Eskom’s revival must start with the prosecution of the corrupt

15 August 2022

Eskom was one of the primary targets of State Capture, and it is no coincidence Eskom’s current indebtedness now exceeds R400-billion. In President Ramaphosa’s address to the nation on 25 July 2022, he outlined a comprehensive plan for recovery, but he did not adequately address the issues around State Capture and corruption as they impacted, and continue to impact, the functioning and sustainability of Eskom.

The actions of those who have sabotaged Eskom installations, border on treason or sedition, yet remain unaddressed due to the dynamics of factionalism in the ANC. The apprehension, investigation, charging and prosecution of those who have made Eskom their criminal playground is overdue.

Those who have plundered Eskom need to be held to account, not only in respect of the loot they have stolen but also in the criminal courts of the land for the crimes they have committed against the people of SA by seeking to capture and repurpose Eskom to the own greedy ends. Those who are still eying Eskom as a soft target for further corrupt activities ought to be deterred by a solid commitment to reform of the anti-corruption capacity of the state. Sabotage, intimidation of Eskom staff and illegal strikes aimed at crippling Eskom need to be addressed with what the president once called “concomitant action” in another context.

Successful prosecutions will deter those still determined to loot or destroy Eskom. Court action will also enable the recovery of a significant amount of the money looted. The coffers of Eskom could be considerably swelled if concerted efforts were made to rake back the loot of State Capture. While some small progress on this front has been seen, it is minuscule when compared to what could be achieved if real effort was put into a campaign to recover the money. With the right amount of political will, the freezing, seizing and recovery of loot is possible in most jurisdictions to which the loot has been removed by those involved in State Capture and other forms of serious corruption.

The NEC of the ANC resolved in August 2020, to instruct Cabinet, as a matter of urgency, to establish a new, independent, stand-alone, specialised entity to deal with corruption without fear, favour or prejudice. However, there has been no action in the nearly two years that have elapsed since the resolution was passed.

The IFP and the DA have championed the establishment of a new Chapter Nine institution to counter serious corruption. Having previously championed the reform of the investigation of serious corruption, the DA is currently working on a private member’s bill to introduce legislation aimed at preventing, combating, investigating and prosecuting serious corruption via a new Chapter Nine institution.

The Constitutional Review Committee in Parliament, which will need to be persuaded of the need for a constitutional amendment to create the new body, has taken note of these developments and has resolved to invite the organisation Accountability Now, to make a comprehensive presentation to the committee about setting up the new institution that will deal with serious corruption.

Another precondition for economic recovery, relevant to the consequences of state capture for Eskom, is the need for reliable and sustainable integrity in any process or tender related to improving the electricity supply and achieving much-needed growth in the economy.

Ramaphosa’s silence on the steps to be taken to address ongoing attacks on Eskom and on recovery of loot taken from Eskom means that there are missing links in his otherwise apparently genuine and meritorious efforts to address the inability of Eskom to keep the generation of electricity on a reliable footing.

The President is surely aware that failing to address corruption with impunity head-on will exacerbate Eskom’s challenges and his aims to ensure a reliable electricity supply. He also knows that new investment in SA is going to be difficult to attract while a culture of corruption with impunity is allowed to continue.

The missing links in his address to the nation, both regarding the recovery of loot and ending corruption with impunity through effective prosecution, will undermine his plans, unless the director general in his office, tasked with oversight of the recovery of Eskom, takes steps to address these issues.

If ongoing corruption is appropriately addressed via reform of the criminal justice administration aimed at enabling it to counter corruption in the manner envisaged by the Constitutional Court in the Glenister litigation, the new plan has every prospect of success. If not, the converse applies.

The appropriate concomitant action now would be to announce that cabinet is acting on the August 2020 anti-corruption resolution of the ANC by fast-tracking the legislative process required to establish a Chapter Nine Integrity Commission mandated to prevent, combat, investigate and prosecute serious corruption in all its forms. Doing so would help Eskom back to its feet. It is also an appropriate response to the Zondo report on state capture.

Paul Hoffman is a director of Accountability Now and was lead counsel in the Glenister litigation that set the criteria for corruption busting.