From left: Shamila Batohi and Andrea Johnson
The State of the Nation uncovers a significant and troubling situation within South Africa’s National Prosecuting Authority (NPA). The NPA, which is supposed to uphold the rule of law, is scrutinised for corruption and mismanagement.
Staff Reporter
Harare, January 8, 2025—South Africa is fighting financial crime and bribery, with the National Prosecuting Authority at the forefront. The stakes are high as they tackle high-profile corruption cases, but the struggle is far from over. The fight for justice is on!
Calls for the impeachment of Shamila Batohi, the National Director of Public Prosecutions, and Andrea Johnson, the Head of the Investigating Directorate Against Corruption, are intensifying amid accusations of inefficiencies, unjustifiable delays, and questionable decisions.
As South Africa battles deep-seated corruption with far-reaching global consequences, the NPA’s handling of the Eskom—ABB corruption case raises urgent red flags about the rule of law and accountability. This situation illuminates a criminal justice system grappling with formidable challenges, revealing that the rule of law remains more of a distant ambition than a tangible reality. Due process, transparency, and accountability remain a pipe dream, except for multinational companies like Asea Brown Boveri (ABB).
The Case for Impeachment
The call for Batohi and Johnson’s impeachment stems from their perceived failures to effectively address financial crime in South Africa. Critics argue their leadership has been marked by unjustifiable delays, inefficiencies, and questionable decisions, undermining the fight against corruption.
Key cases like the extradition of the Guptas, the Nulane corruption case, the corruption case of the former Deputy Minister in the Presidency responsible for State Security, Zizi Kodwa and the Eskom—ABB corruption saga have been mishandled in a series of missteps. Among these cases, the Eskom—ABB corruption case is particularly concerning. This article explores one of the most significant challenges encountered while managing this case, highlighting its implications.
For more detailed insights, readers are encouraged to watch the AmaBhungane documentary “Tell No Lies and Claim No Easy Victories” and read the academic paper by Dr Llewelyn Gray Curlewis and Katelyn-Mae Carter, “Under the Influence: The Kusile Tender and State Capture Permeating the National Prosecuting Authority.” The relevant links are included at the end of the article.
Despite the initial arrests and charges against key figures like Matshela Koko, the investigation has been plagued by incomplete investigative reports and a lack of substantial evidence. The court’s scepticism about the State’s ability to present a comprehensive charge sheet after a seven-year prosecutor-led investigation underscores the inadequacies and questionable motives in the prosecution process.
Moreover, using an Alternative Dispute Resolution (ADR) Agreement without judicial oversight and lacking legislative authority for such agreements has raised serious concerns about due process, transparency and accountability. This agreement appears to shield ABB South Africa from criminal prosecution after the company confessed to violating the Prevention of Organised Crime Act (POCA), the Prevention and Combating of Corrupt Activities Act (PRECCA), and the Financial Intelligence Centre Act (FICA).
Johnson’s decisions and actions have circumvented the Criminal Procedure Act (CPA), exceeded her scope of authority in section 5 of the NPA Act, and contravened section 179(7) of the Constitution.
Batohi and Johnson had no legislative authority to divert serious crimes without judicial oversight, leading to valid claims that the NPA had overstepped its legal powers. The NPA Act 32 of 1998 and the Criminal Procedure Act 51 of 1977 (CPA) provide the NPA with legislative authority under Section 179 of the Constitution.
Section 179(7) of the Constitution mandates that matters concerning the prosecuting authority, not explicitly covered in the Constitution, must be regulated by national legislation. However, diverting serious crimes from the courts raises concerns among legal experts, who view it as an aberration. Serious offences like fraud, corruption, and racketeering deserve the scrutiny of the courts to ensure due process, transparency, and accountability. Diverting serious crimes from the courts is prohibited unless there is legislative authority, which does not currently exist.
How do Batohi and Johnson justify bypassing the CPA with their Alternative Dispute Resolution Agreement without court oversight and lacking enabling legislation, especially after ABB South Africa admitted to violating POCA, PRECCA, and FICA? Are they unaware that the Prosecution Policy and Restorative Justice Guidelines do not possess original powers and lack the authority of national legislation? They must know this fact, as they are highly senior and experienced prosecutors. This situation raises concerns of gross prosecutorial misconduct and/or corruption within the NPA. Batohi and Johnson must fall on their sword.
