Former Eskom boss Matshela- Koko has rejected the National- Prosecuting Authority’s (NPA’s) appeal for a deadline extension to file records in court to oppose his application to set aside its “alternative dispute resolution agreement” with Swiss tech giant ABB.
Koko filed the papers in February this year and gave the NPA 10 days to file a notice of intention to defend.
Despite issuing a notice to oppose the application, the NPA has missed the deadline of March 8 to disclose the records and requested an additional extension.
Koko rejected this request and has given the NPA until March 28 to comply or face another court application seeking an order to compel it to do the right thing.
The former Eskom chief executive officer took the NPA head on after it entered into an “alternative dispute resolution agreement”, which saw ABB pay R4-billion to escape criminal prosecution in South Africa for its involvement in the alleged malfeasance at Eskom’s Kusile Power Station in Mpumalanga.
In addition, as part of the deal, the company committed to allowing some of its senior managers to testify against Koko, whom the NPA charged with fraud and corruption for his alleged involvement in the corrupt activities at the power station when he was the boss at the state-owned power utility.
However, the Middleburg Specialised Commercial Crimes Court struck the case off the roll late last year, citing repeated delays caused by the NPA.
Thereafter, Koko filed papers in the Joburg high court, asking for an order to declare the duo‘s agreement invalid and set it aside.
But after undertaking to oppose his application, the NPA kicked the can down the road. This led to his lawyers writing a letter to the NPA, criticising it for its procrastination.
“The notice of motion was served upon your client on February 16, 2024, and the record must have been dispatched to the Registrar of the High Court by March 8 and delivered electronically to our client,” Koko’s lawyers, Mashele attorneys, wrote to the state Attorney on March 14.
“The NPA has failed to comply with this requirement, which has triggered a Rule 30A notice to address the non-compliance with Rule 53 of the Uniform Rules of Court.
“The significance of Rule 30A in this instance is that it provides a mechanism to address non-compliance with the Uniform Rules of Court,” read the letter.
Koko’s lawyers have threatened to apply for an appropriate order if the NPA misses the next deadline.
“If the defaulting party still fails to comply within 10 days of receiving the notification, an application can be made to the court for an appropriate order.”
The NPA, through the Office of the State Attorney, has replied to Koko’s lawyers, pleading for more time, claiming the non-compliance was a result of counsel being briefed late.
Koko immediately scoffed at the explanation and demanded compliance with the March 28 deadline.
According to Koko, the NPA cannot miss deadlines when it has been ignoring his request since December to address his concerns about its deal with ABB.
He reminded the NPA of the previous steps he had taken before dragging it to court.
He said this started on November 11, 2023, when he penned a letter to the public protector raising serious prosecutorial misconduct against the NPA. It ignored him.
Koko then elevated his complaint to the National Director of Public Prosecutions Shamila Batohi in December last year, who ignored him after promising a “substantive response”, which never came.
“We take note of your request for additional time, however, the NPA has had 34 days from the date of receiving the application to date to provide the records to the Registrar,” Koko’s lawyers wrote to the state attorney on March 20.
“Moreover, it is incomprehensible that the NPA would require the services of a counsel when our client simply requires disclosure of the record.
“We, therefore, await the NPA to remedy its non-compliance by no later than March 28, 2024, failing which our client’s instructions remain to launch an application to compel your offices to comply with Rule 53(1) of the Uniform Rules as prayed for in the main application.”
