Koko's Kusile case: State's corruption buster vows to keep punching despite court blow

The National Prosecuting Authority's (NPA) Investigating Directorate (ID) has suffered a blow in its fight against state capture, but it has vowed to keep punching.

On Tuesday, the Middelburg Specialised Commercial Crime Court struck from the court roll a crucial corruption case involving a lucrative R2.2-billion contract at the Kusile Power Station in Mpumalanga.

The case involved Eskom's former CEO Matshela Koko and his seven co-accused, including his wife Mosima and his stepdaughters Koketso Aren and Thato Choma.

Sitting in the dock, the couple hugged and kissed after the magistrate ordered that the case be removed from the roll.

Although the court found that excessive delays by the prosecution hindered the case, it did not pronounce on the accused's guilt.

This means the fraud, corruption and money laundering charges, in what the ID claims was an elaborate kickback scheme, can be reinstated.

"We are not going to stop. We are going to keep rolling the punches and possibly come back stronger," said ID spokesperson Sindisiwe Seboka.

In Magistrate Stanley Jacobs' ruling, which was delayed by two hours because of load shedding, he said the outcome was in the interest of justice.

"There won't be a victor today. Justice will be the victor," he said.

Jacobs established an inquiry in terms of Section 342 of the Criminal Procedure Act after the accused claimed they had been prejudiced by excessive delays in the case on the part of the prosecution.

It was the state's case that Koko was "at the centre of a corrupt scheme" which sought to help Swiss engineering firm ABB secure the Kusile contract

With Koko allegedly wielding his influence at Eskom to swing the contract in the company's favour, an elaborate network of actors received kickbacks and millions were ploughed into companies connected to his daughters.

Accused alongside Koko and his family are Kusile project director Hlupheka Sithole, lawyer Johannes Coetzee, Watson Seswai, Lese'tsa Johannes Mutchinya and former SA Local Government Association boss Thabo Mokwena.

Despite all the accused being arrested in October 2022, it emerged in court that the state was still waiting for several witness statements from the US and Germany, while expert and forensic financial reports were still incomplete.

Jacobs said the court expected that the arrests would have occurred after an organised investigation.

"We can't isolate the period of investigation and court appearance because they both have a bearing in the matter. This was not a normal run investigation.

"This was a specialised investigation and a prosecutor-guided investigation. Specialised institutions, established in terms of the law, were employed to investigate the matter," he said.

The magistrate also said the court could not escape the reality that the allegations are complex.

"This is a complex matter. If it's a complex matter, one would expect that, before you come to court, your investigation must be complete," Jacobs said.

The magistrate said the state may reinstate charges and bring the matter to court after getting a letter from the National Director of Public Prosecutions confirming that the case is ready for trial.

Seboka said they believe that Koko and his co-accused have a case to answer and will be back in court after finalising their investigations.

"The public state law enforcement agencies will self-introspect to find out what we are missing.

"We didn't get here overnight. It took a lot more time for the country to be in the state that it is. It will take a lot more time to put more effort from the NPA and law enforcement agencies to try and recoup as much as possible from those we see as suspects and accused persons," Seboka said.

Responding to the outcome of the inquiry, Koko said the NPA misdirected itself by charging him.

"It did not act without fear, favour or prejudice," he claimed.

Koko also said the fallout of the case had taken a punishing toll on his family.

"The banks have terminated my family's bank accounts because of this criminal matter ... I have been rendered stateless in my country of birth."

Constitutional law expert Advocate Paul Hoffman said the outcome of the inquiry added to the narrative that the NPA – which listed the Kusile case as one of its nine seminal state capture cases – is incapable of doing its job well.

"It's unfortunate that the NPA has no resources, no manpower or capacity to do its job properly, and that will continue while it remains under-budgeted and structured as it is," he said.

Llewelyn Curlewis from the Department of Procedural Law at the University of Pretoria concurred that the matter cast the image of the NPA in a poor light.

"There is not a single successful prosecution we have seen. Now, we have seen another high-profile case struck off the roll.

"Public confidence in the NPA is already down the drain to a large extent. They have not shown commitment to seriously prosecuting state capture cases after many months since the recommendations from the Zondo Commission. The public is concerned. The attitude of the public is that the state is not capable of prosecuting these cases."

At the same time, Parliament's Portfolio Committee on Justice and Correctional Services heard in a presentation that the Zondo Commission's findings do not provide a blueprint for the successful prosecution of cases.

The presentation, delivered by the NPA's Advocate Rodney de Kock, said the narrative that the NPA is doing nothing was both "wrong and dangerous".

It added that the ID declared 99 investigations and enrolled 34 cases involving 205 accused.

Tuesday's setback for the NPA follows the Free State High Court granting Section 174 discharges to all but one of the accused in the Nulane Investments fraud and money laundering case in April and the unsuccessful extradition of the Guptas from the United Arab Emirates in 2022.

The Free State High Court ruled that the state had failed to produce enough evidence to show that the Gupta family and their associates were implicated in the laundering of R24.9-million of the proceeds of the alleged Nulane scam.

The NPA submitted its application to appeal against the matter.