There was ululation and high-fives galore among the accused in the R2.2-billion Kusile corruption case when the Middelburg Regional Court on Tuesday removed the case from the court roll. This means the National Prosecuting Authority’s (NPA’s) Investigating Directorate (ID) will have to go back to the drawing board on how to handle the case. 

Before returning to court, the ID will need to get final approval from the National Director of Public Prosecutions, Shamila Batohi, who must submit a letter to the court confirming that the case is ready for trial. 

The accused in the case include former SA Local Government Association chief executive Thabo Mokwena; Eskom’s former interim chief executive Matshela Koko; his wife, Mosima Koko; his stepdaughters, Koketso Aren and Thato Choma; the project director at Kusile, Hlupheka Sithole; the lawyer Johannes Coetzee; Watson Seswai and Lese’tsa Johannes Mutchinya.

Matshela Koko and stepdaughter Koketso Aren celebrate at the Middelburg Regional Court after a case of fraud, corruption and money laundering was struck off the roll. (Photo: Dianne Hawker)

The magistrate decided to conduct an inquiry which he said was a tool that “has reinforced the protection enjoined by our constitutional regime”.

Section 342A of the Criminal Procedure Act allows the court to “investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness”. The court found that the delays in this case were unreasonable. 

Read more in Daily Maverick: Koko’s Kusile corruption case struck off roll for ‘unreasonable delay’ by NPA

Matshela Koko and Koketso Aren after the case of fraud, corruption and money laundering was struck off the roll. (Photo: Mandla Dhludhlu)

‘Hate crime’

Speaking outside court after the verdict, Koko blamed the NPA for trying to destroy his family. 

“You can’t make such allegations, investigate them for more than five years, bring me to court, wake me up at 6am, [and] more than 12 months later you’re not ready to go to trial. What we see here is a hate crime. What has happened to me and my family is nothing else but hate crime. It’s hate for Koko. It should never happen to any family,” he said.

“Justice cuts both ways. There are serious allegations made by the State against me. The public expects that these allegations must be answered. I think we’re taking South Africans for a ride. The National Prosecuting Authority is doing South Africans a big disservice.” 

The Investigative Directorate says it is confident it will re-enrol the case as soon as the outstanding issues are resolved. 

“It should be noted that this decision is not tantamount to an acquittal or withdrawal of the charges. The ID will continue investigating the case in line with the original case strategy that it developed for this complex matter,” said ID spokesperson Sindisiwe Seboka.

Seboka said the issues raised by the court had been noted and that the delays were “not anticipated at the time of the arrest of the accused, due to the complex nature of the case, the extent and the sheer volume and the digital nature of the evidence seized, in particular, subsequent to the arrest and enrolment”.

“Work on the compilation of the outstanding reports is ongoing. The ID will re-apply for the matter to be re-enrolled within a reasonable period of time, and as soon as the outstanding aspects of the investigation have been completed,” she said. 

Asked about the case being re-enrolled, Koko said, “When they come back, I will answer them. You might as well take the Eskom chapter of the State Capture Commission [report] and throw it in the bin. Throw it in the bin, it means nothing.”

He added that he would now take time to rest. “I must go and spend time with my wife. She has taken a toll. She’s been very supportive,” he said. 

Not ready for trial

Before returning to court, the NPA will have to get its ducks in a row. In delivering his judgment on Tuesday, regional magistrate Stanley Jacobs was concerned that the case had been brought to his court before it was trial-ready. He said the regional court should not be used to “warehouse” cases, but was a trial court that needed its time to be used effectively. 

Read more in Daily Maverick: Ex-Eskom boss Matshela Koko’s corruption case still not ready for trial, magistrate demands answers from NPA

“The court cannot escape the reality that this is a complex matter. But obviously if it is a complex matter one would expect that before you come to court your investigation has been completed. Because you know what you might face in future, especially when it comes to enrolling a matter for trial. Especially taking into consideration when you enrol this matter, matters must be trial-ready. Matters don’t just get enrolled in the regional court or the high court for purposes of investigation,” Jacobs said.

Jacobs was also concerned that the submissions made by the State about possessing 18 terabytes of data created an impossible situation for the State. He calculated that 18 terabytes of data would amount to 1.4 billion pages of information.

“I heard the investigating officer say he managed to read 11 terabytes of data. That’s mind-boggling. It can’t by any stretch of the imagination be possible,” Jacobs said. 

On 5 October, the investigating officer, who cannot be named for his own safety, said he had not physically read all the data, but used “certain search engines” to help read the documents. He added that some of the data were videos and photographs.

Jacobs was also concerned that although the NPA had said its investigation was 99% complete, at least one of the outstanding reports seemed crucial and far from complete. 

“The State indicated that the Bowmans report, the flow of funds report is crucial to the case. I have indicated that I am not intending to get into the merits but the court wants to make the following observation: The flow of funds, my understanding is that they are relevant in order to prepare the indictment, How are you going to indicate who has received through what process? You need that flow of funds.” 

Jacobs noted that the investigating officer told the court more consultation and instruction was needed before the report was concluded.

“The bottom line is, that report is not ready,” he said. 

Jacobs was also concerned that the investigating officer had not adequately explained the resource constraints the ID was facing. This was among the key arguments in the State’s request for a postponement. 

“When a person is seeking a postponement, he seeks the indulgence of the court. He must take the court into confidence. When you say you have a situation where you are under-resourced, that’s not sufficient. You must give me more than that information. The court must make an informed decision. I must make a value judgment with regard to the rights of an accused person,” he said. DM