1


REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023-031211





MATSHELA MOSES KOKO Intervening Applicant

and

SPECIAL INVESTIGATIVE UNIT First Applicant
ESKOM HOLDINGS SOC LIMITED Second Applicant
ABB SOUTH AFRICA (PTY) LTD Third Applicant


REASONS
DE VOS AJ
Introduction [1] Mr Koko sought leave to intervene in review proceedings involving the SIU, Eskom
and ABB in which they obtained an order setting aside a tender. The application for
leave to intervene was set down as a special motion. After considering the papers,

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO


Date: 18 June 2025

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which exceeded twenty lever arch files and hearing submissions, the Court was not
persuaded that Mr Koko had satisfied the test for leave to intervene. The Court
therefore dismissed the application for leave to intervene. The parties are entitled to
reasons for this decision. These are the reasons.
Review proceedings
[2] Eskom and ABB entered into a contract for work to be done on the Kusile Power
Station. The contract was preceded by a tender award. The award was tainted with
irregularity. Law enforcement, local and international, investigated the award of the tender. They uncovered malfeasance perpetrated in the award of the tender . Eskom,
the SIU, and ABB conducted their own investigations. They reached the same
conclusion: the process preceding the award and the contract was internally flawed
and contravened the procurement prescripts to which Eskom is bound.
[3] Consequently, the contracting parties, Eskom and ABB entered into a settlement
agreement. The parties agreed that ABB should repay the amount by which the contract was inflated and that it should complete the work, without making a profit.
Treasury approved the settlement agreement.
[4] The contracting parties then approached the Court, together as co-applicants, to
review and set aside the tender and to make the settlement agreement an order of Court. The applicants before the Court in the review were Eskom, ABB and the SIU. They brought the case ex parte – as there was no dispute between them and they
agreed on the relief that ought to be obtained.
[5] To be blunt: co-contracting parties agreed that a tender was so tainted with
irregularity, they jointly approached the Court to set aside the award. Part of their joint approach included an order that ABB would pay back
R 1 557 107 009.00 to Eskom
and in addition would complete the contract without making any profit. To use the
words of Mr Leech SC who represented ABB, his client said “mea culpa”, has in acted
in accordance with this concession and has in fact paid back the monies.
[6] The review proceedings culminated in an order of this Court in which the Court set
aside the award and the consequent agreements; made the settlement agreement an
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order of court and provided for any interested party to approach the Court on notice
and if granted leave to intervene, to attack the merits of the order.
[7] The relevant parts of the order read –
“4. The award and the conclusion of the Works Contract is hereby declared
unlawful .
……
8. The settlement agreement concluded between the applicants and concluded
on 11 December 2020 is hereby made an order of court.
9. The First and Second Applicants are directed to publish this Order in one
English National Newspaper and one Afrikaans National Newspaper circulating
in the district in which the Second Applicant has its principal place of business, within 15 days of the date of grant of this Order.
10. Any interested party who has a direct and material interest in the orders set out
in paragraphs 4 to 8 are called:
10.1 to apply, within 30 days of the last date of publication of this Court's
Order as described above, for leave to intervene in the application and,
in such application, to describe the nature of that party's interest in the relief sought and the relief which such party seeks; and
10.2 to show cause, on a date and on such terms as may be determined by
the Court after receipt of any application under 10.1 above, why the aforesaid Order should be altered, varied or rescinded.”
[8] The order makes no references to Mr Koko.
[9] The Court provided reasons for the order. The reasons are quoted in full:
1.
On 29 April 2015, the third applicant, ABB South Africa (Pty) Ltd (hereafter referred
to as “ABB”), contracted with the second applicant Eskom Holdings SOC Limited
(hereafter referred to as “Eskom") for the provision of control and instrumentation
system for the Kusile Power Station Project (hereafter referred to as “the Works
Contracts”). Kusile is a coalfired power station being constructed under Eskom's
nation building programme to increase Eskom's generating capacity.
2. The Works Contract was in broad terms for the provision of a control and instrumentation
(hereinafter referred to as “C and I”) system at Kusile power station. The C and I system connects and controls all the operating and interfacing parts of the power st ation to
