A Middelburg magistrate has demanded to know why the National Prosecuting Authority’s (NPA’s) Investigating Directorate has not yet concluded its investigation into allegations of corruption at the Kusile Power Station.
The 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. Five companies have been charged.
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
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.
However, the prosecution on Monday requested another postponement, saying it had several loose ends to tie up before it could take the case to trial.
Advocate Tiny Seboko, who has been seconded from private practice, argued for the case to be postponed, saying the NPA was 80% to 90% of the way to completion.
“The State is here to announce, whereas we have not finalised the investigation, there has been substantial compliance with the order of 23 March,” she said.
Seboko said the State was willing to provide a docket to the defence legal teams, including 847 affidavits.
“Physically, that amounts to 155 lever arch files of documents. Electronically, it amounts to two terabytes of data,” she said.
Seboko added that the prosecution had collected 16 terabytes of data which it was willing to disclose. This amounted to over “83 million pieces of paper”, she said.
“There are three witness statements outstanding from interested parties in the USA and three witness statements from interested parties in Germany. We are awaiting two expert reports from a data analyst and from a forensic auditor,” Seboko said.
She added that the procurement process to allow the NPA to get the external experts had delayed the process, but these reports would be concluded within three months.
The State is also awaiting the final version of a “flow of funds” report that exceeds 800 pages.
“It is undergoing its final quality check. It should be ready within a month,” Seboko said.
Read more in Daily Maverick: How a shell company and family car purchases helped Eskom’s Kusile contractors launder millions of rands
Concern over delays
The magistrate expressed concern that the NPA was making this request after he had already made an order stating that the investigation should be finalised by 4 September.
“What is stopping you at this stage to prepare an indictment and refer the matter to the High Court? I want to expedite the process. It won’t be placed on the High Court roll immediately for trial,” he said.
Jacobs added that he was taking the NPA to task because the regional court was a trial court and should not be dealing with too many preliminary issues.
“I’m supposed to be a court for trial. My mind is trial-ready. When you come to me, you must be trial-ready.”
Seboko said while she appreciated his concerns, the High Court would raise similar issues because the defence had indicated it wanted to challenge some aspects of the case before the trial gets under way. She added that the accused would need enough time to prepare and read through all the evidence the State had collected.
Jacobs was not swayed.
“When I made the order, I think it was clear to everyone … my final postponement was final, as the definition of final in the dictionary,” he said.
Section 342 inquiry
Lawyers for the defence challenged the attempt to postpone the case for investigation, saying it would prejudice their clients. They called for an inquiry into the reason for the delay in terms of section 342(a) of the Criminal Procedure Act.
The section requires a criminal 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”.
Jacobs said that since the NPA had told the court it was not ready and had not complied with the previous court order, the inquiry would get underway as a matter of urgency.
Advocate Shaun Abrahams, who represents businessman Thabo Mokwena, told the court that the NPA’s request was unreasonable.
“Time is of the essence. The conduct of the prosecution in this matter is exactly the conduct that the SCA has warned against in Van Heerden v NDPP. The investigation commenced in 2017. The prosecution arrested my client to much media fanfare. The prosecution does not take this court into confidence. The goalpost seems to shift,” he said.
Advocate Brad Osborne, representing Matshela Koko, his wife and stepdaughter, expressed similar concerns about the delays.
“This is a matter of urgency. It has to be dealt with on an urgent basis. This docket was opened in July 2017. The accused were brought to court in October 2022. We are 11 months away from when they were first brought,” he said.
The NPA has until 14 September to submit their affidavits to court. The defence will reply by 18 September. The case has been postponed to 21 September for argument. DM