The Prosecution Policy and Restorative Justice Guidelines derive their powers from Section 179 of the Constitution, the NPA Act 32 of 1998, and the Criminal Procedure Act 51 of 1977, which offer no authority to divert serious crimes without judicial oversight. Batohi and Johnson have defied the norm and gone rogue, embarking on a thrilling path of unpredictability! This situation indicates a potential quid pro quo arrangement involving influential parties who remain anonymous.
Through the depiction of Eskom’s Kusile Tender, academics Curlewis and Carter determine that even the National Prosecuting Authority of South Africa is not free from the scourge of corruption.
These NPA decisions and actions have profound implications. They undermine public trust in the NPA and jeopardise South Africa’s efforts to exit the Financial Action Task Force’s grey list. The perceived lack of commitment to prosecuting financial crimes and acting unlawfully could harm the nation’s international standing and financial regulations.
If South Africa’s checks and balances are genuinely working, then Batohi and Johnson’s impeachment is not just logical but essential. South Africans must hold leaders accountable for restoring integrity in the NPA, which is a critical step in the fight against financial crime and a way to rebuild public trust in the South African judicial system. It is time for decisive action!
The Eskom—ABB Corruption Case
Despite being portrayed as intricate and complicated, this case is fundamentally straightforward. The layers of bureaucracy and corporate jargon often mask the underlying simplicity of the issues. What seems complex usually hides a simple truth.
The case is a critical example of South Africa’s challenges in fighting financial crime and corruption. It involves allegations of corrupt practices in awarding an R2.2 billion contract for the Kusile Power Station’s Control and Instrumentation systems. The NPA claims senior Eskom officials, including former Interim Group Chief Executive Matshela Koko, colluded with ABB employees to give undue preference to ABB South Africa.
The contract was allegedly awarded through an unlawful procurement process that lacked fairness, equity, transparency, competitiveness, and cost-effectiveness. Further irregularities were revealed during the contract’s implementation, including the issuance of Variation Orders that inflated costs by over R1 billion. These actions were purportedly designed to deliver improper financial benefits to specific individuals and entities, primarily benefiting Koko.
Koko and twenty others were arrested on October 27, 2022, and the case was enrolled in the Specialised Commercial Crime Court in Middleburg, Mpumalanga. In a noteworthy development, the State chose not to contest bail for Koko but did advocate for a significant bail amount of R500,000. Ultimately, the court granted him bail, setting the figure at R300,000.
This decision, however, came with stringent conditions designed to ensure compliance. Koko’s passport was confiscated. He was effectively barred from leaving the province of Gauteng without express permission from the investigating officer. Additionally, he was mandated to report to his nearest police station every week. These measures underscore the seriousness of the situation and the court’s unwavering commitment to oversight during this process, ensuring that Koko does not evade justice or interfere with the investigation.
For South Africans with an exaggerated view of the rule of law, Koko’s arrest represented a crucial turning point in the fight against financial crimes and corruption. This is it—the moment many have awaited. The tides have turned, and Koko is now presumed guilty until proven innocent in court. Finally, accountability is taking centre stage, sending a clear message: no one is untouchable. Let the reckoning begin!
News24, Times Media, Daily Maverick, and their associates went all out, prioritising the narrative over the proven facts. Their primary concern was portraying Koko as corrupt and claiming he was finally arrested to face justice. Koko’s arrest signalled victory in the fight against corruption for these media outlets.
Yet, despite the optimism, it turned out to be more of a false start than a triumphant breakthrough. Unjustifiable delays and inefficiencies hindered the case. Key reports, such as the flow of funds, data analysis, and forensic analysis, remained incomplete or unavailable, raising doubts about the State’s preparedness and the strength of its evidence. How did the State plan to prove charges of fraud, corruption, money laundering, and racketeering charges without the flow of funds, data analysis, and forensic reports in place?
The court expressed scepticism regarding the State’s ability to present a comprehensive charge sheet with a detailed flow of funds when essential reports—such as the flow of funds, data analysis, and forensic analysis—remained incomplete or unavailable seven years after a prosecutor-led investigation. The reports were still unavailable at this publication in January 2025.
