Brian Molefe heads to ConCourt to keep Eskom pension payout

Former Eskom chief executive Brian Molefe is going to the highest court in the land in a bid to keep the R30-million he received as a result of an irregular pension benefit.

The high court and the Supreme Court of Appeal (SCA) both ruled that the money Molefe had received should be paid back. But now, Molefe is headed to the Constitutional court charging, among other things, he did not get a fair hearing.

In January 2018, a three-judge bench found that Molefe’s announcement that he had resigned from Eskom was false, and he was not entitled to the pension money as the pension scheme was unlawful. Judge Elias Matojane said based on the submission presented to the court: “We are of the view that there is no prospect that another court would come to a different conclusion… therefore the leave to appeal is refused.”

Later that year, Molefe’s application for leave to appeal at the SCA was dismissed by the high court on the grounds of not having a reasonable prospect of success. The court then gave Molefe 10 days to pay back about R11-million of the R30-million he had received from the power utility.

Trade union Solidarity then laid criminal charges against Molefe relating to the high court’s ruling. The trade union also asked the Hawks to investigate Eskom’s management hierarchy because it allegedly failed in its duty to disclose unlawful activities.

The money was paid to Molefe in November 2016 after he resigned as Eskom CEO, following then public protector Thuli Madonsela’s ‘State of Capture’ report in which he was implicated as having played a part in corrupt activities at the parastatal.

However, the news of the alleged massive payout only emerged after his reappointment in May 2017.

He allegedly received R10 327 074.53 from the Eskom Pension and Provident Fund (EPPF). Therefore, Eskom paid millions to Molefe to make sure he retired with full benefits as if he was employed until retirement age. However, Molefe was 50 years old at the time and had only been employed by Eskom for 11 months.

The high court ruled that Molefe was too young to take early retirement in terms of the EPPF’s rules and regulations.

Molefe then petitioned the SCA to appeal against the high court’s decision which ruled that he must pay back part of the R30-million pension he received from the power utility.

Molefe said the court “erred in its finding that the early retirement agreement was a deliberate scheme devised by Eskom with my involvement to afford me pension benefits to which I was not entitled.”

He maintained that the agreement was concluded on the basis of a “common [mis] understanding” by him, Eskom and the EPPF rules.

He further argued that his departure from the power utility “was not a resignation, but was a [purported] consensual early retirement” which was subsequently found to be contrary to the EPPF rules.

Molefe’s latest court papers argue that the former Eskom CEO did not have a fair hearing and that the high court “blindly accepted” the Democratic Alliance’s (DA) and Solidarity’s arguments, while they failed to acknowledge his and Eskom’s arguments.

Rapport reports that the DA and Solidarity are opposing Molefe’s latest application, but Eskom and the EPPF say that they will abide by the Constitutional Court application.

The DA laid criminal charges against Molefe in 2016. Following the ruling by the high court that Molefe must return the payment he received, DA’s James Selfe said in a statement, responding to the judgement, “This ruling is not the end of Molefe’s worries.”

“The DA has in the past laid criminal charges against Molefe and it is now time for the [national prosecuting authority] to step up and prosecute him to the fullest extent of the law.”

Molefe is now set to argue in the Constitutional Court that the high court and SCA were wrong to find that he received an unlawful pension from Eskom. 

Eyaaz Matwadia
Eyaaz Matwadia
Eyaaz Matwadia is a member of the Mail & Guardian's online team.

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