Eskom’s fight to recover the millions it lost to Gupta-linked Trillian is to be heard in the high court next week. The power utility is seeking to reverse the decisions taken by former board members and executives that resulted in R1.6-billion in allegedly unlawful payments being made to Trillian and consultancy firm McKinsey.
McKinsey agreed to pay back R902-million to Eskom in July last year. But Trillian has not given up the fight to hold on to the R600-million paid to it by Eskom, which it contends it earned by providing extensive services to the utility.
Trillian has, since 2016, fielded allegations of profiting from state-owned entities, allegedly because of its ties to the Gupta family. Eskom’s application to the high court a year ago formed part of the new board’s attempts to undo years of alleged maladministration.
Although Eskom argues that Trillian, established by Eric Wood and Gupta lieutenant Salim Essa, benefited from unlawful and corrupt dealings, Trillian’s stance is that the case for corruption is “flimsy at best” and based on disputed facts.
Counsel for Trillian Mike Hellens SC argues that Eskom has failed to make a case for corruption against the consulting firm, and that critical issues are disputed and cannot be resolved without cross-examination.
He says Eskom’s application should be dismissed or referred to trial.
Eskom’s counsel, Tembeka Ngcukaitobi, argues that evidence exists of a corrupt relationship between Trillian executives and the power utility’s senior officials, including former chief financial officer Anoj Singh and former acting chief executive Matshela Koko.
This includes the longstanding claim that Koko sent confidential information reflecting the utility’s negotiating position with McKinsey to a third party at the [email protected] email address. The address is widely deemed to have been used by Essa. Koko has denied allegations that he sent internal Eskom documents to a third party.
Hellens casts doubt on the claim that Essa was the true recipient of Koko’s emails, saying that in the same series of emails Essa’s email address is given as [email protected].
But Ngcukaitobi argues that Trillian has failed to refute allegations of corruption, saying it “offers no explanation as to why Eskom officials acted to benefit Trillian at every turn”.
Eskom also wants to set aside the decision to approve a 2016 contract for consultancy services with McKinsey, saying it was awarded in breach of the utility’s procurement processes. Trillian maintains it had been subcontracted by McKinsey to perform some of the services, accounting for R600-million it received in direct payments from Eskom. But Eskom disputes the subcontracting relationship and argues that there was no basis for the direct payments in the absence of any contractual relationship.
In an affidavit, Saf Yeboah-Amankwah, a senior partner at McKinsey, also disavows the firm’s ties to Trillian. He says that, in March 2016, McKinsey terminated its potential relationship with Trillian.
Hellens argues that McKinsey’s version must be “treated with caution” because it now seeks to distance itself from Trillian. “McKinsey’s ‘facts’ are now an attempt to backtrack from the express acknowledgement of the subcontracts; at the time, it raised no dispute regarding the payments made to Trillian.”