ANC  threatened to indict André de Ruyter, citing the law

The African National Party (ANC) of South Africa has vowed to indict former Eskom CEO André de Ruyter.

In an E-tv interview with Annika Larsen on My Guest Tonight, De Ruyter accused the ANC of systemic wrongdoing at the state-owned electricity provider.

Although he did not go into detail, De Ruyter stated unequivocally that the data reveals Eskom is a feeding trough for the ANC.

He further claimed that a high-level official was in cahoots with coal cartels and that the specs for the Kusile power project were rigged to favour ANC-connected boiler supplier Hitachi.

This resulted in the power station’s catastrophic flue duct failure, wiping out enough capacity to alleviate over two levels of load-shedding off the grid.

On Sunday, ANC general-secretary Fikile Mbalula (pictured) issued an ultimatum to De Ruyter: provide proof for his claims within seven days or face prosecution.

“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 emphasised Section 34 of the Prevention and Combating of Corrupt Activities Act (PRECCA), which makes it unlawful for those in positions of power who are aware of corruption and criminality to fail to report it.

“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 claim that De Ruyter neglected to expose corruption and crime contradicts the former Eskom CEO’s account of events.

Throughout his discussion with Larsen, De Ruyter provided examples of situations in which they attempted to report illegal activities.

De Ruyter stated that they met with the South African Police Service (SAPS) and the State Security Agency in one case (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 concerning was De Ruyter’s claim to a senior government minister that a high-level politician was connected with coal cartels crippling Eskom.

In the interview, he refused to name the high-ranking politician or minister.

“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 voiced concerns with a top government minister about moves to water down anti-corruption rules around $8.5 billion (R156 billion) in assistance from nations like the US and Germany for South Africa’s “just energy transition”.

The financing is meant to assist South Africa in decommissioning outdated coal-fired power facilities over a number of years, transitioning to cleaner sources of energy generation, and assisting employees affected by the transition.

De Ruyter was advised to be “pragmatic” by the minister.

“In order to pursue the greater good, you have to enable some people to eat a little bit,” they remarked, according to De Ruyter.

What the law requires

Section 34 of the PRECCA requires people in positions of power, such as directors, managers, and CEOs, to report certain offences that exceed R100,000.

Theft, fraud, extortion, forgery, and uttering a fake document are all crimes that must be reported. They must also disclose accomplices as well as efforts or plots to conduct such offences.

“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 stated that unless a person is a law enforcement officer, there is no general responsibility to report outside of legislative mandates.

“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.”

PRECCA also does not compel the responsible person to file a criminal complaint against the persons they denounce, according to Lewis.

“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 required by Section 34, is a crime punishable by imprisonment.

If the sentence is upheld by a High Court or a regional court, a fine or imprisonment for up to ten years may be imposed.

If the penalty is imposed by a magistrate’s court, it might be a fine or imprisonment for up to three years.