of thie ste constitutes acceptance of our terms & conditions, | Privacy Policy | Advertise wih us| Contact us| International ltions: US| UK| DE| ER| IN| {C| JB| MY| ML| SE| P| SG) AUS| ES hitps:ww.businessinside.co zasindliblesink-pens-for-votingrom-bidvest-secrt-ormula-2019-5, 55pos 2% PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Phillip De Wet Thu 2019/05/09 18:56 To: webmaster@elections.org.za Cc: Spokesperson ce James De Villers Bt attachments (258 KB) 43750_pala-PDW-IEC.pdt; Attention: the information officer Re: PAIA request PDW-IEC, for the winning bid submission for tender IEC / LG-03 / 2017 Attached please find an application in terms of the Promotion of Access to Information Act for the following record: the winning tender submission by "Lithotech Exports — A division of Bidvest Paperplus (Pty) Ltd” in the tender identified as IEC / LG-03 /2017, relating to the provision of indelible ink pens. In evaluating this request, | urge you to consider the following: + The exact provenanoe of the indelible ink pens used in the election of 8 May is of overriding and urgent public interest. + No confidentiality applies to the winning tender submission: the tender has run its course, + No confidentiality applies to the details of the tender: the winning bidder and price were published in Government Tender Bulletin No 3000 of 16 February 2018. + Should you believe you have a duty to protect the confidentiality of a third party, such harm must be probable, not merely possible, (See Transnet Ltd and Another v SA Metal & Machinery Co(PTY)Ltd 2006 (6) SA285 CSCA) + Any harm you believe may flow from the disclosure of the requested document should be balanced against the Commission's duty to transparency in order to enhance voter trust. | am ready and eager to help in any way that | can with the urgent processing of this application, and can be reached night or day on the phone number 083 414 2983. Phillip de Wet Phillip de Wet Associate editor Business Insider South Africa +27 83 414 2983, @philipdewetpoy 1780 ww REPUBLIC OF SOUTH AFRICA FORMA REQUEST FOR ACCESS TO RECORD OF PUBLIC BODY (Section 18(1) of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) [Regulation 6] FOR DEPARTMENTAL USE Reference number: Request received by {state rank, ‘name and sumame of information officer/deputy information officer) on (date) at (place) Request fee (f any): R Deposit ifany):) Access fee: Row SIGNATURE OF INFORMATION OFFICERIDEPUTY INFORMATION OFFICER A Particulars of public body The Information Officer/Deputy Information Officer The Electoral Commission of South Aftica (IEC)82 FORM A: REQUEST FOR ACCESS TO RECORD OF PUBLIC BODY | | | B, Particulars of person requesting access to the record {@) The pariculars ofthe parson who requests access tothe record must be gven below | (0) The address andlor fax number in the Republic to which the information isto be sent, must be given. | (© Proof ofthe capacity in which the request is made, i applicable, must be attached Full names and sumame; — Pilippus Rudolph de Wet ently number Ce —_ Pose eae 69 Kingsway Ave, Auckland Park, Johannesburg, 2002 (083, 414 2983, Telephone number. Fax number: (2...) E-mail address: Phillip@businessinsider.co.za Capacity in which request is made, when made on behalf of another person: ©. Par tulars of person on whose behalf request is made ‘This section must be completed ONLY if a request for information is made on behalf of another person. Full names and sumame: entity umber I D, Particulars of record (@) Provide full particulars of the record to which access is requested, including the reference number if that is known to you, to enable the record to be located. (b) If the provided space is inadequate, please continue on a separate folio and attach it to this form. The requester it sign all the addtional folios. 