Army officer and former MP Brian Molefe on Wednesday argued that he remains the chief executive of Eskom because he resigned and retired at the same time — or because, if he engaged in a criminal conspiracy, he never left Eskom at all.
The DA and Solidarity are before the high court in Pretoria to argue that Molefe should repay the part of a R30-million golden handshake already paid to him under the guise of an early retirement.
But on Wednesday morning the opposition party and the pressure group took less than a combined hour to make their interlinked cases, which were extensively covered on paper.
Molefe’s two senior counsel advocates, however, had much more to say in argument, some of it slightly odd.
Since late in 2016, Molefe has been considered to have resigned from Eskom under a cloud, then said to have actually retired, then returned to the job, only to be fired from it. But in fact he both retired and resigned at the same time, his advocate Arnold Subel told the court.
“He had resigned. He had resigned on the basis of early retirement,” said Subel. “Factually that is correct. He resigned.”
Because resigning and retiring are not mutually exclusive, Subel said, there may have been a “classic misunderstanding” by the likes of the public and Public Enterprises Minister Lynne Brown that Molefe had not been due a retirement package, but nothing that a court should take notice of.
And if the DA and Solidarity are correct that there had been some grand conspiracy to land Molefe his golden handshake, which he denies, then the case should be dismissed anyway, Subel contended.
“If this was a disguised transaction, then with respect it is invalid,” said Subel. “So being invalid you don’t then have a valid termination … If there isn’t a valid termination, then his re-entry in 2017 is not in terms of a new administrative act.”
Instead, Molefe would simply have been returning to an office he had never legally left, and is now due to occupy, and the DA and Solidarity would have nothing to review.
The hearing is to continue on Wednesday afternoon.