JUSTICE DYSFUNCTION
NPA’s bungled Matshela Koko Kusile corruption case sounds alarm bells over directorate’s preparedness to prosecute
Former Eskom interim CEO Matshela Koko, his family and others accused of corruption are breathing a little easier after the Kusile corruption case was struck off the roll, but the National Prosecuting Authority could reinstate charges.
The Kusile corruption case involving R2.2-billion has served as a lesson in how not to handle a prosecution and revealed how unprepared the National Prosecuting Authority (NPA) is to prosecute complex State Capture cases.
On Tuesday, 21 November, the case was struck off the roll in the Specialised Commercial Crimes Court in Middelburg, Mpumalanga, over “unreasonable delays” after the NPA’s Investigating Directorate (ID) had asked for yet another postponement.
Among the reasons given for the request were resource constraints in the ID, the length of time it would take to process masses of information, affidavits that still needed to be secured from overseas witnesses, and the lack of an extradition treaty between South Africa and Germany, making cooperation between the two states cumbersome.
Some of these issues would have likely been apparent when the ID began its investigation, leading magistrate Stanley Jacobs to question why the ID, knowing it was far from ready to prosecute, decided to arrest the accused in October 2022.
“The court cannot escape the reality that this is a complex matter,” Jacobs said.
“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,” Jacobs said.
He was ruling on the outcome of an inquiry held in terms of section 342A of the Criminal Procedure Act, which allows a court to investigate any unreasonable delays that may prejudice any of the parties involved in a case.
In September, the NPA wanted an additional four months to investigate the case, but Jacobs had already ruled in May that there should be no more postponements.
He pointed out on Tuesday that “matters don’t just get enrolled … for purposes of investigation” and said the state had submitted that it had a prima facie case by the time the arrests were made.
“That doesn’t fly at all. It can’t fly because they had the benefit of all the information at their disposal by then,” Jacobs said.
Even after he made it clear that the case would be removed from the roll if the ID persisted with its request, the prosecutor said the team still needed more time.
The accused in the case include Eskom’s former interim CEO, Matshela Koko; his wife Mosima Koko; and stepdaughters Thato Choma and Koketso Aren. Also in the dock were former SA Local Government Association CEO Thabo Mokwena; Eskom’s project director at Kusile Power Station, Hlupheka Sithole; lawyer Johannes Coetzee; businessman Lese’tsa Johannes Mutchinya; and Watson Seswai.
The case involves charges of corruption in an instrumentation and control contract won by the local division of Swiss-Swedish firm ABB. The company agreed to pay “punitive reparations” of more than R2.5-billion in a settlement in 2022, which means it was no longer an accused.
Eskom former interim CEO Matshela Koko (left) with his lawyer Eddie Mashele. (Photo: Dianne Hawker)
Where the ID went wrong
One of the reasons Jacobs chose to strike the case off the roll was that he felt the NPA had not told the court the full story of its resource constraints. “When a person is seeking a postponement, he seeks the indulgence of the court,” said Jacobs.
“He must take the court into confidence. When you say you have a situation where you are underresourced, that’s not sufficient. You must give me more than that information. The court must take an informed decision. I must make a value judgment with regards to the rights of an accused person.”
On 22 November in Parliament, the NPA laid the situation bare before the Standing Committee on Public Accounts.
Deputy National Director of Public Prosecutions Rodney de Kock said the ID was not a permanent entity yet, and an amendment before Parliament aimed to give it permanence and more powers.
“The other impediment with the ID is that there is no permanent capacity to be able to do investigations within the ID. So this Bill is a very important piece of legislation to strengthen the work of the ID. It will create permanence and it will provide the ID with the powers to investigate so that we don’t have to rely on other agencies,” he said.
ID head Advocate Andrea Johnson said the directorate had a “very small group of criminal investigators who must consider all the matters arising from the State Capture Commission”. The group consists of 15 officers from the Hawks, five from the Independent Police Investigative Directorate and four police detectives. All of them have been reassigned to work for the ID.
Advocate Andrea Johnson, head of the Investigating Directorate in the National Prosecuting Authority. (Photo: Felix Dlangamandla)
This small group is also considering the findings from the Nugent Inquiry into the South African Revenue Service and the Mpati Inquiry into the Public Investment Corporation.
