Another Kusile court setback: this is unforgivable, says legal expert

Delays in the R2.2bn Kusile case involving former Eskom acting CEO Matshela Koko have been described as concerning, un-collegial, unexpected and unforgivable. 

Legal experts have slammed prosecutors and court administrators for poor planning that saw the matter suspended on Tuesday in the Middelburg specialised commercial crimes court.

The court is conducting a section 342A investigation into a possible unreasonable delay by the state in completing its investigation into the fraud, corruption and money-laundering case related to the building of the Kusile power station in Mpumalanga.

It has repeatedly asked for postponements in the case, saying the reports of two experts and the flow of funds report by Bowmans attorneys were still outstanding.

Koko, 53, was charged in October last year with three counts of corruption, one of fraud and another of money-laundering. His wife Mosima and two stepdaughters, Koketso Aren and Thato Choma, are also charged.

On Tuesday, the case was hit by yet another delay due to the non-availability of an Afrikaans interpreter.

It emerged that defence lawyers were not even aware that the investigating officer would be on the stand.

The prosecution had made a “mistake” and not informed lawyers of the accused that magistrate Stanley Jacobs would be seeking clarity on certain issues from the investigating officer, whose name cannot be revealed for safety issues, before ruling on the issue of unreasonable delay.

Why was that not arranged (the Afrikaans interpreter), either by the court or the prosecution? It was a failing on the part of the system ... it’s unforgivable in such a high-profile case.

—  Adjunct law professor at Wits University Stephen Tuson

Wits University’s adjunct law professor Stephen Tuson said this was unexpected, especially in such a high-profile case.

“You’d expect for such a high-profile case, there would be a very competent and experienced prosecutor in charge, and his job is to think of all these things,” Tuson said.

He said a prosecutor should, in collaboration with the court administration, ensure that all admin staff including the interpreter, are available.

“Why was that not arranged, either by the court or the prosecution? It was a failing on the part of the system ... it’s unforgivable in such a high-profile case,” Tuson said.

He said the magistrate was doing “an excellent job in making sure that he’s not making a decision without going through all the facts”.

The trial is now due to resume on Thursday.

Senior law lecturer at the University of Pretoria, Dr Llewelyn Curlewis, said it “seemed to members of the public and the rest of the world watching the case unfold, as if there is no collaboration between the different stakeholders in the justice system”.

Curlewis said the magistrate’s stance made legal sense.

“It’s not untoward for a magistrate to ensure, in the interest of justice, who is responsible for undue delays, if any, by calling the investigating officer.”

He said even though the legal system suffered when such an inquiry had to be instituted, it was “obviously a concern to the presiding officer as well, otherwise it would not have been entertained as an issue from the outset”.

The NPA has argued in the matter that the right of an accused to a fair trial also required fairness to the public.

Prosecutors claim Koko is central to the case, the “puppet master in a scheme which benefited him and his family”, allegedly scoring them millions of rand and luxury overseas holidays.

Other accused include Frans Sithole, Thabo Mokwena, Johannes Coetzee, Watson Seswai, Sunil Vip, Markus Bruegmann, Gopal Kambi and business owner Lese’tsa Johannes Mutchinya.

Legal expert Ulrich Roux said it was “un-collegial and unethical” for the state not to inform the defence lawyers that the investigating officer was scheduled to take the stand.

“There is a cost and time implication for the defence because they pay their attorneys to be there, which is unfortunate,” Roux said.