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Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others (22877/2018) [2019] ZAGPPHC 185

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Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others (22877/2018) [2019] ZAGPPHC 185

21st June 2019

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[1]        The new dawn that engulfed the country in 2018, did not miss Eskom Holdings SOC Limited (Eskom). It brought life to Eskom in that in January 2018, Eskom's old and inactive leadership was replaced by new leadership with new life to undo years of maladministration and corruption within the organization.

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[2]        In March 2018, Eskom launched the present application for the review and setting aside of its unlawful decisions that resulted in payments which were in excess of R1,7 billion to McKinsey and Company Africa (Pty) Ltd, (McKinsey) the first respondent, Trillian Management Consulting (Pty) Ltd (TMC), the second respondent and Trillian Capital Partners (Pty) Ltd (TCP), the third respondent hereinafter referred to as "Trillian".

[3]        The impugned decisions relate to two contracts concluded with McKinsey in 2015 and 2016 respectively, From the two contracts, the first one endured for a period of three months (2015) while the other known as the Master Services Agreement (MSA) (2016) was between Eskom and McKinsey and was terminated by agreement. Eskom then made payments to both McKinsey and Trillian in excess of R1,7 billion.

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[4]        In this application Eskom seeks to review and set aside the two agreements as well as the resultant payments in terms of s1(c) of the Constitution. That this is not a review in terms of the Promotion of Administration of Justice Act 3 of 2000 (PAJA) is clear. The application need not therefore be instituted within a period of 180 days from the date the decision was made. The application is founded on the principle of legality in terms of s1 of the Constitution. It need only be instituted within a reasonable time. Although McKinsey and Trillian did not challenge the application on this basis, something needs to be said on this score.

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