If McKinsey had wanted to repay Eskom it could have done so any time since last October, says National Prosecuting Authority spokesman Luvuyo Mfaku.

The Asset Forfeiture Unit (AFU) has made a forfeiture application to the High Court in Johannesburg to have the R1bn Eskom paid McKinsey for its consulting work in 2016 and 2017 forfeited to the state. It launched its application a day after it had been expected to sign a final settlement with McKinsey and Eskom, which would have seen the money returned immediately to Eskom.

The matter now threatens to become protracted as McKinsey insists for its own security that it cannot return the money to Eskom without the settlement being made an order of court. It has given notice that it will oppose the forfeiture. This will mean that the NPA will likely have to go the full distance in proving a crime was committed before it can lay claim to the money.

Mfaku would not comment on the settlement talks that the AFU had engaged in with the parties or why it had withdrawn at the eleventh hour, but said that had McKinsey wanted to end the matter it could simply have paid Eskom.

Eskom, which is in a precarious financial position, has expressed its disappointment at not receiving the funds.

In its forfeiture application, AFU head Knorx Molelle also states that the unit will not request a forfeiture order for the R595m Eskom paid Gupta-linked firm Trillian, which was part of the larger Mckinsey contract.

This is because the money had not been found by the curator appointed by the AFU.

Mfaku said that by stating in its application that the AFU did not intend to pursue Trillian did not preclude that it could still go after the company in the future.

A McKinsey spokeswoman said that it still sought a court-sanctioned settlement.

"As we have said all along, we are keen to settle and repay the fees we earned as quickly as possible. The Eskom and AFU proceedings only seek that McKinsey repay the fee it was paid and that is what we are working towards."

In an article quoting sources close to the AFU that appeared in the Daily Maverick on Tuesday, it was claimed that McKinsey had sought to protect both itself and Trillian from further attempts to recover the money. McKinsey said protecting Trillian was not its intention.

"In (settling the matter) we must also protect ourselves from being pursued for the fees Eskom paid to Trillian, for which we had no responsibility."