Brown must take the stand – Molefe
Eskom’s former chief executive now wants the labour court to refer his matter to trial
Having accused him and the Eskom board of conspiring to commit fraud, Public Enterprises Minister Lynne Brown is now afraid to be cross-examined, former Eskom chief executive Brian Molefe suggested on Thursday.
“There is perhaps something lurking behind that,” Molefe’s advocate Noel Graves told the labour court in Johannesburg on Thursday.
Molefe dramatically asked the court, which he approached to have his firing by Eskom overturned, to instead order that his complaint be taken to arbitration — but arbitration open to the media, with the participation of the Democratic Alliance and the Economic Freedom Fighters (EFF) and where Brown would be required to take the stand.
“She is perhaps a little concerned about having to testify, and she will have to testify,” Graves said of Brown’s opposition to that proposal.
In previous written arguments Molefe — until recently an ANC MP — accused the ANC of political interference in having him fired. The ruling party had usurped Brown’s powers, he said, and she had followed the ANC’s orders when she fired him.
In new written arguments submitted on Thursday, Molefe’s team tore into Brown, saying that her subsequent actions “suggests a degree of opportunism and expedience which ill becomes a member of the executive of this country”.
Brown, Molefe’s legal team argued, has accused Molefe and the Eskom board of committing fraud.
This arose from the farcical series of events in which Molefe appeared to resign from Eskom but apparently took early retirement, when actually he was on unpaid leave while serving in Parliament, thinking he was a pensioner.
“If this [fraud] is truly the minister’s opinion, then she would be expected to want this to be determined properly and fully through the leading of oral evidence,” Molefe’s written argument reads.
When, on Brown’s orders, Molefe was fired from Eskom in early June — after his supposed retirement had been revoked — he approached the labour court seeking reinstatement.
The DA and EFF, both of which had already gone to the high court in Pretoria to argue against the revocation of his supposed retirement, on Tuesday gained the right to intervene in Molefe’s labour court application. Brown also opposed Molefe’s action, though Eskom said it would not oppose him in court.
The labour court had been due to hear Molefe’s argument on why he had been unfairly and summarily dismissed by Eskom. Instead, on Wednesday afternoon, Molefe’s team wrote to the opposing lawyers to suggest arbitration instead.
Arbitration — with cross-examination — would be more appropriate, Molefe’s lawyers said on Thursday, because of Brown’s accusations of fraud, accusations that only came up during the labour court proceedings.
The DA and the EFF reacted with outrage. “The attempt to seek such a court order now is clearly a smokescreen, in an attempt to hide the fact that this application was from the outset misconceived, unnecessary and manifestly not urgent,” the parties’ lawyers said in joint response.
What Molefe should do instead, the political parties suggested, was to withdraw his labour court matter and pay their costs to date.
Brown’s advocate Garth Hulley told the court that what the minister actually opposed was Molefe’s bid to keep his labour court challenge alive, or formally stayed, while arbitration went ahead. That was both irregular and overly complicated, Hulley said. Instead Molefe should, as the DA and the EFF had suggested, withdraw from the labour court, at which point he would be free to seek arbitration.
But, going to arbitration in search of cross-examination would be meaningless, Hulley said, because Molefe and Brown agree on all the important facts relating to his firing.
Brown, the DA and the EFF asked that Molefe’s application be dismissed with costs. “This type of abuse should not be countenanced and it should be met with an appropriate order on costs,” EFF counsel Tembeka Ngcukaitobi told the court.
Having failed to gain the consensus necessary to go to arbitration, Graves told the court on Thursday that Molefe now wanted the labour court to refer the matter to trial, so it could be judged on oral evidence. That would delay the matter by at least another month, while Molefe filed new papers.
Judge Connie Prinsloo reserved judgment.