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Cape Town – Former Eskom and Oakbay Resources and Energy board member Mark Pamensky has spoken out after OUTA laid charges against him on Tuesday for corruption and abuse of his position as a board member of the state power utility.
Organisation Undoing Tax Abuse (OUTA) chief operating officer Ben Theron said in a statement on Tuesday that “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”.
The basis of the charges came after OUTA was given access to the #GuptaLeaks emails, which were retrieved from the Gupta-owned Sahara Computers. In Theron's affidavit, he says OUTA was able to establish the authenticity of the emails.
Pamensky did not deny the authenticity of the emails included in Theron's affidavit and annexures, but said they had been taken out of context. He shared a complete email to Atul Gupta with Fin24, which can be seen below in this story.
Pamensky was appointed to the Eskom board in December 2014 by Public Enterprises Minister Lynne Brown and left in late 2016. At the same time, he was also a director of the Gupta-owned Oakbay Resources and Energy until he left in May 2017.
“In his role as non-executive board member of various companies, Pamensky was the conduit for the flow of privileged information between the companies,” said 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 Pamensky 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," said Theron.
Pamensky: No context to emails
However, Pamensky told Fin24 on Tuesday that the information contained in the emails does not support the allegations levelled against him.
"(OUTA) have failed to properly consider the contextual content of the emails they purport to rely on, as well as other factual evidence at hand," he said.
“In just one example of this, OUTA refer to an email sent by me on 18 September 2015, which they claim is evidence of me sharing ‘privileged’ information regarding Eskom.
“In reality, the email referred to by OUTA (which was attached to their affidavit, albeit in an incomplete state) quite simply demonstrates the sharing of noteworthy Business Day and Finweek articles describing, amongst other things, recent merger and acquisition activity in the domestic coal market. I have, for completeness sake, attached the full email and its attachments to this response.”
See the email in question (Swipe right to see clippings from Business Day and Finweek):
Pamensky: OUTA charge design to defame me
Pamensky said OUTA’s “complaint is spurious and without any foundation".
“It is clearly designed to defame me and an attempt to sensationalise my role as an independent non-executive director of Eskom.
"I was at all times well aware of the fiduciary duties that I owed to various companies and I have fully complied with all of those duties in accordance with all applicable laws and corporate governance requirements.
"I was never in a position where I had a conflict of interest and to the extent that there may have been a perceived conflict, I have, at all times, made the necessary declarations and recused myself from such discussions, and have documented proof of such.
“I have gone on record on numerous occasions setting out how I could not possibly have had a conflict of interest or breached any of my fiduciary duties.
"In the present circumstances, I again deny any wrongdoing and believe that the complaint is malicious and defamatory. I will in the appropriate forum deal with all the allegations,” said Pamensky.
Pamensky’s emails to the Guptas
In its statement on Tuesday, OUTA said Pamensky’s emails attached to the affidavit 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 said “I don’t believe there is any conflict whatsoever”, saying he wasn’t involved in those decisions at Eskom, OUTA explained.
- 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”, OUTA explained.
- 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 seller's 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, OUTA explained.
- 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, OUTA said.
- That evening, OUTA said, 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 R659.6m to Tegeta and providing a R1.6bn guarantee to Tegeta, plus Glencore paid R400m to Optimum to cover bank debt. Eskom subsequently substantially reduced the fine to Optimum which had effectively pushed Glencore into selling Optimum to Tegeta,” OUTA said.
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