The DA yesterday filed urgent court papers in the North Gauteng High Court to block Molefe from performing any functions as Eskom CEO and to ask the court to set aside the re-appointment.
On the same day, Molefe received a thunderous welcome from Eskom workers on his first day back at work.
In a video widely circulated on social networks, Molefe is seen dancing with a large group of Eskom staff members who gave him a hero’s welcome at Megawatt Park.
Molefe returned to work despite earlier threats by Cope members who had vowed to physically block him from entering the Eskom headquarters.
Cope spokesman Dennis Bloem said Molefe had sneaked into the premises escorted by VIP protection.
“We were also informed that he arrived at the office around 5am to avoid our blockade. Brian Molefe must not think that this is the end of our protest.
“It is just the beginning,” he said.
Bloem blamed the poor turnout by protesters on intimidation, saying some party members were stopped by police on their way to Megawatt Park.
There has been mounting opposition to Molefe’s appointment with even the ANC condemning the decision as reckless. The party summoned Public Enterprises Minister Lynne Brown to its headquarters yesterday where she was said to have faced tough questions.
A government official privy to details said Brown did attend the ANC meeting, which included President Jacob Zuma, among other party officials.
Brown’s spokesman, Colin Cruywagen, however, refused to comment.
“That is a matter for Luthuli House, I cannot comment on that.”
He confirmed that the minister, who is cited as the first respondent in the DA court application, had been served with the court papers but would not say whether she will challenge the application.
Eskom board spokesman Khulani Qoma said: “We have received the papers from the DA and we are going to defend our position in court.”
He said the court would be the best place where everyone would be able to deal with the matter.
In its two-part application, the DA said it wanted the decision to re-appoint Molefe overturned, arguing that it is both unlawful and irrational.
“The minister is not empowered to do so (appoint Molefe to the position of Group CEO) by the relevant legal framework. The appointment of Mr Molefe is irrational because it is not rationally connected to the purpose for which it was taken,” argued DA federal executive chairman James Selfe in the founding affidavit.
While Brown had argued that the re-instatement of Molefe was a better option than paying him the R30 million pension payout he had been promised by Eskom, Selfe said it was inconceivable that Molefe’s accumulated contributions could lawfully amount to R30 million over the two-and -a-half years he was employed at Eskom.
“If she had acted lawfully and rationally, we submit that the minister ought instead to have rejected both options, for they were both unjustifiable and unlawful options,” said Selfe in the papers.
“Therefore, the decision to re-instate Mr Molefe is unlawful and calls to be reviewed and set aside,” he said.
Selfe said when Molefe left Eskom last November, he cited “good corporate governance” as one the reasons he left. He also left in the public interest, said Selfe, who argued that Molefe’s re-instatement is, therefore, not in the public interest as he has not been cleared.
Molefe quit the power utility after he was implicated in the Public Protector’s State of Capture report. The report made observations of Molefe’s relationship with the Gupta family.
“It is, therefore, common cause that Eskom and the public would suffer harm if Molefe were to remain in (or resume) that position,” said Selfe.
He added that if Molefe returned to Eskom the DA would not be able to get redress at a hearing in due course.
Corruption Watch and the Organisation Undoing Tax Abuse (Outa) said they were still deciding whether to join the court action.
Umkhonto weSizwe Military Veterans Association chairperson, Kebby Maphatsoe, hit out at ANC leaders who had “condemned” Molefe’s return to Eskom.
“They must rally behind a child of the African soil. We find it very difficult to accept it when our ANC leaders come out in the open and condemn Brian Molefe’s redeployment to Eskom. We wish him well in his re-appointment.”