Bid to dismiss Molefe application
Whether Brian Molefe resigned from Eskom or retired early is immaterial as his contract of employment was never validly terminated by the power utility.
This is according to Molefe's legal counsel who pleaded with the High Court in Pretoria to dismiss an application by the DA and Solidarity that he should repay a portion of the R30.1m paid to him as an early retirement pension benefit.
Lawyers representing trade union Solidarity‚ the DA and Public Enterprises Minister Lynne Brown were unanimous in their dismissal of Molefe’s submission, appealing to the court to declare the pension payout unlawful.
Molefe has admitted he was not eligible for the payout as the company’s board and its pension fund had been mistaken about whether its rules could be relaxed to accommodate his early retirement claim.
The three judges presiding over the matter queried how it was possible for Molefe, with his extensive corporate experience, to be mistaken about such matters.
“Sometimes fact is stranger than coincidence,” said Arnold Subel SC, who is part of Molefe’s team of two senior counsel advocates, as he explained that Molefe was reliant on his employer for guidance on how the matter would proceed.
Subel told the court to discount the events of November 2016 which led to Molefe’s controversial departure from Eskom as the applicants could not provide evidence of a valid termination. Molefe was considered to have resigned from Eskom only to distance himself from the decision he said at the time he was making in the interest of good governance.
The Eskom board and the public enterprises minister also publicly announced Molefe had resigned in the wake of the findings of former public protector Thuli Madonsela’s state of capture report, which implicated him in wrongdoing.
Subel told the court Molefe retired and resigned at the same time and that the two actions were not mutually exclusive.
Legal representatives for the DA and Solidarity queried how it was possible for Molefe to have resurfaced as an MP if his contract had not been terminated at Eskom as he claimed.
Paul Kennedy, SC for the DA, also discredited Brown’s reasons for approving Molefe’s reinstatement at Eskom.
At the time, the public enterprises minister said she was doing so to save Eskom the R30.1m claimed by Molefe.
“There was nothing to be saved,” Kennedy said.
“Molefe was not entitled to the R30m anyway. By that stage, it appeared the parties had accepted there had been an error. It was irrational,” he said.
Anton Katz, SC for Solidarity, described Molefe’s version of events as “untenable” and argued that the former Eskom CEO was making a mockery of the court.
“The whole project was simply to gain … a lot of money,” said Katz, who agreed with Kennedy that the amount repayable to the pension fund should their application succeed would be best determined by the Eskom Pension Fund.
Advocate Thato Serati was inundated with questions by the judges as soon as he began his presentation on behalf of the Eskom pension fund.
The judges were concerned with how the fund had failed to apply its own rules and whether it executed instructions from Eskom without first testing it against its own rules.
“Some of the arrangements were confidential,” said Serati.
“We simply received an instruction and the necessary forms which were submitted to the pension fund to treat the matter in line with section 28.”
Serati acknowledged that the fund should have exercised better oversight.
In June, the Labour Court halted Molefe’s unfair dismissal application against Eskom due to the proceedings in the high court. He wanted his dismissal declared unlawful and void.
Judgment was reserved.