“There are currently other matters that can be referred to and have been referred to the ID. So there are a host of matters that the Investigating Directorate has to look at. The criminal investigative capacity is the capacity most required but that is minimal, to say the least,” Johnson said.
The ID’s staffing challenges were apparent in the Kusile case, as the investigating officer told the court that he was one of two investigators working on the case, but he was on loan from the Hawks.
The investigating officer, who cannot be named owing to safety concerns, also told the court that 17 terabytes of data had been collected through various search and seizures. Though he had some software to help him peruse this data, he still had a lot to do.
Some reports required external expertise, and slow procurement processes meant the ID sometimes waited for months at a time for sign-off on hiring.
In addition to this, the investigators were trying to obtain statements from witnesses based in Germany and the US, and this proved difficult without international cooperation agreements.
Matshela Koko at the Zondo Commission of Inquiry into State Capture on 1 March 2021. (Photo: Papi Morake / Gallo Images)
Public perception
Many of the accused feel vindicated in their assertion that the NPA was not ready to prosecute the case and believe they were arrested to create a public display.
Two lawyers who spoke to Daily Maverick believe the case could have been handled better.
Former prosecutor and criminal lawyer at BDK attorneys Piet du Plessis said the removal of the case did not stop the NPA from bringing the matter back to court, but its house would need to be in order before doing so again.
“Obviously, it is not a very comfortable position to be in. It’s an embarrassment. It points to people being charged and brought to court prematurely. It’s all about perception,” said Du Plessis.
“The problem is this matter was rushed on to the roll – perhaps to get favourable publicity. They have now got the opposite.”
Lawyer and legal analyst Mpumelelo Zikalala agreed, saying the NPA had the opportunity to mend public perception but would need to ensure it was trial-ready before trying to re-enrol the case.
“They can still recover if they do a proper investigation and prepare the matter as if they will go on trial the next day, [and] if they don’t arrest the accused at their homes and rather issue summons for them to appear in court,” said Zikalala.
“Then they should request to immediately move the matter to the high court. That will ensure there are no more unreasonable delays.”
Zikalala added that the issues being experienced in this case pointed to a bigger problem than the poor handling of a single case. He said millions were spent on the State Capture Commission of Inquiry “to diagnose the problem”, but the same resources were not being expended on the appropriate solution.
“We have a lot of existing [crime-fighting] agencies. We are shifting our eyes from the real problem: law enforcement agencies are not trained to deal with this type of crime,” Zikalala said.
The Kusile coal-fired power station in Mpumalanga on 5 May. (Photo: Waldo Swiegers / Bloomberg via Getty Images)
Kusile Timeline
November 2009:
Control and instrumentation contract awarded to Alstom S&E Africa, which is unable to service it. In 2013, Eskom decides to cancel the contract.
May 2014:
Eskom issues a new request for proposals.
March 2015:
ABB is awarded the control and instrumentation contract.
March 2017:
Whistle-blowers leak information about Eskom contracts awarded to Koketso Aren, a stepdaughter of Matshela Koko, then acting CEO of Eskom.
16 February 2018:
Koko resigns amid allegations of corruption shortly before a disciplinary hearing in which he pleads not guilty to all charges.
6 April 2018:
President Cyril Ramaphosa signs a proclamation for the Special Investigating Unit (SIU) to investigate allegations of irregularities at Transnet and Eskom.
December 2020:
ABB agrees to repay R1.577-billion to Eskom in a settlement with the utility and the SIU over irregularities in the contract.
April 2022:
Justice Raymond Zondo finds there is a “pervasive culture of corrupt practices” in his State Capture Commission report.
27 October 2022:
The NPA’s Investigating Directorate arrests Koko, along with seven others, including his wife Mosimo and stepdaughters Koketso Aren and Thato Choma.
December 2022:
ABB agrees to pay back R2.5-billion in “punitive reparations”. This is in addition to the R1.577-billion that ABB paid Eskom in 2020.
2 August 2023:
Businessman Johannes Mutchinya becomes the 18th suspect arrested in the corruption case.
