Former acting Eskom CEO Matshela Koko. (Madelene Cronje/M&G)
The Middelburg specialised commercial crimes court on Tuesday struck the state capture case against former Eskom chief executive Matshela Koko and his seven co-accused off the roll after they claimed they had been prejudiced by excessive delays on the part of the prosecution.
Though the ruling is a big, if not unexpected, setback for the National Prosecuting Authority’s Investigating Directorate (ID), it does not in any way pronounce on the accused’s guilt or otherwise. The charges of fraud, corruption and money laundering can be reinstated once the state is ready to bring the matter to trial.
Koko stood accused of being central to a “corrupt scheme” in which he allegedly helped Swiss engineering firm Asea Brown Boveri (ABB) secure a contract worth R2.2 billion at Eskom’s Kusile power plant.
According to the prosecution, kickbacks flowed to a number of figures, including millions to companies connected to his daughters, Koketso Aren and Thato Choma. They and his wife were among the co-accused in the matter, as was Kusile project manager
Hlupheka Sithole and the former head of the South African Local Government Association Thabo Mokwena.
Speaking to reporters outside court, Koko said: “I did say they have been set up badly to fail.”
Asked whether he was concerned that the charges could be reinstated, he replied that the national director of public prosecutions Shamila Batohi “must come back when she is ready”.
Koko was arrested more than a year ago in October 2022 and became the first former top executive of the power utility to be brought before court on state capture charges.
His lawyers have pleaded that the case was hastily cobbled together on the back of an incomplete investigation. The ID countered that the delays were not unreasonable, and that it was obliged to wait for key witness reports from Germany and the US.
The presiding magistrate cautioned in May that he would institute an inquiry into the delays unless the state was ready to proceed at the time of the next court date. In September, the prosecution asked for a postponement to allow it to obtain the outstanding witness statements from abroad.
At this point, defence counsel demanded that magistrate Stanley Jacobs proceed with an inquiry as to whether there had been unreasonable delays, culminating in Tuesday’s ruling.
The state alleges that Koko failed to disclose a conflict of interest, when he was receiving material benefit from the local arm of ABB in return for furthering its aims as well as those of two directly implicated employees.
In 2015, Eskom entered into a contract with ABB, which signed up Impulse Trading as a subcontractor, in a deal worth R800 million. Choma served as a director of Impulse and allegedly got R30 million from the deal.
Koko allegedly promised the firm further contracts worth more than R6 billion, should it enter into an arrangement with Impulse. The charge sheet stated that he abused his position at Eskom to manipulate the tender process. It also alleged that he took bribes for rigging tender processes and approving variation orders. These allegedly flowed to him and his wife from Impulse.
The charges relate to a period from 2014 to 2017. Koko was employed by Eskom for more than two decades and served as chief executive between 2016 and 2017.
ABB in 2020 concluded a settlement agreement with Eskom to refund R1.56 billion. But, in September, the company said it would put aside R6 billion as a provision to cover costs that might arise as a result of ongoing investigations into contracts linked to Kusile.
Koko was implicated in state capture in the Zondo report, with Chief Justice Raymond Zondo urging that he and former Eskom chief financial officer Anoj Singh face criminal charges for paving the way for the Gupta family to purchase the Optimum Coal Mine using Eskom money.
The pair, Zondo wrote, led Eskom to believe that the transactions were for coal when they knew the money would be used by the Guptas to cover the shortfall they needed to acquire Optimum Coal Mine.
Koko has denied any wrongdoing, including in the ABB deal. In his testimony to the commission, Koko insisted he was ignorant of the fact that he was exchanging confidential company information with key Gupta associate Salim Essa.