Former Eskom chief executive André de Ruyter.
The African National Congress is preparing to sue former Eskom CEO Andre de Ruyter for defamation after saying evidence suggested the power utility served as “a feeding trough” for the party, its attorney said on Wednesday.
Damages were being calculated as a final step in preparing summons to be served on De Ruyter, Krish Naidoo told Mail & Guardian.
“We are finalising summons. The ANC just has to settle on a quantum, so we are just busy working on that now,” he said.
The amount had to be calculated bearing in mind how far the claim De Ruyter made in a damning television interview last month has travelled, Naidoo added. It was plain that it was not only published extensively in South Africa but made international news headlines, so that was being factored into the sum.
The ANC last week issued a letter of demand to De Ruyter and Eskom, giving both parties until Wednesday to issue a retraction and an apology.
Naidoo said Eskom had by Wednesday responded to say it was giving the matter attention, while Eskom’s spokeswoman Daphne Moekwena said: “We can confirm that we have responded.” She referred all further questions to the ANC.
However, Naidoo said it appeared that the letter had not reached De Ruyter.
“We do not know where he is,” he said.
For this reason and the fact that the ANC took the view that De Ruyter remained an employee of the company until his notice period expired at the end of this month, it delivered the letter to the Eskom headquarters for his attention.
Eskom released De Ruyter with immediate effect the day after his explosive interview with eNCA was aired.
“We took the view that he remained in Eskom’s employ until the end of March, that his notice period would be the full three months and that they had simply said ‘stay at home’,” Naidoo said.
But Eskom has since informed the ANC that De Ruyter effectively left the company in late February, when the board truncated his notice period.
“They have now given us an undertaking that they will serve the letter at his last known address.”
The ANC did not know his home address, nor whether he was in South Africa or abroad. And since it did not have an email address for De Ruyter, that route was also not an option, Naidoo said.
But since the deadline set in the letter of demand had expired, and it was not a necessary preliminary step on the way to court, it was now proceeding to file suit. Hence efforts to locate him have become for the purpose of serving summons.
Should that prove impossible, it would seek the permission of the court to proceed by way of substituted service, which entailed publishing a notice in prominent media. If De Ruyter was out of the country, it would ask the court to allow edictal citation.
This too was somewhat complicated by the fact that his whereabouts were unknown.
“For example, if we knew he was in England, we could publish a notice in the Times of London or The Guardian,” Naidoo said.
He stipulated that the lawsuit was concerned strictly with De Ruyter’s allegation that the ANC was involved in rampant corruption at Eskom.
Arguably, De Ruyter’s claim that a senior politician was involved and that he had raised this with a cabinet minister — since confirmed to be public enterprises’ Pravin Gordhan — made more ripples, but the legal action was concerned only with the reputational damage to the party as a whole.
“It is our client’s contention that the utterances of De Ruyter are false, defamatory, infringe on our client’s constitutional right to its good name and reputation and causes its reputation to be impaired,” the letter of demand rang.
It added that the ANC was of the view that the statement was made with the intention to do just that.
Alternatively, it was made recklessly, with no regard for the consequences.
The ANC had also asked De Ruyter to give reasons why he should not be reported to the Directorate for Priority Crime Investigation (the Hawks) for breach of section 34 of the Prevention and Combating of Corrupt Activities Act (PRECCA) for withholding evidence of corruption.
This section of the law obliges heads of companies to report probable corruption involving more than R100 000 to a police officer.
ANC sources involved in the decision to sue De Ruyter conceded that they did not know whether, or to what, extent he had approached the police with information of probable corruption.
De Ruyter was on a collision course with mineral resources and energy minister Gwede Mantashe, who accused him of behaving like a “policeman” by focusing on combating theft, fraud and sabotage at power plants rather than keeping the lights on.
De Ruyter resigned in December after Mantashe accused him of “agitating for the overthrow of the state”.
In the interview, De Ruyter suggested that fought an uphill battle to combat corruption that was costing Eskom an estimated R1 billion a month, but noted that inroads had been made and culprits arrested. He said he quit for lack of political support and may leave the country for safety reasons.
The day after he resigned, his coffee was laced with cyanide poison in an apparent attempt to kill him. It happened at Eskom’s headquarters.
It has since emerged that De Ruyter was also at loggerheads with Gordhan, who reportedly wanted Eskom’s energy availability factor to be pushed to 75%.
De Ruyter could not be reached for comment.
Parliament’s watchdog standing committee on public accounts on Wednesday resolved to call him to provide further information on the alleged involvement of ANC members in graft at Eskom.
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