3 August 2020
Eskom and the Special Investigating Unit have today issued summons in the North Gauteng High Court to recover funds from former Eskom executives, former Board members, members of the Gupta family and their associates, and others. The funds were lost in a concerted effort corruptly to divert financial resources from Eskom, to improperly and illegally benefit the Gupta family and entities controlled by the said family and their associates during their 2015-16 acquisition of the operations of Optimum Coal Holdings Limited (OCH).
This delictual claim for damages that Eskom suffered relates to the recovery of approximately R3.8 billion in funds illegally diverted from Eskom to help the Gupta family and its associates to acquire the operations of OCH, which owned the Optimum Coal Mining (Pty) Ltd that supplied the Hendrina power station with coal. The further delictual claim for damages pertains to the payments that were unlawfully made to Trillian by Eskom Executives.
The defendants are former Eskom employees Brian Molefe (Group Chief Executive Officer); Anoj Singh (Chief Financial Officer); Matshela Moses Koko (Group Executive: Generation and former Acting Group Chief Executive Officer); as well as Suzanne Margaret Daniels (Company Secretary and Group Legal Head). Eskom also seeks damages against non-executive directors Baldwin Ben Ngubane (Board Chairman); Chwayita Mabude (Board Member); Mark Vivian Pamensky (Board Member); Mosebenzi Zwane (former government minister of Mineral Resources); Salim Aziz Essa; Rajesh Tony Gupta; Atul Gupta and Ajay Gupta (collectively referred to as the “Gupta Brothers”).
All of the former executives and Board members breached their fiduciary duty of care and good faith to Eskom, and acted in a concerted State Capture effort with the Gupta Brothers, Mosebenzi Zwane and Salim Aziz Essa to illegally divert funds from Eskom. The Gupta Brothers owned the majority shares in entities (Oakbay Investments Limited and Fidelity Enterprises Limited) that in turn owned the majority shares in Tegeta Resources & Exploration. The Gupta Brothers are currently fugitives from justice in South Africa and are based in Dubai; as well as Salim Aziz Essa, who is also a fugitive from justice in South Africa and based in Dubai.
These 12 defendants acted in a concerted effort whose objective was the corrupt, alternatively irregular, diversion of resources from Eskom. As a result of their actions in the acquisition of OCH during this period, Eskom suffered at least R3.8 billion in losses which it is legally obliged and morally burdened to recover, together with the interest thereon.
Eskom and the SIU reserve the right to pursue other individuals and entities, or to join others to this action.
As previously stated, Eskom continues to review major contracts concluded over the years, and where any evidence of corruption or other irregularities have been discovered, Eskom has a moral and legal duty to cancel those contracts, and to recoup any losses it may have suffered as a result of any illegal or irregular activity.
The SIU is investigating numerous contracts at Eskom under Proclamation R11 of 2018.