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Democratic Alliance v Minister of Public Enterprise and Others; Economic Freedom Fighters v Eskom Holdings Limited and Others; Solidarity Trade Union v Molefe and Others (33051/2017; 34568/2017; 34042/2017) [2018] ZAGPPHC 1

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Democratic Alliance v Minister of Public Enterprise and Others; Economic Freedom Fighters v Eskom Holdings Limited and Others; Solidarity Trade Union v Molefe and Others (33051/2017; 34568/2017; 34042/2017) [2018] ZAGPPHC 1

26th January 2018

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[1] Before us are three separate but consolidated applications brought by the Democratic Alliance ("DA"), Solidarity Trade Union ("Solidarity") and the Economic Freedom Fighters ("EFF") . The applications have a common feature, namely to review and set aside the decision of the Minister of Public Enterprises to appoint and/or reinstate, the third respondent, Mr. Molefe to the position of Group Chief Executive at Eskom after he had departed from Eskom on a purported early retirement agreement.

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[2] On 2 November 2016, the Public Protector released a report entitled "the State of Capture" which was the culmination of the investigation by the Office of the Public Protector into alleged improper and unethical conduct by the President and other state functionaries. The report contains damaging allegations against Mr. Molefe of abusing his position at Eskorn to benefit the Gupta family in the improper and possibly corrupt awarding of state contracts and benefits to the Gupta family's businesses.

[3] On 11 November 2016, stung by the contents of the Report and its possible implications to Eskom, Mr. Molefe, announced in a televised press conference that he was leaving his employ at Eskom from 1 January 2017. He stated that he was doing so voluntarily as that would be in the interests of good governance at Eskom to do so. He expressed his confidence in being able to demonstrate, at an appropriate time, that he had done nothing wrong.

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[4] It transpired later that on the same day, Mr. Molefe submitted a request for early retirement. The request was granted in the letter dated 24 November 2016, and under it, an early retirement agreement was concluded with Eskom effective on 1 December 2016. The agreement permitted Mr. Molefe to proceed on retirement from age 50, with Eskorn making up the shortfall regarding the ten-year service requirement in terms of the rules of the Pension Fund.

[5] The Minister was never informed that Mr. Molefe had applied for early retirement and that such an agreement had been concluded.

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