ensure that the power station operates properly and safely.
3. The three applicants now apply to this court to set aside the works contract as a results
of corruption and bribery that occurred in its reward.
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4. This application is brought by the first and second applicants under the principle of
legality. The third applicant bring the application in terms of the Promotion of
Administrative Justice Act 3 of 2000.
5. The application is brought on an Ex parte basis. Howe \ver, provision is made for
interested parties to intervene after the C and I contract has been set aside and third parties may wish to be heard on the just and equitable relief.
6. Although the works contract was entered into unlawfully all three applicants agreed that the remaining and or outstanding works will be concluded by the third applicant under a new agreement between second and the third applicants.
7. The second applicant and the third applicant entered into a settlement wherein ZAABB had agreed to pay Eskom the amount of R 1 557 107 009.00 and this amount was paid
in full on 22 December 2020. The applicants also seek an order from this Court to make
the Settlement Agreement an order of court.
8. Furthermore this court is asked to make orders directing that certain evidence be treated confidentially. The court is also asked to admit in terms of section 3 of the Law of
Evidence amendment Act 45 of 1988 some of the evidence relied upon in the foundin g
affidavit.
9. It is submitted on behalf of the first and second applicants that the appointment of a different contractor will have costs implication for Eskom and the country as a whole and will result in delay. Load Shading will continue unabated.
10. Both counsel for the applicants agree that the order should be granted as per the notice of motion.
11. Both counsel referred the court to various decided cases in support of their views. The reasons in support of the draft order furnished by both counsel are plausible .In the
premise the court is satisfied that a proper case has been made out for the relief sought.
The draft order marked “X” and signed is made an order of court.
[10] The judgment contains no reference to Mr Koko.
Mr Koko’s application for intervention
[11] Mr Koko sought leave to intervene in the review application and to set aside the order.
Mr Koko referred to what the parties have called “unflattering allegations “made
against him in the papers filed in the review proceedings. He cites the headings that refer to him by name and the paragraphs that contain reference to his conduct. Mr Koko tells the Court that it is not only that he is mentioned by name, in unflattering
circumstances, but that the order would not have been obtained had it not been for these allegations involving him. These allegations, he states further are incomplete and contain several untruths. Had he been cited he would have righted these wrongs .
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As he was not cited, the principle of audi alteram partem has been breached. In
addition, as the application was one brought ex parte, the applicants had an obligation
of good faith to disclose all relevant facts, even those detrimental to their case, and
they had failed to do so. Furthermore, Mr Koko refers to the closing of his bank
account. This he says was precipitated by the settlement agreement and is proof of
the reputational harm he has suffered.
[12] At the hearing of the matter Mr Koko made a new plea. He stated that in a previous
matter involving Eskom and McKinsey (McKinsey order),1 he sought legal advice
whether to intervene or not. In that matter the Court made an order that McKinsey had to pay monies back to Eskom. After the order, Mr Koko told the Court, he was served
with a summons claiming large amounts of monies. Mr Koko fears the same procedure will be followed in this matter, particularly as the SIU has indicated in media statements that it intends to claim monies from Mr Koko. In essence, Mr Koko told
the Court that not having been cited in these review proceedings, means he is limited
in presenting a defence in potential future proceedings to be brought against him and
he might suffer the same outcome as he did after the McKinsey order.
Test of direct and substantial interest in the subject matter and order
[13] Mr Koko has to show a direct and substantial interest is the legal interest in the
subject-matter of the case which could be prejudicially affected by the order of the
Court.
2 This means that Mr Koko must show that it has a right adversely affected or
likely to be affected by the order sought. The Court must identify the subject matter
and order of the litigation. The subject matter is a review of a tender award. Mr Koko has to prove he has a direct and substantial interest in the review of the tender.
[14] The test for intervention considers the impact of the order of the rights of the person
seeking leave to intervene. A shareholder has a legal interest in a dispute that
dissipates their shares.
3 An occupier has a legal interest in a dispute that leads to

