PAYBACK TIME

Court smacks down Trillian appeal bid and gives company five days to pay over Eskom millions

By Jessica Bezuidenhout 4 October 2019

Trillian's Eric Wood (Photo: Trillian)

A Full Bench of the High Court in Pretoria has dismissed an application by the Gupta-linked Trillian Capital Partners to appeal against a court order that it repays Eskom nearly R600m. Handed down on Tuesday, the latest order also provides for Trillian CEO Eric Wood to be joined in further appeals in his personal capacity.

It’s Eskom vs Trillian, and now also vs Eric Wood.

Wood, the self-proclaimed “last man standing” of the now-defunct Gupta-linked company is being joined in legal proceedings in his personal capacity amid Trillian’s costly battle to avoid repaying Eskom nearly R600-million.

On Tuesday, the High Court in Pretoria dismissed, with costs, Trillian’s application for leave to appeal a June 2019 court order that it repay Eskom “because justice demands nothing less”.

And, the order handed down by judges Moara Tsoka, Dawie Fourie and Selby Baqwa, directs the company to pay R595-million into the trust account of Eskom’s lawyers within five days of October 2 2019.

Trillian is embroiled in civil litigation involving state-owned entities totalling nearly R1-billion and Wood remains as the company’s sole representative.

The company unsuccessfully fought a review application by Eskom to set aside and, declare as invalid and unlawful, all administrative decisions that lead to nearly R1.6-billion in payments to Trillian and McKinsey & Co, payments that flowed to the two companies following a series of controversial deals.

The global consulting firm, having apologised to South Africans and saying that it did not want the benefit of tainted money, coughed up its portion of close to R1-billion, and Eskom has been battling Trillian to do the same.

While McKinsey did not oppose Eskom’s review application, Trillian did so unsuccessfully and then, filed an application for leave to appeal the June 2019 court order, one that has now been crushed.

In this week’s ruling, SA’s power utility scored significantly on two fronts: one, that Trillian must put up security for the debt, to be paid over to Eskom’s lawyers where it shall be kept in trust until the case reaches its final conclusion; and two, that Wood be joined in the current and future appeal proceedings in his personal capacity.

In effect, Trillian failed in its bid to have that much-heralded June 2019 order suspended until such time as its appeal bids are exhausted – it is likely that the company may head to the Supreme Court of Appeal directly following this week’s defeat.

The ruling marks a major victory in Eskom’s costly battle to claw back its cash from the company. The parastatal had filed a counter application to Trillian’s appeal application seeking that it coughs up security, and it brought another application to join Wood to the proceedings, both of which were successful.

The order reads: “Regarding the counter application in terms of Section 18 of the Superior Courts Act, we are of the view that there are exceptional circumstances justifying the order of this court to be executed pending any possible petition to the Supreme Court of Appeal for leave to appeal.

I am further of the view that the irreparable harm to Eskom is apparent whilst there can be no irreparable harm to the respondents.”

The court furthermore found that based on the evidence on record, Wood was the “controlling mind” behind Trillian and that the legal efforts underway were interlinked with his personal efforts to save “his” reputation.

As a result, it found that Wood be joined in the proceedings and, that it was “just and equitable” that he be held personally liable for the costs of Eskom’s Section 18 application.

Wood’s attorney of record at Fairbridges, Wertheim Becker, said the firm has requested a copy of the written judgment and reasons and would advise their clients with regards to their rights to further appeals.

Wood has consistently maintained that Trillian was not a Gupta company and that Trillian’s work at Eskom was above board.

  • Read Wood’s full affidavit in response to Eskom’s counter application here.

No more hiding behind Trillian

Wood is being joined as a party to the case because Eskom successfully argued that on the basis of information provided by Wood himself, Trillian has no money, no bank accounts nor recoverable assets to satisfy the June 2019 court order.

Wood, Eskom argued, had told the court that he is personally funding Trillian’s court cases “to defend his reputation”.

He remains the single controlling mind of the company’s conduct of its litigation and has repeatedly confirmed that he is ‘the last man standing’,” Eskom’s papers stated.

It is therefore necessary to join Mr Wood so that he can no longer hide behind Trillian’s separate corporate personalities and use the various Trillian entities as a vehicle to pursue further litigation in his own interest, without the risk of personal liability.”

Eskom also argued that Wood had acted in bad faith, had made contradictory and evasive claims about Trillian’s ability to satisfy the debt judgment and failed to take the court into his confidence with full and accurate disclosure of Trillian’s financial position and his own.

In its argument for why the debt order obtained by Eskom in June must be brought into effect, Eskom said this would allow it to use every legal means at its disposal, including an application for the winding-up of Trillian and the appointment of an independent liquidator.

Wood, Eskom said, had acted unreasonably and negligently in pursuing civil claims against Gupta-linked entities that had scored loans or cash from Trillian, the timing of which were “suspicious” as they coincided with, among other things, the release of the investigative report of senior advocate Geoff Budlender into Trillian’s alleged State Capture links.

In an affidavit filed by the interim Eskom chairman, Jabu Mabuza, the parastatal argued that on the version of Wood, Trillian had allegedly dissipated more than R398-million through a series of suspicious payments to other Trillian entities and companies linked to the Gupta network.

Those transactions, Mabuza said, had the “hallmarks of money laundering”.

He claimed that the greatest dissipation of Trillian assets appears to have occurred during the period of Budlender’s investigation, which ran from November 2016 to mid-2017.

Mabuza referred to various transactions between Trillian and the Gupta-linked Centaur Mining, Leonardo Business Consulting (previously Cutting Edge Commerce), Albatime and a R218-million shareholder loan from Trillian to Gupta kingpin Salim Essa.

Apart from the Eskom claim, Wood and various companies in the Trillian stable are embroiled in an additional R325-million worth of lawsuits filed by Transnet and the Transnet Second Defined Benefit Fund (TSDBF) – all linked to deals that have come under scrutiny at the State Capture Commission.

More recently, he went to court to block his former partners at Regiments Capital from striking a R500-million settlement deal with the TSDBF. DM

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