Six months after extradition ruling, Eskom fraud accused still in the UK, pending a final decision

After a two-year battle, a UK court in December 2022 granted the National Prosecuting Authority’s (NPA’s) Investigating Directorate (ID) the right to extradite former contractor Michael Lomas (75) to face charges in the R745-million Eskom fraud and corruption case.

Six months later, Lomas is still in the UK pending a decision by the Secretary of State to whom the extradition judgment was referred. Lomas also has the right to seek permission to appeal against the Secretary of State’s decision.

According to legal affidavits, once extradited Lomas will be placed in a single cell in the B unit at the Medium “C” Johannesburg Correctional Centre (JCC). During the extradition hearing, the main point of contention was Lomas’ mental and physical health, as well as whether his extradition would be unjust or oppressive.

Lomas was arrested on 15 April 2021 in Emsworth, London, and granted bail of £100,000 (R1.7-million in April 2021). He submitted an additional surety of £250,000 (about R4.3-million in April 2021).

As part of his bail conditions, the court ordered that his passport and South African ID be held by police and that he not apply for or hold any international travel documents. According to ID spokesperson Sindisiwe Seboka, Lomas’ arrest followed months of talks with UK authorities over the fraud and corruption case, in which Eskom allegedly paid R745-million to Tubular Construction Projects (TCP). This exposed the state-owned entity to R1.4-billion in escalation costs as set out in the contract.

Lomas, ex-Eskom senior manager France Hlakudi, former Group Capital division executive Abram Masango, businessperson Maphoko Kgomoeswana and TBC CEO Tony Trindade are all accused of fraud, corruption and money laundering in connection with a R745-million contract at Eskom’s Kusile Power Station in Mpumalanga between 2014 and 2017.

In December 2019, Scorpio’s Pieter-Louis Myburgh reported the charges partly stem from alleged kickbacks of more than R30-million that Trindade and the company’s former chairperson, Lomas, funnelled to Hlakudi and Masango. Scorpio also revealed that Tubular, along with fellow Kusile contractors Stefanutti Stocks, Esor Construction and Tenova Mining and Minerals, had paid R75-million to Babinatlou Business Services. It is alleged that this Polokwane-based company’s account was almost exclusively used as an apparent slush fund to illicitly enrich Hlakudi and some of his former Kusile colleagues.

The indictment alleges how Masango and Hlakudi fraudulently pushed for TCP to be awarded a R745-million contract, signed in April 2016, to build air-cooled condensers at Kusile. Masango and Hlakudi both had oversight of contracts in the Kusile build.

In September 2021 the Pretoria High Court issued a provisional restraint order of R1.4-billion against Hlakudi, Kgomoeswana and Trindade and his wife, freezing their assets and bank accounts. The corruption at Kusile Power Station was further amplified when the Asset Forfeiture Unit laid bare an elaborate scheme used by contractors linked to the Kusile Power Station to hide kickbacks linked to more than R500-million in contracts.

The South African authorities want Lomas back in the country to face allegations that he offered bribes and paid a number of people and companies between April 2015 and April 2017 to induce them to perform an improper function, namely to influence a company to terminate a contract with one company, Alstom, in favour of concluding one with another company, TCP, to which the requested person was connected.

Lomas is charged with 41 counts of corruption for offering a benefit, as detailed in the draft indictment attached to the affidavit in support of the extradition request.

Medical evidence

Several doctors, psychiatrists and consultant forensic psychiatrists gave evidence on the mental and physical state of Lamos. The various medical submissions submitted stated:

1. Lomas had a recurrent depressive disorder.


2. His diagnosis of depression and anxiety, the court heard, remains and is robust. It is still of at least moderate severity.


3. He feels hopeless. He has associated biological symptoms of depression, which include impaired sleep, early morning waking, lack of energy and motivation, thoughts of death and suicide.


4. He is fearful of incarceration, being hurt by inmates and that the South African authorities cannot protect him.


5. Most concerning is Lomas’ long-standing condition, diverticulitis, first diagnosed in 1985. He has been admitted to hospital multiple times since then and he remains under monitoring. Diverticulitis is an inflammation in the bowels; it makes the bowel more fragile and prone to perforation. It can lead to peritonitis, which can be fatal.


6. Lomas has prostate cancer.

Prison safety

Portuguese attorney Vania Costa Ramos, an expert on prison conditions and a member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) since 2016, also gave evidence. She has inspected prisons in England, Hungary, France, Spain, Germany, Austria, Romania and Lithuania and psychiatric hospitals in Montenegro and Romania. Costa Ramos in her evidence in chief adopted the report of Dr Nathaniel Wright.

“They accept that Johannesburg Medium C offers better conditions than the Medium A and B prisons on the same site, but it is an overcrowded prison … cramped and unhygienic accommodation, lack of privacy, reduced out-of-cell activities, insufficient staffing, inadequate health provision and violence between prisoners and between prisoners and staff.

“The type of prisons and level of violence would require Lomas to be placed in a single cell to protect him from inter-prisoner violence. The solution is to place him in the highest secure unit available in the prison,” the judgment reads.

‘Preferential’ treatment for Lomas

South African authorities provided a large number of documents of additional information in this case, which primarily focused on prison conditions and healthcare treatment available to the requested person in the event of his extradition, to convey the point that prison conditions will be safe and healthy for Lomas.

South African authorities guarantee that:

1. Lomas will be accommodated at Johannesburg Medium “C” Correctional Centre in B unit in a single cell – pre-trial and post-conviction — with a single bed, toilet, tap with hot and cold water, electricity, adequate ventilation, heating, natural light and will be very tidy and clean.


2. There are shower facilities, which are in good condition as well as a courtyard for gym purposes. He will be entitled to at least one hour of exercise a day and he will exercise with other prisoners.


3. Primary healthcare is available, with qualified nurses, a medical doctor and a dentist at Johannesburg Correctional Centre


4. The local hospital, Chris Hani Baragwanath Academic Hospital, is 4km from JCC.


5. He will be assessed by a psychiatrist and suitable treatment will be provided


6. The medication he is prescribed is available in the prison pharmacy.

The Department of Correctional Services (DCS) claims “gangsterism” is effectively managed, there is an anti-gang strategy and personnel are appropriately trained to deal with gangs.

In addition, retired Constitutional Court Judge Edwin Cameron, who heads the Judicial Inspectorate for Correctional Services (JICS) and inspected Johannesburg Medium A and C also provided a report to the Westminster Court.

Judge Cameron’s report detailed the available healthcare facilities, material circumstances and the regime, inter-prisoner violence and monitoring. Cameron concluded that the material conditions in the cell were adequate,  and JICS would be able to maintain proper and adequate oversight over Lomas.

Findings

The court found that as Lomas currently lives alone and can care for himself on a daily basis:

“In the event of his extradition to South Africa he would require some adaptations to the physical environment, including the installation of grab bars in the shower for his use. The South African authorities have said that they will make those changes. I accept that evidence.

“He is fit to plead and stand trial in South Africa and to instruct his lawyers. He may require some adaptations to the trial process to enable him to effectively participate such as more regular breaks,” the judgment reads. DM