1 Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others (22877/2018) [2019]
ZAGPPHC 185 (18 June 2019)
2 South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017
(5) SA 1 (CC) (“SA Riding”)
3 Morudi and Others v NC Housing Development Co Limited and Others 2019 (2) BCLR 261 (CC) at para 29
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their eviction.4 Persons whose homes stand to be demolished pursuant to a court
order have a direct and substantial interest in the underlying proceedings.5
[15] A third party has an interest in the relief and must be joined if they would have standing
to claim relief on the same subject-matter. If a judgment cannot be sustained or
implemented without necessarily prejudicing the interests of third parties who are n ot
joined, then those third parties have a legal interest in the matter and must be joined.6
The judgment was sustained and implement, without Mr Koko’s involvement. This indicates that Mr Koko no direct and substantial interest in the order. Furthermore, the order does not impose any obligations upon Mr Koko, nor does it deprive him of
any rights, nor does it bestow any rights upon him — whether directly or indirectly. Mr Koko accepts this.
[16] The order and judgment has been quoted above. They contain no reference to Mr
Koko. The Court considers that in Zuma v NDPP
7 the Supreme Court of Appeal
refused applications for leave to appeal brought by parties against whom adverse findings had been made in the reasoning of the Court. Even in those circumstances, references to a litigant in the reasons of the order is insufficient to ground a direct and substantial interest in the proceedings. Mr Koko’s case is even weaker than the
applicants in Zuma v NDPP, as here there is no reference to Mr Koko in either the
reasons or the order. The only moment in which Mr Koko is linked in an order or reasons relating to this matter, will ironically be, as a result of his intervention application.
[17] On this basis alone, Mr Koko lacks a direct and substantial interest in the subject
matter of the review proceedings. However, for fullness, the Court provides additional reasons to refuse the application for leave to intervene.
The order is one that operates in rem

4 Snyders and Others v De Jager (Joinder) 2017 (5) BCLR 604 (CC) para 11
5 Zulu and Others v eThekwini Municipality and Others 2014 (4) SA 590 (CC)
6 Gordon v Department of Health, KwaZulu- Natal 2008 (6) SA 522 (SCA) at para 9
7 Id para 9
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[18] Orders, generally operate either in personam, in that it relates to a person or their
rights; or in rem, which is binding on all. Uncited parties are bound by orders in rem,
regardless of whether they were cited or not.8 Even if a party has a direct and
substantial interest in the subject matter of proceedings for an order in rem, that does
not entitle that party to intervene in the proceedings.
[19] This distinction has been drawn sharply by the Constitutional Court in Gory v Kolver:
“The common-law principles relating to intervention of parties applied by the courts in
respect of Uniform Rule 12 deal primarily with disputes in personam, whereas an order under s 172 is an order in rem. In disputes concerning the constitutional validity of a statute, it would – so it was submitted - be impractical if 'the test of a direct and
substantial interest in the subject-matter of the action is again regarded as being the
decisive criterion'. This Court would not be able to function properly if every party with
a direct and substantial interest in a dispute over the constitutional validity of a statute
was entitled, as of right as it were, to intervene in a hearing held to determine constitutional validity. This submission is a convincing one.”
9
[20] Thus where the order is one in rem, an intervening applicant must, in addition to
showing a direct and substantial interest, also show that the intervention is in the
interest of justice. The Constitutional Court stated considerations that would apply to
this:
“This submission is a convincing one. In every case this Court must ultimately decide
whether or not to allow intervention by considering whether it is in the interests of justice to grant leave to intervene. Thus, in cases involving the constitutionality of a
statute, while a direct and substantial interest in the validity or invalidity of the statute in question will ordinarily be a necessary requirement to be met by an applicant for
intervention, it will not always be sufficient for the granting of leave to intervene. Even
if the applicant is able to show a direct and substantial interest, the Court has an
overriding power to grant or to refuse intervention in the interests of justice. Other considerations that could weigh with the Court in this regard include the stage of the proceedings at which the application for leave to intervene is brought, the attitude to such application of the parties to the main proceedings, and the question whether the

