Matshela Koko’s bid to nullify the findings of the State Capture commission has gained momentum.
The former Eskom executive’s three-year-old case to set aside the findings of the Zondo Commission of Inquiry into State Capture will be heard in the Johannesburg High Court on April 28 uncontested.
This as Koko goes for the home run in his spirited fight to scrap retired Chief Justice Raymond Zondo’s findings and recommendations against him.
Among others, Zondo found that Koko was “one of Gupta agents” and “was an integral component of the Gupta family’s strategy to capture Eskom”.
He also found that Koko was a Gupta enabler who contributed to alleged malfeasance by the Indian family and recommended the NPA possibly charge him.
Three years ago, it charged him but the case had to be struck off the roll a year later owing to unreasonable delays by the prosecution.
Review could discredit the commission
If Koko is successful that would have far-reaching consequences. Mainly it will discredit the Commission already under fire for costing the taxpayer more than R2 billion while yielding few arrests, least of all, convictions.
The review was enlisted on the unopposed roll because Zondo failed to file responding papers despite deadline extensions. This thus unfairly delayed the start of the hearing.
This means the court will not hear Zondo’s side of the argument.
“The Applicant (Koko) contends that the Commission’s findings regarding him lack a rational connection to the evidence provided. He asserts that the Commission failed to execute its task within its terms of reference and that its conclusions were biased, overlooking critical evidence. The Applicant seeks relief to uphold the principles of legality, fairness, and justice,” charged Koko in the heads of argument.
Predetermined narrative
Koko’s legal team, led by Ndou Attorneys Inc., frames the Commission’s pursuit as a targeted “Koko Hunt”, fingering Commission chairperson Zondo for cherry-picking evidence to fit a predetermined narrative.
That narrative, Koko’s lawyers argue, sought to paint their client as the kingpin in the Gupta family’s alleged capture of Eskom, the state-owned power utility.
In the same heads, Koko’s most hard-hitting critiques target Zondo’s reliance on the infamous Gupta Leaks emails. The documents became central to the state capture narrative.
Koko will tell the court on April 28 that the Commission failed to authenticate the emails or establish their chain of custody hence were legally suspect.
Despite receiving a forensic image of the leaks in September 2018, Koko charges, the Commission had not completed the authentication by May 2021, when he testified.
The lapse offends fairness
This lapse, Koko continues, contravenes the principles of legality and fairness, as unauthenticated evidence cannot form the basis of a credible finding.
“The Commission did not complete the authentication process for the Gupta Leaks emails. The emails’ origins, integrity, and authenticity were not fully verified. Without proper authentication, the reliability of the emails as evidence is questionable. This undermines the credibility of any findings or conclusions based on these emails,” Koko insists in his heads.
“This procedural lapse raises concerns about the fairness and accuracy of the Commission’s conclusions and highlights the need for rigorous evidence verification in judicial inquiries.”
The implications are seismic.
If the Gupta Leaks, touted as the smoking gun of state capture, are inadmissible evidence, the Commission’s case against Koko and others crumbles.
Commission in disarray
Koko’s heads of argument paint a picture of a Commission beleaguered by procedural disarray, further eroding its authority and credibility as a legal process.
Koko claims Zondo’s failure to file his answering affidavit for more than a year was a deliberate ploy. He says this was done with the hope that the review would go away or that Koko will become financially drained that he abandons the effort.
However, this failure has paved the way for the matter to be heard unopposed.
A successful review would be more than just a personal vindication of Koko but will also strengthen calls for the re-evaluation of the Zondo Commission’s contentious and controversial legacy.
Koko’s argument likely to prevail
Since Zondo cannot bring a counterargument to the review, Koko’s claims, chiefly that he is not a corrupt Gupta puppet but a pragmatic executive navigating Glencore’s financial missteps, will gain more weight.
Koko believes that his sole sin was standing his ground against Glencore’s pickpocketing of the power utility using the political influence of then Deputy President Cyril Ramaphosa.
“The Commission reports that from June 2011 to March 2012, Glencore acquired a majority stake in Optimum Coal Holdings (OCH), while other parties acquired the remaining minority shares. One of the minority shareholders was Lexshell 894 (Pty) Ltd, a shelf company entirely owned by Mr Cyril Ramaphosa,” Koko argues.
“Glencore acquired OCH and Optimum Coal Mine without proper due diligence, investing substantial sums of money. The only reason could have been that it believed it would readily be able to get Eskom to agree to higher coal prices. The card up Glencore’s sleeve was Mr Ramaphosa, who wielded significant political influence.”
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