EPPF confirms R30m refund in Brian Molefe’s pension order

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FIFI PETERS: Let’s move on to the latest events from Eskom’s pension and provident fund. They said former Eskom boss Brian Molefe is still not repaying money owed to the pension and provident fund. It concerns this large payment that Mr. Molefe received when he left Eskom in 2016, which the courts ruled illegal. That’s why he has to pay it back somehow.

But we have Lorato Aphiri, the legal adviser of Eskom Pension and Provident [Fund] to learn more about the story.

Lorato, thank you very much for your time. I guess you would have liked to fix this problem, but it is clearly taking much longer than you would have liked. But what can you tell us about the current situation and where things stand between you and Mr. Molefe?

LORATO APHIR: Good evening, Fifi, and good evening to your listeners. With regard to the current situation, we received the judgment of July 4, which ordered Mr. Molefe to reimburse the 10 million rand to the fund. And as it stands, Mr Molefe has yet to repay that money and, in effect, is appealing the High Court’s decision.

FIFI PETERS: And you yourselves, as funds, have repaid what the court also ordered you to repay to Eskom, this 30 million rand and some change.

LORATO APHIR: That’s right, Fifi. Part of the court order also said the fund was responsible for repaying the 30 million rand paid into the fund under Mr Molefe’s early retirement agreement, and that this money was returned to Eskom.

FIFI PETERS: How sure are you, as a contingency fund, that you will eventually get Mr. Molefe’s money back?

LORATO APHIR: Well, as confident as a litigant can be. What the court also ruled under this July 4 judgment is that the fund could in fact deduct part of what is owed to it from the amount the fund already holds under the [inaudible] from his old pension fund. So we have a sort of guarantee in the sense that there are sums that we still have, which we will then use to offset part of this 10 million rands that he owes to the fund.

FIFI PETERS: And are you talking to him right now, or his legal team, trying to see if this case can be resolved more quickly?

LORATO APHIR: Well, he is appealing the case, which means the case has to go through the normal court process and will then be resolved by the courts.

FIFI PETERS: And so in the meantime how much material is what he owes you at the checkout? I’m guessing it’s not that hardware, but just wanted to check.

LORATO APHIR: Well, if you’re asking if the fund is fully funded, the fund is in a healthy position, it’s fully funded. However, you will recall that the courts said we had to unwind that position, and so that’s the process we’re going through – to unwind the position.

FIFI PETERS: And can you do it completely without Mr. Molefe coming to the party?

LORATO APHIR: He must return part of the amount.

As I said earlier, we are allowed to offset part of this 10 million rand with what we hold. However, Mr. Molefe must repay the balance of this amount.

As long as he doesn’t come to the party, we have legal avenues we can use to make sure we get that money back.

FIFI PETERS: From him – like with the garnishments or something like that?

LORATO APHIR: Not garnishment orders, but we could certainly seize his assets to collect what’s owed to the fund.

FIFI PETERS: And at what point do you decide that’s the way to go because, as you’ve rightly said now, Mr. Molefe is appealing the court’s decision that he has to return the money. I’m no expert on legal process, but I know you can appeal and appeal until the kingdom comes. These cases can go on forever [period] of time. So at what point in the appeals process do you decide to use whatever other means you have to complete and set up that process, and put it to bed?

LORATO APHIR: Fifi, as you said, Mr. Molefe has the right to appeal. However, this case is currently sitting in the High Court. So in the current appeal process, what he’s doing is he’s trying to leave call. He asks the court to grant him leave to appeal. The court will consider the merits on which he seeks this request and decide whether or not to grant him the right to further disaggregate these issues.

If the court comes back and says his claim is unfounded, that will be the end of the case. However, he could still appeal to the Supreme Court of Appeal and possibly the Constitutional Court. However, this is where the responsibility will end. If the Constitutional Court rejects his request, then that is when we can then [inaudible] Mr Molef.

FIFI PETERS: OK. Something tells me the story is far from over. But Lorato, we’ll leave it at that for now. Thank you very much for taking the time to explain to us the court procedures and legal procedures – which I find complex – in a more simplified way.

Lorato Aphiri is the legal adviser to the Eskom Pension and Provident Fund.

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