Former Eskom boss, Matshela Koko has laid a formal complaint with the Public Protector after he accused the Investigating Directorate (ID) and the National Prosecuting Authority (NPA) of overstepping the mark by “usurping the function of the courts” when it concluded and entered into a non-prosecution agreement with Swedish-Swiss robotics automation company, Asea Brown Boveri (ABB) South Africa.
Koko was accused of being "at the centre of a corrupt scheme" which sought to help the international engineering firm secure a lucrative R2.2 billion contract at the Kusile power station in Mpumalanga.
In his letter to the Public Protector, Koko said the NPA’s agreement to not prosecute ABB after it acknowledged liability and had taken responsibility for the alleged criminal conduct of its employees involving contracts with Eskom, was “an illegality."
ABB had agreed to pay an over R2.5 billion fine in punitive reparations to South Africa's Criminal Asset Recovery Account (Cara).
In its statement in December 2022, the NPA said the settlement agreement made it clear that the ID may proceed to prosecute ABB South Africa as a corporate entity in the event that ABB breaches any terms of the settlement.
However, in his written complaint, Koko said the ID decided not to criminally prosecute ABB South Africa, despite entering into the agreement in line with Section 64(e) of the Prevention of Organised Crime Act (POCA).
Offences under the POCA allow the accused to admit guilt without appearing in court by paying a fine. Once the admission of guilt is paid, the particulars of the accused are recorded as a criminal record, and the accused is deemed to have been convicted and sentenced by the court.
“Section 64(e) of the Prevention of Organised Crime Act does not have the authority to rely on concluding payments of fines or penalties without a sanction from the courts.
“The payment of admission fines or penalties is undoubtedly an essential component of the criminal justice system, as it allows admitting guilt for less serious offences and relieves the burden on the overloaded criminal justice system,” he said.
kailene.pillay@inl.co.za
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