Former Eskom chief executive officer Matshela Koko maintains that the National Prosecuting Authority (NPA) and ABB’s “out-of-court settlement”, which saw the Swiss-based entity evading criminal prosecution for corruption, will be set aside by the court of law because the prosecuting authority did not have the powers to enter into such a deal.
Koko said the NPA had overextended its hand because it was only a court law that possessed the power to decide ABB’s fate.
Koko stated this in another set of papers he filed with the Joburg High Court, in which he requested that the court declare the deal unlawful and set it aside.
ABB, which was a co-accused in the corruption case against Koko, was let off scot free after it entered into a deal to pay R4-billion to the state and agreed with the NPA to testify as a state witness against Koko.
Koko’s case, which stems from allegations that he received kickbacks from ABB, which had a contract at Kusile Power Station when he was an executive, was struck off the roll at the Middleburg Specialised Commercial Crimes Court because of the NPA’s tardiness.
Koko stated in the court documents that there was no distinction between this agreement and the one the NPA made with ANC chief whip Tony Yengeni, who faced corruption allegations.
During his corruption trial, according to Koko, Yengeni entered into an agreement with the NPA after allegedly receiving instructions from then-prosecutions boss Bulelani Ngcuka and former justice minister Penuell Maduna to plead guilty and receive a fine of R5 000.
But the court, said Koko, did not want to hear any of that, insisting that sentencing rested firmly within its purview, not the NPA, and thus sentenced Yengeni to jail time of four years.
Koko was responding to the NPA’s answering affidavit, which said the ABB was going to be subjected to double jeopardy had it been dragged to a South African court because it was found guilty and punished by a court in the United States of America.
According to Koko, double jeopardy does not arise because the agreement between the NPA and ABB was the same as the “private treaty” Yengeni entered with the NPA, which was dismissed by the court. “The NPA and ABB cannot subject the trial court’s sentencing function to a prior agreement. This would conflict with the fundamental constitutional principle of the independence of the judiciary.
“The courts have the discretion to grant immunity from criminal prosecution. This discretion is not with the NPA,” wrote Koko’s attorney, Neo Mashele.
The NPA replied by saying that Koko is abusing the court process and that his application to review the agreement stands to be dismissed with costs.
According to the NPA, Koko is playing a tactical game to get access to the docket of the case against him, which was struck off the roll last year.
The NPA insists it will place the case on the roll in the future.
Furthermore, the NPA believes that Koko dragged it to court to review the agreement in a desperate attempt to delay the restart of his criminal trial.
The prosecution has pleaded with the review court not to consider Koko’s case, as the numerous appeal avenues could potentially complicate matters and potentially eliminate any chance of Koko facing criminal charges.
“The review application and this interlocutory application are an abuse of process of court because they are impermissible preliminary civil litigation relating to a pending criminal prosecution,” said the NPA’s advocate Andrea Johnson.
“I submit that the review application and this interlocutory application are designed and intended to delay the commencement of the criminal trial. The result is that the present litigation will have the effect of delaying indefinitely the commencement and finalisation of the criminal prosecution.”
The NPA also said Koko wanted to have sight of the contents of the case against him; hence, he wanted the state to disclose the “record” for the review application, but it refused.
In response, Koko dismissed the NPA argument as nonsensical, saying it was conflating issues.
According to Koko, the record was needed so that the judge presiding over the matter could be fully appraised on the reasons that led to the agreement and whether those met the constitutional and legal standards expected.
