Suzanne Daniels, who was sacked as head of legal and compliance of Eskom on Friday, was a whistle-blower and a doer of good in the eyes of the public, but failed to convince the chairman of her disciplinary hearing that her intentions were all that noble. This fight is far from over but Daniels’s case has been dealt a serious blow.
Suzanne Daniels shared the stage with key State Capture whistle-blowers during a parliamentary enquiry into Eskom in late 2017. She was celebrated among the likes of former Trillian executives, Bianca Goodson and Mosilo Mothepu, the woman who lifted the lid on the firing of Nhlanhla Nene during his first stint as finance minister in 2015.
And some of Daniels’ revelations helped plug holes in the overall scandal around the Gupta heist of the state-owned power company, the events that led to R1.6-billion in payments to global consulting firm, McKinsey & Co and Trillian Capital Partners, as well as a controversial pre-payment for coal that helped fund the Gupta purchase of Optimum Coal Mine.
On Friday, nine months after her suspension as head of legal and compliance, Daniels was fired by Eskom – ironically over her role in those very transactions.
The parastatal announced its decision following a ruling by senior advocate Nazeer Cassim who presided over her disciplinary hearing.
Cassim found Daniels guilty on all charges, among those that she had authorised just over R800,000 towards legal fees to help former chairman, Dr Ben Ngubane, in a matter that had nothing to do with Eskom and for sharing internal documents with an email address that was in all probability that of Gupta kingpin, Salim Essa.
Daniels confirmed that her lawyers have been provided with a copy of the ruling and indications are that she is considering her legal options.
Read her full statement
One of the most devastating elements of Cassim’s ruling is the total rejection of Daniels’ contention that she was a whistle-blower and that the charges against her had been engineered as punishment for her having spilled the beans.
She had made a series of disclosures to senior executives at Eskom as well as the media in the months before her appearance before the parliamentary portfolio committee on public enterprises in 2017.
Cassim was not convinced, instead labelling those disclosures as “selective” and “opportunistic”.
Daniels, he said, had on one instance relating to the Tegeta pre-payment sought to cover up for the wrongdoing when she assisted in preparing a response to a media enquiry from the Mail & Guardian about the involvement of Trillian as “baseless and factually incorrect” when she knew that to be false.
“She willingly participated in misrepresenting to the public at large the role of the Guptas and their associates, in particular Essa…”
Essa at the time held a 60% stake in Trillian Capital Partners.
In written submissions, it was contended that Daniels made disclosures between July and September 2017 to Eskom’s lawyers, senior people at Eskom, the media, as well as the then acting group chief executive, which amounted to protected disclosures.
“Thus, she claims protection from any disciplinary steps on the premise that she was advancing the eradication of criminal and other irregular conduct at Eskom.
“Taken to its logical conclusion, Ms Daniels argues that case against her constituted a reprisal as a result of such disclosures and should not be allowed.”
Cassim disagreed on Daniels’ claim that the hearing was tantamount to occupational detriment as a result of her disclosures and noted that it was necessary due to her conduct over a sustained period of time and her intricate involvement in promoting irregular practices which directly prejudiced Eskom.
“Whilst I do not have the power to make a determination as to whether the PDA (Protected Disclosures Act) protects Ms Daniels or not, I am not satisfied that the disclosures made by Ms Daniels were in good faith.”
“Having regard to the content of the disclosure as well as its timing, I am persuaded that the disclosures are selective in nature, inconsistent with an employee who genuinely endeavours to protect the interest of her employer and, in the circumstances, opportunistic.”
Daniels, through her conduct, promoted irregular practices which prejudiced Eskom and advanced the interests of corrupt colleagues and third party racketeers over a sustained period of time, the ruling states.
She failed to convince Cassim of her contention that she was merely following orders or that she had feared losing her job.
Cassim highlighted, several times, Daniels’ qualifications, that she is an officer of the court (as a lawyer) who had been placed in an extremely senior position at Eskom.