8 Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others 2019 (5) SA 1 (CC) at para 2;
Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup Investments (Pty) Ltd and Another 2015 (2) SA 387
(SCA) at para 6
9 Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) at paras 11 to 13.
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submissions which the applicant for intervention seeks to advance raise substantially
new c ontentions that may assist the Court.”10
[21] Therefore, even if Mr Koko had shown a direct and substantial interest in the subject
matter of the proceedings, as the order operated in rem, he would also have to show
that his intervention is in the interests of justice.
[22] When considering the factors identified by the Constitutional Court, none of them
weigh in favour of Mr Koko. The stage of the proceedings are far along – not only has
an order been granted but it has been implemented. The attitude of the other parties
in the main proceedings are oppositional to Mr Koko’s intervention and have provided a host of legal reasons to oppose his intervention.
[23] In addition, the intervention does not seek to assist the Court. In fact, Mr Koko does
not wish to set aside the award. Mr Koko avers that ABB had overpaid Eskom – and
in this way the order ought to be interfered with after his intervention is granted. Mr Leech SC, in Court, categorically declined this offer and indicated his client was happy
with the agreed amount and it had in fact already been paid. Other than this limited
issue – Mr Koko does not wish to alter the award. Even if Mr Koko was granted leave to interevent, no effectively different outcome would be achieved. It unclear how it
could be in the interests of justice to allow Mr Koko leave to intervene – only to let the
order remain intact.
[24] The Court concludes that it would not be in the interests of justice to permit Mr Koko
leave to intervene in circumstances .
Reputational harm
[25] Counsel for Eskom and the SIU submitted that the issue of reputational harm, as
claimed by Mr Koko is a matter of settled law. The idea that a reputational interest
may suffice has some superficial support in Wynne.
11 Counsel for Eskom and the SIU
brought this case to the Court’s attention and submitted that there is some limited
authority in Wynne for the proposition that where the reputational interest asserted is
such that the subject-matter cannot be decided without determining the correctness

10 Id para 13
11 Wynne v Divisional Commissioner of Police and Others 1973 (2) SA 770 (E) (“Wynne”) Wynne at 776A -B
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of the allegations, the intervenor may well have a limited interest. As the Court
observed in Wynne:
“One must undoubtedly sympathise with a third person who has no immediate way of
rebutting apparently unnecessary and damaging allegations made against him by a litigating party. He is however not without any ultimate remedy, and sympathy for him cannot be allowed to constitute grounds for converting proceedings to which he has no right to be a party, into an action for defamation in which no pleadings have been
filed, the issues have not been aired and no damages or other relief has been claimed;
nor can I conceive of any sort of procedure whereby I could determine the present issue (as the intervening respondent apparently desires) by a declaration that the applicant's allegation against him are or are not true.”
12
[26] This limited sense in which reputation may be relevant – does not arise in this matter.
In addition on the facts of this case the subject-matter was decided without the Court
having made express findings on the allegations regarding Mr Koko. The limited
sense in which reputational harm has been weighed by a Court does not arise in these
circumstances. In any event, the authority in Wynne is overshadowed by more recent
and binding authority on point. Counsel for Eskom and the SIU relied on this authority
in their written submissions wherein they summarise the legal position clearly in
relation to six authorities.
[27] The first authority is NDPP v Zuma13 wherein the Supreme Court of Appeal held that
the basic problem with an intervention application by Former President Mbeki and
other cabinet members is that they have no interest in the order but only in the
reasoning. This is insufficient. As intervening applicants , they are in the position of a
witness whose evidence has been rejected or on whose demeanour an unfavourable finding has been expressed. The Court held that “such a person has no ready remedy, especially not by means of intervention.”
14
[28] Whilst Former President Mbeki’s application was unsuccessful as the Supreme Court
of Appeal held as it was insufficient to show an interest in the reasoning, without an interest in the order, Mr Koko cannot even show his name in the reasoning of the

