“Of course he resigned, if one wants to use that word,” said Molefe’s counsel Advocate Arnold Subel, referring to Molefe’s November 2016 decision to leave Eskom following the release of the Public Protector’s State Capture report.
What’s important, Subel argued, is the terms of Molefe’s resignation. He said Molefe left Eskom because he believed he was entitled to an early retirement package that would have seen him paid R30-million. When that had been ruled invalid, Molefe’s termination was also invalid, Subel claimed, meaning he should be able to return as Eskom group CEO. “There was no valid termination.”
Molefe was in court on Wednesday as the Democratic Alliance (DA) and Solidarity challenged Public Enterprises Minister Lynne Brown’s decision in March to reinstate him. They also called on Molefe to pay back the portion of the R30-million he had already received.
Judges Hans Fabricius asked how Molefe could be under the illusion that he was entitled to enjoy the benefits of Eskom’s pension fund. “How would a person with all that knowledge and experience possibly be under these misapprehensions,” he asked. “I have difficulty with that.” Subel said there was confusion at the time and he was led to believe he was eligible.
The advocate acknowledged arguments from the DA and Solidarity claiming Molefe and the Eskom board attempted to commit fraud. Subel said even this would mean his termination was invalid and should lead to Molefe’s reinstatement.
“He terminated the employment relationship… (Molefe’s) not paying attention to the crucial fact that there was in fact a resignation,” said Advocate Paul Kennedy for the DA. He said the decision to reinstate Molefe was unlawful and should be set aside. Kennedy said Molefe didn’t announce his plan to take an early retirement to the minister or the public and his actions were “part of a pattern of manoeuvring by him simply to get benefits to which he wasn’t entitled”.
“He’s not Mr Molefe. He’s Colonel Molefe,” said Advocate Anton Katz for Solidarity. “Respect,” whispered Molefe in the gallery.
Multiple parties asked why Molefe became a Member of Parliament if he thought he was still employed by Eskom. Subel said Molefe went to Parliament assuming his termination was valid, but since learned otherwise. “There can be nothing said about Mr Molefe in this matter that can be taken as good faith,” said Katz.
Advocate Garth Hulley, for Brown, said Molefe “effectively resigned” and he was the only person who disagreed. An advocate representing the Eskom Pension Fund said it realised it didn’t follow its own rules in granting Molefe’s early retirement and the relationship with Eskom had been “based on trust”. He was asked whether the pension fund simply “rubber stamps” applications.
Responding to the arguments from Molefe’s counsel, Kennedy said Molefe never made his resignation conditional upon receiving an early retirement package. He said the minister and Eskom had accepted it as a resignation. “He doesn’t make it conditional upon anything.”
“If the court accepts [Molefe’s argument], we would submit, is to do violence to common logic,” said Katz. “It makes a mockery, we would submit, of what the law is about.” Minister Brown’s advocate also said Molefe never made his resignation conditional on receiving an early retirement package. “He can’t then say I harbored this private intention or this was subject to consideration of my application,” said Hulley. “Mr Molefe himself said, ‘I have decided to leave my employ at Eskom.’”
Additional Reporting by Orateng Lepodise
This article was updated at 6pm on 29 November, 2017
File Photo: Former Eskom CEO Brian Molefe Photo: Courtesy EE Publishers
"Each man believes on his experience" ~ Empedocles