The court’s refusal to grant a further four-month postponement and its decision to remove the case from its roll on November 21, 2023, underscored the importance of upholding the accused’s right to a speedy trial. The extended delay in re-enrolling the case has further fuelled concerns about the arrests’ legitimacy and the investigation’s integrity.
Complicating matters, ABB’s star witness, Goetz-Dietrich Wolff, recanted his earlier claims against Koko, admitting that his statements were based on suspicion rather than direct evidence. This revelation and ABB’s assertion at the Johannesburg High Court that there is no incriminating evidence against Koko have significantly weakened the prosecution’s case. The ABB’s assertions are covered in paragraphs 131.4 and 131.6 of their Answering Affidavit at the Johannesburg High Court case number 2024-138852.
If ABB denies direct evidence of Koko’s bribery, why are they paying out? It feels like they are hiding something! Which Eskom executive is implicated in the ABB plea deal in the U.S., even though ABB court documents in the Johannesburg High Court clearly state that there is no evidence Koko requested or received a bribe? Is ABB protecting the current Eskom executive mentioned in Koko’s papers, who is associated with Mokwena? The protection seems to shield influential parties from legal repercussions and maintain their anonymity.
ABB’s disclosure at the Johannesburg High Court adds a compelling layer to the earlier disclosure outlined in the search and seizure affidavit on October 26, 2022, when Koko was arrested. In a sworn statement, Investigating Officer Lt-Col Johannes du Plessis emphasised a critical point: the State lacked sufficient evidence to establish that Koko facilitated the alleged corrupt payments. This discovery raises doubts about the strength of the state’s case and reveals troubling insights from the investigation. The narrative is far from over, and the implications are significant. Why was Koko arrested at that time?
When Koko was arrested, Johnson proclaimed to News24 that Koko’s “flaunting arrogance” had provoked law enforcement during their corruption investigation. While her excitement was evident, Johnson’s remarks imply that Koko’s demeanour may have contributed to the decision to pursue legal action against him. This raises concerns about whether personal biases and perceptions of arrogance influenced the prosecutorial process. Batohi and Johnson might want to rethink their strategy—playing to the media is a short-lived game.
The NPA should focus on justice, not appeasing the media or punishing those who “flaunt arrogance”. Enrolling cases for optics is not the answer—it is a disservice to true accountability. The NPA’s work must be based on proven facts premised on prosecutable evidence.
Johnson’s insight in the Amabhungane documentary hits hard: “If you look the part and play the part, you will eventually become the part.” This is a nod to the “fake it till you make it” mentality, where projecting confidence is supposed to lead to genuine competence. Yet, the NPA seems stuck in a masquerade, donning a facade of capability while merely masquerading. They aspire for success but are just pretending.
This case exposes a critical flaw in the NPA: a glaring lack of due process, transparency and accountability. The perceived mishandling of this high-profile investigation has eroded public trust, casting doubt on the NPA’s commitment to tackling financial crime and corruption. There are increasing suspicions that the NPA is being used as a weapon against those perceived as supporters of Jacob Zuma, raising urgent concerns about justice within the criminal justice system.
The Role of ABB and Key Witnesses
This case highlights the significant role played by ABB South Africa and the key witnesses involved. ABB South Africa’s involvement in the case is central, as the company admitted to serious crimes, including bribery, corruption, money laundering, and racketeering. However, ABB South Africa was shielded from criminal prosecution through an ADR Agreement, which allowed the company to avoid judicial scrutiny. This decision has raised questions about the integrity of the judicial process and the NPA’s accountability.
A pivotal moment in the case occurred when Goetz-Dietrich Wolff, a former executive at ABB and a key witness, recanted his earlier claims during FBI interrogations on August 4, 2021, at 9 AM. The USA Department of Justice requested Wolff’s interrogation on June 3, 2021.
The transcripts of the FBI interrogation of Wolff on August 4, 2021, show that Wolff admitted that his statements about Koko receiving a portion of the contract price as a bribe were based on suspicion rather than direct evidence.
Wolff acknowledged in paragraphs 15 and 513 of his Section 204 Statement that he does not know Koko personally and has never interacted with him. He could not verify the information he provided about Koko because it was based on what he heard from his colleagues. It was a corridor talk, and he could not vouch for it.
