Former Eskom CEO André de Ruyter not yet off the hook for ‘unauthorised’ spy report

Former Eskom CEO André de Ruyter may have landed in hot water over the “unauthorised” report in which he commissioned George Fivas Forensic and Risk company to gather intelligence on Eskom, MPs heard on Tuesday.

Special Investigating Unit head advocate Andy Mothibi told the standing committee of public accounts that while the contents of the report need to be taken into account, the manner in which it was conducted was flawed. 

The SIU has prepared an interim report to President Cyril Ramaphosa, he said.

“From a co-operate governance co-operate perspective, Eskom has not authorised that report,” said Mothibi.

“He went on his own, he did not inform the board. It seems like the board chair at time was aware but there are no official minutes or records of the authorisation of the investigation.”

The SIU appeared in parliament to brief the committee on the intelligence report commissioned by De Ruyter on Eskom. 

Mothibi said this points to a measure of maladministration and “that to our view, investigations done by this private company into the affairs of Eskom were unauthorised”.

“We could not find why the CEO would not have reported to law enforcement agencies and to that extent, the intent was for him to assist with the investigation of the maladministration and corruption but we are of the view that the manner in which he went on about it, was not consistent with his office and without informing the board, the SIU, Hawks, SAPS, SSA and executive authority, on the governance side, is maladministration.”

On whether the SIU should consider holding De Ruyter accountable, Mothibi said, the SIU will seek legal advice in this regard.

“Consideration should be given to holding the former CEO to account. It becomes a legal question as he is no longer employed by Eskom, and in this regard, we will consider the options available, together with the board, and advise accordingly. We are of the view that the CEO was under obligation to report the allegations and he failed to do so.” 

He said the investigating company ought to have known that it could not investigate a state institution without alerting law enforcement agencies. “We will consider the nature of the action to be taken in conjunction with the board and advise accordingly.” 

Mothibi said upon receiving the report, Fivas, Eskom employees and Busisiwe Mavuso from the Business Leadership SA were interviewed.

Mothibi said it appears that De Ruyter “had a distrust of the law enforcement agencies” but as a CEO he should have raised that matter appropriately.

On the scope of the investigation, Mothibi said the extent to which the affairs were probed “was problematic”.

He said the SIU and the Hawks are working together to co-ordinate their joint operation. 

Mothibi said the matters mentioned in the report that the SIU was also probing relate to all the power stations. “We have found that there are contracts that were awarded to seven companies, some with links to each other, with common actors and that the companies are active across power stations.” 

That, he said, was an indication that there was collusion taking place. “The cartel nature of the criminal enterprise that is attendant at Eskom is being investigated.”

Previously, a question was raised about the names of the senior politicians implicated in the crimes or mentioned in the report, Mothibi said. “In going through the report, there are names mentioned in the report but of course we would like to allow the investigation to unfold because we undergo a legal risk of mentioning the names before the investigation is thoroughly investigated, evidence thoroughly collected and findings are processed.”

Where appropriate, the names will be made known, he said, and once the investigation is completed, the SIU will consider litigation to recover the money that may have been lost by Eskom.

Though the SIU has concluded that the report was unauthorised, the contents contained cannot be ignored, said Mothibi adding that “it has information that can point to areas that require investigation”.

He confirmed the SIU was investigating the R500m Fidelity contract. 

“We have commenced with the investigation into this contract and are of the view that the investigation will not be limited to FSC. The SIU is casting its net wider in terms of this contract,” Mothibi said.

“Up to today, we have civil matters before the courts and some of them will be going to the special tribunal. The value of the contracts in respect of the matters before court is a staggering R7.9bn. 

“The actual recovery is R1.5bn, but to date there are those contracts that have been set aside and the recovery will now follow. The value of the contracts that have been set aside to date is R10.2bn.”

“There is a clear organised nature of crime and corruption being committed at Eskom and the investigation is ongoing. The modus operandi, that we have seen so far, as evidence presents, is that there has been quiet an endemic collusion between Eskom officials and private companies and individuals.

“There has been a clear manipulation of business processes, including weigh bridges, there are fictitious orders and deliveries that we have come across, poor quality of coal and sometimes no coal delivered at all. There is fuel theft, which we will continue to investigate.” 

He said the level of maladministration and malpractice at Eskom was being addressed with about 5,617 cases referred to the disciplinary committee and 105 matters probed by the Hawks. 

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