Brian Molefe. Picture: SUPPLIED
Brian Molefe. Picture: SUPPLIED

Former Eskom CEO Brian Molefe has approached the Supreme Court of Appeal (SCA) in Bloemfontein in a bid to overturn a ruling that ordered him to repay R11m he received from the power utility.

In April, the High Court in Pretoria dismissed Molefe’s application for leave to appeal against the January ruling that he pay back part of his "unlawful" pension payout and the costs for counsel in the legal battle. The court found he was unlawfully awarded a R30m early retirement pension benefit by the Eskom Pension and Provident Fund after his resignation from Eskom in 2016.

It also dismissed his application to be reinstated as CEO of Eskom, which claimed he had never resigned from the company as the agreement that necessitated his departure from Eskom was dependent on his eligibility for early retirement.

Molefe’s fight-back plan includes a challenge to the constitution of the High Court in Pretoria that heard his application for leave to appeal.

In his notice of application to the SCA, he said the order should be set aside because the court that heard and dismissed his application for leave to appeal was not properly constituted. "The same reasons that necessitated the consolidated application to be heard by a full court should equally apply to the application for leave to appeal," the document read.

His application was heard by Judge Elias Matojane, who said based on submissions made, he was of the view that "there is no prospect that another court would come to a different conclusion", while the January court hearing was heard by a full bench of the court.

Molefe also maintained an argument made to the court in the past that although he said he had decided to "leave" his employ with Eskom in November 2016, this said nothing about his resignation. He said the full court’s finding that his statement served as evidence of his resignation was "factually and legally unsound".

Trade union Solidarity, which is one of the five respondents in the matter, said it had instructed its legal team to oppose the petition. Chief operating officer Dirk Hermann said Molefe was abusing the judiciary in a bid to avoid repaying the money he received fraudulently. "A culture whereby high-ranking persons are using the courts to escape accountability is developing in SA.

"We will definitely oppose the petition and ask for a further cost order against him."