Deirdre Maryjane Simaan, the affiant for the ABB court documents at the Johannesburg High Court, stated in paragraphs 27 and 28 of her declaration that Wolff’s colleagues have not provided sworn statements to support his claims.
This breakthrough dramatically undermines the prosecution’s argument, exposing their heavy dependence on circumstantial evidence lacking solid backing. It is a striking reminder of how crucial independent corroboration is in building a strong, winnable case!
Wolff’s cooperation with the investigation, which included providing a Section 204 statement, appeared to be part of a quid pro quo arrangement. Despite his admitted involvement in corrupt activities at the Kusile Project, he received a commendatory reference letter and a substantial exit package from ABB—a pat on the back for a job well done.
Goetz-Dietrich Wolff’s status as a Section 204 witness and his receipt of a commendatory reference letter on May 31, 2019, as well as a golden handshake, present a significant contradiction. This marks a crucial turning point in the State’s case.
As a Section 204 witness, Wolff provided a statement implicating others in the corruption scheme at the Kusile Project as part of his cooperation with the investigation. This cooperation typically involves some form of leniency or immunity in exchange for testimony against co-conspirators.
However, despite his admitted involvement in corrupt activities, Wolff received a commendatory reference letter and a substantial exit package of €625,000 from ABB. The commendation letter praised his performance and successful execution of the Kusile C&I Works Contract, and his departure was depicted as voluntary, highlighting his years of excellent service. ABB regretted Wolff’s departure and extended best wishes for his future endeavours.
Wolff’s commendation letter and hefty exit package of €625,000 paint a picture of a well-respected employee leaving ABB on a positive note. This raises questions about his negative comments regarding Koko, someone he does not know and has never interacted with. Were these comments motivated by genuine concern for justice or personal interests, including those of ABB? Batohi and Johnson stand unapologetic, boldly defending Wolff and ABB’s controversial choices.
This duality indicates that while cooperating with the investigation as a Section 204 witness, ABB rewarded Wolff. The company played both sides, ensuring Wolff’s loyalty and dodging repercussions while helping the NPA connect the imaginary dots in a sketchy chess game.
The commendation letter and financial settlement are part of a broader arrangement to maintain a positive narrative about Wolff’s tenure at ABB despite his involvement in corruption. This situation undermines the credibility of his testimony as a Section 204 witness, as it suggests that the benefits may have influenced his statements rather than solely motivated by a commitment to justice.
In summary, Wolff’s role as a Section 204 witness, combined with the commendatory reference and golden handshake, highlights potential conflicts of interest and raises doubts about the integrity of his testimony and the overall prosecution process. This situation raises concerns about the integrity of the judicial process and the NPA’s accountability.
The commendation and financial settlement suggest a possible quid pro quo arrangement, where Wolff’s cooperation with the investigation ensured his departure from the company without formal dismissal and with a positive reference. This undermines the credibility of his testimony and the prosecution’s case, as it rewards a confessed criminal, compromising the fight against financial crime and public trust in the judicial system.
The role of ABB and the key witnesses in this corruption case underscores the importance of judicial scrutiny in prosecuting such financial crimes. The prosecution’s reliance on circumstantial evidence, lack of independent corroboration, and use of non-trial resolutions without judicial oversight have all contributed to its difficulties. Addressing these issues is essential for restoring public trust in the judicial system and ensuring that justice is served in cases of financial crime.
The Forensic Case Analysis
Pieter White, a Forensic Case Analyst, conducted an analysis of cell phone data to support the State’s narrative in this case, focusing on communication patterns between Koko, Thabo Mokwena (Chairman of Leago Engineering), and Senthaole Seswai (a service provider for Impulse International).
White’s findings indicated a reduction in communication between Koko and Mokwena in May 2015, followed by a spike in June 2015, which he linked to an alleged fallout over an advance payment from ABB South Africa to Leago Engineering on May 28, 2015.
According to the Statement of Fact attached to the ABB’s Plea Agreement in the USA, Sunil Vip, a former executive at ABB, tried to mediate a dispute between Koko and Mokwena in or around May 2015 after the advance payment payout. The State alleges that the dispute arose from Mokwena’s failure to share the advance payment of R9,791,703.12 made on May 28, 2015, with Koko.
