FutureSA’s Popo Molefe (patron), Mandla Nkomfe (convener), Denis George (patron), and Kumi Naidoo (patron), along with Corruption Watch’s David Lewis at the gates of McKinsey ahead of handing over the memorandum calling on the firm to ‘come clean’ on its dealings with Eskom and Trillian.
Trillian Management Consulting, which is linked to the Gupta family through its association with associate Salim Essa and Trillian director Eric Wood, won its day in court on Wednesday, despite attempts by two state agencies to claw back money allegedly owed to them.
Both Eskom and the South African Revenue Service (Sars) are after Trillian’s money and assets, broadly, although in different ways.
Yet, it was the complex meeting of these two efforts that ultimately saw Trillian’s lawyers leave the Gauteng High Court in Pretoria smiling from ear-to-ear.
Eskom took Trillian and Wood to the High Court in Pretoria on January 17 this year, seeking to have Trillian liquidated if it could not pay up about R600 million irregularly paid to it.
This followed an order in October last year compelling Trillian and Wood to pay up, with which they have not complied.
Eskom also wants Wood held in contempt of court for failing to pay back the money, and for him to be fined R1 million or jailed for 30 days.
The liquidation application and the contempt of court case was due to be argued in the High Court on Wednesday.
Eskom wanted it to be heard as an urgent matter. But the case took a surprising turn when it emerged Sars had obtained an order on January 31 to attach the assets of Trillian, Wood and various subsidiaries of their companies.
Trillian and Wood’s lawyers argued the case could not go ahead unless Sars’ curator was joined to the proceedings, to which Judge Natvarlal Ranchod agreed. This meant the merits of Eskom’s case against Trillian and Woods could not be dealt with on Wednesday.
But Eskom’s legal team was clearly hoping to get stuck into the heart of the matter.
In a stinging affidavit by Eskom CEO Andre de Ruyter filed in court, Eskom said Trillian and Wood had broken the law by failing to pay back the R600 million, and that Trillian was dormant and unlikely to ever trade again.
De Ruyter said Trillian, through Wood, should be held accountable for its blatant and contemptuous failure to comply with the court order.
“… contempt of court matters has a public interest element which has obvious implications for the effectiveness and legitimacy of the legal system and the legal arm of the government and which constitutes a crime that manifests itself in the contenacious disrespect for judicial authority,” De Ruyter said.
While Trillian and Wood have not been charged with corruption, it is alleged the contract between Trillian and consulting firm McKinsey was not valid, and the two companies were unduly paid around R1.7 billion.
McKinsey paid back the money paid to it, amounting to around R1 billion.
It had subcontracted Trillian as part of a project to develop a turnaround strategy for Eskom. The central allegation is that no billable work was done on the contract and so the R595 million payment was irregular.
Trillian, at the time, employed Gupta associate Essa who is sometimes referred to as the fourth Gupta brother.
In court papers – not ventilated on Wednesday because of the Sars issue, Eskom waited for four months, since the October court order – to bring this application so the case was not urgent.
It, however, said it had sent a letter of demand to Trillian on 12 December last year threatening further action should the firm fail to pay up in three weeks.
Eskom said with every day that Trillian failed to pay, the case had grown more urgent.
In a further complication, on December 11, Trillian and Wood filed papers in the Supreme Court of Appeal (SCA) to appeal the October court order.
Trillian also said Eskom could not try to liquidate it while that appeal was pending, and that a decision by the SCA was imminent.
But unbeknown to Eskom, it would appear, at the end of January, and in confidential proceedings, that Sars had attached Wood and Trillian’s assets.
Because taxpayers’ affairs are confidential by default, the entire file is now sealed from the public.
It is not clear whether Eskom’s application can go ahead while Sars has attached Trillian and Wood’s assets.
The court heard on Wednesday that, in terms of the Companies Act, the liquidation application should take precedence because it was filed before the Sars one. But if the court agrees to liquidate Trillian, Sars will have no assets to attach.
Trillian and Wood, therefore, argued that the case had to stand down until a curator, appointed by Sars, could be joined in the proceedings to hear his side of the story.
The case was struck from the roll pending the joining of the curator to the case.
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