Dim start to Koko’s disciplinary hearing
The suspended acting Eskom CEO is accused of not declaring a conflict of interest after he contributed to awarding about R1bn in deals to a company in which his stepdaughter is a shareholder
Eskom’s disciplinary process into suspended executive Matshela Koko got off to a rough start on Monday, with the chairman arriving unprepared and unable to proceed with the hearing in question.
Advocate Mzungulu Mthombeni only had a notebook and pen with him, explaining that he had only been appointed on Friday and was furnished with neither a charge sheet nor the case files. Mthombeni was also quick to concede that he did not know what the terms of reference of the case were.
The hearing got stuck on the first point of argument, necessitating an adjournment.
Koko’s legal representatives raised the issue of Mthombeni’s status as an independent chairman. They wanted the chairman to clarify which of Eskom’s disciplinary processes would be employed to conduct the hearing — whether it was a disciplinary inquiry or a disciplinary hearing. A disciplinary inquiry procedure is an inquisitorial process that could be conducted by the manager or supervisor of the employee in question. For this, Eskom’s disciplinary code prescribes that a negative outcome for the employee "may not result in severe sanction".
A disciplinary hearing requires the company to appoint an independent employee for a chairperson.
"The process will only be utilised for offences that may, or have the potential to result in or warrant a penalty of dismissal," reads rule 4.2 of the utility’s disciplinary code.
The third option would be a "predismissal arbitration". This is an adversarial process "to be chaired by an independent external chairperson. This option was only utilised for offences that may have the potential to, result in, or warrant a penalty of dismissal."
Mthombeni admitted he had not read Eskom’s disciplinary code. Asked why he had not been briefed, Mthombeni acknowledged he had not been Eskom’s first preferred advocate, hence the poor brief.
Eskom had initially drawn up a list of three advocates for Koko’s team to choose from. When they rejected those, on the basis that they were all white males, Eskom sent him a list of three black advocates.
They settled on Hamilton Maenetje and set the case down for four days, starting on Monday. But Maenetje was informed last week that the case would start on Friday. He withdrew, as he would not be available. Ironically, Koko arrived at the hearing flanked by two white advocates, led by Frans Baerrie and attorney Asger Gani.
It is not clear why the other two advocates on Eskom’s list of black advocates, Vincent Maleka and Tim Bruinders, were not approached when it became evident that Maenetje would not be available. While the matter was set down for four days, Mthombeni had only been briefed for Monday.
Asked about the failure to brief Mthombeni, Eskom’s acting legal head Wawa Xaluva blamed Mchunu Attorneys, saying the firm had failed to deliver the brief to him.
Asked for Mchunu’s phone number, Xaluva changed his explanation, saying the firm told him it had sent a messenger to deliver the brief. The messenger had stuck the documents in Mthombeni’s box, which he said the advocate had then missed.
In contrast to Mthombeni’s sorry preparation, Koko’s team arrived fully geared for battle with five lever-arch files.
Eskom’s case presenter, advocate Sebetja Matsaung, also cut a lonely figure. Instructing attorney Jessica Magagane, of Ledwaba Mazwai Attorneys, mostly kept her distance, appearing to pay the proceedings scant regard. Xaluva was also not part of the proceedings.
Mthombeni was, however, able to make a decision on one aspect of the hearing. He granted an application by Tiso Blackstar Group, the owners of this newspaper, to attend and report on the hearing.
It resumes on Wednesday.