Matshela Koko, the former CEO of Eskom, is giving the National Prosecuting Authority (NPA) a taste of its own medicine.
Sunday World can exclusively disclose that Koko has filed a lawsuit against the NPA, attempting to compel it to revoke the R4-billion agreement it made with the global conglomerate ABB.
Furthermore, Koko claims in the same documents that he is offended by the NPA accusing him of being the Eskom information leaker to ABB when current Eskom CEO Dan Marokanewas the one who did it.
On Monday, Koko submitted papers to the Johannesburg High Court requesting that the non-prosecution agreement between NPA and ABB be revoked and deemed invalid, unconstitutional and void.
This follows the NPA’s announcement, through the Investigative Directorate (ID), on December 22, that it and ABB had concluded an “alternative dispute resolution and cooperation agreement”.
Through this action, the company managed to avoid legal repercussions for the alleged crimes it committed during the construction of Eskom’s Kusile power station.
It paid R2.5-billion in addition to the R1.6-billion it had already paid Eskom the previous two years before its settlement with the NPA.
Koko has told the court in the papers that the deal was unconstitutional because there was sufficient evidence for the NPA to prosecute ABB, but the agency has instead chosen him – the low hanging fruit.
However, Koko felt vindicated when the court removed his case from the roll during the pre-trial phase.
He was indicted by the NPA for carrying out the ABB’s orders in return for bribes. This was back when he was still an executive with the state-owned power utility.
According to Koko, the NPA, by reaching the agreement with ABB, which shielded the company from prosecution, committed “gross prosecutorial misconduct”.
Koko maintains that ABB pledged to deliver his head through the testimony of one of its managers, who later admitted that he had never dealt with him, and that this was the basis for the deal’s dishonesty.
He added that all the information he had about Koko came from hearsay and gossip.
Koko contends that the NPA was not authorised to enter into an agreement with ABB because that was the responsibility of the court and required a court order.
“The Investigative Directorate overstepped the mark by usurping the function of the courts when it concluded and entered into a non-prosecution agreement with ABB. This is prosecutorial overreach,” he argues in the notice of motion.
“I do not doubt that the NPA has committed gross prosecutorial misconduct in concluding the alternative dispute resolution and cooperation agreement with ABB.
“It did not prosecute without fear, favour or prejudice in my case. It favoured ABB at my expense and that of other parties (co-accused).
“Whether this gross prosecutorial misconduct is likely to have a biased effect on the trial court in adjudication process or the trial outcome, thereby imperiling the constitutional right to a fair trial, is a matter to be dealt with later in a different court.”
Additionally, Koko told the court that the NPA was adamant about bringing him to justice while clearing ABB.
He also claimed that the two sides conspired to fabricate evidence against him.
Regarding this, he refers to an email exchange that he feels was altered to make it seem as though it involved him.
“The tampering of evidence by the NPA and ABB amounts to criminal conduct. The trial court must be allowed to interrogate this evidential material that I submit as it had been tampered with before the sentencing agreement with ABB is concluded,” he wrote in
Koko doesn’t stop there. He continues by criticising Dan Marokane, the current Eskom CEO and friend.
He argues that the NPA opportunistically pursued him as “ABB’s man inside Eskom”, when evidence points directly to Marokane when he was group executive of group capital before parting ways with the power utility, and only to return as its boss late last year.
Koko claims he was far removed from any direct involvement in the Kusile project’s operational problems. He feels this fact was purposefully disregarded due to the “Koko hunt”.
This is why people like Marokane, in his opinion, got away with it all, even though there was hard proof connecting him to ABB’s misdeeds.
“ABB South Africa concluded the first Kusile Control and Instrumentation contracts with Eskom on March 13, 2015, at R2.2-billion, with Marokane as the group executive responsible for the Kusile project,” he wrote.
Koko goes on to say that Marokane alone signed the April 7 2014 submission to an Eskom board subcommittee on the ABB subject.
“Marokane signed the submission to the Eskom board-build programme review committee (BBPRC) on April 07, 2014.”
According to Koko, Marokane was also exposed as the ABB mole inside Eskom, proving beyond a shadow of a doubt that he served as the company’s internal link.
“According to ABB, as far back as 2013, Marokane was a source of information for them. On October 4, 2013, a ‘Player Map’ was prepared within. The ‘Player Map’ is a diagrammatical representation of the relationships between the various role players in the control and instrumentation contract.
‘The map reflects Marokane, then group executive of group capital of Eskom, as a source of information for ABB.
“Ordinarily, ABB’s exposé that Marokane is a source for them, read together with the email of [ABB’s Frank] Duggan of May 28, 2014, and Marokane’s role in the approval of a closed tender enquiry that allowed ABB to tender, should have made Marokane a person of interest for the NPA, considering Marokane’s proximity to [ABB’s local partner] Thabo Mokwena.
“The proximity of Marokane to Mokwena is not a secret. Marokane gave the keynote address at Mokwena’s wedding in September 2013.”