Cape Town - Former Eskom boss Dawid Malherbe, who in 2016 was jailed for 15 years for fraud and money laundering to the tune of R10.2 million, has had his appeal against his conviction and sentence upheld by a three-judge bench of the Western Cape High Court.
In the judgement handed down on Monday Deputy Judge President Patricia Goliath, Judge Ashley Binns-Ward and Judge Elize Steyn acquitted him of the charges, finding that the state failed to establish a case of money laundering.
The judges also said that the magistrate in the original case made no acknowledgement of the many shortcomings and contradictions in the witness’s evidence against Malherbe.
They said the formulation of the fraud charge against Malherbe had “material deficiencies” and set it aside, too.
Malherebe, who was convicted by a magistrate in the Bellville Specialised Commercial Crime Court, was granted leave to appeal his conviction by the Supreme Court back in September 2019.
The case dates back to 2002 when the board of PN Energy Services (PNES) a joint venture company in which Eskom held shares and where Malherbe was managing director, held a meeting and considered among others whether two contracts should be awarded to Energy Utility Services (EUS).
PNES provided electricity services to Khayelitsha in Cape Town. During 2007 PNES became wholly owned by Eskom.
The board decided to award both contracts to EUS and both contracts were signed on the same day.
Malherbe then acquired EUS in December 2008 and apart from the period between October 2009 to July 2010, when an employee share trust held 5% of the share, Malherbe was the 100% shareholder and sole director of EUS.
In the original trial Malherbe had given evidence that the other directors of PNES were both fully aware that EUS, as a start-up enterprise, did not yet have a black ownership component and they also knew of his intention to take steps to address that if the proposed contracts with PNES were concluded and put into effect.
The Financial and Asset Forfeiture Investigations (FAFI) and Anti-Corruption Task Team investigated the allegations and found that Malherbe unduly awarded tenders to EUS during his tenure as Eskom’s managing director between 2007 and 2009.
Malherbe was arrested in 2013 after a whistle-blower alerted the Hawks of the irregularities at the power utility’s tender-awarding process.