The rules of the Eskom Pension and Provident Fund do not allow for early retirement of Eskom employees like Brian Molefe, who are younger than 55, the Democratic Alliance (DA) told the Gauteng Division of the High Court in papers filed on Monday.
The party approached the court to ask for an urgent interdict preventing Molefe from performing any duties or functions as group chief executive of Eskom or receiving any benefits associated with the position. It further asks the court to review and set aside public enterprises minister Lynne Brown’s decision to “reinstate” Molefe as Eskom CEO as it is irrational.
Molefe, Eskom and Brown are cited as respondents.
Brown on Friday defended her support for a decision by the Eskom board to “reinstate” Molefe almost five months after he left Eskom in November. She said it provides better value for the fiscus than to pay him the R30 million pension the board earlier recommended after a term of employment of about two years.
Molefe reported for duty on Monday morning and received a warm welcome from Eskom staff at the utility’s head office at Megawatt Park in Sunninghill, Johannesburg.
Molefe’s earlier departure followed the release of former Public Protector Thuli Madonsela’s State of Capture report in which he was implicated. At the time he said it was in the best interest of Eskom and good governance for him to leave and that he wants to clear his name.
In fact, Molefe resigned in November last year and his resignation was accepted, confirmed and acted upon, the party argues. Eskom advertised the vacant position and a payment was made to Molefe, the DA states.The DA said in its court papers in terms of the pension fund rules he could not have qualified for any pension payment over and above the contributions he made during his employment plus interest. That, it stated, could not have amounted to the R30 million the Eskom board wanted to pay him.
Brown could therefore not have “reinstated” him, but should have followed the prescribed procedure if she wanted to appoint him afresh. She did not follow such a process, which renders her decision unlawful, the party states.
It further argues that it was irrational to allow Molefe to return to the position, following the serious allegations made against him in the State of Capture report. Molefe did not clear his name as he said he would and even though he was not found guilty, the seriousness of the allegations should preclude him from being re-appointed, the DA argues.
His return could in fact lead to irreparable harm since he will be in a position that could interfere with any investigation into the matters and will be in charge of contracts involving huge sums of money while implicated in wrongful conduct relating to such contracts.
The DA points out that Brown earlier stated that she opposes the R30 million pension payout because it has no legal rationale. There is no rational reason for her to now find “a better value proposition” or alternative solution to the unlawful proposal.
There is therefore no obligation on her to either pay Molefe the R30 million or reinstate him. She should just have refused the payment and left it at that, the party argues.
The DA also asked the respondents to provide clarity on the payment already made to Molefe and how that could have been done without Brown’s approval. It further asked them to provide the record of the decision and the reasons for the decision to the court within 10 days.
A date has not yet been set for the hearing.