Eskom may contemplate bringing private prosecutions against persons associated with state capture and corruption inside the firm if the National Prosecuting Authority (NPA) does not make noticeable progress in a number of cases presented to it.
Within Eskom, frustration has grown over the past six months about the NPA's inability to prosecute accused offenders properly and expeditiously. This sentiment is shared by officers at other law enforcement agencies, who privately express their expectation that the NPA would have moved against the major actors and several large corporations by now.
News24 understands that Eskom's leadership is getting more irritated with the sluggish pace of development and that the company's fight against corruption is being harmed by the absence of convictions. This week's meeting of Parliament's Standing Committee on Public Accounts (SCOPA) emphasized the continued lack of progress. Although no decision has been made regarding officially contacting the NPA to obtain a so-called "nolle prosequi" certificate, some inside Eskom feel the company's leadership should carefully examine this alternative.
A nolle prosequi certificate enables a party with a direct stake in the issue to prosecute privately if the NPA is unwilling to do so. Accountability Now's director of advocacy, Paul Hoffman, explained:
The CPA has provisions that permit private prosecutions in situations when a person with an interest in the charge performs the prosecutor's duties rather than the NPA.
To get a nolle prosequi certificate, the NPA must confess that it is unwilling to pursue matters investigated and referred to it by the SIU, and Eskom must establish that it is a party to the issue. "The purpose of the nolle prosequi certificate is to provide an open channel of communication between Eskom and a private prosecutor pursuing an issue, and you would not be able to get one as someone other than Eskom," Hoffman added.
He noted that another option for Eskom would be to start civil procedures against these instances in order to recoup the money, putting pressure on the NPA while also "improving Eskom's weak financial sheet."
"It would put pressure on the NPA to examine your record in civil procedures, where the onus of evidence is on a balance of probabilities and therefore much simpler to discharge than in criminal trials, where the onus is beyond a reasonable doubt," Hoffman said.
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