Solidarity, Gerrie Nel kick off bid to privately prosecute ex-Eskom CEO Brian Molefe

Trade union Solidarity and lobby group AfriForum have asked Advocate Gerrie Nel to kick off a bid to privately prosecute former Eskom CEO Brian Molefe.

Nel heads up the private prosecutions unit of AfriForum.

This comes after the Constitutional Court earlier this month dismissed Molefe's leave to appeal against the Pretoria High Court decision that ruled he must pay back around R10m in pension benefits from Eskom.

While the Pretoria High Court made its ruling in 2018, amid numerous appeals Molefe has not yet had to make a payment.

Solidarity Chief Operations Officer Dirk Hermann said at a press briefing on Tuesday that the union had also obtained a warrant to attach goods belonging to Molefe for the settlement of his debt to Solidarity following a cost order against him. Hermann said the former Eskom head owes Solidarity approximately R708 000.

He added the union on Tuesday asked a sheriff of the court to proceed with this process at Molefe's home in Pretoria.

Addressing media in Centurion, Hermann cited the ruling by high court judges, which slammed a "lack of dignity and shame by people in leadership positions who abuse public funds […] for their own benefit".

"Based on this ruling, Solidarity has laid charges against Molefe with the South African Police Service and the NPA’s special investigating unit, the Hawks. Solidarity also has enquired about progress being made with the case, but received no response," Solidarity said in a statement.

Molefe has consistently denied allegations of corruption. He has also argued that he did not have a fair hearing in court.

Private prosecution 

Explaining why the union was opting to attempt private prosecution, Hermann said the lack of response from authorities suggested there was no prosecution despite "overwhelming evidence" and "unambiguous findings" by the courts.

Under South African law, a victim of a crime can undertake a private prosecution process if they have a personal interest in the matter, and if the state has opted not to prosecute despite having the opportunity to do so.

Nel said that this was the ideal opportunity for the union to tackle corruption through private prosecution, as several thousand of its members had a vested interest in the matter.

However, private prosecution may only be pursued once the prosecuting authority has declared that it is not intending to prosecute by issuing a so-called nolle prosequi certificate.

Speaking to Fin24 by phone on Tuesday afternoon, Solidarity Labour Law head Anton van der Bijl said the union had not yet received the certificate. However, he added, if it had not been issued by August 20, Solidarity would take the matter to court, in a bid to either force the state to prosecute or to allow the union to pursue private prosecution.

Solidarity also said it had previously addressed a letter to the Eskom Pension and Provident Fund asking for action to be taken regarding the repayment of the R10m by Molefe. The fund indicated that they would wait until after the Constitutional Court judgment before beginning the recovery process, according to Solidarity.

The union said it had on Tuesday written to the fund insisting that the recovery process begins immediately.

"In addition, Solidarity has started preparing for legal action to put further pressure on Eskom and the pension fund not only to recover the money but also to take further appropriate action against Molefe," Hermann said.

'Fantastical claims'

Molefe told Fin24 that Solidarity was making "fantastical claims" and that the Pretoria High Court had "made an error".

He also asked what crime he was guilty of. "How do they hope to succeed for whatever the crime is?" he asked. "If it was arson, if it was murder, they must say: here is the body of Mr X."

He said he was not yet aware of any warrant to attach his personal property, but if that changed, he would take legal action. 

He denied being allocated a R30m pension or receiving a R10m payout. "What I was paid was about R7.5m, and of that R7.5m, I paid about R4.2m into the pension fund when I joined," he said. "The court said I was not entitled to be a member of the pension fund, but during my period at Eskom, they were taking my pension fund contributions. Then those contributions were payable to me.

"I don't know how the court, the media and Solidarity arrived at the figure of R10m," he said. "That judgment was wrong from the beginning."

Fin24 approached the NPA for comment and had not received a response by deadline. Eskom referred queries to the EPPF, who confirmed that they received correspondence from Solidarity and had sent a letter of demand to Molefe via his attorneys. The demand requires payment, failing which the fund will be "forced to seek compliance with its fiduciary duty", the EPPF said. 

It has already initiated processes to recover the costs as contemplated in the order, it added. 

Brigadier Hangwani Mulaudzi for the Hawks said there was an ongoing investigation and any interested party opting for private prosecution must follow process. 

This article was updated on 14 August to reflect commentary from the EPPF and the Hawks.