Special Tribunal judge Thina Siwendu has ordered that the R11m held in a bank account linked to a suspended Eskom manager, which she deemed to be proceeds of unlawful activities, be forfeited to the state.
This after the tribunal granted the Special Investigating Unit (SIU) an interim order in April to freeze the funds after a whistle-blower alleged that suspended Eskom coal operations senior manager Petrus Mazibuko was receiving unauthorised payments from two Eskom suppliers — Commodity Logistix Managers Africa and Thembathlo — through a bank account with FNB held by Thephunokheja Projects, a company run by Petrus Mazibuko and his brother Shadrak.
Thephunokheja’s bank statements, according to the SIU investigation, showed the only source of income was from the two Eskom suppliers.
In her judgment on Tuesday, Siwendu said the Mazibukos’ conduct and that of Thephunokheja contravened the Prevention of Organised Crime Act, in that they accepted gratification from the Eskom suppliers for their benefit to influence an unjust result. Petrus did not disclose to Eskom that he was a director of Thephunokheja Projects, and he told the Special Tribunal in September that he did not know the source of the funds in the FNB bank account.
But Siwendu wrote in her judgment: “Mr Mazibuko contends that because he was not a shareholder or director, there was nothing to disclose and he had no duty to do so. The view was that Thephunokheja is a separate corporate entity and is not an official of Eskom. He was not involved in the operations of the company. He did not receive a salary from Thephunokheja.”
Mazibuko had said he was not aware the two Eskom suppliers were doing business with the power utility.
“He says his involvement [in Thephunokheja] was limited to assisting his brother with management of the financial affairs of Thephunokheja and to help prevent sporadic withdrawal of funds from the account. With the same breath, he did not dispute that his brother operated other bank accounts in which he was not involved,” the judgment read.
“I find that even though his name does not appear on the statutory register of directors, he was a de facto director of Thephunokheja and had represented himself as such. Even if he was not a de facto director which I have found he was, on his own version, he accepted that he was ‘an adviser’ looking after the financial affairs of Thephunokheja. I find that he had a duty to disclose his interest and relatedness to Thephunokheja on all accounts.”
Siwendu said she found the “plea of ignorance unpalatable” that Mazibuko did not know the source of the funds in the bank account.
The respondents were ordered to pay costs, jointly and severally liable, the one paying and absolving the others. The costs include the costs of senior counsel.
SIU spokesperson Kaizer Kganyago said the SIU welcomed the judgment.
The Special Tribunal is part of attempts to recoup losses suffered by the state-owned power utility during the corruption-marred tenure of former president Jacob Zuma. In 2018, President Cyril Ramaphosa ordered an SIU investigation into the losses suffered at Eskom and Transnet arising from allegations of graft and influence peddling by the Gupta family, who have close ties to Zuma and members of his family.
In May, the high court in Johannesburg granted an order to seize assets worth R1.4bn belonging to former Eskom executives accused of corruption in the construction of the Kusile Power Station.
Eskom, which is burdened with debt of about R400bn, depends on government bailouts to keep operating and its parlous finances are widely regarded as the biggest threat to the SA economy.
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