Defence cries foul over ‘rushed’ Kusile corruption case arrests when NPA probe ‘far from complete’

Former prosecutions boss Shaun Abrahams, who is now a defence attorney, has criticised the NPA for rushing the arrest of the accused in the Kusile corruption case.

He questioned why the arrests were made after several interviews and articles in which NPA leaders spoke about how “seminal” the case was. 

Abrahams quoted several news articles in which either National Director of Public Prosecutions Shamila Batohi or Investigative Directorate head Andrea Jacobs was quoted. 

“It is evident that this matter was identified as a seminal matter. It is clear that a deadline was set for these accused to be charged and appear in court. According to this article, a deadline has been set to charge my client and his co-accused,” he said while questioning the investigating officer in the case.

The Kusile case involves charges of corruption in a R2.2-billion control and instrumentation tender which was won by ZABB, the local division of the Swedish-Swiss firm ABB. 

Among the accused are former acting CEO and head of generation at Eskom Matshela Koko, his wife Mosima and his stepdaughter Koketso Aren. Businessman and former SA Local Government Association chairman Thabo Mokwena is also among the accused, along with lawyer Johannes Coetzee. The charge sheet also includes five companies, Watson Sebataolo Seswai, Thato Choma, Lese’tsa Johannes Mutchinya, Sunil Vip, Markus Bruegmann and Gopal Shamji Kambi. Vip, Bruegmann and Kambi are not present in court as they are based in Germany and the United States. 

Read more in Daily Maverick: Matshela Koko is the key: How a Swedish-Swiss energy company colluded with then acting Eskom CEO in billion-rand Kusile deal

Abrahams asked why the accused in the case were arrested in October 2022 if the investigation was still far from being concluded. He added that statements from leaders in the ID suggested that the case would be ready for trial in just three months, but a year later there is still outstanding evidence.

The investigating officer, who cannot be named for safety reasons, said he could not comment on what his superiors said in interviews. He admitted that in regular internal meetings, the case was seen as serious “and we have to expedite it”.

“Why did you arrest my clients when you knew the investigation was far from complete?” Abrahams asked.

The investigating officer said the arrest came at the same time as a search and seizure warrant was being effected.

“It was practical for us to conduct an arrest on the same day,” he said.

Abrahams followed up: “Did you for one moment, one moment, when you arrested my client and his co-accused have regard for his constitutional right to have their trial commence with and be concluded in a reasonable time”

“Yes, we did!” replied the officer. 

The Middelburg Regional Court is conducting an inquiry into the reason for the investigation not being finalised. The inquiry is being conducted in terms of Section 342A of the Criminal Procedure Act, which allows the court to investigate the cause of a delay in finalising a case. 

In March 2023, Magistrate Stanley Jacobs ordered 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. 

In addition to affidavits, the law allows the court to call witnesses to the stand which it has done in this case by calling the investigating officer to the stand. 

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

The issue of investigation resources was prominent in the hearing since the investigating officer told the court that he had limited resources to conduct his investigation. He said only two investigators are working on the case along with two prosecutors.

The court had previously heard about the millions of documents in the case that need to be processed along with photographs, emails and other information.

He added that some statements still needed to be obtained from overseas witnesses and this process was not always easy. The statements have to be drafted with assistance from lawyers in Germany and the United States and then couriered to South Africa in a sealed envelope. 

Magistrate Stanley Jacobs was concerned about the time this process was taking and said it seemed local officials were at the mercy of their foreign counterparts.

The investigating officer said they had found a way to make it happen and the statements would be in South Africa soon. 

The case was postponed to 31 October for the remainder of the defence lawyers to cross-examine the investigating officer. Ironically, by that date, the inquiry into the delayed investigation will have taken almost two months. The NPA first requested additional time on 4 September. DM