A legal expert believes the National Prosecuting Authority (NPA) may have “committed another blunder” in a high-profile state capture case, which is currently facing an inquiry into possible unreasonable delay.
Senior law lecturer at the University of Pretoria (UP) Dr Llewelyn Curlewis said the section 342A investigation by the Middelburg specialised commercial crime court in a matter involving former Eskom boss Matshela Koko may expose a “misstep” by the prosecuting authority.
The court will rule on the matter next Friday and this could see the case hitting a snag.
This is concerning, as the state has an obligation to ensure an investigation and speedy trial are concluded, Curlewis said.
“This looks like another blunder, as we have seen with the other state capture matter in Bloemfontein. I get the sense the state gets desperate, especially with cases stemming from the state capture commission, and ends up skipping some of the processes, including completing investigations,” he said.
In the case before court, we submit that it is common cause that the public is distressed by the unstable supply of electricity
— National Prosecuting Authority
If the NPA did not learn from the missteps, “we will continue to see this more and more ... a speedy trial is a constitutional right and obligation”, Curlewis added.
The court indicated in May that if the state could not confirm it had completed its investigations into the R2.2bn fraud, corruption and money-laundering case related to the building of the Kusile power station in Mpumalanga, the investigation in terms of section 342 of the Criminal Procedure Act would be considered.
When the state failed to confirm completion three weeks ago, requesting another postponement, the accused asked for an unreasonable delay investigation which was heard orally on Thursday.
The NPA, in its heads of argument, said the right of an accused to a fair trial required fairness to the accused and the public.
“In the case before court, we submit that it is common cause that the public is distressed by the unstable supply of electricity,” it argued.
The major issues are the reports of two experts and the flow of funds report by Bowmans attorneys, which are still outstanding, it added.
The NPA also indicated that there are “a few affidavits to which the state is dependent on the co-operation of foreign states to obtain”.
“The state has made it clear and again reiterates that a postponement to complete the outstanding investigation and the time given to do that can be done simultaneously with the disclosure and the accused's perusal of the docket.”
Some of the accused, including Koko, may get the prescribed 15 years' imprisonment if found guilty of corruption, the NPA said.
It also argued that five money-laundering accused may receive fines or imprisonment.
“The charges are based on the allegation that MM Koko (accused 1) used his influence and position as Eskom executive to award to ABB the control and instrumentation contract at Kusile power station with the contract (value of R2.2bn) and influence ABB's subsequent appointment of specific subcontractors,” stated the NPA.
In terms of section 342A of the Criminal Procedure Act, “a court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the state or a witness”.
Koko faces charges of fraud, corruption and money laundering alongside his wife Mosima and stepdaughters Koketso Aren and Thato Choma.
He was arrested in October last year regarding alleged irregular contracts granted for the building of Kusile power station at of cost of about R2.2bn.
The other accused include Hlupheka Sithole, Eskom's former project director at Kusile and the most senior on site, lawyer Johannes Coetzee, Watson Seswai, Lese’tsa Johannes Mutchinya and former South African Local Government Association (Salga) CEO Thabo Mokwena.
The accused supported the court's probe, arguing in favour of it finding against the state. They said it had six years to investigate and finalise the matter before obtaining warrants for their arrests. The investigation started in July 2017, while the first arrests were made in October last year.
All the accused indicated that they intend to plead not guilty.
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