SIU and Eskom want Koko slapped with punitive costs order 

The SIU and Eskom have asked the Pretoria High Court to punish former Eskom executive Matshela Koko with a punitive costs order for seeking to intervene in the settlement agreement the two parties reached with engineering multinational ABB. 

This is contained in SIU and Eskom documents responding to Koko, who wants to be granted leave to intervene in the matter over the ABB settlement, arguing that he was excluded unfairly while the matter had a direct bearing on him.  

Eskom and the SIU disagree and argue Koko is not legally entitled and that the matter had nothing to do with him. 

In their view, Koko wants to use the matter to exonerate himself from criminal charges that may be preferred to him. 

The battle comes after Eskom and the SIU reached a settlement agreement with ABB, which allegedly engaged in large-scale corruption at the power utility after being awarded a contract to do work at Kusile power station. The company admitted criminal liability and entered into an alternative dispute resolution agreement, which included paying back the money and doing the remainder of the work without profit. 

The court rubber-stamped the arrangement but without Koko, who argues this prejudiced him as he was alleged to have participated in the procurement process leading up to the ABB contract. Eskom and the SIU insist that nothing affects Koko negatively. “One of the most startling propositions in Mr Koko’s heads of argument is that he should be allowed to intervene to deter  
future legal action against him,” Eskom and the SIU submitted in their response. 

“In other words, Mr Koko wants to intervene not to ensure the correct outcome but to deter future legal proceedings against him. These proceedings have not yet been instituted and may never be. This is not a legitimate reason for intervention because Mr Koko seeks to use the court’s processes for purposes other than what they were designed to achieve. 

“In the premises, Mr Koko’s intervention application falls to be dismissed with costs on scale C (R4 500 per hour) including the costs of four counsel. A punitive costs order is warranted.  

“Mr Koko has burdened this matter with an engorged record only to make the point that his name should not be taken in vain. This point, and the intervention application in which it was wrapped, were fundamentally flawed from the beginning.” 

The SIU and Eskom also argue that Koko should be dismissed because he is changing his argument on criminal proceedings as he moves along. 

“Mr Koko originally based his interest on the fact that he was facing criminal prosecution, and the review contained allegations of a criminal nature against him.  

“In his heads, Mr Koko adopts a slightly different approach. He now asserts that the review is the only platform to answer the adverse allegations against him because the criminal proceedings have terminated. This shift in approach does not help Mr Koko to establish a legal  
interest in the outcome of the order. Mr Koko cannot intervene to exonerate himself from criminal proceedings.” 

According to Eskom and the SIU, the settlement agreement, which is now an order of court, has nothing to do with Koko and thus “it stands to reason that he should not be granted leave to intervene”. 

“Mr Koko has no cognizable interest in the review and setting aside of the works contract and variation orders. Nor does he enjoy any interest in the implementation of the settlement agreement. The implementation of the order does not require Mr Koko’s co-operation. 

“One must simply ask: would Mr Koko’s exclusion from the application from the outset result in material nonjoinder? The answer is plainly ‘no’, because the order requires nothing from Mr Koko.” 

Consequently, Eskom and the SIU told the court that Koko “lacks a legal interest in the order, let alone a direct and substantial interest”. 

Koko was arrested in 2022 for his alleged role in the R2-billion contract awarded to ABB to install control and instrumentation systems at Kusile Power Station.  

His case was struck off the court roll a year later following “unreasonable delays” by the prosecution. This while Eskom, the NPA and the SIU had entered into the settlement agreement with ABB.  

The deal with ABB was apparently in exchange for employees of the company testifying against Koko. But their star witness collapsed the case by admitting to never having had dealings with Koko.  

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Mawande Amashabalala