Former Eskom CEO Brian Molefe – until recently an ANC member of Parliament – will this week argue that the ruling party usurped the power of a cabinet minister in having him summarily dismissed from Eskom.
It is the ANC, not public enterprises minister Lynne Brown or the Eskom board, that really wanted him kicked out as CEO, Molefe says in heads of argument now before the Labour Court in Johannesburg, where he is due to ask for his (most recent) removal as CEO to be overturned.
And that, says the man accused of being at the heart of state capture, is political interference in the running of a state-owned enterprise.
“While the minister [Brown] has the exclusive power to appoint and remove the group chief executive of Eskom, the ANC appropriated that right,” counsel for Molefe says in a written summary of his argument.
The assertion, due to be argued on Tuesday and Wednesday, further complicates an already convoluted set of arguments.
None of the four parties involved now dispute the basic facts of Molefe’s extraordinary departure, return, and departure again from Eskom. On what those facts mean in law, however, the parties do not see eye to eye – in particular whether he was dismissed or not.
Molefe resigned from Eskom in November 2015, say arguments before the court on behalf of Brown. He may have later tried (and failed) to take early retirement, but when he said he was leaving to clear his name of state capture allegations, that was a resignation plain and simple.
Even if the court disagrees, however, Brown argues that she had the power to kick Molefe out, in which case he could “at best” seek damages for the early termination of his five-year contract.
Not so, Molefe says. He tried to take early retirement but failed to do so legally, so that attempt was legally null. Then Brown effectively welcomed him back to Eskom when that “mistake” was rectified, he says, before changing her mind and firing him again.
“Notwithstanding the attempts (both by the minister and by Eskom) to avoid the terminology of dismissal, this plainly occurred,” Molefe’s legal team says in heads of argument. “Mr Molefe was dismissed from his employment by Eskom.”
The argument rings peculiar in light of Molefe’s own history with terminology; in late 2016 he carefully refrained from saying he had sought early retirement, leaving Brown, the country, and large parts of Eskom under the impression he had resigned for several months.
The DA and EFF, meanwhile, have told the labour court that it would not be in the public interest for Molefe to return to Eskom, if for no other reason than because he is implicated in state capture. Both parties also agree with Brown that there is no urgency in Molefe’s application, and that he should not be allowed to jump the court queue.
The parties have also advanced a range of arguments that further complicate Molefe’s claim, such as that he, in effect, resigned from Eskom when he became a member of Parliament, regardless of what had happened before that point.
Molefe, in turn, accuses the two parties of opportunistic politicking at his expense and say their “frivolous and vexatious” attempts to intervene in a simple contractual dispute between him and his employer should be dismissed with costs.
Yet it is for the ANC, the party of which he is supposedly a member in good standing, that Molefe saves his most biting criticism, accusing it of undermining democracy.
“The minister tries to ‘sugar coat’ the ANC’s interference as the reason for Mr Molefe’s summary dismissal, by presenting Mr Molefe’s return as a government problem,” Molefe’s team says in written argument. “It is not so, it was an ANC problem.”
In order to solve this problem, Molefe’s argument goes, the ANC took to political interference, simply making Brown do its bidding, who in turn made Eskom do hers, and dismiss him.
“The minister is ultimately accountable to Parliament, and through Parliament, to the citizens of South Africa,” Molefe’s team says. “She is not accountable to the ANC.”