/ 1 December 2017

Judges make short shrift of Molefe’s did, didn’t, did …

DA advocate Paul Kennedy on Brian Molefe: If you say to your boss ‘I’m leaving’
Former Eskom chief executive, Brian Molefe.

Every time advocate Garth Hulley uttered the three-word phrase, he put a figurative stop between each word for emphasis — “I. Go. Now.”

These were the words at the end of a public statement issued by then outgoing Eskom chief executive Brian Molefe in November last year, the advocate for the minister of public enterprises told the high court in Pretoria on Wednesday.

“He himself says: ‘I have decided to leave my employ at Eskom’,” said Hulley. “There is no scenario in which he can remain behind.”

But Molefe now contends he never left and so, legally, he should be allowed to return to the office and position that rightfully remains his.

The convoluted mess that was Molefe’s departure, under a cloud of state capture allegations, had been scheduled to take up three full court days.

On Tuesday, however, a full Bench — at times clearly annoyed with what they considered irrelevant legal arguments — concluded the hearing that will determine Molefe’s future without so much as a truncated tea break.

From a legal standpoint, the court has been asked to determine such matters as whether jurisdictional requirements for a review have been met, and what the legal consequences are of a contract entered into between parties who all share a fatal misunderstanding of the rules governing Molefe’s departure.

For the three major players involved, though, those questions are incidental to their objectives. The Democratic Alliance and trade union Solidarity, which took the matter to court, want to ensure respectively that Molefe cannot return as Eskom boss and to recover about R11-million in supposed illicit pension payments.

For all three parties, the central question is whether Molefe resigned. He, it turns out, firmly believes he never did, except when he did, but that doesn’t count.

The word “resign” was used when Molefe left, one of Molefe’s two senior counsel Arnold Subel told the court during argument, but “it is not Mr Molefe’s word”.

But it is true that Molefe had resigned, Subel said later.

“Factually that is correct. He resigned.”

But he did not resign so much as go on pension, Subel qualified. “He had resigned. He had resigned on the basis of early retirement.”

Except, of course, that Molefe now agrees with everyone else involved that the early retirement, which promised to land him more than R30-million, had been in breach of Eskom’s rules and so was invalid.

Which, Molefe’s team argued, in effect means it never happened at all.

This seemed to leave even hardened advocates, steeped in the minutiae of both Molefe’s departure and employment law, somewhat befuddled.

It was helpful that Molefe had now admitted “that what transpired here was a resignation”, Hulley told the court, before briefly explaining the implications.

But Molefe had done no such thing, Subel countered. “On the contrary, I said that there was no resignation.”

The idea that a retirement and a resignation is the same thing “is a novel concept”, said DA advocate Paul Kennedy drily, but not necessarily of import.

“What the court has to assess is not whether he resigned in his own mind; the court must assess on the basis of objective facts,” said Kennedy.

Those facts, as far as the DA could tell, is that Molefe told the world he was leaving Eskom (“now”, in the words of his statement) but then later, in effect in secret, asked Eskom to pay him out as if he was retiring.

Eskom accepted Molefe’s bid for retirement, even though it could not do so legally.

For Molefe, that means the entire sequence of events is undone, and he gets to move back into his office. For everyone else involved that means Molefe owes the Eskom pension fund about R11-million to which he was not entitled — and his resignation stands.

Sophistry aside, “if you say to your boss ‘I’m leaving’, you’re leaving”, said Kennedy.

To further complicate matters, Molefe’s contention that he never legally left Eskom meant he never legally returned to Eskom later in terms of a “reinstatement agreement” because it is impossible to return to a job you never left. If that is the case, his legal team argued, then there is no basis on which the DA and Solidarity can ask for court intervention.

In another baroque twist, Molefe further held that possibly criminal collusion to enrich him would count in his favour.

The DA and Solidarity were suggesting that Molefe, Eskom’s then board of directors, the Eskom pension fund and possibly Public Enterprises Minister Lynne Brown all conspired to land Molefe a golden handshake, Subel said.

That is not the case, he said, but, even if it was, the result would still be to return Molefe to office.

“If this was a disguised transaction then, with respect, it’s invalid. So being invalid you don’t then have a valid termination.”

Judgment was reserved.