/ 26 April 2023

ANC proceeds to sue De Ruyter for defamation

Eskom Flag
Eskom has reported a 6% decline in sales in its interim results for the six months ending in September, revealing a sustained decrease in plant performance. (Waldo Swiegers/Bloomberg via Getty Images)

As former Eskom chief executive Andre de Ruyter faced parliament’s standing committee on public accounts (Scopa) and firmly refused to expand on his claim that crippling corruption at the entity embroils the top echelons of the ANC, the party enrolled an urgent court application to sue him for defamation.

De Ruyter on Wednesday told MPs that he was not prepared to run the legal risk of naming members of the ANC he referred to in an explosive interview with eNCA that resulted in his three-month notice period being cut short.

The ANC has threatened to sue De Ruyter for those remarks, and is at last making good on said threat, having earlier said it could not serve summons because it was unable to establish his whereabouts and Eskom proved of no help in this regard. 

The Pretoria high court is due to hear its urgent application next week, in which the ruling party claims that his comments may adversely affect its election hopes.

The ANC is, in part A of its application, seeking permission for an edictal citation — applicable where the defendant is in a foreign jurisdiction.

In part B, it seeks an apology and a retraction in relation to his agreement in a television interview earlier this year with a suggestion that the utility served as a “feeding trough” for the party. 

In a supporting affidavit, ANC secretary-general Fikile Mbalula said the party was frustrated in its bid to pursue De Ruyter by the fact that he had left the country. It subsequently established, he continued, that the former CEO found himself in northern Germany.

The court application cites De Ruyter’s physical address.

“The ANC then employed a tracing agent. The tracing agent informed the ANC that the respondent has left South Africa and now resides in Germany,” Mbalula wrote.

He went on to argue that the statements De Ruyter made in the interview were defamatory and demonstrably false, adding that the party had asked him to provide evidence to support what he said and that he had failed to do so.

Mbalula implored the court to apply the standard of the ordinary listener who would not, he said, apply a sophisticated level of analysis to the views aired by the former Eskom chief executive.

The sentiments expressed would lower the esteem in which the party was held by “any reasonable listener”.

“This may adversely affect the ANC’s prospects in local and national elections.”

Mbalula added that during the interview, De Ruyter was mindful of not naming ANC members he implicated in corruption at the utility for fear of breaching the law. 

In the interview, De Ruyter explosively said a senior ANC politician was involved in criminal networks bleeding the utility dry, but demurred when asked to name said individual. On Wednesday, when declining to name the cabinet minister to whom he mentioned the alleged involvement of the politician in corruption, he said he was not prepared to expose himself to legal consequences.

Mbalula said De Ruyter’s prudence during the interview “shows knowledge of wrongfulness and intention to defame the ANC but not individual government officials or politicians.”

The court date became known to the Mail & Guardian shortly after De Ruyter spoke to Scopa virtually in a briefing called to clarify and expand on his comments in the interview.

Members of the committee grilled him relentlessly for the names. 

It was remarkable that their main line of questioning was centred not on the identity of the unnamed “senior ANC politician” he implicated in corruption which, on his calculation, costs the entity up to R1 billion a month.

Instead MPs were fishing for the name of the cabinet minister to whom De Ruyter voiced this concern, and then turned to a colleague and said he supposed it was inevitable that the information would emerge.

Opposition leader John Steenhuisen later used parliamentary privilege to tell the National Assembly he was referring to then deputy president David Mabuza.

De Ruyter repeatedly made the point on Wednesday that he had furnished all relevant information to police officials. He said he was not prepared to divulge the identity of those whom he had informed, and invited Scopa to seek further details from the relevant agencies instead.

De Ruyter had told eNCA interviewer Annika Larsen: “And the response was, essentially, you know, you have to be pragmatic, you have to, in order to pursue the greater good, you have to enable some people to eat a little bit.”

Shortly after the eNCA interview, Public Enterprises Minister Gordhan stated publicly that De Ruyter brought claims of high ranking individuals being involved in Eskom graft to his attention, but added that he had provided no evidence of such. But Gordhan denied that he had made comments about some comrades being allowed to “eat a little bit”.

On Wednesday, De Ruyter suggested that Scopa “move on” from seeking the minister’s name, and focus instead on investigating the potential misuse of public funds. 

He later said he was making his submission before the watchdog committee in what had become a highly litigious setting.

Scopa chair Mkhuleko Hlengwa said he believed that the request for the name of the minister in question was in order.

“I do think that having a minister involved in these matters, in the manner in which it has been framed, is in the interest of the committee … We have been saddled with a situation of political leadership interference in the affairs of departments and entities, and I think that … having a frank discussion [is in order].”

To this De Ruyter replied that he had shared all relevant information with the police and state security agency.

“I did engage with the South African police at the highest level, with the national commissioner of police, and a number of other senior officials, generals, brigadiers as well as senior representatives of the State Security Agency.  

“I also shared information about corruption and theft with the Natjoints at the South African Police Services College in Pretoria. That, I think, gives sufficient credence to the fact that I extensively engaged with the law enforcement authorities to make clear that appropriate steps should be taken.”

In an affidavit to the committee, he said that he had on Saturday 4 June 2022, at Eskom’s Megawatt Park offices, met “senior police officials, including the national police commissioner, General Fannie Masemola, and representatives of the State Security Agency, where I requested the assistance of both SAPS and SSA to investigate corruption at Eskom, and to assist Eskom in combating crime.”

“Following this meeting, a police brigadier (whose identity I leave to SAPS to disclose for reasons of security) was designated by General Masemola to be the liaison with the intelligence operation. This officer has had full access to all of the intelligence gathered and has stated to me that he has kept his line command informed. 

On Wednesday News24 reported that the “evidence” used by De Ruyter for the interview came from  intelligence reports from a private security company, George Fivaz Forensic and Risk, which were not backed up factually.

De Ruyter appointed the company, owned by former police commissioner George Fivaz, to probe looting at Eskom using a R50 million fund privately raised from big business, in 2021. It in turn appointed freelance investigator and apartheid-era Military Intelligence operative Tony Oosthuizen to look into the cartels operating at Eskom.

According to News24, while the reports submitted by Oostthuizen made claims against ANC politicians over corruption at Eskom, they  did not contain facts to back up these allegations.

In a statement, Business Leadership South Africa (BLSA) confirmed it had received a request from De Ruyter at the end of 2021 to help fund a risk assessment that would “augment and complement the efforts of law enforcement to root out corruption at Eskom.”

The support was for a defined period and any illegal activity uncovered was to be communicated to the relevant law enforcement agencies, BLSA said.