Former Eskom executive Matshela Koko has approached the Pretoria High Court to overturn a court order obtained by Eskom and the Special Investigating Unit (SIU) that declared unlawful the tender that was awarded to multinational company ABB.
The R1-billion contract, which involved the supply and installation of control and instrumentation systems at the Kusile Power Station, was set aside in April.
Ironically, ABB was lined up as the star witness in a corruption case against Koko in the Middleburg Specialised Commercial Court in Mpumalanga.
The case has since been struck off the roll.
In the court papers that Sunday World has seen, Koko says he signed off the lucrative contract to ABB and its nullification by the court order may lead to further criminal prosecution against him.
He says Eskom, SIU and ABB approached the court to have the contract declared invalid and unlawful, achieving this without Koko’s involvement, despite allegations of his masterminding the scheme.
The court found that the contract was unlawful and
invalid, including all agreements and variation orders stemming from it.
Koko is adamant that the court erred, for it did not give him a platform to state his side of the story since the order was in response to allegations of criminal conduct against him.
Instead, he charges, the court allowed itself to be misled, manipulated, and fed fabricated and tailor-made evidence to
arrive at a wrong ruling.
Koko also argues that it was a legal misstep to deny him a chance to make representations, given his central role in the procurement process deemed unlawful by the court. He accuses the SIU, Eskom and ABB of
deliberately omitting crucial
evi¬dence that could have led
to a different court outcome.
“The court’s decision on April 5, 2024, relied on hearsay, circumstantial evidence, and mere suspicions, raising serious concerns about the integrity and fairness of the judicial process. Such a situation is unacceptable and fundamentally contradicts the essence of justice. The court was misled,” Koko asserts.
“Allegations are claims that need to be proven, facts are verified pieces of information, and suspicions are beliefs without solid evidence. Mixing these elements leads to biased judgments, undermines the rule of law, and compromises the integrity of the judicial process.”
Koko references the Mokone and Bakone Trusts, linked to his stepdaughter, which allegedly received kickbacks and never had bank accounts, countering allegations that proceeds of crime were funnelled through the entities.
Citing the Democratic Alliance v Acting NDPP and Others (2016) case, Koko insists on his right to be heard, drawing parallels to past judicial decisions where involved parties were allowed to present their side despite no longer holding positions.
He criticises Eskom and SIU for strategically manipulating the court process, assuming he would only have a chance to defend himself during criminal proceedings in the commercial court.
However, his criminal case was halted before he could present his defence.
“Given that the criminal case against me was struck off the roll and I have no other legal
forum to defend myself, it is crucial that I be allowed to intervene in the review proceedings,” he states.
“This would ensure that I can present my version and protect myself against the allegations made against me by the applicants, serving the interests of justice and providing a fair
determination of the issues.”
Koko argues that the court order infringed upon his fundamental rights to dignity, a fair hearing, and fair administrative action, achieved without considering his evidence.
He asserts that he possesses forensic reports and other evidence yet to be dismissed by any court, which could change the judicial perspective in his favour.
This evidence, he
alleges, was intentionally ignored by SIU and Eskom to secure a favourable judgment.
“Eskom failed to inform this honourable court that I was exonerated by a tribunal led by a senior advocate regarding charges related to a conflict of interest involving my stepdaughter’s shareholding in Impulse International (Pty) Ltd.
The nondisclosure is significant because it omits an essential piece of exculpatory evidence that could have influenced the court’s decision on April 5, 2024.
“The allegations regarding my conflict of interest are unfounded and lack concrete evidence.
“Independent investigations and reports, including the Cliffe Dekker Hofmeyr report, the findings of the disciplinary tribunal, and the details presented in Visser’s affidavit, thoroughly discredit them.
“These sources demonstrate that the claims against me are based on mere speculation, suspicions, and hearsay, not solid facts,” Koko states in the papers.