4 September 2023:
The NPA requests an additional four months to conclude its investigation into the allegations of corruption at Kusile.
21 November 2023:
The Specialised Commercial Crimes Court in Middelburg denies the NPA’s extension request and the case is struck off the court roll.
Chief Justice Raymond Zondo on 12 February 2019 in Johannesburg. (Photo: Felix Dlangamandla / Gallo Images)
Failures in other State Capture cases
The National Prosecuting Authority (NPA) has suffered some blows in its attempts to prosecute criminal cases related to State Capture, beginning with the acquittal of the six accused in the case involving Gupta-linked company Nulane Investments.
The company was awarded a R24-million contract by the Free State provincial government in 2011 to produce a feasibility study that the NPA alleged was fraudulent. It failed to prove the case, however, and attracted the ire of the judge.
In April 2023, Bloemfontein High Court Judge Nompumelelo Gusha criticised the NPA for bringing a hasty prosecution. She also criticised the way crucial evidence was handled.
“The state, contrary to the application to have the documents provisionally admitted into the record, did not lead a single witness and/or evidence who successfully authenticated the disputed documents.
“What this court instead heard was the ineptitude of the investigators and indeed the lackadaisical manner in which evidence and disputed documents were handled, and a government department that seemingly evinced a wilful disregard to the manner in which official documents were to be kept and archived. Just on these aspects, the state’s case as presented was stillborn,” she wrote.
The Department of Justice’s efforts to extradite Gupta brothers Atul and Rajesh hit a brick wall when, in April, the United Arab Emirates (UAE) denied its application. The brothers are seen to be among the architects of State Capture. The UAE asked the SA government to submit a new application, but the department said it would first engage with UAE officials on the questions raised in the original application. DM
This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.
Become an Insider
The fastest route to wiping out the crooks is not the NPA.
Have SARS do a deep dive on all direct and indirect assets (companies, properties, trust beneficiaries) that seem to contradict the taxable income of all the parties and their friends & family.
300% penalties plus interest plus the ability to slap criminal prosecution onto gross evasion is the only sure way.
I am sure the audit firms and big law firms will all agree to provide some assistance in terms of resources to map out linkages.
Banks should be compelled to retain banking records indefinitely and the prescription laws must go.
Then nail each and every professional like lawyer or accountant or personal banker that facilitated schemes, with joint & several liability plus criminal prosecution.
Agreed – SARS appear to be the only agency with teeth and the ability to get things done – all facilitating professionals and related banking personnel found wanting are to go down as well.
Writer has been writing about the complete AWOL of SARS (and the FIC) for years now. All these state capture/ alleged corruption cases cry out for their intervention and prosecution.
SARS ( and FIC) has statutory and pre-emptive powers of seizure and prosecution of tax cases with the onus of proof resting with the possible miscreant.
There is more than enough evidence to initiate enquiry and investigation of financial transactions relating to contracts, purchases of high-value assets such as properties and motor vehicles. The banks, estate agents, car dealerships etc are obliged to report unusual or high value transactions.
Seizure of a fleet of high-end sports cars with much fanfare is laughable if not carried through.
Rather than try to process multiple matters-NPA should focus on one and make it happen.
As it is all the 2020 clips of father and daughter Koko with new Lamborghini are doing the rounds!
Interesting how the likes of Batohi and Keiswetter were hailed upon being appointed but with passage of time prove to have no substance.
They’re letting us down and causing the nation to lose hope.
Instead of “ thanking us for our tax compliance” how about doing your jobs?
Obviously the NPA have been instructed to “fudge” this prosecution in any way possible, i.e. ensure that the arrest/prosecution procedure is mired in controversy so that loyal cadres do not “face the full might of the law” (whatever that may mean in S.A.). This, as we see again and again, is achieved by enacting all manner of irregular procedures which can be readily challenged by defence lawyers.
Speechless once again and use your vote get this Mafia Cabal out of Government. This Titanic hit an iceberg a long time ago and none of the Cadres wants to fix anything. The KOKO case is a disgrace. Shame on you Shamila.
Ms Batohi is not even mentioned in this article which says much about her and why she was appointed to head the NPA.