12 Wynne at 776G -H
13 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
14 Id at para 85
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Court. Mr Koko’s facts are even weaker than those in NDPP v Zuma – which the
Supreme Court of Appeal found wanting. When the reasoning of the Supreme Court
of Appeal in Zuma is applied to that of this case, it is clear that Mr Koko does not
satisfy the test for a direct and substantial interest. This authority is binding on this
Court.
[29] The second authority is B Xulu & Partners.15 Herein Rogers J setting aside
agreements concluded between the Department of Environmental Affairs and a law firm called B Xulu & Partners. The judgment by Rogers J made express findings of
malfeasance against public officials in the Department. These officials applied to
intervene in BXI’s rescission challenge against Rogers J’s judgment. The Court
refused the application for leave to appeal as a direct and substantial interest in the
outcome of the litigation is not established merely by the fact that judgment casts aspersions on a person’s character.
[30] Third is Central Energy Fund,
16 in which, like the present matter, it involved a review.
Specifically, a legality review of the decision to sell strategic oil reserves. Mr Gamede, the former CEO of the Central Energy fund, was central to the impugned transaction was implicated in misfeasance. Mr Gamede sought leave to intervene as a party and
to file an affidavit on the merits which – as Mr Koko in this matter – would correct the unflattering allegations made against him. In addition, like Mr Koko, Mr Gamede sought intervention on the basis that the judgment may adversely affect his reputation. Reputational harm, the Court held could not justify an intervention application.
17 The
Court suggested that a public statement may be the appropriate means by which Mr Gamede could vindicate his reputation.
18

15 B Xulu & Partners Incorporated v Department of Agriculture, Forestry and Fisheries & Another [2020]
ZAWCHC 99 (1 September 2020) at paras 56 – 57 (“B Xulu & Partners”)
16 Central Energy Fund SOC Ltd and Another Venus Rays Trade (Pty) Ltd and Others (4305/18) [2020]
ZAWCHC 164 (20 November 2020) (“Central Energy Fund”)
17 Central Energy Fund at para [25]
18 Central Energy Fund at para [28] where Rogers J wrote: “To the extent that my findings reflect adversely
on Gamede, they have been reached without regard to the evidence he wanted to adduce. If Gamede feels
that a public statement setting out his side of the story is necessary to protect his reputation, my judgment
will be no bar to his doing so.”
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[31] Fourth, Siyangena Technologies ,19 also involved a review. Herein PRASA applied to
review and set aside contracts it concluded with Siyangena on grounds of legality.
The review implicated PRASA executives in malfeasance and corruption , who were
not cited as parties. The comparison can be drawn to the present case in which the parties to the agreement were cited, being Eskom and ABB, but not the employees
or officials. The High Court halted the hearing in order to hear from the implicated
executives. However, after a postponement a differently constituted Court heard the matter, disallowed the affidavits and upheld the review. On appeal, Siyangena contended that the affidavits should have been allowed.
[32] The Supreme Court of Appeal disagreed and upheld the position that the intervening executives lacked a direct and substantial interest in the relief sought by PRASA. The Court held that there “is certainly no provision in the Uniform Rules of Court for the intervention of a witness in an application”. In addition the Court reasoned that as
PRASA was not seeking relief against any of those identified as witnesses, they were not entitled to intervene. The Court weighed that the relief sought by PRASA was
confined to the setting aside of the agreements, the contracts concluded with Siyangena and orders setting aside th e arbitration agreements. In these
circumstances the Court held that “none of those 'intervening witnesses' had any
direct and substantial interest in the relief sought by PRASA.”
20
[33] Mr Koko’s case falls within a similar factual scenario in which he has no interest in the
relief sought and obtained by Eskom and ABB. The similarity between the cases are
striking.
[34] Fifth, is the matter of Deputy Public Protector21 in which a new Public Protector sought
leave to intervene in proceedings concerning the erstwhile Public Protector’s enquiry.
The High Court dismissed the application holding that as the order did not prejudicially
affect the new Public Protector she had failed to establish a direct and substantial
interest in the litigation.

