On Thursday, Pretoria High Court judges Elias Matojane, Hans Fabricius and Segopotje Mphahlele handed down a scathing ruling ordering Molefe to pay back more than R10.3million of the R30.1m that the Eskom Provident and Pension Fund paid him within 10 days.
The full bench found that the utility’s decision to waive penalties and buy Molefe an extra 13 years of service, totalling R30.1m, after only 15 months of service at the age of 50, stretched incredulity and was unlawful for want of compliance with its provident and pension fund’s rules.
“We also find that Molefe was never entitled to receive any pension benefits from the Eskom Provident and Pension Fund and any payments made in lieu of such benefits were patently unlawful,” the judges found.
ANC spokesperson Zizi Kodwa told Independent Media that the Eskom board, led by Ngubane, which reinstated Molefe, must be held accountable for its unlawful and irrational decision and for ignoring the governing party’s warning against rehiring the former Transnet and Public Investment Corporation boss.
The judgment was delivered on the same day that President Jacob Zuma finally released the terms of reference of the much-anticipated judicial commission of inquiry into state capture.
Despite his initial intention to widen the scope of the inquiry beyond the remedial action of former public protector Thuli Madonsela, Zuma mainly confined the terms of reference to her report’s recommendations and remedial action.
The commission, which will be chaired by Deputy Chief Justice Raymond Zondo, is tasked with investigating allegations of corrupt activities by the controversial Gupta family in collusion with key political office bearers and public officials - including Zuma.
When Eskom announced Molefe’s reinstatement in May, the ANC slammed the move as unfortunate and reckless, describing it as “tone deaf to the public’s absolute exasperation and anger at what seems to be the government’s lacklustre and lackadaisical approach to dealing decisively with corruption - perceived or real”.
On Thursday, Kodwa said Molefe had been reinstated to facilitate looting and corruption.
“The board is an accomplice and failed in its fiduciary duties,” he said, accusing the Ngubane-led board of running Eskom like a spaza shop.
According to Kodwa, Public Enterprises Minister Lynne Brown had been reckless to allow Molefe to be reinstated following a short stint as an ANC MP.
Trade union Solidarity, which took the matter to court with the DA and the EFF, wants Molefe to be prosecuted for fraud, which is currently being investigated by the Hawks.
The judges were stinging on Eskom, Molefe and Brown.
“In our view, Molefe terminated his employment relationship with Eskom either by retirement or resignation.
“The contention that Molefe’s original contract of employment did not come to an end is contrived and manifestly false,” they said.
The correct approach, they said, would have been to refuse the pension payout proposal out of hand, as there was no obligation on Brown to incur the burden of an unlawful obligation on behalf of Eskom.
“What is most disturbing is the total lack of dignity and shame by people in leadership positions who abuse public funds with naked greed for their own benefit without a moment’s consideration of the circumstances of fellow citizens who live in absolute squalor throughout the country with no basic services,” the judges said.
They also found that Eskom should not have reinstated Molefe without investigating the findings of Madonsela’s State of Capture report.
Molefe had dismissed her report as containing observations and not binding findings.
“The allegations are highly relevant to Molefe’s suitability to be reinstated.
“They are a dead weight that he must carry until he is cleared,” the judges said.
They said the allegations in the public protector’s report could not just be ignored by Brown or Eskom and that both had acted irrationally in ignoring them.
The state capture commission has been given about six months to finish its investigations, as recommended by Madonsela, and all organs of state will be required to co-operate.
Molefe did not respond to questions sent to him but his lawyer, Barry Farber, said the judgment had hit them like a ton of bricks.
Ngubane also did not respond to requests for comment.
This week Mr Justice Zondo indicated that he might not be able to finish the inquiry within the stipulated time as he did not want to compromise the quality of its work, given the seriousness of the claims. He indicated that he was waiting for a regulatory framework to enable him to employ experts, subpoena witnesses and have search and seizure powers. Mr Justice Zondo will be consulted before the regulations for the commission are released.