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Former Eskom chief executive Brian Molefe, who received an irregular pension benefit amounting to R30 million, is heading to the Constitutional Court in a bid to keep the money.
A high court and the Supreme Court of Appeal both ruled that the money he received should be paid back, but Molefe is now set to take the matter to the highest court in the land, arguing that, among other things, he did not have a fair hearing.
In April last year, the Pretoria High Court ruled that Molefe had to pay back the money within 10 days on the grounds that the pension agreement with Eskom was unlawful.
Molefe allegedly received R10 327 074,53 as a single cash payment from the Eskom Pension and Provident Fund (EPPF).
This meant that Eskom had, in effect, also paid a “fine” of millions of rands to ensure that Molefe could retire with full benefits as if he had worked until retirement age.
City Press’ sister publication, Rapport, previously reported that the payout meant that, as a 50-year-old “pensioner”, Molefe would receive a monthly payout of R111 000 after just 15 months of service at Eskom.
The high court found that Molefe was too young to go on early retirement in terms of the EPPF’s rules.
In April this year, Molefe’s application for leave to appeal at the Supreme Court of Appeal was dismissed by the high court on the grounds of not having a reasonable prospect of success.
The DA and trade union Solidarity are opposing the latest application, but Eskom and the EPPF told Rapport that they would abide by the Constitutional Court application.
In his latest court papers, Molefe said he did not have a fair hearing because the high court “blindly accepted” the DA’s submission and ignored his and Eskom’s arguments.
The DA approached the court to set aside Molefe’s early retirement after a public outcry over the payout.
In 2016, Molefe famously cried at a press conference, held after the release of then Public Protector Thuli Madonsela’s State of Capture report, which implicated him in having played a large part in the demise of Eskom.
A few days later, Molefe said he was leaving Eskom to protect the integrity of the power utility. But he denied any wrongdoing on his part. It was widely accepted that he had resigned.
Molefe was then sent to Parliament as an ANC MP, at which point his pension payout came to light. It was awarded on the basis that he did not resign, but had taken early retirement.
Lynne Brown, the then minister of public enterprises, was apparently disgruntled over the payout and ordered that Molefe be returned to his post at Eskom. But his reappointment was later overturned and Molefe was out of the job again.
Molefe will now argue in the Constitutional Court that the lower court judges were wrong to find that conspired with Eskom to obtain an undue benefit.
He said the high court implied that he wanted to pocket a larger pension than he was entitled to. It completely missed the point, Molefe said.
He said the pension agreement was meant to make up for the prejudice he had suffered when his permanent post was earlier changed to a five-year contract, on Brown’s instruction.
Molefe argued that the high court relied on incorrect clauses with regard to various documents and contradicted itself on several occasions.
He has also denied that he received R10 327 074,53 from the pension fund.
“Therefore, I cannot pay the amount back as I never received it,” he said. But he does not say in his affidavit how much money he did receive.
Rapport has previously reported on internal correspondence, which seems to indicate that the amount may have been closer to R9 million.
Molefe said the high court failed to take into account his having contributed more than R4 million to Transnet’s pension fund when he still worked there, which was then transferred to Eskom’s fund.
The high court, he said, also did not clarify how this amount, as well as his own contributions to the EPPF, should be dealt with.
A representative of the EPPF said that, if Molefe’s application for leave to appeal was successful, it would participate in the appeal to obtain clarity on the handling of the funds.
If the appeal was unsuccessful, said the representative, Eskom would have to approach the court of its own accord to obtain clarity.
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