ANC threatens to lay charges against André de Ruyter — what the law says
South Africa’s ruling party, the African National Congress (ANC), has threatened to lay charges against former Eskom CEO André de Ruyter.
De Ruyter implicated the ANC in widespread corruption at the state-owned power utility in an E-tv interview on My Guest Tonight with Annika Larsen.
Although he stopped short of giving specifics, De Ruyter did not mince words, saying that the evidence suggests Eskom is a feeding trough for the ANC.
He also said a high-level politician was in bed with coal cartels, and that Kusile power station’s specifications were manipulated to favour ANC-connected boiler supplier Hitachi.
This led to the catastrophic flue duct breakdown at the power station, wiping enough capacity to mitigate over two stages of load-shedding off the grid.
ANC general-secretary Fikile Mbalula (pictured) issued a statement on Sunday with an ultimatum for De Ruyter — give evidence for his allegations in seven days or face charges.
“We reiterate our call to Mr De Ruyter to lay criminal charges, with verifiable details about his serious allegations, to allow law enforcement agencies to investigate, and where appropriate, to prosecute those who have a case to answer,” the ANC stated.
The ANC highlighted Section 34 of the Prevention and Combating of Corrupt Activities Act (PRECCA), which makes it illegal for people in authority not to report corruption and criminality they are aware of.
“To date, the ANC is not aware of any action taken by Mr De Ruyter in this respect,” the party said.
“Failure by Mr De Ruyter to bring such information forward and report it in line with his obligations will result in the ANC laying Section 34 charges against him.”
The ANC’s assertion that De Ruyter failed to report the corruption and criminality is at odds with the former Eskom CEO’s version of events.
Throughout his interview with Larsen, De Ruyter gave examples of where they tried to report criminal activity.
In one instance, De Ruyter said they held a meeting with the South African Police Service (SAPS) and the State Security Agency (SSA).
“We had significant difficulty energising senior levels of SAPS,” De Ruyter stated.
“We shared chapter and verse what we’d found obviously in a way that protected our sources; the [SAPS] generals and SSA colleagues were aghast and said, ‘you know, this is completely unacceptable, we will immediately start acting on this’ and then nothing happened.”
Even more troubling was when De Ruyter reported that a high-level politician was involved with coal cartels plaguing Eskom to a senior government minister.
He declined to identify the high-level politician or the minister in the interview.
“The minister looked at a senior official and said, ‘I guess that it was inevitable that it would come out anyway’, which suggests that this wasn’t news,” De Ruyter said.
Similarly, De Ruyter raised concerns with a senior government minister about attempts to water down anti-corruption controls around $8.5 billion (R156 billion) in funding from countries like the US and Germany for South Africa’s “just energy transition”.
The funding is intended to help South Africa decommission ageing coal-fired power plants over several years, switch to cleaner forms of electricity generation, and support workers affected by the change.
The minister told De Ruyter he had to be “pragmatic”.
“In order to pursue the greater good, you have to enable some people to eat a little bit,” they said, according to De Ruyter.
Eskom CEO André de Ruyter with President Cyril Ramaphosa during a guided tour of Tutuka power station in 2022. Public enterprises minister Pravin Gordhan and energy minister Gwede Mantashe are standing behind them.
What the law says
Law firm Cliffe Dekker Hofmeyr explained that Section 34 of PRECCA places a duty on those in authority, such as directors, managers, and CEOs, to report certain offences over R100,000.
Reportable offences include theft, fraud, extortion, forgery, and uttering of a forged document. They must also report accessories to such offences and attempts or conspiracies to commit such crimes.
“There is a difference in views as to whether persons who hold a position of authority have a duty to report a specified crime committed by any person or committed by a person falling within the sphere of relationship relevant to the person’s position of authority,” said Cliffe Dekker Hofmeyr director Corné Lewis.
“The one view is that the section does not limit the scope as it refers to any other person,” Lewis said.
“The other view is that it must be restrictively interpreted as a failure to report constitutes an offence.”
Lewis said there is no general duty to report outside statutory dictates unless the person is a law enforcement officer.
“It makes no sense to extend such a duty to demand on a person who holds a position of authority to even report a specified offence unrelated to the holding of the position of authority.”
Lewis also noted that PRECCA does not require the responsible person to make a criminal complaint against the individuals they report.
“The reporting statement must, as an example, not state that a fraud was perpetrated, but that reasonable grounds exist to suspect that fraud has been committed,” he explained.
“Unless the allegations are frivolous and malicious with the intent to injure a person, reporting in terms of PRECCA is not a request to prosecute or to set a prosecution in motion but rather, a statutory duty to report.”
Failure to report, as stipulated by Section 34, is an offence and carries a possible prison sentence.
If a High Court or regional court pass the sentence, a fine or imprisonment for up to 10 years may be imposed.
If a magistrate’s court imposes the sentence, it could be a fine or imprisonment of up to three years.
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