1, Description of record or relevant part of the record: Bid submission by winning bidder "Lithotech Exports - A division of Bidvest Paperplus (Pty) Ltd in tere IEC /1.G-03 / 201783 FORM A: REQUEST FOR ACCESS TO RECORD OF PUBLIC BODY 2, Reference number, if available: Tender no IEC /LG-03 / 2017, awarded as per Tender Bulletin No 3000 of 16 February 2018 3. Any further particulars of record: E. Fees (@) A request for access to a record, other than a record containing personal Information about yourself, will be processed only after a request fee has been paid. (0) You will be noffied of the amount required to be paid as the request fee. (c) The fee payable for access to a record depends on the form in which access is required and the reasonable time required to search for and prepare a record (@) If you qualify for exemption of the payment of any fee, please state the reason for exemption, Reason for exemption from payment of fees: va F. Form of access to record If you are prevented by a disability to read, view or listen to the record in the form of access provided for in 1 to 4 below, state your disability and indicate in which form the record is required, Disability Form in which record is required! Mark the appropriate box with an X NoTES: (2) Compliance with your request for access in the specified form may depend on the form in which the record is available (©) Access in the form requested may be refused in certain circumstances. In such a case you will be informed if ‘access will be granted in another form. (c) The fee payable for access to the record, if any, wil be determined party by the form in which access is requested, “lf the recordin writen or printed form copy of record” inspection of recor [ 2. If record consists of visual images = (this includes photographs, slides, video recordings, computer-generated images, sketches, etc.) ] view the images ‘copy of the images” X_ | transcription of the images*s+ FORM A: REQUEST FOR ACCESS TO RECORD OF PUBLIC BODY [ 5. if record consists of recorded words or information which can be reproduced in sound: Tsien othe sounctrack ‘ransrinton of soundtrack” | (auclo cassote) (ariten or printed documen’ | 4. record is held on computer or in an electronic or machine-readable form: ae | printed copy of recor | printed copy of information copy in computer derived from the record* readable form* re l (stitfy or compact disc) J “if you requested a copy or transcription of a record (above), do you wish the copy or | YES NOX transcription to be posted to you? Postage is payable 7 Note that if the record is not available in the language you prefer, access may be granted in the language In which the record is available. In which language would you prefer the record? G. Notice of decision regarding request for access You will be notified in writing whether your request has been approved / denied. If you wish to be informed in another | manner, please specify the manner and provide the necessary particulars to enable compliance with your request. How would you prefer to be informed of the decision regarding your request for access to the record? Via email to: phillip@businessinsier.co.2a Johannesburg Oth oy. May 2019 year << Za SIGNATURE OF REQUESTER / PERSON ON WHOSE BEHALF REQUEST IS MADE Signed at this dayPDIO RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Rampershad, Nilan Fri zorgj0s/io 09:48 To: Philip De Wet Dear Mr De Wet, | hereby acknowledge receipt of your PAIA request. Many thanks. Kind Regards Nilan Ramporshad Legal Services Electoral Commission Tel: #27 12.622 5959 Fax: +27 12 622 5855 Fax to Email +27 12 622 5375 rampershadn@elections.or9,za wwwelections.org.2a CLICK, CHECK, CONFIRM Neva Aon gemel=ir es) Re ee Goausonoe keane) [eerie ty |r From: Philip De Wet [mailto:Philip.0eWet@businessinsider.co.za) Sent: 09 May 2019 03:56 PM To: Webmaster pokesperson Subject: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Attention: the information officer Re: PAIA request PDW-IEC, for the winning bid submission for tender IEC / LG-03 / 2017 Attached please find an application in terms of the Promotion of Access to Information Act for the following record: the winning tender submission by "Lithotech Exports ~ A division of Bidvest Paperplus (Pty) Ltd" in the tender identified as IEC / LG-03 /2017, relating to the provision of indelible ink