UPDATED: Koko can stay - for now

Johannesburg - Embattled Eskom executive Matshela Koko will not be forced to resign just yet, after the Labour Court in Johannesburg issued an interim order restraining Eskom from firing him on Friday afternoon.

Koko lodged an urgent application in the Labour Court on Friday morning asking the court to interdict Eskom from firing him, or issuing any ultimatum to him to resign. 

His application comes after interim Eskom CEO Phakamani Hadebe issued an ultimatum to Koko to either resign or be fired by 14:00 on Friday.

He stated that Eskom’s contemplated "unlawful conduct", threatened on less than 24 hours' notice, could only be met by an urgent application to court.

Koko also asked the court to declare Hadebe’s Thursday ultimatum “unlawful and invalid or null and void”.

In his founding affidavit he accused the parliamentary inquiry into state capture at Eskom of intimidatory tactics, saying that it resembled a "witch hunt". He also questioned Hadebe's authority, and said other executives had also been forced to resign without proof against them. 

Koko returned to work last Monday in the position of group executive for generation, after being cleared of any wrongdoing in a nepotism case involving his stepdaughter. In a letter to Eskom board member Malegapuru Makgoba, he said Eskom’s lenders have been unfairly demanding his dismissal, despite his acquittal. 

On Wednesday Koko testified at the parliamentary inquiry, before flying back to Johannesburg on Thursday. In his founding affidavit he said he immediately rushed to Megawatt Park in Sunninghill, after being summoned by Hadebe.

Hadebe, well known for turning around struggling entities, assumed the mantle of interim CEO after the Eskom management shake-up last Saturday, in which the government appointed a new 13-member board with the respected Jabu Mabuza as the new chairperson.

The Presidency issued a statement on Saturday, in which Eskom's new board was directed "to immediately remove all Eskom executives who are facing allegations of serious corruption and other acts of impropriety, including Matshela Koko and Mr Anoj Singh".

Koko stated in his affidavit that Hadebe’s ultimatum was issued purportedly on behalf of Eskom’s board of directors. He had never met Hadebe before Thursday’s meeting, Koko said.  

“During the meeting he told me bluntly that, unless I resign my employment by 10:00 on Friday, 25 January 2018, Eskom will dismiss me. I was not given any opportunity to say anything or to defend myself."

Asked about career at Eskom 'over tea'

Koko said he is uncertain whether Hadebe has indeed been appointed as acting group chief executive. 

“I believe that a board meeting has not yet been held since Sunday at which Mr Hadebe could have been appointed. I, frankly, doubt it."

Hadebe started the meeting by asking him about his career at Eskom “over tea”, Koko stated.

“He then told me that my 'presence here is no longer desirable', stating to the effect that they were talking to the banks and it was not just external, but also internal.” Hadebe then told Koko that the time had come for him “to look at other options and that it was better for us - Eskom and me - to part”.

Koko was offered two options: he could either resign or be fired, and he was given until Friday 10:00 to hand in his resignation. Koko said he challenged his new boss on the legal grounds of this ultimatum, but Hadebe refused to discuss it.

The state capture allegations, including those relating to Tegeta, had never been put to Koko through a formal process at Eskom. This included the process of a disciplinary hearing.

The Eskom executive believed the ultimatum arose from the Presidency's statement. Singh resigned on Monday evening, with other Eskom executives, including Prish Govender, following suit.

Koko said that he faces no “such allegations” as put forward in that statement. “The government’s conduct is an unlawful attack on and an unlawful interference with my rights arising from my contract of employment that incorporates Eskom’s policies and procedures that apply to its employees.”

He said Eskom’s action was an attack on his contractual rights as its employee, and that he had to turn to the courts to protect himself.

'Frenzied campaign', 'rumour mongering'

Koko described a discussion on Wednesday January 10 2018 with the then chairperson of Eskom’s board Zethembe Khoza and Makgoba, during which they urged him to step down.

“They informed me that Eskom’s funders, who I understood to be the four major South African banks, 'have a perception that I am the face of corruption in Eskom' and that the banks were calling for my resignation on that basis which call was being supported by National Treasury," Koko said.

“I was informed that in those circumstances, Eskom would have to explore termination of my services.”

Koko said he was “devastated and shocked”, because he had just been acquitted.

He asked for more time to digest the information and had a further meeting with Makgoba on Saturday January 13. After the meeting, on the Sunday, Makgoba sent him an SMS in the early hours of the morning urging him to step down on the premise that he would now study for a doctorate, but Koko viewed it as a smokescreen to get rid of him for good. 

He said it was quite apparent that since even before the ANC’s national conference, but now more than ever, “institutions of state have embarked on a frenzied campaign against all and sundry that can even vaguely by rumour mongering or otherwise be said to have been associated with alleged 'state capture' by the now notorious Gupta family”.

'Honourable members' acting rudely

He also accused the parliamentary committee of “unfavourable bias”, adding that its members lashed out at those whose testimonies do not accord with preconceived ideas about "state capture".   

“It has regularly occurred by persons during their testimony simply being publicly branded as liars, not being given opportunity by the chairperson to respond to long defamatory statements made by 'honourable members', and, generally, by 'honourable members' acting rudely and without manners or decency towards them, so as to intimidate them.”

He said his treatment was mild, but that he wasn’t exempt from the committee’s intimidatory tactics.

'Proceedings a McCarthyite witch hunt'

“This conduct is reminiscent of the conduct of Senator Joseph McCarthy in the United States of America, in the 1950’s and the proceedings can now properly be branded as a ‘McCarthyite witch hunt’.”

Koko cited the resignation of other Eskom executives, saying they were also given ultimatums and threatened just like he was.

He named Dhiraj Bhimma, who held the position of general manager production, Charles Kalima, senior manager commercial, and Edwin Mabelane, senior general manager engineering, as examples.

“I have spoken to each of them and they each informed me that when they refused to resign after being given such ultimatums, they were summarily dismissed on Wednesday January 24, without any disciplinary charges relating to corruption or impropriety being levelled against them.”

Koko also asked Eskom to provide particulars of who exactly the funders are and what, allegedly, they are demanding from Eskom in relation to his employment.

He again emphasised that should he resign, “responsibility for some, if not all, the ills and the predicaments” of Eskom would be attributed to him.

This has already happened in relation to Singh, with Eskom putting out public statements impugning his honesty, Koko said.

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