/ 19 March 2019

The phrase ‘Gupta-linked’ has no content in law — Trillian counsel

Gupta brothers Ajay and Atul.
Gupta brothers Ajay and Atul. (Muntu Vilakazi/Gallo Images)

Trillian’s Gupta links are not enough to make a case of corruption against the consulting firm, the high court in Pretoria heard on Tuesday.

Eskom’s battle to recover the millions it paid to Trillian, established by Eric Wood and Gupta lieutenant Salim Essa, kicked off at the high court this week. The three judges presiding over the matter are judges Selby Baqwa, Moroa Tsoka and Dawie Fourie.

READ MORE: Eskom wants its Trillian millions back

On Tuesday, counsel for Trillian, Mike Hellens SC, argued that Eskom’s case of corruption against the firm is flimsy and based on disputed facts. Hellens further argued that Trillian’s association with the controversial Gupta family does not automatically render their relationship with former Eskom officials corrupt.

“The phrase ‘Gupta-linked’ has no content in law,” Hellens said.

Eskom 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.

READ MORE: Trillian payments were illegal — Eskom counsel

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 directly paid to it by Eskom, which it contends it earned by providing extensive services to the utility.

Eskom’s attempt to claw back the money it paid to McKinsey and Trillian is part of an effort by the utility’s new board, appointed in January last year, to root out corruption.

On Monday, Tembeka Ngcukaitobi — counsel for Eskom — argued 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 relationship meant that these officials were biased in favour of Trillian, Ngcukaitobi contended.

He referred specifically to Koko’s 2016 trip to Dubai, which he said was arranged by the Guptas. Essa assisted Koko in obtaining visas for the Dubai trip, he said in written argument, and Koko’s hotel accommodation and other expenses in Dubai were paid for by Sahara Computers, a company owned by the Gupta family.

Trillian’s argument sets out a number of factual disputes related to the corruption allegations. Hellens said that because factual disputes cannot be resolved on paper, Eskom’s application should thus be dismissed or referred to trial, Hellens argued on Tuesday.

But Hellens took issue with Eskom’s failure to include Koko’s and Singh’s versions of the allegations. Eskom did not try to get affidavits from Koko and Singh, he contended. “They simply brush it aside and lay blame at their door.”

Referring to Eskom chief executive Phakamani Hadebe’s affidavit in the matter Hellens said: “There is nothing in this affidavit that said we deposed to Mr Koko and he said he would not help. There is nothing in this affidavit that said we deposed to Mr Singh and he said he would not help.”

“These were the people who were on the ground … but they don’t give evidence,” he added.

Hellens argued that Eskom’s case rests on hearsay. He suggested Eskom’s inclusion of evidence collected by the new board in its own investigations into corruption allegations, is an effort to paint an incomplete picture of malfeasance in relation to the Trillian payments.

Eskom leaves “an impression that if they put all the pieces of the jigsaw puzzle down, it would paint a picture of the story they want”, Hellens said.

He added that if new evidence from Koko and Singh is included in the matter, it would “scream a different picture”.

He further decried Eskom’s reliance on former public protector Thuli Madonsela’s ‘State of Capture’ report, the Trillian report by Geoff Budlender SC, and the so-called Gupta leaks emails.

Of the Gupta leaks emails, Hellens said: “They are allegedly emails from some brothers or companies involved with the Guptas, which journalists say are true … What is a Gupta connection? There is nothing in this case that implicates the Guptas.”

“What’s the rush? Why can’t there be a trial?” he asked.

“Instead Eskom stamps its mighty foot and says to three judges of the high court to decide this matter on motion.”