This comes after OUTA suspected that Pamensky abused his power at Eskom.
The charges were laid at the Brooklyn Police Station.
“The charges relate to Pamensky’s conduct while he was a director of Eskom and of at least one business linked to the Gupta's business empire", says OUTA’s Chief Operating Officer Ben Theron.
Pamensky was appointed to the Eskom board in December 2014 by Public Enterprises Minister Lynne Brown and served his term until 2016.
In addition to serving on Eskom's board, Pamensky was also a director of the Guptas’ Oakbay Resources and Energy until May 2017.
His further senior positions extend to other Gupta businesses, namely: Shiva Uranium.
“In his role as non-executive board member of various companies, Pamensky was the conduit for the flow of privileged information between the companies,” says Theron in his affidavit supporting the charges.
According to OUTA, Pamensky failed to recuse himself from decisions in which he had a conflict of interest.
This lead to questioning in his decisions, which may have led to favouring the Gupta businesses.
This conduct is in breach by the Prevention and Combating of Corrupt Activities Act, the Public Finance Management Act and the Companies Act.
MArk Pamensky and his Gupta pals https://t.co/hNXQJbgcRL
Pamensky’s emails to the Guptas were inspected.
His emails, of which are attached to the affidavit, show his eagerness for the Gupta group's purchase of Optimum Coal Holdings, which received substantial assistance from Eskom.
While a director of both Oakbay and Eskom in September 2015, Pamensky emailed five individuals, two of whom belong to the Gupta family: Atul Gupta and Varun Gupta (director of Shiva Uranium).
His emails provided the recipients with Eskom’s new procurement methods for coal.
Pamensky's further communication with the Gupta's are recorded on various occasions during 2015.
On 17 November 2015, Pamensky wrote to Atul Gupta and Tony Gupta about Oakbay’s “potential acquisition of Tegeta which has a contract with Eskom. I sit on the Eskom board and this can be perceived to be a conflict”.
“I don’t believe there is any conflict whatsoever”, implying that he was not involved in decisions at Eskom.
On 24 November 2015, Pamensky wrote to Atul Gupta and others, asking for a discussion on “how we going to manage this target company, including where are the accounts going to operate from”.
The following day, he wrote to Atul, asking to discuss the “potential law suit from Eskom”.
On 22 November 2015, Pamensky wrote to Atul and Tony Gupta, assuring that the Shiva Uranium board would be “sorted out” within two days.
“This will allow us to vote on the Tegeta acquisition with no related parties. I would like to conclude this approval urgently so ORE [Oakbay Resources & Exploration] and Shiva Uranium can implement the transaction", he wrote.
“As I’m at the tail end of the main acquisition of Optimum Coal, please ensure that a condition precedent is that the R2bn claim from Eskom is withdrawn or it becomes the sellers problem. I’m happy to assist with this acquisition…”
On 3 December 2015, Pamensky wrote to Atul to offer advice and help to “the group” and referred to weekly meetings at Atul’s home.
“I know how good, generous, hospitable and respectful you guys are to people,” he wrote to Atul in another email.
On 10 December 2015, the Gupta-owned Tegeta Exploration & Resources signed the deal to buy Optimum Coal Holdings (which owned Optimum Coal Mine, Optimum Coal Terminal and Koornfontein Mines) for R2.15bn.
That same evening, Pamensky wrote to Atul, Tony and Varun Gupta:
“Congratulations (Mazeltov) on a brilliant and well-thought out, planned and strategised acquisition of the Optimum Group of companies. Well done and I’m proud of you all.”
The Optimum deal was subject to Eskom’s approval and involved Eskom making an advance payment of R659.6m to Tegeta and providing a R1.6bn guarantee to Tegeta.
Glencore also paid R400m to Optimum to cover bank debt.
Eskom later reduced the fine to Optimum which had pushed Glencore into selling Optimum to Tegeta.
A copy of Theron's affidavit and annexures are on OUTA's website.
- BUSINESS REPORT ONLINE