From the outset, there was no intention to follow through on all the skeletons, corruption , theft and gross personal enrichment, because too many involved were, and still are, senior ANC cadres.
Prosecutions would not only have seen swathes of ANC persons incarcerated, but it would have laid bare that the primary reasons that enabled same, would be laid bare to be ANC cadre-deployment and the whole extension of the NP racist policies that became BEE.
South Africa can only thrive and prosper when competence and experience are the key attributes in appointing persons to positions demanding same.
With hindsight, the appointment of Batohi, qualified perhaps, but without the gravitas, experience and team-building skills necessary to establish the NPA as a force to be reckoned with.
Johan Buys, in a separate comment supports the “Al Capone route”, successfully used to take down their 1930’s criminal elites then having a stranglehold on the US economy – get them locked away by the tax authorities and expose and confiscate their ill-gotten gains – a route likely to have the same success now, in our country, South Africa.
The ANC will find it very difficult to vote for more money to better investigate their own members. The only way to fix this is for SA citizens to vote in clean government that will not hesitate to resource the police and NPA with what is required to prosecute the swathe of criminals running rampant in SA.
The question of the NPA enrolling cases for trial and requesting for postponement for further investigations actually speaks to an institution that is highly compromised and this practice is very rampant in the magistrates courts throughout the country and you can have a case for four years being postponed ad infinitum. These people have no shame. This goes for the thugs who are said to be the investigating officers. To charge a person and then investigate is a very funny process that has become emblematic of our courts. The decision of the presiding officer was correct but there must be a price for these people who engage in such thuggery in the NPA and the police at a personal level. They must be made to pay for the costs or part thereof should those who were accused sue the state. They must know that such practices have costs. We must not blame the commission and the hogwash of resources. There are accountants in this country and forensic auditors to do commercial crimes and this case is not difficult to get the required evidence if it exists at all. The lies of terra bytes requires charges of perjury and defeating the ends of justice by the prosecutor and investigating officer. This was the question of whether there was a case or not on this matter as one wonders what terra bytes have to do with a contract. It wax either fraudulently awarded or not and we must not be made donkeys by the NPA.
From a contact of mine there apparently is a lot of ineptitude in the NPA?Wonder why?
Deliberate bungling we are not stupid… look at the GUPTA’s this is the ANC’s final onslaught before it is removed from power to ensure they are not held accountable
The the NPA and ID fall under the ultimate control of the ANC government who appoints and/or approves the appointment of the various people running these departments. Doesn’t say much for a political party who screw up up anything and everything under their control. Pointing fingers at these departments for dereliction of duty should instead be targeting the corruption riddled ANC.
“ID head Advocate Andrea Johnson said the directorate had a “very small group of criminal investigators who must consider all the matters arising from the State Capture Commission”. The group consists of 15 officers from the Hawks, five from the Independent Police Investigative Directorate and four police detectives. All of them have been reassigned to work for the ID.” In 1999 the Western Cape was in a small scale civil war with Pagad planting bombs, drive-by shootings and murder. I was a senior advocate in Pretoria. Bulelani Nghucka came on a Wednesday and told me to be in Cape Town on Monday. When I got there, I was asked to pick 5 investigators. One of the five went off on stress related illness and we got to replace him. Our command was to end the bombs. The last bomb was found on 2 November 2000. I was initially the only prosecutor. We worked day and night, we did not have a library or any of the sophisticated support systems that are now available. We became the Scorpions. When the court cases became so regular, I got 2 other Advocates to assist. In the end, we succeeded. The bombs stopped, most of the leadership of Pagad were in jail. I only smile when I see the claims by the NPA that they do not have personell and Investigators. We were a mere 8 – working and getting results.
I don’t buy the incompetence excuse. It’s an implausible deniability pitch. This is orchestrated as are all the other bungled cases that let the nomenklatura of the anc and their partners in crime off the hook on the regular.
No matter which way you cut it, Adv. Shamila Batohi was weighed and found too light. Perhaps not as biased and deployed as some of her predecessors, but in similar vein to the CR. Lots of plans, lots of dreams, lots of hope … but lacking in results.