The ABB and the State’s narrative in this corruption case included a critical misrepresentation to the US Department of Justice regarding the timing of an advance payment from ABB South Africa to Leago Engineering. The State asserted that this payment, allegedly directed by Koko, occurred prematurely on May 28, 2015. However, evidence later revealed that the actual payment date was June 26, 2015, aligning with ABB South Africa’s standard practice of processing payments within the 30-day term specified in their contract with Leago Engineering.
The exclusive details about a key transaction involving ABB South Africa show that on Friday, May 22, 2015, at 4:26 PM, ABB South Africa, via Wolff, officially received the pre-payment invoice from Leago Engineering. Fast forward to May 27, 2015, when Wolff approved and signed the invoice, setting the stage for a timely payment on June 26, 2015. This confirms that ABB South Africa submitted false information to the US Department of Justice regarding the prepayment to Leago Engineering, a central issue in the State’s case against Koko.
This discrepancy undermines the state’s claims about the timing and motivations behind the alleged fallout between Koko and Mokwena. It raises serious questions about the integrity and accuracy of the information provided to international authorities. Such misrepresentation casts doubt on the credibility of the prosecution’s case and highlights the need for greater transparency and adherence to factual evidence in legal proceedings.
The discrepancy undermines the State’s claim that the fallout and changes in communication patterns were due to the advance payment issue, suggesting that other factors may have influenced them. Additionally, the State’s misrepresentation of the payment date to the US Department of Justice further questions the credibility of the prosecution’s case.
The claim that Vip attempted to broker peace in or around May 2015 due to fallout over the advance payment to Leago on May 28, 2015, is not logically consistent with the documented June 26, 2015, payment date. This suggests that the alleged fallout and subsequent peace-brokering efforts in or around May 2015 could not have occurred before the payment. Seeing the prosecution authority connecting the dots is folly instead of following proven facts!
The resurgence of tactics reminiscent of apartheid-era practices, such as fabricated evidence designed to mislead and connect imagined dots, indeed threatens justice and undermines the rule of law. These actions compromise the integrity of the judicial process and erode public trust in the NPA’s commitment to transparency, accountability, and the rule of law. Batohi and Johnson represent a significant indictment of the post-apartheid era.
The Impulse Scheme posits that Koko shifted his alliances from Mokwena to Seswai due to the fallout over the advance payment in May 2015. However, this theory is based on a flawed timeline, undermining its credibility. As a result, the Impulse Scheme relies more on speculation and conjecture rather than solid evidence. Its validity is further compromised because it shares the same incorrect timeline and assumptions as the Leago Scheme. Without concrete, proven facts to support this inference, the Impulse Scheme, much like the Leago Scheme, ultimately falls into speculation and conjecture.
The NPA is barreling toward some seriously embarrassing moments ahead! The discrepancies raise serious questions about the integrity of White’s analysis. The analysis must have been a desperate attempt to align with a predestined narrative rather than objectively examining the facts. The State’s determination to prosecute Koko is undeniable, but pursuing a case lacking even the semblance of a prima facie basis highlights a troubling commitment to an agenda over justice.
Public Trust and Accountability
This corruption case has significantly impacted public trust and accountability within South Africa’s judicial system. The NPA’s handling of the case, mainly using an ADR Agreement without judicial oversight and lack of legislative authority, has raised serious concerns about due process, accountability and the transparency of the prosecutorial process.
The decision to protect ABB South Africa from criminal prosecution, despite the company admitting to serious crimes such as bribery, corruption, money laundering, and racketeering, is viewed as a double standard. This undermines public confidence in the National Prosecuting Authority’s commitment to justice.
The lack of judicial scrutiny means that the NPA is the judge, the jury, and the executor. Powerful players like ABB South Africa slip through the cracks with hush-hush deals, while others, like Koko, are mercilessly paraded through the courts, all because Andrea Johnson perceives them as arrogant. This is a stark reminder that the rule of law in South Africa is indeed more aspirational than fully realised in practice, and the gap is significant.
The ADR Agreement controversy has highlighted the need for clear legislative guidelines and judicial oversight in handling serious financial crimes. The lack of explicit legislative authority for such agreements, especially in significant cases of malfeasance, has led to valid claims that the NPA acted beyond its legal powers. This situation has called into question the accountability of key figures within the NPA, including Shamila Batohi, the National Director of Public Prosecutions, and Andrea Johnson, the Investigating Director Against Corruption.
