Legal juggling a main act in Eskom circus
The circus that is Matshela Koko’s disciplinary hearing continued on Wednesday with the Eskom legal team being lectured and coached by the defence on how it should conduct its case.
Sebetja Matsaung, an attorney and evidence leader, did not want to read the charge sheet into the record, saying it would take a long time. He told the chairman, advocate Mzungulu Mthombeni, that "the charges remain as presented to the accused and his team".
When Matsaung declined to say what the charges were, advocate Frans Barrie, for the accused, lectured him about the process. "We need the charges to be read into the record so we can know what my client must plead to," Barrie said.
This did not move Matsaung, who remained convinced that reading the six-page document would take up too much time.
Eskom’s acting head of the legal department, Wawa Xaluva, who has the executive responsibility of the case, sat quietly next to Matsaung, staring at his mobile phone.
Barrie then moved to read out the six charges. He then proceeded to read the defence plea.
Koko is accused of failing to declare, or neglecting to declare, that his stepdaughter, Koketso Choma, was a director of Impulse International and had acquired shares in the firm.
Koko also allegedly failed to declare that his wife had business dealings with Pragasen Pather, the majority owner of Impulse. A division headed by Koko at Eskom awarded tenders to Impulse, paying it more than R1bn since July 2014 and continuing into the time Koko became acting CEO in 2016.
The second charge is that Koko was "negligent in the performance of his duties" in that he did not confront Pather for his failure to declare a possible conflict of interest. Koko pleaded not guilty to the accusations.
The prosecution called its first witness, Eskom employee Daphne Morwalle, who works in the forensic and assurance division. Morwalle disputed a document purporting to be a declaration of interest on the basis that it did not have a tracking number.
Morwalle testified that a declaration — "on the e-form" — would be electronically loaded into the Eskom system, which would automatically generate a tracking number.
"It also did not have a date of submission," Morwalle said.
In his plea, Koko said he had handed the declaration to former chairman Ben Ngubane.
In the charge sheet, there was no question about the authenticity, or lack thereof, of Koko’s declaration.
Barrie objected to the evidence being led by Matsaung on the basis it was irrelevant as it was not on the charge sheet.
Matsaung terminated his questions. He told the hearing he was unable to call forensic investigators from audit firm Nkonki Inc to testify "as they were ducking and diving". The case was adjourned to allow the prosecution to call witnesses.
The case had been adjourned on Monday in order for Mthombeni to obtain a full briefing to conduct the case.
In terms of Eskom’s disciplinary code, the proceedings must be conducted by internal parties, or the parties must agree if an outsider such as Mthombeni is to preside. The parties confirmed they had been furnished with the brief.
According to Matsaung and Xaluva, the brief states that Mthombeni will only make recommendations to Eskom at the end of the hearing. The power utility would then consider the advocate’s recommendations before deciding whether to accept them as a binding ruling.