pens. In evaluating this request, I urge you to consider the following: + The exact provenance of the indelible ink pens used in the election of § May is of overriding and urgent public interest + No confidentiality applies to the winning tender submission: the tender has run its course. + No confidentiality applies to the details of the tender: the winning bidder and price were published in Government Tender Bulletin No 3000 of 16 February 2018.86 + Should you believe you have a duty to protect the confidentiality of a third party, such harm, must be probable, not merely possible. (See Transnet Ltd and Another v SA Metal & Machinery Co(PTY)Ltd 2006 (6) SA28S CSCA) * Any harm you believe may flow from the disclosure of the requested document should be balanced against the Commission's duty to transparency in order to enhance voter trust. Tam ready and eager to help in any way that I can with the urgent processing of this application, and can be reached night or day on the phone number 083 414 2983. Phillip de Wet Phillip de Wet Associate editor Business Insider South Africa +27 83 414 2983 @phillipdewet This email and its contents are subject to an emul legal notice that can be viewed at hujpdiwwnw.naspers com/disclaimes ‘Should you be unable to access te link provided, please email us for a copy at exe@optinetnet ierdie e-pos en sy inhoud is onderhewig aan 'nresskennisgewing oor elektronise pos wat gelees kan word by ‘itpsusw.naspers comidis 'n AfSkri kan aangevra word by cse@optineL netPon 87 SOUTH AFRICA Attention: Mr. Philippus Rudolph de Wet Per email: philip@businessinsider.co.za 68 Kingsway Ave, ‘Auckland Park, Johannesburg, 2092 Dear Mr. de Wel, RE: PAIA REQUEST FOR TENDER IEC /LG.03 / 2017 The Electoral Commission of South Attica (the Commission’) hereby acknowledges receipt of your request as per Section 18(1) of the Promotion of Access to Information Act, No. 2 of 2000, dated 9 May 2019. The Commission will consider your request and will revert to you in due course, | rust you find the above in order. ‘Yours faithfully, (atiy IMs. M. Chamberlain Legal Services Date: 10/05/2019 Electoral Commission Ensuring Few and Fa Etecons 1) | Me. Love e-Chaperean | OFM eth Me Mogpe | Jsge 0. lay ove frau 903 mune Acre, Canute, 6 | bap Ka, enon, 088 ‘Mogstanargns |naensions ras Scan testers | an oanpae sve:poi2 & Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Phillip De Wet Wed 2019/06/05 08:37 ‘To: Rampershad, Nilan Hello Mr Rampershad This is a courtesy reminder that this Paia request (Bid submission by winning bidder "Lithotech Exports - A division of Bidvest Paperplus (Pty) Ltd in tender IEC / LG-03 / 2017 via Paia request form J750_paia-PDW-IEC) was lodged on 10 May 2019, The 30-day period stipulated in the Act will expire on Sunday, 9 June. | accordingly look forward to a decision on my request by no later than close of business on Monday, 10 June. Thanks Phillip Phillip de Wet Associate editor Business Insider South Africa +27 83 414 2983 @phillipdewet From: Rampershad, Nilan Sent: Friday, 10 May 2019 09:46 To: Philip De Wet Subject: RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) | Dear Mr De Wet, | hereby acknowledge receipt of your PAIA request Many thanks Kind Regards Nilan Rampershad Legal Services Electoral Commission Tel: +27 12 622 5959 Fox: +27 12622 5865 Fax to Email +27 12 622 6375 rampershadn@elections.org.za wwwwelections.ora.zaPos & RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Rampershad, Nilan Thu 2019/06/06 11:48 To: Philip De Wot Ce: Chamberlain, Marianne Dear Mr. De Wet, Your email dated the 05 June 2018 refers. Kindly note that that Section 47 of PAIA also provides that when a request for access to records is considered, all reasonable steps must be taken to inform all third parties to whom or to which the record relates, of the request, when considering a request for access to a record which might fall within the ambit ofthe provisions of Sections 34(1), 35(1), 36(1), 37(1) or 43(1) of PAIA. Further, Section 47 of PAIA further provides that when informing a third party that a request has