She had a “meteoric” rise in the corridors of power at the state-owned power company and by the time she was fired Daniels was on a hefty pay cheque of just under R2.7-million a year.
But he adds that she was either too willing to please those in control of Eskom at a time when the controversial deals were unlawfully pushed through – else, that she was incompetent for the job.
That the McKinsey/ Trillian deal was a “scam and a fraud” on the South African public is well documented, Cassim said.
“I would have thought that somebody in Ms Daniels’ position would have immediately acknowledged that the transaction was imbued with wrongdoing and illegality.”
In determining whether she had misconducted herself or not, Cassim said he had taken into account her evidence that she did not at the material time realise that she was doing anything wrong, or that she was just following orders or that she had relied on external legal advice.
In motivating the Eskom executive and/ or board that a sole source appointment was justified in the appointment of McKinsey, Daniels should, as a competent lawyer and senior employee, have advised that it was necessary to follow an open competitive bidding process, the ruling states.
She was further found guilty of misconduct for the abuse of public funds in providing authorisation for legal fees in excess of R800,000 to be paid on behalf of then Eskom chairman, Dr Ben Ngubane, whose legal woes related to his previous tenure on the board of the SABC.
“Ms Daniels behaved as if the Eskom resources belonged to her, unlawfully spent taxpayers’ money for the personal benefit of Ngubane.”
Daniels, during the hearing, said she believed Eskom needed to assist Ngubane in order to spare the already embattled power utility further embarrassment as Ngubane, at that stage, was the “face” of Eskom.
But, said Cassim in his ruling, at that stage there were already serious question marks over Ngubane’s reputation following the release of the Public Protector’s State of Capture reports and media reports linking him to business dealings with Essa.
“Ms Daniels’ explanation for authorising use of Eskom’s resources to fund the private concerns of Ngubane lacks any credibility and demonstrates to my mind her unresolved dedication to the group of senior people at Eskom looting this SOC for their own benefit and, shamelessly, the benefit of the Guptas and their associates.”
And then, that email that may or may not belong to Salim Essa. Cassim chose to accept evidence of an Eskom witness that the email, Businessman: Infoportal1@zoho.com in all probability belonged to Essa.
Daniels testified that she believed it was one belonging to Public Enterprises DG, Richard Seleke.
Said Cassim: “On the probabilities, I reject the suggestion that the emails were intended for the attention of Seleke. First, Seleke in his official position would generally speaking be entitled to such information. There would be no need for secrecy. Secondly, Ms Daniels’ explanation was that Ngubane had informed her that it was Seleke’s email when they started working together in April 2015.”
This, Cassim said, cannot be correct because Seleke was only appointed as DG in December 2016 whereas the first email copied onto the “Businessman” email address was on 11 June 2016.
“If truth be told, the monumental financial transactions in Eskom could have been averted had any of the major role players taken a stand and done the right thing.
“She had a choice. She could have done the right thing. Her suggestion that she would have lost her job undermines the value of the Public Disclosures Act and the protection afforded to employees in the Labour Relations Act,” the ruling states.
Daniels has become somewhat of a media darling, an exceptionally skilled professional with a high level of knowledge of various facets of the business of Eskom.
Unlike many of her former colleagues, popularly dubbed the “Dubai club”, Daniels has not enjoyed expensive overseas trips courtesy of the Guptas and neither has there been a shred of evidence of any quid pro quo.
But Cassim, in his recommendation to Eskom, said he had to consider whether Daniels was up to the task of returning to Eskom to help with the arduous task of normalising the cash-strapped parastatal.
“The concept of honesty in the employment context does not merely mean refraining from criminal conduct. It embraces any conduct which involves deceit. Ms Daniels, in my view, knowingly aided corrupt practices at Eskom with the reasonable foresight that these would imperil the very existence of Eskom.” DM
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