Restoring public trust in the judicial system requires addressing these issues and ensuring that the NPA operates within the bounds of the law. The perception that the NPA is not fully committed to prosecuting financial crimes effectively hinders South Africa’s efforts to meet international standards for combating money laundering and corruption, as evidenced by the country’s struggle to exit the Financial Action Task Force’s (FATF) grey list. Holding the NPA accountable and implementing necessary reforms are essential steps towards rebuilding confidence in the judicial system and ensuring that justice is served transparently and fairly.
Judicial Independence Under Fire: NPA’s Controversial Conduct
In a related development, the correspondence between the NPA and the judiciary reveals a shocking indictment of the NPA’s conduct. The Deputy Judge President of the Free State High Court, NM Mbhele, lambasts the Director of Public Prosecutions(DPP) for an unprecedented and unethical request to recuse the entire Free State High Court Bench from a high-profile corruption case related to the R255-million failed asbestos project.
Mbhele’s response underscores the DPP’s blatant disregard for judicial independence, casting unfounded aspersions on the court’s competence and integrity. It also highlights the inappropriate leak of the DPP’s letter to the media, severely damaging the trust relationship between the judiciary and the NPA.
The NPA reportedly leaked the letter before the Judge President had a chance to review it. This leak led to various media houses, including eNCA, contacting the judiciary for comments and conducting interviews.
In her written response, Deputy Judge President N.M. Mbhele addressed the DPP:
“You cannot be a litigant and the Judge President’s advisor at the same time. I suggest that you concentrate on prosecutorial issues and leave the judicial issues to the judiciary.”
This correspondence exposes a disturbing attempt to manipulate the judicial process, raising serious concerns about the NPA’s commitment to upholding the rule of law and maintaining public trust in the justice system.
The troubling trend began to unfold when Batohi launched a strong critique against the presiding officers after the dismissal of the Nulane matter, and Koko’s case was removed from the roll. It was a bold and unexpected move that raised eyebrows and sparked conversations, revealing the deep tensions beneath the surface. This confrontational stance highlighted Batohi’s frustration and underscored the urgent need for accountability and transparency within our judicial system. The stakes have never been higher, and the battle for justice is far from over.
The NPA’s actions have highlighted significant flaws that must be addressed to restore confidence in the criminal justice system and ensure that financial crimes are prosecuted with integrity and transparency.
Conclusion
This corruption case highlights significant challenges within South Africa’s judicial system, particularly regarding the NPA’s handling of serious financial crimes. Without legislative authority and judicial oversight, the ADR Agreement has raised critical questions about the NPA’s commitment to transparency, accountability, and the rule of law. The decision to shield ABB South Africa from prosecution despite clear admissions of serious crimes has undermined public trust and highlighted potential abuses of power within the prosecutorial process.
This corruption case highlights significant flaws in the prosecution’s approach, marked by discrepancies in evidence, misrepresentations, and questionable investigative practices. Factual inconsistencies have critically undermined the State’s narrative, particularly regarding the timing of the advance payment and the alleged fallout between Koko and Mokwena.
These issues raise serious concerns about the integrity of the NPA and its commitment to justice. Premature arrests, reliance on circumstantial evidence, and the controversial Alternative Dispute Resolution Agreement with ABB South Africa without judicial oversight further erode public trust.
Given these circumstances, there is a compelling case for the impeachment of Shamila Batohi, the National Director of Public Prosecutions, and Andrea Johnson, the Investigating Director Against Corruption. Their actions have undermined the judicial process and jeopardised South Africa’s efforts to exit the Financial Action Task Force’s grey list. Addressing these shortcomings, ensuring due process and transparency, and holding accountable those responsible for any misuse of prosecutorial power is imperative to restore confidence in the judicial system and effectively combat financial crime.
Editor’s Note: The NPA and ABB South Africa were contacted for their comments on the issues raised in this investigation but did not respond. Their silence underscores the urgency of transparency and accountability in addressing the significant concerns highlighted in the Eskom—ABB corruption case.
Links
• Link 1: Questions sent to the NPA:
• Link 2: Questions sent to ABB South Africa:
• Academic Paper
• Amabhungane Documentary
Contact the author at [nyikadzinomoses@gmail.com] for further inquiries.
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