- Former Eskom executive seeks to overturn NPA agreement with ABB over alleged unlawful immunity.
- The NPA argues that Koko is trying to avoid facing prosecution for corruption.
Former acting Eskom CEO Matshela Koko has launched a legal challenge against a settlement agreement between South Africa’s National Prosecuting Authority (NPA) and global engineering firm ABB, in a move that could redefine how large scale corruption cases are handled in the energy sector.
At the centre of the dispute is a R2.5 billion settlement concluded as part of investigations into corruption linked to Eskom during the state capture period. Read more
The National Prosecuting Authority maintains that the settlement is a key instrument in its enforcement approach. The payment comes in addition to R1.6 billion repaid by ABB to Eskom in 2020 following an overpayment dispute tied to contracts at Kusile Power Station.
ABB has acknowledged wrongdoing related to its contracts at Kusile and has committed to cooperating with authorities. The company has provided witnesses and evidence to support ongoing investigations, working with international counterparts in the United States, Switzerland, Italy and Germany.
Koko’s legal challenge argues that the agreement effectively grants ABB immunity from prosecution, undermining constitutional principles such as equality before the law and the obligation to prosecute criminal offences. He further claims that such arrangements allow corporations to avoid accountability while shifting blame onto individuals.
The case is rooted in the Kusile control and instrumentation contract, where ABB’s local subsidiary secured work under contested circumstances. Prosecutors allege that former ABB employees Mohammed Mooidheen and Vernon Pillay orchestrated a scheme involving Koko, in which his stepdaughter Thato Choma became a shareholder in Impulse International.
According to evidence contained in the Eskom Files, ABB paid Impulse R557 million. After Choma’s involvement, Eskom awarded the company additional contracts worth R295 million. Read more
The accused face charges including corruption, fraud, money laundering and forgery linked to contracts valued at R2.2 billion at Kusile power station.
Arrests in the case began in July 2022, with further detentions in October 2022 involving Koko, his family members and several former officials. But the matter was struck from the Middelburg Regional Court roll in November 2023 due to delays. The NPA plans to re-enrol the case against Koko and his co-accused. Read more
In court filings, Koko maintains his innocence, stating there is no direct evidence linking him to bribery. However, he acknowledges that ABB inflated contract prices by between 864% and 1045%, and alleges that the company sought to deflect liability while securing favourable settlement terms.
The National Prosecuting Authority has rejected these claims, arguing that prosecutorial discretion allows such agreements in the public interest. It also notes that ABB has already faced prosecution in the United States for the same conduct, raising concerns around double jeopardy.
Prosecutors warn that setting aside the agreement could undermine ongoing cases by removing ABB’s obligation to cooperate and provide evidence. They further caution that the legal challenge could create a precedent that weakens efforts to hold both corporate and individual actors accountable and by challenging the agreement, Koko hopes to get off ‘scot-free’.
ABB has also opposed the application, describing Koko’s arguments as legally unfounded and maintaining that the settlement aligns with restorative justice principles while delivering tangible financial recovery to the state.
The matter is scheduled for hearing on 20 and 21 April, with the outcome expected to have significant implications for how South Africa balances corporate settlements and criminal prosecutions in energy sector corruption cases.
Author: Bryan Groenendaal
