Paying back millions 'not enough' as Molefe and others face criminal charges

Brian Molefe. (City Press)
Brian Molefe. (City Press)

Johannesburg - Trade Union Solidarity will lay criminal charges against former Eskom boss Brian Molefe on Tuesday over his controversial golden handshake.

But the trade union said the charges handed over to the National Prosecuting Authority, the Hawks and the South African Police Service will also include other Eskom officials who were complicit in Molefe’s pension scandal. Solidarity will reveal the people implicated on Tuesday, when laying the charges.

Solidarity said the move comes in the wake of, among other things, a "condemnatory finding" by a full bench of the North Gauteng High Court in January. The court ruled that Molefe had 10 days to pay back about R11m he has received from the power utility, as part of a R30m payout.

Solidarity said the ruling justifies a criminal prosecution.

“Molefe and certain Eskom leaders have made deliberate unlawful misrepresentations as a result of which Molefe has been enriched to the detriment of Eskom and hence also the taxpayer,” said Solidarity chief executive Dirk Hermann.

The full bench of judges - which included Judge Elias Matojane, Judge Hans Fabricius and Judge Segopotje Mphahlele - found Molefe’s declaration that he had not resigned was false, and that he was never entitled to the pension money. Molefe's lawyer Brian Farber described the ruling as "coming down like a ton of bricks".

The former Eskom CEO was also ordered to pay costs.

MORE ON MOLEFE RULING: 

The ruling comes after Solidarity approached the high court to declare Molefe's controversial pension award unlawful. Molefe resigned after the Public Protector's damning state capture report implicated him in irregularities, but later backtracked saying that he had taken early retirement and was entitled to the money.

He briefly returned as CEO of Eskom on May 15 after the scandal around his pension emerged, but was removed again two weeks later when Public Enterprises Minister Lynne Brown ordered the board to reverse his reinstatement. Molefe challenged this decision when he filed Labour Court papers against the board and Brown.

Political parties and Solidarity then filed a consolidated court application to challenge Eskom’s decision to reappoint Molefe as CEO, as well as the approval of his R30m pension payout. All suits were consolidated into the high court case, which Molefe subsequently lost. 

Molefe has submitted a request to appeal at the Supreme Court of Appeal, which is likely to be heard this week. He argued in his application that the applicants - the Democratic Alliance and trade union Solidarity - did not satisfy the test for final relief, and that the high court erred in its order as a result.

Solidarity is now asking that criminal charges be laid against Molefe and others on the grounds of inter alia fraud and offences in terms of various legal acts.

The court found that the unlawful pension scheme was a deliberate scheme devised by Eskom and Molefe and ordered that all monies granted to Molefe be paid back, said Hermann. He had told Fin24 after the judgment that the union wanted to see Molefe criminally prosecuted. 

Hermann said the Public Prosecutor had indicated during the course of the lawsuit that the Hawks would initiate a criminal investigation into possible criminal activities involving Molefe. The charges Solidarity are bringing will therefore assist the Hawks in their probe, Hermann added.

“Paying back the money is the right thing to do but it’s not enough,” Hermann said. “Paying back the money does not undo criminal charges. The fact that Molefe has applied for leave to appeal has no bearing on the criminal case either.”

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