On Thursday, arguments were heard in the Middelburg Specialised Commercial Crimes Court in an inquiry into the reason for the delay in the R2.2-billion Kusile Power Station corruption case involving former Eskom boss Matshela Koko and others.

The inquiry, conducted under section 342(a) of the Criminal Procedure Act, is investigating any delay in the completion of proceedings and whether the delay was unreasonable. It could result in the case being struck off the roll.

The National Prosecuting Authority’s (NPA’s) Investigating Directorate (ID) had requested a further postponement on the basis that three statements were outstanding from witnesses in the US, and three more from witnesses in Germany, while prosecutors were also awaiting expert reports from a data analyst and from a forensic auditor.

The accused include former SA Local Government Association boss Thabo Mokwena, Koko, his wife, Mosima Koko, and Koko’s stepdaughters, Koketso Aren and Thato Choma, Eskom’s project director at Kusile, Hlupheka Sithole, lawyer Johannes Coetzee, Koko associate Watson Seswai, and German nationals Markus Bruegmann and Sunil Vip. Last month, Lese’tsa Mutchinya was added as accused number 18. 

Debating delays

Lawyers for the accused challenged the attempt to postpone the case for investigation, arguing it would prejudice their clients. 

On Thursday, Advocate Brad Osborne, representing Koko, presented arguments on behalf of his client. Advocate Shaun Abrahams represented businessman Mokwena.

The essence of their arguments was that the ID’s request for a postponement was unreasonable because its investigation into allegations of corruption at Kusile had not been completed and that the delays would prejudice their clients.

Osborne described the State’s request for a further postponement as ridiculous, adding that it took the State five years to charge his client.

Advocate Tiny Seboko, arguing for the NPA, said the case was 80% to 90% complete. This is despite the fact that magistrate Stanley Jacobs determined in March that the case would not be postponed again for further investigation, meaning the prosecution would have to be ready to take the case to trial.

The NPA’s failure to meet the court’s deadline opened the door for the section 342(a) inquiry and could lead to the case being struck off the roll.

The case stems from allegations of corruption in a R2.2-billion control and instrumentation tender at Kusile, which was won by ZAABB, the Swedish-Swiss multinational ABB’s South African division.

Read more in Daily Maverick: ABB: SA subsidiary of Swiss automation firm to pay back R1.56bn to Eskom

In May 2023, the ID went to court to seize more than R500-million in assets from former employees of ZAABB, and Impulse International, a company in which Koko’s stepdaughter was a director.

In the affidavits submitted as part of the forfeiture case, former ABB South Africa and Africa Business Unit manager Götz Dietrich Wolff, who agreed to act as a witness, said: “ZAABB’s success in winning the C&I tender was to the best of my knowledge brought about by a scheme involving primarily certain of my fellow employees from ZAABB, including myself, employees from other entities in the ABB group of companies, a company called Leago Strategic Services and its CEO Mr Thabo Mokwena and Matshela Koko of Eskom.”

The inquiry was postponed to 29 September, when the magistrate will rule whether the corruption case should be struck off the roll. DM