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Koko vs Zondo - the Eskom Bundle legal battle on both sides to prove flouting of court procedure

Koko vs Zondo - the Eskom Bundle legal battle on both sides to prove flouting of court procedure
Dianne Hawker
By Dianne Hawker
3 Apr 2025
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After two years of legal filings, lawyers for the Zondo commission and former Eskom acting CEO Matshela Koko are due to meet in court for the first time. The case has been filed on the unopposed court roll after the commission failed to file any affidavits since 2022. Zondo’s lawyers believe this is grounds for the court to find in his favour, while the commission argues that Koko has failed to run his case properly.

Former Eskom acting CEO and Group Executive: Generation Matshela Koko has made a calculated move against former Chief Justice Raymond Zondo by applying for his review application against the State Capture commission to be heard on the unopposed court roll in April. Koko, who was head of generation at Eskom, was made acting CEO in December 2016 and held the role until May 2017.

Koko filed his application in December 2022, and in the two years since, the Zondo commission has yet to file an affidavit in response to Koko’s allegations of bias. The former Eskom executive now wants the High Court in Johannesburg to rule in his favour, arguing that the commission’s findings against him “lack a rational connection to the evidence provided”.

Read more: Former Eskom acting CEO Matshela Koko set to contest Zondo report findings against him in court

Clash over rules 


When the case is heard later this month, much of the argument will focus on procedure before the merit of Koko’s allegations of bias. This is because both Koko and the commission are accusing each other of flouting court procedure.

While the commission has filed thousands of documents as part of the record of its decision, the court has not received an answering affidavit that counters Koko’s allegations. This has led Koko to push for his case to be heard on the unopposed court roll. In his heads of argument, Koko says the failure to submit an affidavit amounts to the commission conceding the case. 

“The respondents’ failure to submit their answering affidavits suggests a lack of a substantive defence against the review application. By not providing their affidavits as promised for over twelve months and citing legally unjustifiable reason, the respondents have effectively waived their right to be heard,” Koko’s lawyers say in heads of argument submitted in the case. 

When contacted for comment, commission lawyer Baitseng Rangata said she didn’t have a mandate to respond to the media and referred Daily Maverick to a 25 March 2025 filing she made to court. The notice is made in terms of Rule 30A (1) of the uniform rules of court, which deals with irregular court procedures. 

“The application has delivered a founding affidavit on 21 December 2022 and a Supplementary Affidavit on 8 December 2022, but has to date failed to serve all the annexures referred to in the founding affidavit and the footnotes to his founding affidavit, as well as all the annexures referred to in his supplementary affidavit,” the notice says. 

Read more: NPA’s bungled Matshela Koko Kusile corruption case sounds alarm bells over directorate’s preparedness to prosecute

The notice continues that if Koko doesn’t deliver the annexures within 10 days, the commission will apply to the court to “have the claim struck out”. 

The issue of the filing of annexures will be central in the hearing on 29 April. In Koko’s affidavit, he notes that he will refer to the annexures as contained in the commission’s Eskom Bundle, which the commission submitted to court. 

“To avoid confusion the annexures referred to in this affidavit are in the same format and numbering as the annexures in the Commission’s Eskom Bundle. The Eskom Bundles are part of the Record to be delivered by the respondents to the registrar of the High Court within 30 days of [service] of this notice,” Koko said in his founding affidavit.

The bundle was delivered five months later and consisted of thousands of pages of Eskom documents and testimony.

During the course of 2024, the commission confirmed that it had indeed received the annexures from Koko’s legal team. Rangata had written to Koko’s lawyers on 2 April, informing them: “We confirm that the requested annexures were received on 2 April 2024,” continuing that the commission was planning to file its answering affidavit by 15 May 2024.

On 30 May, the commission’s lawyers indicated that they needed more time.

“We had anticipated that we would have completed and settled the answering affidavit by now. However, it is proving to be taking longer than anticipated, given the voluminous nature of the documents to be considered in order to finalise the affidavit. We confirm that the draft answering affidavit has already been given to the client for consideration and finalisation. We therefore request an extension to file the answering affidavit by 11 June 2024,” Rangata said.

On 29 January 2025, the commission’s stance changed, and it alleged that Koko’s notice of set down was “defective” as it referred to the Limpopo Division of the High Court. 

