Eskom disciplinary hearing tailored to favour compromised Koko

DISCIPLINARY proceedings against the suspended acting CEO of Eskom, Matshela Koko, underwent a second false start yesterday when it emerged that the newly appointed chairperson of the hearing would not be available for most of this week.

Mzungulu Mthombeni SC was appointed on Friday but was forced to admit to Koko’s legal representatives that he had not yet been properly briefed‚ given a letter of appointment‚ terms of reference or even the charge sheet.

By Monday afternoon‚ it was still unclear when the inquiry would proceed as Mthombeni was unable to provide details of his availability.

The hearing was set down to be heard between Monday and Friday this week.

The only business concluded yesterday was an application by the Dispatch’s holding company, Tiso Blackstar, to be allowed to attend the inquiry and report on the developments.

But even when the disciplinary process eventually does go ahead, irregular interventions from Eskom’s board may ensure that it delivers an outcome favourable to the accused.

The board asked Koko to choose the presiding officer.

Then Eskom contracted lawyer Sebetja Matsaung to lead evidence, despite its legal head advising against this because he was “too junior, inexperienced and does not have the expertise”.

Through his lawyers, Koko was asked to “elect one name from a list of three” possible presiding officers – all senior and experienced advocates.

Asger Gani attorneys rejected them on September 5 on the grounds that they were white men.

Koko was suspended in May after allegations that a division he headed had irregularly awarded contracts to Impulse International, in which his stepdaughter owned shares.

Koko failed to declare the conflict of interest and paid the company more than R1-billion in contravention of Eskom’s procurement policies, including not producing tax and black economic empowerment certificates.

He faces five charges related to undermining his colleagues and irregularly removing some from their positions.

There are a further five counts following a forensic investigation into his conduct emanating from a whistle-blower’s report.

Koko also faces charges for his role in R1.6-billion irregularly awarded to global consultants McKinsey and the Gupta-linked Trillian.

If Koko is found guilty, Eskom will seek his dismissal.

On September 13, Eskom drew up another list of three advocates and offered Koko “a final opportunity to agree on a chairperson” for his disciplinary hearing.

Koko chose Hamilton Maenetje, who was not available after being told the hearing would start on Friday, but Eskom told Business Day the process would start this week.

The hearing was then to be chaired by advocate Mzo Mthombeni, who was not on the two lists of names Eskom proposed.

Asked how it had settled on Matsaung as evidence leader, Eskom said it “generally does not discuss the details of its internal disciplinary processes with third parties.

“Suffice to say that all the affected parties will be afforded a fair disciplinary process.”

Matsaung said, “I feel I’m equally deserving to be appointed by Eskom. Why must Eskom be persisting in appointing white people only?

“Our industry is slow in transformation; black lawyers are not getting work.”

He said Koko was not asked to choose his prosecutor and chairman, but “it was a matter of inviting his participation”. “That’s why they came up with a list of people. Let’s be frank and honest, the first list was a list of only white individuals.”

The board and Public Enterprises Minister Lynne Brown have been accused of irregularly interfering with the process to ensure a favourable outcome for Koko.

The disciplinary process should be the responsibility of the CEO.

Eskom chairman Zethembe Khoza and nonexecutive director Sathie Gounden overruled Eskom’s head of legal affairs, Suzanne Daniels, and insisted Matsaung be picked.

In July, the board removed Daniels from Koko’s inquiry and placed the process in the care of group human resources director Elsie Pule, who reduced the number of charges from the 10 preferred by the legal department.

In August, Daniels expressed concern about the board’s irregular involvement and she was suspended on October 6.

Sikonathi Mantshantsha is deputy editor of the Financial Mail. Kyle Cowan added yesterday’s developments. Dispatch editor Sibusiso Ngalwa returns to his regular slot in two weeks