Eskom vs Suzanne Daniels: Round 2

Suzanne Daniels has hit back at her employer with sensational claims that she was the one who had reported Matshela Koko’s family business deals to the Public Protector and that Eskom had allegedly threatened to wear her down unless she agreed to a once-off settlement offer.

The former head of legal at the state-owned power company is battling charges of misconduct and negligence in the performance of her duties as well as a contention by Eskom that she is no whistle-blower.

Not so fast, says Daniels, as she presented a timeline of 21 instances of what she says were efforts to expose wrongdoing – some of those once her internal complaints to the Eskom Board, the CEO and the parastatal’s executive had allegedly fallen on deaf ears.

Those include her assisting the Anti-Corruption Task Team of the police, the Hawks, the Asset Forfeiture Unit, the National Prosecuting Authority and the FBI over the course of several months since mid-2017.

Daniels submitted this information as part of a written plea explanation to fight the charges levelled against her by Eskom when her disciplinary hearing resumed in Sandton, Johannesburg on Friday morning.

She has pleaded not guilty to all charges and is scheduled to lead evidence on various aspects of the case.

Daniels dismissed the case against her as nothing short of a witch-hunt saying it was not about what she did but rather, what she had told a Parliamentary inquiry into public enterprises in November.

She had provided a detailed statement to Parliament that covered several controversies caused by the actions of some Eskom executives who had allegedly worked to aid the Gupta business empire.

Her statement to Parliament included the background and internal records relating to a prepayment for coal supply to the Gupta-owned Tegeta to help them raise a short-fall on the purchase price of Optimum Coal Mine and a settlement that triggered R1.6-billion in payments to global consulting firm, McKinsey & Co and the Gupta-linked financial advisory firm, Trillian Capital Partners in which the family’s key lieutenant, Salim Essa, held a majority stake in at the time.

One of the charges she faces relates to her allegedly having shared confidential documents to an email address believed to be that Essa, and for arranging the payment of legal fees for former board chairman, Dr Ben Ngubane, for a matter that had nothing to do with Eskom.

More significantly, the parastatal blames Daniels for the controversial payment to McKinsey and Trillian as well as the Tegeta pre-payment.

While Eskom has portrayed her as a key figure in the controversial transactions when she served in various capacities including that of acting Company Secretary, Daniels says she has been systematically victimised as a result of her initial internal efforts to expose wrongdoing.

Eskom has essentially accused her of having come to the anti-State Capture party belatedly, but this, Daniels says, was because she too had to rely on media reports to pull together the various pieces of the puzzle insofar as it related to the Gupta influence and the involvement of board members and executives.

Her plea explanation contains a reference to a letter sent to her by new Eskom CEO, Phakamani Hadebe, on March 16, in which he confirmed Eskom’s position that the irregularities at the parastatal have been in the public domain since at least 2016.

“They did not emanate from you but through reports such as the Public Protector’s Report, the Budlender Report and the so-called Gupta Leaks. I invite you to explain precisely why you claim that you made protected disclosures,” Hadebe allegedly told her.

Daniels argues that her disclosures were covered by the Protected Disclosures Act for several reasons. And, those disclosures, she said, were not once-off event, but rather a series of instances in which she sought to expose or communicate the irregularities within Eskom.

“The charges now preferred against Ms Daniels are linked directly or indirectly to her disclosures made to the Eskom Chief Executive, the Eskom Executive Committee, the Eskom Board of Directors, the Minister of Public Enterprises and the Portfolio Committee on Public Enterprises, members of the media where she has disclosed information regarding unlawful or irregular conduct by the Board, executives and senior managers in the employ of Eskom.

“These disclosures relate to serious acts of misconduct, otherwise referred in the media as acts in furtherance of institutional or State Capture.

“Her numerous disclosures internally were not yielding any result as she was stonewalled and vilified for speaking out,” states the plea statement.

In her attempt to bring some of the issues to the public’s attention Daniels said that she had also provided information to various newspapers about Eskom’s R1.6-billion guarantee for the Guptas’ Optimum Coal Mine deal and how it had arrived at a R577-million settlement figure in respect of the Optimum arbitration matter.

She has also pleaded not guilty to a charge that she had sent confidential internal information to the email address, “Businessman” [email protected], an address that Eskom has argued is in all probability that of Essa.

First, Daniels says, in this regard, Eskom is relying solely on the evidence of a “discredited” Matshela Koko, the company’s former acting chief executive who eventually resigned in February after his return to Eskom was blocked.

Eskom has to date suspended her three times and now it seeks to also cause her additional harm by seeking to lay Eskom’s violation of B-BBEE Act at her door, Daniels said. Details of this are expected to be introduced during the course of the hearing.

While a reasonable, law-abiding and non-corrupt employer would have celebrated her actions as a whistle-blower, Eskom has not done so in her case, raising the question of what “ulterior motive” the company may harbour, Daniels said in her plea statement.

Eskom has already hired two people, allegedly irregularly, to head up the legal department suggesting that her removal is already a foregone conclusion, she said.

She detailed how on 15 February 2018, after failing to make a series of initial charges against her stick, Eskom’s new CEO, Hadebe, had allegedly tried to cut a deal with her to make her walk away – and when she didn’t take the deal, the current set of charges were served on her.

Daniels told the hearing that Hadebe had made her a financial settlement offer which she told him could only be done on condition that the details were made public as she feared any such arrangement would draw criticism in view of a pending ruling by the CCMA (Commission of Conciliation Mediation and Arbitration) at the time.

She had challenged her suspension and on 8 March 2017, the CCMA ruled in her favour, finding that the initial suspensions had been punitive and awarded Daniels five months’ salary. The CCMA ordered Eskom to lift her suspension and she was scheduled to return to work on 19 March but this did not happen as the parastatal then initiated the current charges against her which were served on her three days before the return date.

Daniels claims that Hadebe allegedly subtly reminded her that an organisation the size of Eskom could wear her down during the attempt to get her to talk about a settlement offer. She reminded him that people like him were now in charge of Eskom because of people like her who had sounded the alarm over the wrongdoing and that she had not taken that route for a “cheque” but for her country.

The hearing continues. DM