Former Eskom CEO Brian Molefe wants to appeal against a damning court ruling that he must pay back the lump sum of over R10.3 million of a R30.1 million pension he received within ten days.
Molefe yesterday filed an application for leave to appeal with the High Court in Pretoria against the 25 January ruling by a full bench, giving him ten days to pay back the money and ruling that Public Enterprises Minister Lynne Brown’s decision to reinstate him in May last year had been irrational and unlawful.
The court found that as an employee with a five year fixed term contract, Molefe had not been entitled to receive any pension benefit, that any payments made to him were patently unlawful and that he had voluntarily resigned at the end of 2016.
The judges found Eskom’s decision to waive penalties and buy Molefe an extra 13 years of service totaling R30.1 million after only 15 months service at the age of 50 “stretches incredulity”, was unlawful and did not comply with the rules of Eskom’s pension fund.
They found that Brown and Eskom had acted irrationally be ignoring damning allegations in the public protector’s state capture report that Molefe had abused his position to benefit the Gupta family in the improper and possibly corrupt awarding of state contracts.
Molefe maintained the court had erred in finding that he had resigned and that that his departure was unrelated to the early retirement agreement he concluded with Eskom.
He said the court should have found that he was not entitled to early retirement on the basis of the agreement with Eskom due to a “common error”, that his employment had therefore not been terminated and that the legal consequence of this was that he should be restored in his position.
He submitted that the court’s finding that he was not entitled to membership of the pension fund was wrong because his original contract included a term that he would be a member and his subsequent five-year contract that this would continue.
He said the court had also failed to take into account the R4 million that was transferred to the Eskom pension fund by the Transnet provident fund, his contributions and the interest on it to which he was entitled when ruling on the amount he must pay back.
Trade union Solidarity’s chief executive Dirk Herman said they would definitely oppose Molefe’s application, which they regarded as a delaying tactic to avoid having to repay the money.
“He ought to be ashamed, asked the country for forgiveness and repay the money unlawfully paid to him. However, he is doing the exact opposite by trying to defend what the court has already found to be indefensible,” he said.
Solitary said it would continue with a submitted to the Hawks to assist them with the criminal investigation against Molefe.