19 Siyangena Technologies (Pty) Ltd v Passenger Rail Agency of South Africa and Others 2023 (2) SA 51
(SCA) (“Siyangena Technologies”)
20 Id para 25
21 Public Protector of South Africa v Speaker, National Assembly and Others 2023 (4) SA 205 (WCC)
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[35] Sixth, the Constitutional Court rejected reputational interest as a basis for intervention
in Lebea.22 The issue before the Court was whether Mr Lebea, an attorney against
whom an adverse credibility finding was made a quo, could intervene to note an
appeal. The Court held that Mr Lebea lacked the requisite direct and substantial
interest in the order as his interest lay in the reasons for the order.
[36] The Constitutional Court reaffirmed that test for direct and substantial interest,
emphasising the interest must be in the order or the outcome, not its reasons. The
Court held that “direct and substantial interest is a direct and substantial interest in the order that a court is asked to make in a matter” and that it is not enough “if a
person has an interest in a finding or in certain reasons for an order”. The interest must be in the order or the outcome of the litigation. The Court held that an adverse credibility finding against Mr Lebea does not give him a direct and substantial interest.
[37] When applied to the facts of this case – Mr Koko does not even have a damning
finding against him in the reasons of the Court. Mr Koko he has failed to establish a direct and substantial interest.
[38] Counsel for ABB referred the Court to a recent decision of this division in Coetzer v
Office of the OCJ
23 handed down by Millar J on 13 May 2025. The facts of this case
were that the applicants sought leave to intervene in an application for self-review of
a tender awarded by the Office of the Chief Justice (OCJ) to Thomson Reuters (Professional) UK Ltd (TR). Pursuant to the award of the tender and signature of a contract between OCJ and TR, it emerged that the first to third applicants, former
employees of the OCJ had established the fourth applicant and had then submitted
and been awarded a sub-contract in terms of the main tender.
[39] During the currency of their employ with the OCJ, the intervening applicants had in
some way been involved in the adjudication and award of the tender or had knowledge
of it. In the filing of its papers for the self-review certain technical grounds were raised
as to why the award of the tender should be set aside. Additionally, the OCJ through

22 Lebea v Menye and Another 2023 (3) BCLR 257 (CC) (“Lebea”)
23 Coetzer and Others v Office of the Chief Justice (043089/2023) [2025] ZAGPPHC 485 (13 May 2025)
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its then Secretary General, also filed an affidavit in which certain allegations and
concerns about the role of the intervening applicants.
[40] The intervening applicants did not oppose the reviewing and setting aside of the main
tender. In addition, the sub-contract between the fourth applicant and TR has also
since been cancelled. Save for any historical role they played in their erstwhile
capacity as employees of the OCJ, they have no interest in the proceedings, save in
one respect : the allegations made regarding their conduct while they were employees
is false and defamatory and that the making of such allegations, without what they contend is any basis, was done purely to bring them into disrepute and to harm their
reputations and future commercial prospects.
[41] Again, the factual similarities between the matter in Coetzer and that of Mr Koko are
striking. In Coetzer, the Court held –
“To my mind, the main review proceedings will be decided based on the record of the
proceedings which are under review. This record sets out the conduct of the
applicants while they were employees of the OCJ. The court hearing the review will decide the relevance if any, of the conduct of the applicants regarding whether the review is to be granted or not and will consider the veracity and appropriateness of any adverse statements made about them in its consideration of the matter.

For the applicants, insofar as their past conduct while employed by the OCJ is concerned “The moving finger writes: and having writ, Moves on: nor all thy Piety nor Wit shall lure it back to cancel half a Line, Nor all thy Tears wash out a Word of
it.” Their position is no different to any past employee of any institution whose conduct
while employed is to be considered. The right to dignity is not in issue. Either the
grounds of review premised on the conduct of the applicants have merit or they do not. The application to intervene, for the reasons I have given lacks any merit and
must be refused.”
24
[42] These authorities halt Mr Koko’s application. They are clear, plenty, on point and
categorically determinative of his application. The Court expressly raised these
authorities with Mr Koko at the hearing. Mr Koko sought to distinguish them on the
facts. They are not distinguishable and the fundamental principle established in these cases apply.

