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Koko claims bias before Zondo commission

Former Eskom chief executive Matshela Koko has followed former president Jacob Zuma’s strategy, accusing the commission of inquiry into state capture of failing to perform its work impartially and reaching a foregone conclusion.

In a lawyer’s letter to Deputy Chief Justice Raymond Zondo, Koko alleged that the commission’s investigators have used affidavits he filed before he took the stand on Thursday, to contrive a version of events to counter his testimony.

The letter noted that the commission’s evidence leaders confined witnesses to the contents of their affidavits. Only in cross-examination by their own legal representatives could witnesses then venture further.

This was not necessarily unfair, Koko’s lawyers conceded. But it seemed, they said, that the commission’s investigators and evidence leaders were using this method to develop what is known in litigation as a “theory of the case”, though the commission was not a court of law and witnesses were not on trial.

“They then pursue and endeavour to substantiate their interpretation before you as dominus litis, much as would advocates in court. It is inevitable that in their presenting evidence they would endeavour to substantiate their theory of the case and seek to controvert any alternative narrative.”

The letter was signed 3 December, the eve of the first of two days of testimony by Koko this month.

“The nature of the proceedings before you is not litigious. The proceedings have however unfolded largely to resemble an adversarial litigious process with all the trappings of proceedings of a trial in a court of law.

“In these proceedings the commission’s legal team acts and essentially is the dominus litis,” it continued, using the Latin term to denote the leading party in a legal process.

In his particular instance, Koko believed that the commission’s lawyers were singing from the same hymn sheet as the members of the Special Investigating Unit (SIU) probing an alleged “Machiavellian conspiracy” to force the Optimum Coal Mine into business rescue.

The subsequent sale of Optimum to Tegeta Exploration and the coal supply deal the Gupta-linked company scored with Eskom is considered one of the most flagrant examples of state capture that is being investigated.

In the letter, Koko set out a case that Glencore’s cosy, long-running relationship with Eskom needed to be investigated and signalled “dismay” that the commission had not bothered to do so. The relevant history, he said, included the acquisition of Optimum by Glencore and its partners, including Lexshell 849, in 2012. At the time, Lexshell counted among Cyril Ramaphosa’s key business interests.

“It is apparent that the commission’s legal team and investigators have not directed themselves at investigating and exposing before the commission, among others, the instances of irregularity and corruption, as referred to above, of which they are, or should be aware.” 

Koko said the commission needed to explain this lapse. “It is quite evident to any reasonable, informed observer of the proceedings before the commission to date, which includes our client, that the commission’s legal team and investigators have bought into the theory of the case as set out in the Eskom/SIU summons and are pursuing if before you.”

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