Johannesburg – Brian Molefe resigned as Eskom Group chief executive in November 2016, but he didn’t use that exact word, a court heard.
The Democratic Alliance (DA) and trade union Solidarity are challenging Eskom’s decisions to reappoint Molefe as CEO, as well as the approval of his R30m pension pay-out. The matter was heard before a full bench of judges, including Judge Hans Fabricius, Judge Elias Matojane and Judge Segopotje Mphahlele on Wednesday.
Molefe was implicated in former public protector Thuli Madonsela’s State Capture report released in 2016. He subsequently stepped down in the “interests of good governance”.
Molefe’s counsel Arnold Subel SC spoke on the circumstances surrounding Molefe’s decision, and the use of the word “resign” which he attributed to Public Enterprises Minister Lynne Brown. “It is her [Brown’s] word, not Mr Molefe’s word,” said Subel.
He went on to define “resigned” as an intransitive verb which means to “give up office or position”.
“What it meant, had he [Molefe] used the word, which he didn’t, is that he was giving up his office at Eskom. It means no more than that… To elevate that into a case we submit is entirely unwarranted.”
Subel went on to say that Molefe did in fact resign, in “a broad sense”. The basis on which Molefe resigned is expressed in documents between him and Eskom. “What he had in mind was early retirement, but it had not been made in agreement yet.”
The DA’s counsel, Paul Kennedy SC had previously argued that Molefe announced his resignation on November 11, 2016 but no mention was made of early retirement. “What we do submit on 11 November 2016 there was an announcement by Mr Molefe himself, Eskom and by the Minister of Public Enterprises [Lynne Brown]. They all announced the departure of Molefe, not a word was made of him taking early retirement,” he said.
“He announced to the nation, to the board of Eskom and the minister he was stepping down and no mention of early retirement.”
Molefe’s application for early retirement was submitted to Eskom on that very day and 10 days after the announcement of Molefe’s resignation, the early retirement agreement was approved, Kennedy said.
Judge Fabricius queried how Molefe, a professional in the business world who had occupied senior positions, had misunderstood how the word was used.
But Subel reiterated that in terms of Molefe’s version, the issue was resolved and he would get early retirement. “He resigned on the basis of early retirement,” said Subel. “Of course he resigned if one wants to use that word, but it does not answer on what basis.” Subel said it was up to the court to determine the basis which is reflected in documents between Molefe and Eskom.
But in his reply Kennedy said that the court should not have to decide if Molefe resigned according to his own mind, but must make the determination according to objective facts.
Speaking on the use of the word “resign”, Kennedy said: “He [Molefe] had to correct the minister if she was using the wrong terminology.”
“If it looks like duck, quacks like duck, it’s probably a duck,” Kennedy said of the resignation. “We submit that it was a resignation and terminated the employment relationship.” With regard to the error that followed regarding Molefe’s eligibility for early retirement, Kennedy said that such an agreement became immaterial after he resigned.
Brown’s legal counsel Garth Sulley SC also argued that the court should decide on external manifestations such as the statement Molefe issued, and not the views Molefe privately held to apply for early retirement.
“Whether [he] used the word resignation or not is neither here nor there. The point is that his conduct is entirely consistent with a resignation,” said Sulley. Whether Molefe’s application for early retirement was considered favourably or unfavourably, he would still have had to leave because he said: “I go now.
“In no scenario is he going to stay behind,” he said.
“[Regardless] of the vehicle he chooses to assist in his departure, if the vehicle fails he still has to leave. We submit it is clearly a resignation,” concluded Sulley.
Eskom flouted processes
Kennedy went on to explain that Eskom flouted processes when they reinstated Molefe as CEO. Given that he had resigned, he was no longer an employee and could not be reinstated. “You do not reinstate someone who is still employed. You reinstate someone who has left employment.”
Eskom also did not advertise the position before the reinstatement. “You can’t employ someone because they were employed previously,” he said.
The applicants want the court to determine that Molefe actually resigned. If the court does rule in favour of the applicants, then Molefe’s Labour Court case for unfair dismissal falls away.
Judgement has been reserved.
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