been received, ‘within 21 days after receipt thereof, that any third party must be informed that they are entilled to: ~ 1. make written or oral representations why the request for access should be refused; or 2, glve their writen consent forthe disclosure ofthe record to the requester. We currently await the response from Lithotech inthis respect | rust that you find the above in order. Kind Regards Nilan Rampershad Legal Services Electoral Commission Tol: +27 12622 5959 Fax: +27 12622 5855 Fax to Emall +27 12 622 5375 rampershadn@elections.org.za wunwelections.org.za CLICK, CHECK, CONFIRM ‘YOUR ADDRESS DETAILS: CRO eas Geet) [flere ly oct From: Phillip De Wet [maito:Philip.DeWet@businessinsider.co.za) ‘Sent: 05 June 2019 08:37 AM To: Rampershad, Nilan ‘Subject: Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Hello Mr Rampershad This is a courtesy reminder that this Paia request } plyPOR 490 Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Phillip De Wet Thu 2019/06/06 13:24 To: Rampershad, Nilan Ce: Chamberlain, Marianne Hello Mr Rampershad Can you tell me on what date you notified Lithotech of this request in terms of Section 47, please? Thanks Philip Phillip de Wet Associate editor Business Insider South Africa 427 83 414 2983, @phillipdewet From: Rampershad, Nilan Sent: Thursday, 06 June 2019 11:47 To: Phillip De Wet Ce: Chamberlain, Marianne Subject: RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Dear Mr. De Wet, Your email dated the 05 June 2019 refers. Kindly note that that Section 47 of PAIA also provides that when a request for access to records is considered, all reasonable steps must be taken to inform all third parties to whom or to which the record relates, of the request, when considering a request for access to a record which might fall within the ambit ofthe provisions of Sections 34(1), 35(1), 36(1), 37(1) oF 43(1) of PAIA. Further, Section 47 of PAIA further provides that when informing a third party that a request has been received, within 21 days after receipt thereof, that any third party must be informed that they are entitled to: - 1, make written or oral representations why the request for access should be refused; or 2. give their written consent for the disclosure of the record to the requester. ‘We currently await the response from Lithotech in this respect. | trust that you find the above in order. Kind Regards Nilan Rampershad Legal Services Electoral Commission Tel: +27 12 622 5959 Fax: #27 12 622 5885 Fax to Email #27 12 622 6375PDIS 4 RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Rampershad, Nilan Thu 2019/06/08 14:12 To: Philip De Wet Co: Chamberlain, Marianne Dear Mr. De Wet, | can confirm that the 3" party notice was dispatched this morning | trust that you find the above in order, Kind Regards Nilan Rampershad Legal Services Electoral Commission Tol: +27 12.622 5959 Fax: +27 12622 5885 Fax to Email #27 12 622 5375 tampershadn@elections.org.za www elections.org.za CLICK, CHECK, CONFIRM ToS a Nolelatctolel ay Nes} RRA eT (paenOe eset [eee ty eos From: Philip De Wet [mailto:Philip. eWet@businessinsider.co.za] Sent: 06 June 2019 01:24 PM To: Rampershad, Nilan Ce: Chamberlain, Marianne Subject: Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Hello Mr Rampershad Can you tell me on what date you notified Lithotech of this request in terms of Section 47, please? ‘Thanks Phillip Phillip de Wet Associate editor Business Insider South Attica +27 83.414 2983 @phillipdewetPDI 92 Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Phillip De Wet Thu 2019/06/06 20:21 To: Rampershed, Nilan Ce: Chamberlain, Marianne Hello Mr Rampershad | do not at all find that in order, no. The law is clear here: notification of third parties must be done as soon as reasonably possible, but in any event within 21 days. There being no reason you could not reach a (major listed company) supplier to the IEC, it was reasonably possible to effect notification within days of my request. Instead you not only missed the statutory, absolute-latest deadline of Friday, 31 May 2019 for such notification by nearly a