Maroga must foot legal bill after losing appeal

2011-11-26 07:10

Former Eskom chief executive Jacob Maroga will have to pay hundreds of thousands of rands to some of the country’s leading lawyers after a full bench appeal against his unceremonious departure from the power utility was dismissed with costs.

Unless Maroga (53) applies for leave to appeal to the Supreme Court of Appeal (SCA), he will have to pay top advocates Tim Bruinders, Paul Pretorius, Palesa Khoza, Feroze Boda, Benny Makola and Kameshni Pillay, who represented Eskom and former public enterprises minister Barbara Hogan.

Last Wednesday a full bench – comprising judges Pieter Meyer, Mlindelwa Makhanya and Phillip Coppin – at the South Gauteng High Court dismissed with costs Maroga’s appeal to have a last year’s December judgment and order set aside.

Last year, Judge Thokozile Masipa also dismissed with costs Maroga’s application to force Eskom to reinstate him as chief executive earning R5 million-a-year, or pay him R86 million in damages. Maroga claimed Eskom had unlawfully repudiated his contract.

A senior counsel can charge up to R38 000 a day while a junior counsel charges about R8 000 a day. Maroga will pay a bill of costs based on rates prescribed by the court, but coming up with a final figure may take up to a month.

He will pay for all the reasonable costs incurred by Eskom, Makwana and Hogan in opposing the matter. These include drafting letters, perusing documents, preparing an attending court, making copies and consulting people involved.

During his appeal, Maroga’s advocates Vincent Maleka and Vuyani Ngalwana do not want the court to award costs against their client, saying the costs order was ambiguous.

They argued that the state had failed to fulfil its constitutional and statutory obligations and should bear Maroga’s legal costs.

But judges Meyer, Makhanya and Coppin said Maroga’s contract had been terminated by mutual consent with the board.

“The state has not been shown to have failed to fulfil its constitutional and statutory obligations,” the judges found.

In Maroga’s initial urgent court application to stop Eskom from filling the chief executive position, the power utility and Hogan
were represented by leading advocates Wim Trengrove and Karel Tip.

Maroga’s application was also dismissed with costs by Judge Moroa Tsoka, who also found that the contract termination was unlawful.

At the time Maroga did not seek the determination of the legality of his contract termination in the matter before Tsoka.

He later launched another court application against Eskom, its former chairperson Mpho Makwana and Hogan after his ousting in October 2009.

Maroga was booted out after offering his resignation, which the Eskom board accepted, and followed by a fallout with then chairperson Bobby Godsell, who later walked away.

Makwana was appointed acting chairperson and chief executive.

Maroga won support from a number of top businessmen including Sandile Zungu, Sello Rasethaba and the Black Management Forum.

President Jacob Zuma’s office and Yunus Shaik were unsuccessful in their mediation attempts.

Maroga’s contract was due to end in April next year.

In court papers, Eskom claimed Maroga’s contract was terminated due to poor performance after he failed to produce a funding model to save the 88-year-old parastatal money and negotiate its long-term contracts.

But Maroga defended himself, saying his actions since his appointment in 2007 had saved Eskom R10 billion.

Maroga’s lawyer Leslie Mkhabela, public enterprises spokesperson Mayihlome Tshwete and Eskom did not respond to questions this week.

Makwana said he was unable to comment because he is a former Eskom chairperson.

But a legal source close to the case told City Press that as far as Eskom and Public Enterprises were concerned, the matter was over.

“He can go to the SCA or the Constitutional Court if he feels the matter has constitutional issues,” said the source.

At the time of his dismissal, Maroga, a Wits University electrical engineering graduate, had been at Eskom for 14 years as a senior manager and more than two years into his tenure as chief executive.

He described his tenure as one of the most difficult times in Eskom’s history.

Maroga managed the 2005 power crisis in the Western Cape and the 2007 national power disruptions, which became known as “load shedding”.

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