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Brian Molefe digs in his heels in bid to avoid repaying R9.9m to Eskom pension fund

Brian Molefe digs in his heels in bid to avoid repaying R9.9m to Eskom pension fund
Former Group Chief Executive of Transnet Brian Molefe. (Photo: Felix Dlangamadla)

Former Eskom CEO Brian Molefe has petitioned the Supreme Court of Appeal in his bid to avoid repaying almost R10m to the Eskom Pension and Provident Fund.

Former Eskom CEO Brian Molefe claims that his actuary determined that he must pay R1,490,920.89 to the Eskom Pension and Provident Fund (EPPF) — a far cry from the R9.9-million that the Pretoria High Court ordered.

This is part of Molefe’s application for leave to appeal to the Supreme Court of Appeal (SCA) against the decision and order issued by the Pretoria High Court.

On 4 July, Judge Norman Davis issued an order directing Molefe to reimburse the EPPF for the sums of R7,981,727.94 and R2,003,812.70. The court further determined that the EPPF reimburse Eskom for R30,103,915.62. The EPPF has since reimbursed Eskom for this sum.

When Molefe was given early retirement in 2016, Eskom committed to paying for it and buying the extra years of service on Molefe’s five-year contract — R30.1-million after only 16 months of service. This is when the illegal R9.9-million pension payout occurred.

Read more in Daily Maverick: “Eskom claws back illicit R30-million pension payment to former CEO Brian Molefe

Following the 4 July ruling, Molefe filed leave to appeal against the order. But, on 12 October Davis dismissed his appeal. Now Molefe has petitioned the SCA.

The legal dispute over Molefe’s “refusal to repay the pension he unlawfully got” extends back to a ruling made on 25 January 2018. The Pretoria High Court subsequently ruled that Molefe’s receipt of “any payment or quantity of money” under “any claimed pension agreement” between him and Eskom was unlawful.

Read more in Daily Maverick: “Eskom’s Brian Molefe must pay back the money

No payment has been received after four years. Molefe has now requested permission to appeal to the SCA or, alternatively, the full Pretoria High Court, against the entire decisions and orders that were rendered on 4 July and 12 October.

The appeal papers are a summary of the main arguments Molefe and his legal team chose to use as the basis for their appeal; they do not present any fresh facts to be disputed. The documents were submitted on 10 November.

In his founding affidavit, Molefe stated that he had requested permission to appeal against the decision and order.

“Despite the fact that the whole court ordered me to pay R10,327,074.53, which is a glaring contradiction of the R7,981,727.94 and R2,003,812.90 along with the interest thereon from October 31, the EPPF petitioned the [Pretoria] High Court in order for the complete judgment to be ‘executed’.”

According to his appeal documents, Judge Davis “attempted to unscramble the egg” by ordering additional amounts that would have to be paid.

On the court’s finding that “he has not shown any proof which contradicts the quantities”, Molefe claims that the court failed to recognise the fact that he did contest the sum and even went so far as to obtain an actuarial report.

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“That alone indicates that I am contesting the figure the fund determined. The court should have accepted the only actuarial data on the flow of funds that was offered on my behalf because the fund did not provide any independent actuarial calculations.

“The court should have ruled that I was required to pay R4,156,230.82 to the fund’s actuary and R1,490,920.89 to my own actuary. This is a far cry from the R8-million ordered by this court,” reads his papers.

“I respectfully submit that an appeal against the judgment of the court has reasonable prospects of success as well as there is compelling reason [sic] why an appeal should be heard.

“The court of first instance has not only made errors of fact, but also erred in the interpretation and application of the law,” he contends.

Molefe’s intention to request leave to appeal against the high court judgment will be opposed, reads a press release from the Eskom Pension and Provident Fund. Shafeeq Abrahams, the fund’s chief executive and principal officer, said the fund would submit a counter affidavit.

