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The Organisation Undoing Tax Abuse (OUTA) has laid charges of corruption and abuse of his position as a director against former Eskom director Mark Pamensky at the Brooklyn Police Station.

OUTA’s Chief Operating Officer Ben Theron says “the charges relate to Pamensky’s conduct while he was a director of Eskom and of at least one business linked to the Guptas’ business empire”.

Pamensky was appointed to the Eskom board in December 2014 by Public Enterprises Minister Lynne Brown and remained on it until late 2016. Whilst on the Eskom board, Pamensky was also  a director of the Guptas’ Oakbay Resources and Energy and remained an Oakbay director until May 2017. He also held director positions and interests at various times in other Gupta businesses, including 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.

“Pamensky further used his position and authority as non-executive board member on various boards to influence decisions and manipulate the outcomes of the various committees that he sat on.”

OUTA believes that Pamensky also failed to recuse himself from decisions in which he had a conflict of interest and in doing so displayed his willingness to assist in questionable transactions in favour of Gupta owned companies. This behaviour thus contravened the Prevention and Combating of Corrupt Activities Act, the Public Finance Management Act and the Companies Act.

Pamensky’s emails to the Guptas

Pamensky’s emails are attached to the affidavit and show his enthusiasm for the Gupta group’s purchase of Optimum Coal Holdings, which received substantial assistance from Eskom.

In September 2015, while a director of both Oakbay and Eskom, Pamensky emailed five people including Atul Gupta and Varun Gupta (a director of Shiva Uranium) to provide them with Eskom’s new procurement methods for coal.

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”. He went on to say that “I don’t believe there is any conflict whatsoever”, saying he wasn’t involved in those 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 next day he wrote again to Atul, wanting to discuss the “potential law suit from Eskom to target co”.

On 22 November 2015, Pamensky wrote to Atul and Tony Gupta, promising 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, describing himself as “pushy and pro-active”, Pamensky wrote to Atul to offer advice and help to “the group” and referring 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 R2.15 billion. That evening, Pamensky wrote to Atul, Tony and Varun Gupta: “Congratulations (Mazeltov) on a brilliant and well-thought out, planned and strategized 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 a dubious advance payment of R659.6 million to Tegeta and providing a R1.6 billion guarantee to Tegeta, plus Glencore paid R400 million to Optimum to cover bank debt. Eskom subsequently substantially reduced the fine to Optimum which had effectively pushed Glencore into selling Optimum to Tegeta.

A copy of Theron's affidavit and annexures are on OUTA's website.

Issued by OUTA