Eskom ducks, dives over Molefe

Brian Molefe
File picture: Alon Skuy

Like a game of twister as power body and the government try to explain his return

The government‚ Eskom and the parastatal’s board seem to be involved in a game of twister as they desperately try to explain Eskom chief executive Brian Molefe’s departure and subsequent return.

First he resigned‚ then he took early retirement and now it seems that‚ while employed as an ANC MP‚ he was actually on unpaid leave.

This could land him in hot water with the country’s labour laws and his contract with Eskom‚ especially as he took up employment as an MP.

And‚ if it is found he went Awol‚ he could be fired, labour law expert Mariaan Freichlig said.

Molefe was sworn in as an MP in February and rejoined Eskom earlier this month.

In a series of filed affidavits‚ Molefe‚ Public Enterprises Minister Lynn Brown and Eskom board chairman Ben Ngubane – in response to the DA’s high court bid to stop his return – are at pains to point out the unwitting errors and reasons for Molefe’s release from Eskom.

The Mail & Guardian has reported that according to affidavits filed by Molefe and Brown‚ in response to the DA’s high court application‚ Molefe was only considered to be on unpaid leave.

In his affidavit, Molefe said when he left Eskom‚ he had decided to “leave my employ at Eskom from 1 January 2017. I do so voluntarily”.

The affidavits have also revealed that Molefe did not resign as Eskom chief executive last year‚ but requested approval for early retirement.

However‚ Eskom was mistaken in its belief that it could permit early retirement before the age of 55.

Molefe left Eskom under a cloud last year after the release of the public protector’s report into state capture in November and his links to members of the Gupta family.

In separate affidavits, Ngubane and Molefe say the DA’s application is based on an incorrect premise that Molefe had resigned.

Molefe‚ in his affidavit‚ said the correct position was that his original contract of employment‚ which expired on September 30 2020 did not come to an end.

“This is because the agreement I reached with Eskom when I left on December 31 2016 was based on the mistaken understanding by both Eskom and me that I was eligible for early retirement.

“The purported retirement from my employment was therefore not effective‚ having been materially influenced by our common error.”

Ngubane echoed this explanation in his papers. “Molefe did not resign from his post as Eskom’s group chief executive.”

He said the agreement concluded between Eskom and Molefe relating to his retirement was concluded in good faith‚ but on terms which‚ insofar as it related to pension benefits‚ could not be implemented.

Ngubane said on realising its error‚ Eskom was left with the task of undoing what had been done.

“Consequently‚ Eskom passed a resolution to rescind its decision to approve Molefe’s request for retirement.”

In her affidavit‚ Brown said she believed Molefe had resigned in November. She was not aware Molefe had, in fact, applied for early retirement.

But‚ Freichlig said‚ this did not matter.

“Either you resign or retire. You cannot do both.

“Retirement and resignation are governed by different processes and rules.

“And‚ if‚ as is now emerging‚ you are on leave‚ regardless of whether it is special‚ unpaid or sanctioned or not‚ you cannot take up employment elsewhere.”

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