“We are making every effort to get the money back. A letter of demand has already been delivered by us. On July 4, 2022, the Pretoria High Court issued an order requiring Molefe to repay payments obtained illegally from the EPPF. The fund took legal action against Molefe to compel him to repay the funds in accordance with the initial court ruling from 2018.

“Since there is no dispute regarding the R30-million Eskom illegally paid, the EPPF has reimbursed it. The court decision from last month dealt with the approximately R10-million,” he said. DM

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Comments - Please in order to comment.

  • Hermann Funk says:

    Greedy little pig.

  • Beyond Fedup says:

    Another obnoxious cadre who thinks he is entitled to and deserving of funds that don’t belong to him, and owed to him by this country just because he is Brian Molefe and connected. Common factor in all the state capturers and REThieves.

  • Fanie Rajesh Ngabiso says:

    and yet another grubby lawyer gets richer on tax payers’ money defending the indefensible.

  • Confucious Says says:

    Come on Brian. R9.9m, in the scheme of things, isn’t that much! Didn’t you take more? Why not ask some of your comrades who you organized contracts for? They’ve made huge loot!

  • I can see the tears loading!!!

  • Howard Lazarus says:

    A corrupt and grubby deal masquerading badly as legitimate when the facts speak for themselves. Tens of millions for 16 months’ “work”. Really ?

  • Chris 123 says:

    Hope he’s paying his own legal fees.

  • Francois van Rooyen says:

    The sad consequence of the defensive strategy of so many of the RET stalwarts and State capture ‘heros’ in our courts is that they are trying to make a mockery of it – Beware the wheels of justice will come back and bite!

  • Cunningham Ngcukana says:

    If we have a legal situation where the entity makes a decision to pay someone a money he or she does not desrve but the person believes that he or she was given the money legally then one has a problem. We have the issus of Ivan Pillay who got pension and returned to work and the very same court said it has no problem with that. When we a teacher cannot take his or her pension from GEPF and return to work. The people who determined that Brian Molefe is entitled to the arrangement have to be held to be responsible. Legal and judicial thuggery that has a political flavour has no place in a democracy. Brian Molefe did not take a decision on this but the board. Some of the judicial decisions and their rationale smell a rat. Politicisation of the judiciary is very dangerous and some of the decision of the Gauteng North require to be evaluated whether they are indeed judicial or political decisions. I expected that the board that made the decision be held accountable including the person who headed the Eskom Pension Fund.
    Brian is correct that he must appeal the decision and I do not have a problem that he is held accountable for Gupta links and looting at Eskom and Transnet but there must be a legal basis for his prosecution not the current FATF related charade. We are not stupid as some people believe.

    • Johan Buys says:

      Cunningham: If that were how things worked, then corrupt deals would only have consequences and cost for taxpayers and shareholders. This deal was very clearly deliberate and totally corrupt, with the active participation of Molefe. We are not in the realm of error (a clerk entered 32 years service into pension calculator instead of 32 months). His pension fund has repaid Eskom the annuitized portion. All he now has to do is return the lump sum. Preferably before it gets blown on the legal fees for the other court cases him and Singh face. But, we can make a deal. Molefe and Singh know where the real skeletons are buried. If he survives long enough : turn state witness, get one year sentence reduction per billion rand skeleton fingered, get a new identity and passport. Or, go to prison – he looks tough enough to survive maybe a month.

    • Michael Ash says:

      I read your comments 3 x. I was only a little wiser. Molefe has a narrow road to appeal. The decision-makers were also influenced by the culture at Eskom, the BODs’ multiple conflicts of interest and general corruption. Molefe is most likely to fail in his appeal, as with all of the aligned cadres – hopefully, he will also have an additional interest charge applied.

  • Erma Gardner says:

    It took FOUR years of “no money coming in” before the screws are turned tighter. Bliksem – four years of living like a king!

  • Thomas Cleghorn says:

    Rewards for running state entities into the ground. Seems a bit off to me.

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