Parliament: Eskom State Capture 2.0 – Governance by plausible deniability, memory lapses and competing documents

“We haven’t prepared anything because you made us not to prepare for you … You have undermined the work of the committee,” inquiry chairperson Zukiswa Rantho told suspended Eskom Chief Financial Officer Anoj Singh in relation to the midnight document email drop. “We are responsible people. We are accountable to the people.”

And so the engagement would not go ahead on Tuesday, but he’d be given a date in January. Co-incidentally, Singh also has yet to face a disciplinary hearing on procurement and mismanagement concerns that led to his precautionary suspension over two months ago.

If anyone sought to exploit the intra-party or party-political differences that so often emerge in Parliament, Tuesday’s tactics were a serious miscalculation. MPs on this inquiry into State Capture at Eskom have displayed determination against threats and intimidation targeting one MP, close relatives of another and public attacks on inquiry evidence leader Advocate Ntuthuzelo Vanara, ranging from threats to reporting him to the General Council of the Bar to, according to the Sunday Times, offers of inducements to scupper the inquiry.

“If Parliament is seen as that institution for formalities, gone are those days,” said ANC MP Zukile Luyenge in support of Rantho’s comments. And African Christian Democratic Party (ACDP) MP Steve Swart pointed out: “There’ve been many attempts to undermine this committee… This is another example. It is very clearly a delaying tactic and an attempt to frustrate (us)”.

DA MP Natasha Mazzone said she didn’t like Parliament “being held in contempt” and Singh’s attitude was “shameful” and unacceptable. “Thank you for my December reading. I will not read it once, twice or three times… and will see you in January. Shame upon you for doing this to Parliament.”

As IFP Chief Whip Narend Singh, pointing out that “documents arrived at midnight”, said this put the committee in a difficult position, EFF MP Marshall Dlamini added that Singh should tell “his friends (to) respect Parliament and come on time”, a reference to the proposed calling as witnesses of Atul, Ajay and Tony Gupta.

With the words “I think Mr Anoj Singh is released by this committee”, Rantho sent him packing. It appeared to take a moment for that to sink in before a smiling Singh collected his documents and walked out.

It’s rare for committees of Parliament to draw the line in the sand so definitively. Officials are seldom sent packing, even if MPs are dissatisfied with what they have brought to them as part of the national legislature’s constitutional oversight mandate.

Tuesday’s inquiry stance was another key moment, following MPs’ support of Vanara after the State Attorney, in a letter on behalf of Public Enterprises Minister Lynne Brown and her department, threatened to report him to the advocates’ professional body.

The inquiry is hard slog. Public testimony so far shows broad areas of agreement on key events such as board meetings, decisions and issues by current and former officials and board members. What varies is who puts what emphasis where. And that’s crucial in highlighting governance by plausible deniability at this State-owned Entity.

Current acting Eskom board chairperson Zethembe Khoza largely confirmed the role of “the presidency” in the 2015 suspension pending a three-month deep dive inquiry of four top executives, including then Chief Executive Tshediso Matona, who had been in the job for just a few months then, and Group Financial Director Tsholofelo Molefe, who refused to agree to the multimillion business breakfast deal with the Gupta-owned New Age newspaper signed by previous Chief Executive Collin Matjila that was later deemed irregular expenditure.

“… Mr Tsotsi (former Eskom chairman Zola) reported to the board that the presidency had expressed concern that the impact of Eskom and the power outages on the country was being understated. It was felt that the board should get to the bottom of matters and establish the exact causes of the problems so that it could take decisive action. Mr Tsotsi said that he had been requested to ask the board to authorise an independent external enquiry… Mr Tsotsi reported that an independent resource had already been identified by the presidency to carry out the resolution and he, the chairperson, had already gotten a document in that regard,” said Khoza in the written submission to the parliamentary inquiry.

And while Khoza confirmed two separate board meetings on the four executives suspensions, his focus was on Tsotsi as the driving force. This stands in contrast to the former Eskom board chairperson’s testimony that there had been agreement after he tabled the matter following being called to a meeting in early 2015 by then SAA chairperson Dudu Myeni at President Jacob Zuma’s Durban residence at which the president also popped in.

While Tsotsi last month told MPs he considered his resigning from Eskom a “removal”, Khoza maintained the board had to act against Tsotsi because of pressing concern about his conduct that came to a head at a board meeting on 19 March 2015. Or as Khoza put it in Eskom’s written submission:

“The conduct of Mr Tsotsi up to that point concerned the board members to such an extent that they discussed two options which either meant that Mr Tsotsi should step aside for the three (3) months as well or based on his apologies for his action the board could work with him and provided that he obeys the rules of governance”.

Similar such re-interpretations and impromptu labour law re-drafting emerged over the controversial R30.1-million pension provision for Brian Molefe after having served some 16 months as Eskom Chief Executive. To recap briefly: on 11 November 2016 Molefe publicly announced his departure in the interests of good corporate governance in the wake of the Public Protector’s State of Capture report, popped up as ANC MP for some three months before an ultimately unsuccessful attempted return to the top job at Eskom in a decision initially publicly supported by Brown on 12 May 2017 as “a significantly better value proposition for the South African fiscus” than paying the pension before an inter-ministerial committee nixed this.

The question of whether early retirement, resignation or dismissal was involved is now a matter of a court decision after arguments were delivered at the end of November in the North Gauteng High Court. Judgment is pending.

On Tuesday it emerged Eskom regarded Molefe as “a permanent employee on a term”, with a final contract signed only some six months into the job to which Molefe was appointed from 1 October 2015.

If Molefe had not been permanently employed, as all Eskom chief executives have been, then his whole package would have had to be renegotiated as that of an independent operator, head of Eskom executive services, Anton Minnaar, told MPs. Such renegotiation never took place, and therefore there was no challenge to Molefe’s status as permanent employee even if Eskom was officially informed that the appointment was for a five-year term in line with Cabinet’s decision on such high-level appointments. The minister had been kept informed, MPs heard.

It is that “permanent” status that allowed him benefits such as pension, and the various board machinations to purchase additional years of service.

On Tuesday Khoza told the Eskom State Capture parliamentary inquiry he had not known about the R30.1-million pension provision except from media reports.

Neither did Khoza know the R600-million pre-paid coal payment to Gupta-linked Tegeta had been turned into a bank guarantee. “The board was shocked to see management had converted what was meant to be pre-payment into a (bank) guarantee,” Khoza told MPs after having read out the Eskom written submission that was at pains to point out such pre-paid coal arrangements were nothing new.

There were quite a few “I do not recall”, “I do not remember” and “The transaction took place before I was chairperson” responses when Khoza was questioned by Vanara. What emerged firmly were the legal reviews of two independent reports indicating dodgy dealings at the power utility. Senior counsel was involved, said Khoza: “We are still investigating the accuracy of those reports.”

When Vanara asked directly how Eskom expected South Africans to finance the “looting” – the National Energy Regulator (Nersa) next week announces its decision on Eskom’s well above inflation electricity tariff hikes – Khoza replied:

“The looting… at the moment is not tested. The processes were followed… We followed all the governance (processes).” DM

Photo: Former Eskom CFO, Anoj Singh.