- In a stunning twist, former interim CEO of Eskom, Matshela Koko, has taken the country’s National Prosecuting Authority (NPA) to court to revoke the non-prosecution agreement it made with ABB.
- ABB, who have been found by the US Attorney General to have bribed a senior Eskom official and made to pay US$315 million in restitution, made a deal with the NPA avoid direct prosecution in South Africa.
- In court documents Koko alleges that in the deal, he was negotiated as the fall guy who provided confidential Eskom information to ABB between 2014 and 2017.
- Koko alleges that the actual person who provided information to ABB is incoming Eskom Group Chief Executive, Dan Marokane, who was Eskom’s head of capital at the time.
According to ABB’s admissions and court documents to the US Attorney General, between 2014 and 2017, ABB, through certain of its subsidiaries, paid bribes to a South African government official who was a high-ranking employee at the state-owned and controlled energy company, Eskom Holdings Limited (Eskom) to obtain business advantages in connection with the award of multiple contracts.
Related news: The Truth to Power – Eskom riddled with corruption
ABB engaged multiple subcontractors associated with the South African government official and made payments to those subcontractors that were intended, at least in part, as bribes. ABB worked with these subcontractors despite their poor qualifications and lack of experience. In return, ABB received improper advantages in its efforts to obtain work with Eskom, including, among other benefits, confidential and internal Eskom information.
As part of the scheme, ABB conducted sham negotiations to obtain contracts at inflated prices that ABB had pre-arranged with the South African government official, all on the condition that ABB employ a particular subcontractor associated with that official. ABB also falsely recorded payments to the subcontractors as legitimate business expenses when, in fact, a portion of the payments were intended as bribes for the South African government official
In South Africa, the NPA duly filed charges against Matshela Koko, who they identify as the high-ranking official at Eskom responsible for supplying confidential information to ABB enabling them to win lucrative contracts. However, the Middleburg Specialised Crime Court in Mpumalanga dismissed the case brought against Koko, and his co-accused, which includes family members involving fraud, corruption and money laundering relating to Eskom contracts worth R2.2 billion. Magistrate Stanley Jacobs determined that there was an unreasonable delay in the case and raised his concern that the case had been brought to his court before it was trial-ready.
Last week, Koko filed court papers in 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” which indemnifies them from prosecution in South Africa. In addition to the fine directed in the USA, ABB South Africa paid Eskom US$ 104 million to settle bribery allegations in December 2020. Read more
In his affidavit, Koko alleges that the deal struck between the NPA, and ABB SA is unconstitutional because there is sufficient evidence for the NPA to prosecute ABB. Instead, he alleges, the NPA chose to prosecute him as ‘the low hanging fruit.’ According to Koko, the NPA, by reaching the agreement with ABB, which shielded the company from prosecution, committed “gross prosecutorial misconduct” because the NPA has no authority to enter into an agreement with ABB rather, it is the responsibility of the court which requires a court order.
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.
In his affidavit, he implicates incoming Eskom CEO, Dan Marokane, as the real ‘ABB man inside Eskom’ who at the time was group executive of group capital. Koko alleges there was hard proof connecting Marokane to ABB’s misdeeds. Koko alleges that Marokane alone signed the April 7, 2014, submission to an Eskom board subcommittee on the ABB subject.
In the court papers, Koko alleges that Marokane was 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.’
Dan Marokane and Eskom have not made an official response to Koko’s allegations. The NPA have to date, not made an official response in this matter to the media but will no doubt be filing a responding affidavit in due course.
Author: Bryan Groenendaal