week — but you only sent notification one day after | reminded you of your upcoming obligation to furnish me with a decision. It is disappointing that you have acted neither in the spirit nor within the letter of the law. Phillip Phillip de Wet Associate editor Business Insider South Africa +2783 414 2983, @phillipdewet From: Rampershad, Nilan Sent: Thursday, 06 June 2019 14:11 To: Philip De Wet Ce: Chamberlain, Marianne Subject: RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Dear Mr. De Wel, | can confirm that the 3" party notice was dispatched this morning, | trust that you find the above in order. Kind Regards Nilan Rampershad Legal Services Electoral Commission Tel: +27 12.622 5959 Fax :427 12 622 5855 Fax to Email +27 12 622 5375 rampershedn@elections oro.za wuzeleations.or9.2aPBI7 93 RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 {indelible pens) Rampershad, Nilan Wed 2019/0626 12:58 To: Phillip Oe Wet Ce: Chamberlain, Marianne Bt attachments (68 KB) Response from Lithotech 24062019.pdt; Dear Mr De Wet, My email dated the 06 June 2019 refers. Section 47 of PAIA also provides that when a request for access to records is considered, all reasonable steps ‘must be taken to inform all third parties to whom or to which the record relates, of the request, when Considering a request for access fo a record which might fall within the ambit of the provisions of Sections. 34(1), 35(1), 36(1), 37(1) oF 43(1) of PAIA, As such the Electoral Commission was obligated to inform Lithotech Exports, a division of Bidvest Paper Plus (Pty) Ltd (Lithotech) of your PAIA application. ‘The Electoral Commission has now received the attached response from the attorneys representing Lithotech Exports in respect of your PAIA application. In light of the response from Lithotech, the Electoral Commission unfortunately cannot accede to your PAIA request Kind Regards Nilan Rampershad Legal Services Electoral Commission Tol: +27 12 622 5959 Fax: +27 12 622 5855 Fax to Email +27 12 622 5375 rampershadn@-lections.or.za wwwielections.ore.za CLICK, CHECK, CONFIRM YOUR ADDRESS DETAILS CroRe eeu Gannon) From: Phillip De Wet [railto:Philip. eWet@businessinsider.co.za] Sent: 06 June 2019 01:24 PM To: Rampershad, Nilan Ce: Chamberlain, Marianne Subject: Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Hello Mr Rampershad | AlPog |, I ATTORNEYS DELIVERED BY EMAIL Johannesburg Office The Independent Electoral Commission Be Ronis Road Per Email: rampershadn@elections.org.za ciesencioe Sect i Private Bag 10015 Sandton 2146 Docex 111 Sandton Tel 427 11535 8000 Fax 427 11 535 8600 wuw.werksmans.com YOUR REFERENCE: OUR REFERENCE: Mr N Kirby/nk/MINOS858.45/#6252234v1. DIRECT PHONE: +27 11 535 8198 DIRECT FAX: +427 11 535 8698 EMAIL ADDRESS: _nkirby@werksmans.com 24 June 2019 Dear Sirs TENDER IEC/LG - 03/2017: PROVISION OF INDELIBLE INK PENS TO THE INDEPENDENT ELECTORAL COMMISSION We refer to the above matter, 2 We act for Lithotech Exports, a division of Bidvest Paper Plus (Proprietary) Limited (“our client") 3 We have been instructed to respond to the contents of your letter dated 6 June 2019 in respect of a request for information by a Mr De Wet. We set out below our cllent’s response to the contents of your letter in our client's capacity as a third party in terms of the provisions of the Promotion of Access to Information Act No. 2 of 2000 ("the Act"). 4 We confirm that we have not, had sight of the request made by Mr De Wet and our client is unaware of the reason/s for the information requested, In this regard, our client's rights remain reserved. 