Eskom’s Brian ‘Papa’ Molefe saga: Another nail in Constitutional coffin

As allegations of shredded documents surface, it would seem that some are looking to cover their tracks. And while it’s important to get to the truth behind Eskom’s reinstated commander in chief Brian Molefe, it’s all really null and void according to the Centre for Constitutional Right’s Phephelaphi Dube. Whether he resigned, took early retirement, or went on unpaid leave shouldn’t matter, the moment he was sworn in as a member of Parliament, he gave up his right to lead the state-owned power producer. The ruling ANC has come out blazing against this move, but as we’ve come to realise, it’s not the strength of the wolf’s huff, but rather the outcome of it’s puff that matters. – Stuart Lowman

By Phephelaphi Dube*

Did he or did he not resign, or was it retirement – and was his brief stint in Parliament some form of unpaid leave? If Brian Molefe and Eskom could at the very least, decide on a story and stick with it, that would be very least of their problems. At the moment, however, the entire saga has breached several constitutional principles.

Constitutional Court of South Africa

First, in terms of section 47 of the Constitution, Members of Parliament, excluding Cabinet Members, their deputies, as well as the President, may not be appointed, or be in service and receive remuneration for that service. Brian Molefe’s claim that he was on unpaid leave as Eskom Chief Executive Officer (CEO) in the time he sat as a parliamentary backbencher violates this particular provision. This means that he was, according to his own version, the de facto Eskom CEO the same time as he was a member of the National Assembly. In any event, some newspapers carried an advertisement for the Eskom CEO position, issued by the Eskom Board. This suggests then, that his initial departure from Eskom was meant to be permanent and was anything but unpaid leave.

Second, section 195 of the Constitution establishes the basic values and principles meant to govern administration. In addition to the democratic values and principles enshrined in the Constitution, public administration is supposed to maintain a high standard of professional ethics, and must be both accountable and transparent. Public administration is supposed to be underpinned by good human resource management. Practically every incident in the Brian Molefe saga flies in the face of these provisions in the Constitution… Obfuscatory explanations, a R30 million pension/severance payout, and the unwillingness to allow public scrutiny into the inner workings of the public utility company.

Brian Molefe’s return to Eskom is being challenged – rightly so – before the courts on the basis that he is not competent to be CEO of Eskom, or of any other state-owned entity. The same challenge is also asking the courts to dissolve the Board of Eskom for having made an irrational decision and that Minister Lynne Brown’s endorsement of the Board’s decision be set aside.

Ultimately, this entire saga is the result of “state capture” – aptly described in the State of Capture Report compiled by the Public Protector’s Office. Further, the bizarre turn of events pointedly speaks to a divided governing party, with one side “captured” and thus unable to effect due oversight over organs of state. It remains to be seen how the National Assembly will discharge its constitutional obligation to maintain oversight and hold Eskom accountable.

  • Phephelaphi Dube: Director, Centre for Constitutional Rights. 
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