“We place on record that your notice of set down is defective in so far as it bears the heading of a wrong court. However, we wish to particularly point out that your client’s notice of set down is irregular as you and your client know full well that our client opposes your application. You and your client also know full well that your client filed a defective review application in that, in breach of rule 6(5)(a) of the Uniform Rules of the High Court, your client failed to attach to his affidavits various documents upon which he relies in his review application. You and your client also know we have pointed this out to you over many months, and you neither furnished us with those documents nor bothered even to acknowledge receipt of our letters or emails we have sent to you,” Rangata said in the January letter.

Lawyer Matodzi Ratshimbilani, who is not party to this case, said the issue of annexures was crucial to a case moving forward.

“If it is a review of a decision that is not already before the court, you need to ensure that the records are all before the court for the purposes of the review. You cannot assume that the other parties have access to them.”

“If they are not before court from an earlier case, then you are duty bound to bring them before court,” he said.

‘Gupta agent’ 


The Zondo commission’s final report made several adverse findings against Koko, referring to him as one of several “Gupta agents” within Eskom.

Volume 4, parts 3 and 4 focused on allegations relating to State Capture at Eskom, and Zondo found that there was evidence of a scheme to remove “certain executives who occupied strategic positions who the Gupta family believed would not co-operate with them in their plan to capture Eskom and steal tax payers’ money and to replace them with officials who would co-operate with them.”  

“...Mr Koko was an integral component of the Gupta family’s strategy to capture Eskom,” the report said.

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

Zondo recommended that the National Prosecuting Authority should consider the criminal prosecution of Koko along with then senior managers Vusi Mboweni and Dr Ayanda Nteta. Zondo also recommended the prosecution of Tegeta and Jacques Roux.

In 2015, Gupta-owned Tegeta Exploration Resources had purchased Optimum Coal mines, and was later awarded a R1.68-billion coal deal with Eskom under dubious circumstances. Eskom made a pre-payment of R659-million to Tegeta, which allowed the Guptas to acquire Optimum.

Zondo referred to the deal as a “sham” and recommended the NPA investigate all involved, including Koko. Koko was arrested in 2022 on allegations of corruption linked to the construction of the Kusile Power Station. After several court appearances, the case was removed from the court roll over unreasonable delays. 

Read more: Tegeta acquired Optimum Coal Mine ‘through succession of criminal acts’, NPA argues in forfeiture application

Koko fights back


Throughout his testimony at the commission, Koko maintained that his actions were above board. He submitted eight affidavits between September 2020 and November 2021, and in papers before the high court, he argues that the commission didn’t properly consider this evidence.

“Given the Commission’s mandate, the Commission should have considered the crucial evidence in my sixth affidavit. This application will show that the Commission failed to do so. It follows that, in my view, the Commission’s actions were not rationally related to the outcome sought to be achieved by the Commission’s mandate.”

Koko refers to several instances in which he believes the commission withheld documents from him, which he later discovered in the record of decision documents submitted in this case. 

“I found two relevant memoranda in the Commission’s record. Again, I submit that the two documents were deliberately kept away from me during the Commission’s proceedings because they would have weakened the Commission’s narrative. The Commission acted in bad faith.”

He also argues that the commission should not have sanctioned him over the Tegeta pre-payment since Eskom received the coal. 

“I testified that even if Tegeta used the pre-payment for purposes other than what it had represented to Eskom’s officials, it did not make the payment to Tegeta unlawful. I had no inkling that the pre-payment would or may have been used for any other purpose that had been out across [sic] in the submission signed on April 11, 2016. The agreement I signed on April 13, 2016 was performed and carried out on its terms, and Eskom received the coal for which it had made the advance payment.”

Koko also accused the commission of ignoring an audit report that confirmed that the coal had been delivered. “It was not following the evidence but was on a hunt for Koko,” he said. 

Read more: Throw Eskom chapter of Zondo report in the bin, says Koko as NPA faces major hurdles in Kusile case aftermath

Koko has launched two other civil cases related to State Capture outcomes, one involving the Special Investigating Unit (SIU) and the other involving the National Prosecuting Authority (NPA).

In the NPA case, Koko has challenged an agreement which the prosecuting authority concluded with Swiss/Swedish engineering firm Asea Brown Boveri (ABB) for the company to pay R2.5-billion in punitive reparations after it was implicated in Eskom corruption allegations. He argues that the agreement lacked the proper oversight and should be scrapped.

In the second case, Koko applied to be joined in a matter in which the SIU has asked the court to set aside Eskom’s contract with ABB. He argues that the outcome of this case will impact on his right to dignity as he has been implicated in the ABB allegations. DM

This article was updated on 4 April 2025 to reflect that Matshela Koko was acting CEO and Group Executive: Generation of Eskom.

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