5 We note the provisions of clause 35 of the bid furnished by our client, dated 18 June 2037, in respect of the Information provided In the tender process, read together with clause 4.9 of the bid specifications in respect of the confidentiality of the Information supplied by our client In its bid, 6 With reference to sections 36 and 37 of the Act, our client — 61 objects to making available the documents requested by Mr De Wet and Identified in your letter under reply; and unas: oh o782 ear a na ton nn saa ns nmr cere eps te a ee eat nen BP ae zone Meir (ales her tienes ne paras enter Pouce aur Us Gasca te {ire Wala Hauonde Je Meir hachol Sm Noerara C Morir Ra Masse x8 NetStnate NPA Hots NOS Nemsna fer cas We Geese SSSI CER ener ene SE came airs ual ameatety, face ice at ‘Bins lrigeon DW van da Berg Ak van der Merge HA von Where avon Mekart fa vn'Tonder JP von WYK A Veale aN wae GC Walser Gasser scapes mame ea an ia Ss MNOseSE.secasaz3av4 Ww 6.2 claims confidential ~ in its entirety « Information as ex; lity in respect of information containe felates to our cl bressly contempl ; 7 In light of what is set out ! information on the requested, sd in the bid and which information sea rede Secrets, financial, commercial ong technical ‘sted in sections 36(1) and 37(1) of the act it above, Wwe awalt your decision basis that our clk In respect of the request for lent Is not prepared to make available the information 8 Our client's faiture to. address any cerecuar statement contained in your letter under reply } should not be taken as our client's the peance of such a statement and our clients rights to address any such statement, should the neca arise, at any time in the future, remain reserves 9 Our client's rights remain generally reserved, Yours faithfuily Werksmans Ine.POIT «6% Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelitle pens) De Wet Wed 2019/06/26 18:51 To: Rampershad, Nilan Ce: Chamberlain, Marianne Thank you Mr Rampershad, received. ‘Two other questions to help me inform a decision on an internal appeal, please: «+ Is the response from Lithotech the entirety of the reason for your decision? + The letter from Lithotech is dated 24 June. Can you confirm that it took approximately one (1) day for the Electoral Commission to apply its mind to this matter? Thanks Phillip Phillip de Wet Associate editor Business Insider South Africa +27 83 414 2983 @phillipdewet From: Rampershad, Nilan Sent: Wednesday, 26 June 2019 12:57 To: Philip De Wet Co: Chamberlain, Marianne Subject: RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Dear Mr De Wet, My email dated the 08 June 2019 refers Section 47 of PAIA also provides that when a request for access to records is considered, all reasonable steps must be taken to inform all third parties to whom or to which the record relates, of the request, when ‘considering a request for access to a record which might fall within the ambit of the provisions of Sections 34(1), 35(1), 36(4), 37(1) oF 43(1) of PAIA. As such the Electoral Commission was obligated to inform Lithotech Exports, a division of Bidvest Paper Plus (Ply) Ltd (Lithotech) of your PAIA application ‘The Electoral Commission has now received the attached response from the attorneys representing Lithotech Exports in respect of your PAIA application. In light of the response from Lithotech, the Electoral Commission unfortunately cannot accede to your PAIA request. Kind Regards Nilan Rampershad Legal Services| Electoral Commission Tel: +27 12622 5959 Fax: 427 12 622 5856 Fax to Email +27 12 622 6375 rempershain@elections.ora.z0 vovm.clections.ora.zaPD20 97 RE: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) Rampershad, Nilan Wed 2019/06/26 16:52 ‘To: Phillip De Wet Ce: Chamberlain, Marianne Dear Mr De Wet, ‘As is apparent from our previous communications, the request has been under consideration by the Commission since 5 June 2019. However as you are also aware, the Commission was also obliged to comply with the provisions of Section 47 of PAIA and further to act in accordance therewith. As the information| requested belongs to a third party, the granting of access thereto is subject to the consent of such third party. In the circumstances the representations made by, and for and on behalf of the third party in response to the Section 47 notice could not and cannot be ignored, Kind Regards Nilan Rampershad Legal Services Electoral Commission Tel: +27 12 622 5959, Fax: #27 12622 5855 Fax to Email +27 12 622 $375 rampershadn@-slections.org.za wwwelections.org.za CLICK, CHECK, CONFIRM 'YOUR/ADDRESS' DETAILS. www.elections.org.za/MylEC Tete