24 Id paras 13 - 14
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[43] These authorities are also determinative of Mr Koko’s reliance on the audi-principle.
Mr Koko submits that the principle of audi alteram partem was breached in this case.
Of course, the principle only applies if one has a right to be heard – as Mr Koko lacked
a direct and substantial interest – the principle does not find application.
Mr Koko’s experience after the McKinsey order
[44] At the hearing Mr Koko implored the Court to consider the position he finds himself in.
He informed the Court that after the McKinsey order he was met by the Sheriff at his
house serving him with a particulars of claim. He informed the Court, from the bar,
that prior to the order in McKinsey he obtained legal advice on whether he should
seek leave to intervene. The advice he received was that he should not intervene premised on, amongst others, that the order would operate in rem. The exact advice
received from his lawyers at the time was that if he were to seek leave to intervene he would be “blown [out of the water] with costs” by the Court.
[45] Mr Koko explained that he accepted this advice and did not seek leave to intervene.
Subsequent to the order, the Sheriff arrived at his door and served him with a
summons claiming a significant amount of money from him. He wished not to repeat that same events in this matter, thus the application for leave to intervene in these
proceedings.
[46] The argument has some constraints. First, Mr Koko failed to plead this on the papers.
The other parties are prejudiced if the Court were to consider this particular argument.
On this basis alone, it is to be dismissed. Second, if the Court were to consider the
argument, it engages with sophistry and events which have not yet occurred. Third, a
party cannot seek leave to intervene in proceedings to stave off future hypothetical proceedings. Fourth, Mr Koko has failed to show how these proceedings have limited any defences he may be able to raise in future proceedings brought against him.
[47] For these reasons, the Court refused Mr Koko’s application for leave to intervene.
[48] Mr Koko also launched an application for leave to adduce further evidence. As Mr
Koko has failed to establish an interest in the proceedings, the application for leave to adduce further evidence is not entertained. Similarly, as Mr Koko has failed to
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establish a direct and substantial interest in the proceedings, his submissions and
allegations regarding the merits of the case are not entertained.
Costs
[49] Mr Koko has sought leave to intervene in circumstances where there is binding
authority from all levels of our judiciary indicating that it would be inappropriate. Mr
Koko was informed in the written submissions filed by the parties prior to this hearing
of the principles at play. He persisted with the application. At the hearing, Mr Koko informed the Court that in similar prior proceedings he had received legal advice not
to intervene as the application would be dismissed by the Court and might face a
costs order. Mr Koko informed the Court of the legal principles which would lead to
such a conclusion – as they had been relayed to him by his lawyers – which included
the advice that the order operated in rem. Indeed, as can be seen from the reasons above, these include some of the reasons provided by his lawyers when advising him
not to intervene.
[50] In short, Mr Koko launched an application to rescind an order in circumstances where
he largely accepts the order is correct; where he is not mentioned in either the order or the judgment; for purposes of protecting his reputation – where there are two
Supreme Court of Appeal judgments and one Constitutional Court judgment held this
to be inappropriate – in relation to an order which operates in rem. In addition, Mr
Koko was advised that this would result in a dismissal with costs – in similar previous proceedings.
[51] In these circumstances, a costs order is appropriate. The matter is complex in its
history. The papers are voluminous reaching more than 20 lever arch files. Counsel for Eskom and the SIU consist of a team of four counsel – they sought only costs of two counsel. Costs on Scale C is appropriate in light of the complexity and sheer
volume of the matter.
Order
[52] The Court ordered:
1. The a pplication in terms paragraph 10 of the order of Makgoba J of 5 April 2024 is
to be dismissed with costs including the costs of two counsel on scale C for the first
074-15
074-15




17


Date of judgment: 18 June 2025
074-17
074-17