Former Eskom acting CEO Matshela Koko has launched an application at the South Gauteng High Court, Johannesburg, to challenge the National Prosecuting Authority (NPA) and Swiss-based company ABB’s deal which saw the firm sidelined from being prosecuted for corruption.
This after Koko brought an application seeking an order to declare the “guaranteed” immunity for criminal prosecution granted to ABB by the Investigative Directorate unconstitutional and unlawful.
Koko cited the “lack of judicial oversight and prosecutorial misconduct”.
This was after ABB entered into alternative dispute resolution (ADR) with the NPA, underpinned by the commitment to reveal everything.
Koko believes that the Investigative Directorate has overstepped its authority by granting ABB guaranteed immunity without judicial oversight, which amounts to prosecutorial overreach.
He said the Investigative Directorate’s decision should be subject to judicial scrutiny.
He added that the lack of judicial oversight violated the principle of separation of powers, and undermined the checks and balances inherent in the legal system.
Koko was arrested in 2022 along with several representatives from ABB’s local and European divisions for their alleged involvement in corruption at Kusile power station in 2022.
Koko, who was prosecuted for allegedly receiving bribes from ABB, won relief with costs to have his case struck from the roll.
The application was set down for June 6, 2024.
NPA Investigative Directorate spokesperson Henry Mamothame told Independent Newspapers that it was opposing this application and that the matter was pending.
Following his victory, Koko vowed to be back in court again to deal with the NPA.
He said the NPA did not have the authority to grant immunity from criminal prosecution without judicial oversight. He said the powers resided exclusively with the courts.
Koko said the ADR agreement, which granted ABB “guaranteed” immunity from criminal prosecution without judicial oversight, amounted to selective prosecution.
“Selective prosecution refers to favouring or targeting specific individuals or entities for prosecution while exempting others. This selective prosecution favours ABB and circumvents the principle of equal treatment under the law”, said Koko, adding that this partially violated the equality clause in Section 9(1) of the Constitution, along with sections 179 and 36, which explicitly prohibited selective prosecutions.
Koko added that failure to review and invalidate the ADR agreement would inevitably result in undeniable prejudice that he and other involved parties suffered.
“The absence of judicial oversight in the ADR agreement blatantly infringes upon the right to judicial oversight. I firmly maintain that NPA’s decision to finalise the ADR agreement without judicial oversight creates opportunities for concealing crucial information, undermines the agreement’s credibility and raises concerns regarding potential prosecutorial misconduct and abuse of power,” he said.
He argued that the ADR agreement was imperative for his fair trial rights and for upholding fairness, transparency, and accountability in the non-trial resolution process, as stipulated in Section 105A of the Criminal Procedure Act 51 of 1977.
He said this also eroded trust in the legal system, adding that the public confidence in the legal system relied on the belief that justice is served impartially and without favouritism.
“Because of this unlawful non-trial resolution, I am reasonably apprehensive that NPA is biased and may not prosecute without fear, favour and prejudice.
“The lack of judicial oversight in the ADR agreement is expected to face legal challenges when I eventually stand trial. I am fully prepared to challenge this agreement to uphold my right to equal treatment before the law,” said Koko.
He added: “This prejudicial action lacks transparency and accountability, eroding trust and creating legal challenges that will undoubtedly result in unreasonable trial delays and complications.” He warned that this had the potential to undermine the administration of justice seriously.
ABB South Africa's head of media relations and crisis management Eike Christian Meuter told Independent Newspapers that the company had reached a full and final settlement with the National Director of Public Prosecution in South Africa, the US Department of Justice, the US Securities and Exchange Commission, the Office of the Attorney-General of Switzerland, and Germany’s Mannheim Regional Court related to the legacy Kusile project in South Africa awarded in 2015.
Meuter said ABB did not expect further enforcement proceedings regarding its conduct in the Kusile matter and considered the matter closed.
Sunday Independent
manyane.manyane@inl.co.za