Kusile corruption case in limbo
● The fate of one of South Africa’s biggest state capture cases rests in the hands of an Mpumalanga magistrate who will decide if the fraud, corruption and money-laundering charges in the R2.2bn Kusile case involving former Eskom boss Matshela Koko should proceed or not.
At stake is the reputation of the National Prosecuting Authority, which has listed the Kusile corruption case as one of its nine “seminal” state capture cases.
Koko and seven co-accused were arrested in October last year. The Middelburg specialised commercial crimes court indicated in May that if the state could not confirm it had completed its investigations, section 342A of the Criminal Procedure Act would be considered.
This section says a court before which criminal proceedings are pending shall investigate any delay that appears to be unreasonable and could cause substantial prejudice to any of those involved in the case.
When the state failed to confirm it was ready to proceed by early September and requested another postponement, the accused asked for an unreasonable delay investigation.
The investigating officer told magistrate Stanley Jacobs this week that consultations had been completed relating to three affidavits from witnesses in the US, while two others were almost complete.
The investigating officer who cannot be named for security reasons indicated the affidavits contained evidence that supported some of the charges.
Jacobs questioned the officer on the 16 terabytes of evidence seized, wanting to know how many pages were involved and if they had all been read. The officer said it equated to about 80-million pages, including bank account statements, photos of Koko’s family trip to France, telephone records and forensic and audit reports on companies that allegedly benefited from corruption.
A report by law firm Bowmans detailing the flow of funds, which the prosecution had been waiting for, had been finalised, the officer said.
Charged alongside Koko are his wife, Mosima, and stepdaughters Koketso Aren and Thato Choma. The other accused are Hlupheka Sithole, Eskom’s former project director at Kusile and the most senior official on site, lawyer Johannes Coetzee, Watson Seswai, Lese’tsa Johannes Mutchinya and former South African Local Government Association (Salga) CEO Thabo Mokwena.
The case involves charges of corruption in a R2.2bn control and instrumentation tender won by Zabb, the local division of the Swedish-Swiss firm ABB.
Koko, who was Eskom group CEO at the time, is alleged to have played a vital role in the awarding of contracts to Impulse International, ABB and other subcontractors.
Former national director of public prosecutions Shaun Abrahams, who is representing Mokwena, cross-examined the investigator.
Abrahams said what the investigator and prosecutors had told the court differed from statements to the media by his successor Shamila Batohi, her deputy Anton du Plessis and investigating directorate head Andrea Johnson. He made the investigator read several of their comments on the time it took to investigate the case and the resources set aside for the investigations.
Abrahams said the articles, which were published last year, informed the public that the investigations were complete, and that the investigator and the prosecution team were saying different things.
Lawyer Brad Osbourne, who represented Koko and his wife and stepdaughters, challenged the investigator on his testimony that he had completed the investigation.
“What if you are not happy with the Bowmans report? You may need further consultation so we cannot say the Bowmans report is ready,” said Osbourne.
The matter was postponed to October 31. Wits University adjunct law professor Stephen Tuson said Jacobs had a number of options at his disposal.
“The remedy of the court is not to say there has been unreasonable delay, I am going to stop the prosecution. The court has several powers and options. It can refuse to further postpone the matter,” Tuson said.
Jacobs could also grant the prosecution a postponement “with very strict conditions”, such as stipulating when the matter should be ready.
“He can strike the matter off the roll where they have not pleaded and order that the matter may not be brought again without the national director of public prosecutions authorising that the matter is ready,” Tuson said.
The general principle was that alleged criminals should not escape liability due to technicalities, he said.