teen) [fete (ype From: Philip De Wet [mailto:Philip. beWet@businessinsider.co.za] Sent: 26 June 2019 01:51 PM To: Rampershad, Nilan Ce: Chamberlain, Marianne Subject: Re: PAIA request: winning tender submission for tender IEC / LG-03 / 2017 (indelible pens) ‘Thank you Mr Rampershad, received ‘Two other questions to help me inform a decision on an internal appeal, please: + Is the response from Lithotech the entirety of the reason for your decision? + The letter from Lithotech is dated 24 June. Can you confirm that it took approximately one (1) day for the Electoral Commission to apply its mind to this matter? Thanks PhillipWiLLEM dc KLERK Pb2I ATTORNEYS / PROKLURELRS TWerhe 018 8on09 Less o8 Ft Nori fmt eGo ert pomee 2) tana | Wega Dean OUR REF: BI//0169 | WERKSMANS REF: Mr N Kirby/ld/ MINOS858.44/#6407272V1 25 September 2019 TO: Mr Nilan Rampershad Legal Services: Independent Electoral Commission Election House Riverside Office Park 1303 Heuwel Avenue Centurion PER EMAIL: rampershadn@elections.org.za AND TO: — MrNeil Kirby Attorneys for Lithotech Exports: A Division of Bidvest Papers Plus (Pty) Ltd Werksmans Attorneys 96 Rivonia Road Sandton PER EMAIL: nkirby@werksmans.com Dear Sirs RE: — PAIA REQUEST TO IEC DATED 8 MAY 2019 IN RESPECT OF TENDER IECILG ~ 03/2017: PROVISION OF INDELIBLE INK PENS TO THE IEC 1 We refer to our letter dated 5 September, as welll as the responses thereto by the IEC, and Mr Kirby on behalf of Lithotech Exports. 2 We note that Mr Kirby's response of 6 September indicated that he would take further instructions from his clients regarding the proposal in our letter under reply. fn ossciton with Rosin Wright Rosengarten Auomeys99 Page |2 3. Despite our request for a response by 18 September 2019, we place on record that we have, to date, received no further correspondence from either the IEC or Mr Kirby regarding this matter. 4. We wish to inform you that our instructions are to initiate court proceedings should we not receive a favourable response to our letter by Friday, 27 September 2019. Yours sincerely ae WILLEM DE KLERK ATTORNEYS Per: Charl du PlessisPO22 100 Charl Du Plessi From: Rampershad, Nilan Sent: Wednesday, 25 September 2019 11:53, To: Charl Du Plessis Ce: Chamberlain, Marianne Subject: PAIA REQUEST TO IEC DATED 9 MAY 2019: TENDER IEC/LG - 03/2017: PROVISION OF INDELIBLE INK PENS (IWOV-Litigation.F1D489772] Attachments: 201909181419.pdF Importance: High Dear Mr, Du Plessis, Find attached herewith the response from Mr. Kirby as promised, Kind Regards Nilan Rampershad Legal Services| Electoral Commission Tel: +27 12622 5959 Fax: +27 12622 5855, Fax to Email +27 12 622 5375 rampershadn@elections.org.2a wow elections org.za From: Lauren Duxbury [mailto:Iduxbury@werksmans.com] On Behalf Of Neil Kirby Sent: 18 September 2019 02:22 PM To: Rampershad, Nilan Subject: PAIA REQUEST TO IEC DATED 9 MAY 2019: TENDER IEC/LG - 03/2017: PROVISION OF INDELIBLE INK PENS [IWOV-Litigation.FID489772] PRECISION IN PRACTICE. Dear Sirs ai 1lo] Please see attached. Neil Kirby Director T: 427 11 535 8198 | F: +27 11 535 8698 | nkirby@werksmans.com Werksmans Attomeys ‘The Central, 96 Rivonia Road, Sandton, Johannesburg, 2196 Private Bag 10015, Sandton, 2146, South Africa T: +27 11 535 8000 | F: +27 11 535 8600 | www.werksmans.com Please note that our banking details have not and will not change, should you have any doubt please confirm the details directly with your contact at Werksmans, {important knformation: Disclaimer Werksimans the. ('erksmans"}, its aflistes and thelr respective directors, employees and consultants shall have na lablity to you (Genetner in contract, delist or otherwise) arising from or in connection wit this email or its attachments {if any}, save to the specificaly pravided in any agreement conchided between Werksmans and you, This email and ies attachments {i Werksmans email disclaimer and the terms of any agreement hat may have heen concluded bstween Werksman clsciaimer is available on our wabsite at Disclaimer of an request fom our Marketing Department an +27 11 535 infogaer list of Werksmans Director