FIFI PETERS: Let’s shift on to the latest happenings coming out of the Eskom Pension and Provide Fund. They’ve said that the former Eskom boss, Brian Molefe, is still not paying back the money that is owed to the pension and provident fund. This relates to that big payout that Mr Molefe received when he left Eskom back in 2016, which the courts have found to be unlawful. That’s why he kind of has to pay it back.
But we’ve got Lorato Aphiri, the legal advisor for the Eskom Pension and Provident [Fund] for more on the story.
Lorato, thanks so much for your time. I guess that you guys would have wanted to put this issue to bed, but it’s clearly taking a lot longer than you would’ve liked. But what can you tell us about the situation right now, and where things stand between yourselves and Mr Molefe?
LORATO APHIRI: Good evening, Fifi, and good evening to your listeners. In terms of where things stand at the moment, we received the judgment on July 4, which directed Mr Molefe to make a payment of the R10 million back to the fund. And as we stand Mr Molefe has not yet repaid that money and, in fact, is appealing the decision of the high court.
FIFI PETERS: And yourselves as the fund, you have repaid what the court also instructed you to repay to Eskom, that R30 million and some change.
LORATO APHIRI: That’s correct, Fifi. Part of the court order was also that the fund was directed to repay the R30 million that was paid into the fund as part of Mr Molefe’s early retirement arrangement, and that money has been returned to Eskom.
FIFI PETERS: How confident are you as the provident fund that you’ll eventually get the monies back from Mr Molefe?
LORATO APHIRI: Well, as confident as a litigant can be. What the court also ruled in terms of that fourth of July judgment was that the fund could in fact deduct a portion of what is owed to it from the amount that the fund already holds in respect of Mr Molefe’s [inaudible] from his former retirement fund. So we have a guarantee of sorts in the sense that there are monies that we still hold, which we will then use to set off a portion of that R10 million 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 thing can be sorted out more quickly?
LORATO APHIRI: Well, he’s appealing the matter, which then means that the matter must go through the normal court process and will then be resolved through the courts.
FIFI PETERS: And so in the meantime how material is what he owes you to the fund? I imagine that it’s not that material, but I just wanted to check.
LORATO APHIRI: Well, if you’re asking whether the fund is fully funded, the fund is in a healthy position, it is fully funded. However, you will recall that the courts indicated that we need to unwind that position, and therefore that is the process that we are undertaking – to unwind the position.
FIFI PETERS: And can you do that completely without Mr Molefe coming to the party?
LORATO APHIRI: He has to return a portion of the amount.
As I stated earlier, we are allowed to set off a portion of that R10 million with what we hold. However, Mr Molefe must repay the balance of that amount.
To the extent that he doesn’t come to the party, we do have legal avenues that we can use to ensure that we recover that money.
FIFI PETERS: From him – like with garnishee orders or something like that?
LORATO APHIRI: Not garnishee orders, but certainly we could attach his properties in order to recover what is owed to the fund.
FIFI PETERS: And at what point do you make the decision that that’s the route to go because, as you rightly said now, Mr Molefe is appealing the court’s decision that he has to pay back the money. I’m not an expert with court processes, but I know that you can appeal and appeal until kingdom come. These cases can drag on for quite a [period] of time. So at what point in the appeal process do you decide to use the other avenues that you have for you to ultimately complete and set this process, and put it to bed?
LORATO APHIRI: Fifi, as you said, Mr Molefe does have the right to appeal the matter. However, this matter is sitting currently at the high court. So in the current appeal process, what he is doing is he’s seeking leave to appeal. He’s asking the court to grant him permission to appeal. The court will consider the merits upon which he is seeking that application and decide whether or not to grant him the right to further ventilate these matters.
If the court comes back and says there is no merit to his application, that will be the end of the matter. However, he could still petition the Supreme Court of Appeal and eventually the Constitutional Court. However, that is where the buck will stop. If the Constitutional Court comes and dismisses his application, then it is at that point that we can then [inaudible] Mr Molefe.
FIFI PETERS: All right. Something tells me the story is far from over. But Lorato, we will leave it there for now. Thanks much for taking the time to explain the – what I find complex – court processes and legal processes to us in a more simplified manner.
Lorato Aphiri is the legal advisor of the Eskom Pension and Provident Fund.