He resigned. He retired. No‚ he was on unpaid leave – the desperate attempt to explain Molefe’s reinstatement

AG, SHAME: Brian Molefe, before ‘quittin’ as Eskom CEO, sobbed as he spoke about his relationship with the Guptas following the release of a damning public protector’s report into state capture. Image by: ALON SKUY
Government‚ Eskom and the parastatal’s board seem to be involved in a game of twister as they desperately try to explain away Eskom’s CEO Brian Molefe’s departure and now 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 – an act that 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 that he went AWOL‚ Molefe‚ says Labour Law expert Mariaan Freichlig‚ could be fired.

Molefe was sworn in as an MP in February. He re-joined Eskom earlier this month.

In a series of affidavits filed‚ Molefe‚ Public Enterprises minister‚ Lynn Brown‚ and Eskom board chairman‚ Ben Ngubane – in response to the Democratic Alliance’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.

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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 from his position as Eskom CEO.

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 however also revealed that Molefe did not resign as Eskom CEO last year‚ but requested approval for early retirement.

However‚ Eskom was mistaken in its belief that it could permit for 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 that the DA’s application is based on an incorrect premise that Molefe had resigned and that his “return” required a decision by the board of Eskom and a decision by Brown.

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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 31 December 2016 was based on the mistaken understanding by both Eskom and me that I was eligible for taking early retirement.” He said this understanding was erroneous.

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

He added that he was not entitled to the pension benefits as he was not eligible for early retirement.

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 in 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. The consequence thereof was that the status quo had to be restored.”

In her affidavit‚ Brown said she honestly believed Molefe had resigned in November and issued a media statement at the time saying she respected his decision.

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She said she was not aware of the fact that Molefe had in fact applied for early retirement and that Eskom had in fact accepted that application.

But‚ said Freichlig‚ this does not matter.

“Either you resign or retire. You cannot do both. Retirement and resignation are governed by different processes and rules. And‚ if‚ as it is now emerging‚ you are on leave‚ regardless of whether it is special‚ unpaid or sanctioned or not‚ you cannot take up employment elsewhere.

“When you are employed by a company you have a contract which binds you to that company.”

“When you are employed by a company you have a contract which binds you to that company.”

She said anyone who did this would have to be sanctioned.

“If this is done by the head of a company or another senior official‚ the person would have to face severe sanctions‚ especially as this type of behaviour creates the impression for more junior staff that it is alright to do.”

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She said the reasons being offered by Eksom’s board‚ Public Enterprises Minister Lynn Brown and Molefe were very strange. “They simply don’t make any sense. If you resign a certain process follows. The same goes for retirement and leave. They cannot be mixed up. In my opinion someone is trying to take Molefe back and this is all a smokescreen to block the public from knowing the real reasons as to why they want him back.”

Freichlig said government served the public and those in government needed to know that first and foremost they were public servants who had to work in an honourable way.

Ernest Mabuza And Graeme Hosken – Tiso Black Star Group/TimesLIVE

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