"This is a very sad day for justice in South Africa."
This is how University of Pretoria's senior law lecturer Dr Llewelyn Curlewis summed up the striking off the roll of a high-profile fraud and money laundering case involving former Eskom boss Matshela Koko due to unreasonable delay by the prosecution.
Magistrate Stanley Jacobs of the Middelburg specialised commercial crimes court ruled that his section 324 A inquiry found that there was unreasonable delay in the matter and declined the prosecution's request for a further postponement.
Charged alongside Koko were his wife Mosima and stepdaughters Koketso Aren and Thato Choma. The other accused are Hlupheka Sithole, Eskom's former project director at Kusile and the most senior official on site, lawyer Johannes Coetzee, Watson Seswai, Lese’tsa Johannes Mutchinya and former South African Local Government Association (Salga) CEO Thabo Mokwena. Mutchinya, a businessman, was added onto the case in August.
University of Pretoria's senior law lecturer Dr Llewelyn Curlewis said this was a negative indictment on the National Prosecuting Authority and its ability to prosecute high-profile cases.
"Following what happened in the Free State matter (Nulane case) suggests that once again there's definitely concerns about the capabilities of the national director of public prosecutions to prosecute high-profile cases and it does not add to the perception out in public that the NDPP is not able to prosecute (high profile matters)," Curlewis said.
He said the latest developments in the case seem to suggest that "there's no knowledge, skills or willingness" within the NPA to put a case before court to secure convictions.
Curlewis said this was "yet another blunder" by the prosecution.
"The longer it takes, the worse it would be to be able to put together a successful prosecution. It's a sad day for justice in this country, just another example of the ineffectiveness of the NDPP to do what they're supposed to do," Curlewis said.
Jacobs rejected the NPA's Investigating Directorate's request for a further postponement saying the matter was first investigated in 2017.
Jacobs said this "was not a run-of-the-mill case" and involved incidents which have occurred between 2014 and 2016.
"If this is a complex matter, before you come to court you have to make sure that investigations are complete," stated Jacobs.
He said the fact that the charge sheet was 136 pages long showed that this was not a normal case similar to those that get regularly heard in the regional courts with one or two pages of charge sheets.
"The submission by the state that when the arrests were effected in October 2022, they believed they had a prima facie case doesn't fly at all," stated Jacobs.
The state had after the arrests and enrolling of the matter asked for a six-month postponement for further investigations, however in March the state was granted another six-month postponement with conditions that investigations would be complete at the next appearance in September.
In September, the state requested a further six-month postponement which led to the section 324 A inquiry into unreasonable delay in terms of the criminal procedure act.
Jacobs said the case can only be reinstated when NPA head Adv Shamila Batohi issued an authorisation after being satisfied that the matter was now trial-ready.
The setback in the Kusile case, which was one of its nine “seminal” state capture cases, comes after acquittals in the Nulane fraud and money laundering case in Bloemfontein early this year and the unsuccessful extradition of the Guptas from the United Arab Estates last year.
Koko said he was a victim of hate prosecution by the NPA.
"I think what has happened to me is a hate crime. You may know my name but my other name is Moses, I was always to cross the red sea and when they come back, we will cross the red sea again," Koko said.
I think what has happened to me is a hate crime.
— Matshela Koko
Asked if he felt relieved that the case was struck off the roll, Koko said: "We are dealing with bitter people here, these people are bitter. I expect something from them, there's no time to rest... we're dealing with people who are not nice people," Koko said.
Investigating Directorate spokesperson Sindisiwe Seboka said they were confident of the re-enrollment of the matter as investigations were already completed.
"It should be noted that this decision is not tantamount to an acquittal or withdrawal of the charges. The ID will continue investigating the case in line with the original case strategy that it developed for this complex matter," Seboka said.
She said the delays "were not anticipated at the time of the arrest of the accused due to the complex nature of the case".
"The extent and the sheer volume, and the digital nature of the evidence seized, in particular, subsequent to the arrest and enrolment. Work on the compilation of the outstanding reports is ongoing."
"The ID will re-apply for the matter to be re-enrolled within a reasonable period of time, and as soon as the outstanding aspects of the investigation have been completed," she said.
Koko, who was Eskom group CEO at the time, is alleged to have played a vital role in the awarding of contracts to Impulse International, ABB and other subcontractors.
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