Eskom’s contested private intelligence files clearly ‘cannot be ignored’, SIU chief tells Parliament

style="font-weight: 400;"> 42 minutes into proceedings, Mothibi had stated the following: “The [files] cannot be ignored, because [they] have information that can point to … areas that require investigation. That is clear.”

This adjective – “clear” – had been used by both Mothibi and Fivaz to describe the latest assessment of the files’ value. Of course, as the founder and executive director of George Fivaz Forensic & Risk (GFFR), this was the result that Fivaz had been waiting for since 26 April, when an explosive series of articles in News24 had dismissed the files as “outlandish conspiracy theories”.

On 1 June, in fact, as Daily Maverick readers may remember, a practising advocate, former police superintendent and author of key textbooks for the SA Police Service (SAPS), Cerita Joubert had published a legal opinion that reached the conclusion that Mothibi would arrive at more than three months later – but, at the time, her opinion had likewise been dismissed by News24. However, the jury was in – according to top law enforcement officials, the Fivaz intelligence files were useful, real and serious. And there was no doubt, based on his latest presentation to Scopa, that Mothibi and his team had read every word of the roughly 1,500 pages that the files contained. 

The 13 monthly intelligence reports, 348 agent reports and various diagrams, Mothibi informed Scopa, had been divided by the SIU into 54 broad themes.

Of those, he added, 22 themes had remained within the mandate of the SIU, and the remaining 32 themes had been handed over to the Hawks (formally the Directorate for Priority Crime Investigation, or DPCI).

For his part, in his own presentation to Scopa on 12 September, Lebeya of the Hawks offered a similar level of insight.

“Certain role players in the [agent reports] were implicated in multiple individual reports,” he stated. “So, one had to do analysis of all the reports to try to make sense of how they related to each other.”

Lebeya then moved on to the allegations of criminal activities contained in the files, beginning with the sabotage of critical Eskom infrastructure. 

“The emergency procurement processes may have been utilised to obtain contracts,” he noted with respect to one of the apparent motives, “and Eskom, obviously facing an emergency, may have had no choice but to pay the excessive fees charged to address these emergencies.”

Regarding the next item, procurement fraud and corruption, Lebeya suggested that the intelligence files provided crucial detail on how “most of the companies that were identified” did not follow the requisite Eskom procedures.

On the Hawks boss went, alighting soon on the “coal mafia”, which the files implicated in “coal theft” and “illegal coal yards” in and around certain power stations in Mpumalanga.

“There were also prominent and influential persons that were mentioned,” Lebeya added under this item, “and as the SIU has stated, there are names that have been [cited] in these reports. We have analysed them and seen [them], but what we need is evidence to link them to specific crimes.”

Here, of course, Lebeya was referring to the two senior ANC politicians who had famously been implicated in the Fivaz files – names that had been known to Daily Maverick since early December 2022, when we first took possession of the diagrams and dossiers.

And indeed, Mothibi had touched on this extremely sensitive subject too.

“There are names mentioned in the reports,” the SIU boss had informed Scopa about 15 minutes earlier, “but at this stage we would like the investigations to unfold before we undergo a legal risk.”

What both Mothibi and Lebeya were implicitly saying, then, was that the Fivaz files had furnished law enforcement with enough raw information and intelligence to warrant a full-scale search for proof of the politicians’ involvement.

But would that particular search ever begin in earnest?

The answer, by Daily Maverick’s reckoning, was not a simple “yes” or “no” – because, though it was indeed “clear” now that the files were being taken seriously, the suggestions of political interference were as strong as ever.

Also, we had our own documentary proof, which indicated not only that security agencies were being less than truthful in their statements on when, exactly, they had come into possession of the files, but also that this fudged timeline may have been hiding a more troubling truth: that the delay in acting on the Fivaz reports had allowed for the destruction of key evidence.

Subterfuge with receipts 

For the first 40 minutes of his presentation to Scopa on 12 September, Mothibi focused on what he termed the “unauthorised” nature of the Fivaz intelligence files, which he was at pains to distinguish from the “separate issue” of their usefulness.

The core allegation, he repeatedly stated, was that De Ruyter had acted unlawfully in commissioning the private investigation and was therefore guilty of “maladministration”.

By implication, he added, GFFR and Business Leadership South Africa, which had funded the intelligence-gathering operation, may have been guilty too.

Early on in his presentation, Mothibi framed the alleged legal breach in stark terms: “We are aware that the former GCEO [group CEO, De Ruyter] was under obligation to report those investigations, and he failed to do so.”

About 10 minutes later, reading from a PowerPoint slide titled “Questions Requiring Answers”, he arrived at the crux of his concerns.

“Why would Eskom appoint a private investigating company when the allegations could have been referred to the SIU, the DPCI or the State Security Agency for investigation?” he asked.

The answer, according to the SIU boss, was this: “Eskom did not appoint GFFR. ADR [André De Ruyter] was acting on his own.”

And then, to drive the point home, Mothibi continued: “We could not really find why the former GCEO would not have reported this to law enforcement agencies.”

By Daily Maverick’s reading of events, based on previous Scopa hearings and our own independent reporting, these allegations were filled with assumptions that were incorrectly presented as facts.

To begin with the allegation that De Ruyter “was acting on his own”, there had already been more than enough parliamentary testimony to cast Mothibi’s version in a tenuous light.

For starters, on 9 May, when Mothibi and Lebeya had first appeared before Scopa on the matter – alongside SAPS head General Fannie Masemola – it was apparent to almost everyone watching that the security establishment had scored an own goal.

Soon after Mothibi and Lebeya had emphatically insisted that they had only recently learnt of the files’ existence, it emerged that a certain Brigadier Jap Burger of the SAPS may have been in possession of the files since at least July 2022.  

At Daily Maverick, this was our cue to approach De Ruyter for comment. He informed us, while the 9 May proceedings were still in session, that not only had Masemola himself designated Burger as the investigative lead, but that the Hawks in Mpumalanga had also been in possession of the files for a long time.

Significantly, De Ruyter also told us: “I reported the matter to the then interim chair of Eskom Holdings SOC, Professor Malega­puru Makgoba. I [later] informed the new board of Eskom of the intelligence operation at a meeting held at the Eskom Academy of Learning in November 2022.”

The next day, 10 May, Scopa quoted from our interview with De Ruyter to establish the truth. And there at Scopa, Makgoba, from the very beginning of his testimony, corroborated the version of the former CEO. 

“If SAPS and the Hawks had done their work effectively and efficiently,” Makgoba