By Prof Sipho Seepe
Reacting to the decision of the Middelburg Specialised Commercial Crimes Court to strike off the roll charges of fraud, corruption, and money laundering against him, the former Eskom boss Matshela Koko argued that the public is being taken for a ride. “The NPA is doing South Africans a big disservice. You cannot make such allegations, investigate them for more than five years, bring me to court, and wake me up at six o’clock in the morning. More than 12 months later, you are not ready to take me to trial. What we see here is a hate crime. What has happened to me and my family is nothing else but a hate crime; it is hate for Koko. It should never happen to anyone.”
Koko could not have been blunter in describing the horror visited upon him. He is not alone. Koko has effectively been denied the right to a speedy trial. Koko’s trial and tribulations fly in the face of the provisions of the Constitution.
To this end, Section 35(3) is unambiguous about what should be expected from the state in its exercise of public power. “Every accused person has a right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay.”
The right to a fair and speedy trial serves at least two purposes. It also ‘protects defendants from arbitrary and indefinite delays in criminal prosecution’ and ‘prevents the prosecutors from abusing their power and violating the defendant's rights.’
This right effectively forces prosecutors to diligently build their cases before they can haul the defendants to court. The abuse of prosecution for political ends is just a glimpse of what has become South Africa’s criminal (in)justice system.
The infamous crack-of-dawn Hollywood-style morning arrest of Koko and his stepdaughter was orchestrated to effect maximum humiliation. It had little to do with pursuing the cause of justice. It is not dissimilar to the dragging of Duduzane Zuma and Mcebo Dlamini in shackles around their ankles to court as if they were the most violent criminals. This form of treatment seems to be largely reserved for black people. White murderers are often treated with a modicum of respect. The theatrics regarding Koko’s arrest have had the effect of violating Section 35(3)(h) of the Constitution, in which “everyone has the right to be presumed innocent, to remain silent, and not to testify during the proceedings.”
For his part, Koko argues that the NPA has been weaponised against him. He hauntingly argues. “A cabinet decision was taken on January 18, 2018, to dismiss me from @Eskom_SA because the Cabinet in its wisdom, decided I was corrupt. President Cyril Ramaphosa admitted on August 11, 2021, at the Zondo Commission that he fired me, but it was a joint decision of the Cabinet. He claimed that he fired me because he wanted to avert a severe crisis at Eskom, when in truth, he was collapsing Eskom so that it could be unbundled to allow the IPPs unfettered access at the expense of Eskom. This is evidenced by the current state of the electricity disaster with no end in sight.” Koko concludes. “To justify the unlawful cabinet decision, the @NPA_Prosecutes had to charge me.”
In the current frightening dystopian reality, you are guilty by either suspicion or association. Since then, mainstream media has done its best to portray Koko as guilty as charged. This does not come as a surprise. After all, this is the same media that introduced the notion of Ramaphoria into South Africa’s political lexicon. As I argued before, we have since moved from Ramaruin to Ramageddon.
The decision to strike the case involving Koko off the roll raises questions regarding the reliability of the Zondo Commission’s fabled reports. Zondo had come to a determination that Koko was “feeding Mr Salim Essa with information to enable the Guptas to position themselves advantageously in relation to Eskom’s affairs in general and the takeover of Glencore’s coal interests in particular.”
The unfazed Koko has since suggested that the Eskom chapter of the Zondo report should be thrown in the rubbish bin. Not the kind to mince his words, Koko retorted and implied that Zondo had lost his marbles.
“After reading a significant part of the State Capture Commission Report Part IV, I have come to the conclusion that CJ [Chief Justice] Zondo has set up the NPA to fail. For example, see the attached highlights from the report and my affidavit. Justice Zondo has really gone crazy.”
Questioning the credibility of the report, Koko continues. “I was directed by CJ Zondo to submit an affidavit instead of being led by my counsel because he had [run] out of time. To my surprise, Judge Zondo said he did not read my affidavit but only went through the themes. I repeat, Judge Zondo has set up the NPA to fail.”
In a sense, Koko echoed concerns that had been raised by the National Director of Public Prosecutions, Shamila Batohi. Batohi pointed out that cases referred to the National Prosecuting Authority (NPA) by the Special Investigating Unit (SIU) are often not necessarily court-ready. Allegations and accusations, however damning, are in themselves inadequate to secure a conviction. Batohi argued that “the burden of proof on the NPA in criminal investigations is beyond a reasonable doubt, which is a higher burden of proof.”
Koko has since applied to the Gauteng High Court to have the State Capture Inquiry's findings against him reviewed. And he is not alone. A discerning judge would, in most likelihood, await the outcome of the judicial reviews that have been launched against his findings. For now, the NPA should heed the advice of the regional magistrate, Stanley Jacobs, by ensuring it enrols matters that are trial-ready. “Matters don’t just get enrolled in the regional court or the high court for purposes of investigation”. For its part, the NPA should refuse to be an instrument for political persecution.
*Prof Seepe is an independent political analyst
**The views expressed do not necessarily reflect the views of Independent Media or IOL