Voter thumbs marked with indelible ink.
(Photo by Jemal Countess/Getty Images)
  • Business Insider South Africa has filed a high court application to demand that the IEC hand over bid documents around those infamous “indelible” ink pens from the last election. 
  • We’ve been asking nicely for the last six months but the IEC won’t say – because the Bidvest subsidiary responsible for procuring the pens objects.
  • Without the information we’re asking for, there is no way to tell if SA runs the risk of more indelible ink pens failing in future elections.

Business Insider South Africa has filed an application with the high court in which we ask that the Electoral Commission of South Africa (the IEC) be forced to give us bid documents that will show where exactly the supposedly “indelible” ink pens used in the last election came from.

And, after initially trying to save the IEC some money and ourselves some time, we may end up arguing that the body should be subjected to a punitive costs order for flouting the Promotion of Access to Information Act (Paia).

The marks left by special pens used in the 8 May 2019 national and provincial election were supposed to be impossible to remove, at least for a day or so, as one of the security measures used to keep the vote honest. But some voters said they could easily rub or wash their thumbs clean, and a couple even said they managed to vote more than once.

Political parties were outraged, and the IEC promised to investigate.

See also: The pens that marked voter thumbs cost millions - here's why their secret ink may have failed

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. The ink used to mark the left thumb of every voter is supposed to remain visible for at least seven days.

Six months later we have heard nothing further from the IEC – and not for lack of asking on our part.

What we do know we have figured out for ourselves. 

From public documents we can tell that the IEC paid R2.7 million for 167,400 indelible ink pens, nearly all of of which were due to be used during the national and provincial elections.

That works out to around R16 per pen – and we know that experts in the field think that is pretty cheap, maybe even implausibly cheap.

We know that contract was awarded to Lithotech Exports, a subsidiary of JSE-listed conglomerate Bidvest, which won it ahead of six other companies.

We also know that the IEC made provision for its supplier to import ink, or completed pens, when it put out the tender for the indelible ink pens.

All of that we learnt, and published, within a day after the election – and there we have been stuck ever since.

Lithotech would not answer our questions, but as best we can tell it did not make the indelible ink itself, nor was it made by another local company. It’s possible that Lithotech imported either the ink used or the assembled pens. 

Who, exactly, made those pens is hugely important. Unless the law change – and that is unlikely – such indelible ink pens will be in use in future elections. If they fail again, trust in the voting system that underpins our democracy will be eroded. And that could very easily happen if a different South African company imports pens from the exact same manufacturer next time around, without the public being any the wiser. 

Our working hypothesis is that Lithotech found itself a very cheap supplier, one that saved money by cutting corners. If that original manufacturer stays in business, and stays cheap by being less than precise, it could again end up supplying pens for future South African elections. But it could be a different local company that resells those pens to the IEC, and only the name of that local company will be known to South Africans, as the only one automatically published.

IEC PAIA court papers

As we say in our founding papers now before the court, disclosing the identity of a tender winner but not its sub-contractors can allow tender beneficiaries to hide from public scrutiny. That makes a mockery of the constitutional requirement for public procurement to be transparent.

Not that we’re arguing subcontractors for all winning government tender bids should always be listed, though that would be nice. 

Our legal argument is very simple and direct: the IEC had a clear duty to give us the document that would show the identity of the actual manufacturer of the indelible ink, months ago.

On the day after the election, 9 May, we filed a request under Paia with the IEC for the bid document Bidvest had submitted. 

We were optimistic that the request would be honoured quickly. This was, after all, a matter of burning public interest, and the contract had long been fulfilled, and it is not as if there were complex trade secrets involved in a simple import deal to begin with.

At first the IEC responded quickly and professionally to the request. Then, as best we can tell, it did nothing.

Paia has very clear procedures and deadlines. The IEC had 30 days to respond to our request, or up to 21 days to let any involved third parties – such as Lithotech – know that we were asking for information that could affect them. Those 21 days is a maximum, though; the law requires such notifications to be done as soon as possible.

Yet only when we reminded the IEC that its 30-day deadline was fast approaching up did it jump into action and send Lithotech a notification that we were asking for the bid document, missing both the firm deadline and failing the spirit of the law.

Things didn’t get any better from there. Lithotech objected to the IEC giving us the bid document – on grounds we still don’t think are adequately explained or have merit – and the IEC seemingly accepted that objection (without giving it much or any thought, we believe), and denied our request.

At that point, out of options, we brought in our lawyers. They had one more idea: refining our Paia request to a sharp point. Instead of spending a year or more in court, and costing the IEC money, we could simply ask for one section of the bid document, our lawyers said, a one-page schedule that is supposed to contain the name and a bare handful of details about the original ink manufacturer.

Our lawyers submitted that refined request. This too was denied, with the IEC again apparently adopting Lithotech’s position as its own.

With no other options left, we now turn to the courts.

In our papers we argue that the IEC should have given us the full bid document. If that was not possible, say on the grounds of confidentiality, it should have redacted sensitive information and given us what it could.

Providing no information about the original manufacturer was never a legal option, we believe, even ignoring the moral and ethical imperative the IEC had to make public that information. 

Even were our politics not rife with suspicion, South Africans have an absolute right to know every tiny detail of the voting process, all the more so when it comes to anti-fraud measures. It is not up to the IEC – and certainly not up to suppliers of the IEC – to decide that commercial considerations override that right.

We are confident the courts will agree.

Read or download our founding papers here: