IN THE LABOUR COURT OF SOUTH AFRICA (HELD IN JOHANNESBURG) ‘CASE NO: In the matter between: BRIAN MOLEFE Applicant and ESKOM HOLDINGS SOC LIMITED First Respondent MINISTER OF PUBLIC ENTERPRISES ‘Second Respondent NOTICE OF MOTION KINDLY TAKE NOTICE THAT Brian Molefe (‘the applicant’) intends to make application to the above Honourable Court on Monday 5 June 2017 at 14n00 or 80 soon thereafter as counsel for the applicant may be heard for an order in the following terms: 1. The applicant's non-compliance with the rules of the above Honourable Court in regard to service and time limits is condoned and this application Is permitted to be heard as one of urgency in terms of the Rule 8 of the Labour Court Rules. 2. ‘The first respondent's dismissal of the applicant is hereby declared unlawful and void ab initio.3. The first respondent is ordered to pay the costs of the application. 4. The second respondent is ordered to pay the costs together with the first respondent jointly and severally, the one paying the other to be absolved, in the event of her electing to oppose the relief sought. 5. Such further and/or alternative relief as may be just in the circumstances, AND that the accompanying affidavit of BRIAN MOLEFE together with the annexures thereto will be used in support of the relief sought above. TAKE NOTICE FURTHER THAT the applicant has appointed Edelstein Farber Grobler Incorporated at the address set out below at which he will accept service of all documents in these proceedings and be further advised that for purposes of this application, the applicant's attorneys will accept service by email correspondence addressed to janita@efalaw.co.za. TAKE FURTHER NOTICE THAT if you intend opposing this application you are required to a) notify the applicant's attomeys in writing on or before 40h00 on Sunday 4 June 2017; b) to file your answering affidavit, if any, by 17h00 on Sunday 4 June 2017. TAKE NOTICE FURTHER THAT you are required to appoint in such notification an address at which it will accept notice and service of all documents in these proceedings. 27]ceca 33 KINDLY place the matter on the roll for hearing on Monday 5 June 2017 at 14h00. DATED at JOHANNESBURG on this the 3 tay of e 2017, EDELSTEIN FARBER FARBER GROBLER INCORPORATED Attomeys for Applicant First Floor 28 Fricker Road tMlovo Johannesburg Docex 261 Randburg Tel: 011 341 0510 Fax: 011 341 0537 TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT AND TO: ESKOM HOLDINGS SOC LIMITED First Respondent Megawat Park No 1 Maxwell Drive Sunninghill Sandton SERVICE BY SHERIFF AND TO: THE MINISTER OF PUBLIC ENTERPRISES Second Respondent clo THE STATE ATTORNEY ‘SALU Building 316 Thabo Sehume Street Pretoria SERVICE BY SHERIFFoe IN THE LABOUR COURT OF SOUTH AFRICA (HELD IN JOHANNESBURG) CASE NO: In the matter between: BRIAN MOLEFE Applicant and ESKOM HOLDINGS SOC LIMITED First Respondent MINISTER OF PUBLIC ENTERPRISES Second Respondent FOUNDING AFFIDAVIT |, the undersigned, BRIAN MOLEFE do hereby make oath and state as follows: 1. lam an adult male, having my place of residence at no. 409, Kelly Bray Lane, Comwall Hill Estate, Irene, Pretoria. | held the position of Chief Executive Officer of the first respondent until my summary dismissal on 2 June 2017. 61The facts set out in this affidavit are within my personal knowledge, unless the context indicates to the contrary. They are to the best of my knowledge and belief both true and correct. To the extent that | rely on information fumished to me by others, the necessary confirmatory affidavits are annexed. THE PARTIES lam the applicant. The first respondent is ESKOM HOLDINGS SOC LIMITED a public company incorporated in terms of the laws of the Republic of South Africa including, inter alia, section 3 of the Eskom Conversion Act 13 of 2001, with registration number 2002/015527/06 and having its principal place of business situated at no. 1, Maxwell Drive, Sunninghill, Sandton, Johannesburg. The second respondent is THE MINISTER OF PUBLIC ENTERPRISES, cited herein in her official capacity and served care of the State Attorney, SALU Building, no. 316 Thabo Sehume Street, Pretoria, within the Jurisdiction of this Court. The Government of the Republic of South Africa is the sole shareholder of the shares held in Eskom and the rights attached to those shares are exercised by the Mi &..slo 6. For ease of reference | simply refer to the first respondent as “Eskom” and to the second respondent as the “Minister’. NATURE AND PURPOSE OF THE APPLICATION 7. This application is brought on an urgent basis, The relief sought is necessitated by virtue of the fact that my employment as the Group Chief Executive Officer of Eskom was unlawfully terminated in summary fashion on Friday 2 June 2017. 8. As appears from Eskom’s letter addressed to me on 2 June 2017, the board resolved to rescind the reinstatement agreement concluded between me and Eskom on 11 May 2017 and advised that | am with immediate effect no longer employed as the Group Chief Executive of Eskom. A copy of the letter is annexed hereto marked “BM1”. 9. My dismissal comes no more than one court day before the hearing of an urgent application brought by the Democratic Alliance (“the DA’) in the Gauteng Division of the High Court under case number 33051/2017 against the Minister, Eskom and myself. This application will be heard simultaneously with an application brought by the Economic Freedom Fighters (“the EFF’) brought under case number 34568/2017. The relief sought by the respective political parties overlaps to a considerable extent and my answering affidavits adopt an identical stance. For E7 me10. 12. at practical purposes, | will deal with the DA application and the papers filed in response thereto. For ease of reference | refer to these High Court applications as “the DA application” In Part A of its notice of motion the DA seeks interim relief interdicting me from performing any duties and/or functions or from receiving any benefits or entitlements deriving from or associated with the position of Group Chief Executive at Eskom pending the determination of the relief sought in Part B of the notice of motion. In Part B, the DA seeks an order reviewing and setting aside the Minister’s decision to appoint and/or reinstate me as the Group Chief Executive at Eskom. A copy of the DA's notice of motion is annexed hereto marked "BM2A’. A copy of the EFF’s notice of motion is annexed hereto marked “BM2B". Part A of the relief is set down for hearing on Tuesday 6 June 2017. By virtue of Eskom effectively having dismissed me on Friday 2 June 2017, | face the real prospect that unless my dismissal is declared unlawful and set aside before Tuesday 6 June 2017, the relief sought in Part A will be made nugatory with the same consequence following for Part B of the relief. As a result, and unless my dismissal is urgently reversed, the whole application would have been rendered academic. This is highly prejudicial to me in that not only am | the victim of an unlawful dismissal, Be13, 14, 58 but my right to oppose the relief sought by the DA will have become sterilised, this notwithstanding that | have chosen to oppose the application through the filing of a comprehensive answering affidavit and heads of argument in response to the DA application. | submit that | am therefore entitled to approach this Court as a matter of urgency as there are compelling urgent circumstances which justify me doing so. To avoid a proliferation of unnecessary annexes, a copy of the DA application is not annexed to this affidavit. A full set of the papers will be made available at the hearing of this matter. Where necessary | refer to selected extracts from the papers with particular reference to the answering affidavit filed by Eskom as well as the explanatory affidavit filed on behalf of the Minister. This is necessary to place matters into their proper context and in order to demonstrate that my dismissal was unlawful in various respects addressed more fully below. | therefore seek an order in the following terms: 14.1. that my non-compliance with the Rules of the above Honourable Court in regard to service and time limits be condoned and this application be heard as one of urgency in terms of the Rule 8 of the Labour Court Rules; br16. ol 14.2. _ that my dismissal at the instance of Eskom be declared unlawful and void ab initio. Costs are only sought against Eskom. Costs are not sought against the Minister who has been joined to this application on the basis of the interest which she may have in the outcome of this application. In this affidavit, { propose to first deal with the Labour Court’s jurisdiction. | thereafter deal with the relevant factual background, the basis for the relief and conclude by addressing the question of urgency. THE JURISDICTION OF THE LABOUR COURT 18. The relief | seek before this Court is rooted in my contractual remedies at common law. This Court has jurisdiction to enforce the terms of my contract of employment concluded with Eskom and to which | make greater reference below. | submit that it lies within the power of the Labour Court to hear and determine contractual disputes or to make orders pronouncing on the lawiulness of a breach of contract or to grant relief in the form of specific performance in the exercise of jurisdiction under s 77(3) of the Basic G7 Conditions of Employment Act 75 of 1997 (‘the BCEA’).20. As appears from what is stated below, | rely on contractual rights sourced in the contract of employment concluded with Eskom which incorporates the 2016 Eskom Memorandum of Incorporation (“MO’) to which | refer to below. This Court accordingly has jurisdiction to entertain these proceedings on the application of section 77(3) of the BCEA. THE RELEVANT FACTUAL BACKGROUND 21 22. | commenced employment with Eskom as the acting chief executive from 17 April 2015 to 30 September 2015. Prior to becoming employed by Eskom, | was the chief executive of Transnet. | was approached to join Eskom to assist it with challenges it was facing at the time, which included its financial performance and load shedding. entered into a “five year fixed term executive employment contract’ with Eskom on 7 March 2016 (‘the employment contract’). A copy of the employment contract is annexed hereto marked “BM3”. In concluding the employment contract which was concluded in Johannesburg, | acted personally while Eskom was represented by Dr Ben Ngubane (‘Dr Ngubane’) in his capacity as the Chairman of Eskom's board. In terms of the employment contract the effective commencement date of my be el ‘employment was 1 October 2015.all 23. The material provisions of the employment contract that are relevant to this application are as follows: 23.1. 23.2. 23.3. my employment with Eskom would be based on a fixed term contract that expires on 30 September 2020 with it being understood that my employment would continue until this day ‘subject to either party being entitled to terminate the employment relationship by giving the other no less than six months’ written notice [clause 3.1]; in dealing with my conduct, performance or any other issue arising from or in relation to my employment with Eskom, it would be guided by, inter alia, Eskom's disciplinary, performance management, grievance and other procedures applicable from time to time with the board specifically having the discretion to appoint a non-executive director to chair any disciplinary, performance, grievance or other enquiry or to utilise an external third party for that purpose [clause 3.3]; whatever rights accrued prior to the termination of the employment contract which remain exercisable or enforceable after the termination date would continue to be of full force and effect after the termination date [clause 4]; a24, 23.4. | would become a member of Eskom’s Pension and Provident Fund subject to the Rules of the Fund with Eskom required to contribute to the fund on my behalf [clause 10]; 23.5. any consensual cancellation of the employment contract had to be reduced to writing and signed by the parties [clause 19.3]. My employment of contract by necessary implication incorporated the terms of the MOI, the salient provisions of which are the following: 241. “Group Chief Executive Officer’ means the Group Chief Executive of the company [clause 1.2.7]; 24.2. "Minister" means the Minister of Public Enterprises in his or her capacity as the representative of the Government and the Executive Authority (as defined in the PFMA) of the company [clause 1.2.35); 24.3. ‘shareholder’ means the Government represented by the Minister [clause 1.2.54]; 24.4. the shareholder shall, on behalf of the company, have the exclusive power, in exercising its Ownership Control pursuant to the provisions of section 63(2) of the PFMA, to appoint and kye725. 27. 10 remove the Group Chief Executive as an employee of the company in accordance with the guidelines [clause 14.3.1]; 24.5. the Minister shall be noted as a party to any contract of employment between the company and the Group Chief Executive [clause 14.3.4]; 24.6. the shareholder shall, on behalf of the company, have the exclusive power to remove the Group Chief Executive as an employee of the company which removal would constitute a dismissal as envisaged in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 ("the LRA"). Consequently, the provisions of the LRA apply to any such removal [clause 14.3.6]. A copy of the relevant portions from the MOI is annexed marked “BM4”, Prior to having signed the employment contract | had signed a different employment contract with Eskom on 11 November 2015, A copy of the document is annexed hereto marked “BMS” On 9 February 2016, the Eskom People and Governance Committee passed a resolution which stated that “the current Eskom Pension and Provident Fund (EPPF)’ rule that Eskom employees may proceed on retirement from age 50 after 10 year service, remained applicable." \t also 67 eb 1328. 29. 1 M4 resolved that in cases where an executive director appointed on a fixed term contract decides to take early retirement and there was a shortfall regarding the EPPF 10 year service rule, Eskom would bridge the gap to make up for the 10 years, waive the penalties applicable to early retirement and refund the EPPF the actual cost for additional service added plus penalties applicable to early retirement. | annex a copy of the resolution hereto marked “BM6". | was thereafter told by the board that it was Government policy not to employ people on open ended contracts and that they should be employed for no more than 5 years. This resulted in me signing the employment contract entered into on 7 March 2016 (see “BM3" hereto). Following the publication of the Public Protector’s Report into State Capture, | was naturally concerned about the negative press that would ensue as a result of the “observations” made against me in that report. On 11 November 2016, I wrote a letter to Dr Ngubane in which | requested early retirement in terms of the EPPF Rules as read in conjunction with the 9 February 2016 resolution referred to above. | expressed the view that my last day of employment would be 31 December 2016. A copy of the letter is annexed hereto marked 7 me “BM7".31. 32. po I turned 50 on 28 December 2016. My understanding of the EPPF Rules was informed by the EPPF resolution of 9 February 2016 and based on this understanding, | thought that | was entitled to early retirement and the pension benefits arising from such early retirement as set out in the 9 February 2016 resolution annexed hereto marked “BM6”. On 24 November 2016, Dr Ngubane addressed a letter to me annexed hereto marked “BM8” in the terms of which the Eskom board accepted my request for early retirement. My request for early retirement had therefore been approved. The letter from Dr Ngubane set out the various payments due to me and in paragraph 1, stated that my early retirement had been approved in terms of the EPPF Rules 21.4 and 28, which | understood to mean that the penalties would be waived and that potential service to 63 was granted. At the time, | did not check the Rules myself and assumed based on this letter, that all was in order with my early retirement and attendant pension benefits. In terms of my agreement with Eskom relating to my early retirement and pension benefits arising from that early retirement (‘the early retirement agreement”), my employment at Eskom purportedly ended on 31 December 2016. | received a certificate of completed service recording ye mee35. 37. yilo this, duly signed by Eskom’s chairman. A copy of the certificate is annexed hereto marked “BM9". I then received a letter dated 18 February 2017 from the EPPF welcoming me to the fund and setting out my pension benefits. Once again, | did not deem it necessary to check the EPPF Rules myself and simply assumed that all was in order with my pension benefits. A copy of the letter is annexed hereto marked “BM10" The Minister raised queries about my pension benefits and issued a statement on 23 April 2017 in which she said that the pension benefits to which | thought | was entitled to lacked a legal rationale and that the Eskom board was to engage with me regarding the pension payment. By now Eskom itself had taken legal advice and concluded that the early retirement agreement reached with me had legal impediments to its implementation and therefore had to be rescinded with the status quo restored, As acknowledged by Eskom in the final sentence of paragraph 31 of its answering affidavit in response to the DA application, Eskom was mistaken in its belief that it could permit for early retirement prior to the age of 55. The relevant page from Eskom’'s answering affidavit is annexed hereto marked “BM11”. mreult As was further acknowledged by Eskom in paragraph 36 of its answering affidavit in the DA application (a copy of the relevant page is annexed hereto marked “BM12"): 38.1. the agreement concluded between Eskom and myself relating to my retirement (i.e. the early retirement agreement) was concluded in good faith but on terms which insofar as it related to pension benefits, could not be implemented; 38.2. my request for early retirement was intricately linked to the pension benefits flowing therefrom; 38.3. my request for early retirement was a unitary one which could not be separated out between retirement and the benefits flowing therefrom. Eskom further acknowledged in paragraph 36 of its answering affidavit filed in the DA application that while the payments made to me and the EPPF were made further to a “retirement”, the Rules of the pension fund did not permit early retirement at the age of 50 since early retirement could only be taken at the age of 55. Eskom’s mistaken belief and my mistaken belief was therefore that the resolution dated 9 February 2016 ("BMG") could be passed and implemented on its terms. However, the wy40. a1. 42. wi® Rules do not permit for retirement from the age of 50. A copy of the relevant extract from the affidavit is annexed hereto marked “BM13” As a result of the aforesaid, Eskom and | harboured under the common mistake that | had reached the age at which | could take early retirement. As it turns out our understanding of the EPPF rules was incorrect in that | had not yet reached the age at which I could take early retirement, That was because EPPF Rule 24 stated that 55 and not 50 is the age for early retirement. Neither myself nor Eskom knew this before having concluded the early retirement agreement in November 2016. As appears from the extract from Eskom's answering affidavit in the DA application (see paragraph 37 of "BM13"), Eskom procured legal advice and on the basis of such advice, it accepted that the agreement concluded with me for early retirement had been entered into on the basis of a common mistake with the result that Eskom was left with the restoring the status quo. The Minister's affidavit explains that Eskom presented four options to regularise the situation. The board indicated its preference for the first option (consensual rescission of the early retirement agreement) and indicated its willingness to accept me as the Group Chief Executive. Although the Minister does not say so expressly, it is clear that she ye45. 16 A accepted the board's recommendation. | refer the Court to paragraphs 31 to 36 of the Minister's affidavit annexed hereto marked “BM14” Eskom as a result passed a resolution to rescind its decision to approve my request for early retirement and as was acknowledged by Dr Ngubane in paragraph 37 of the answering affidavit to the DA application (“BM13"), the consequence of which was that “the status quo had to be restored” and in order to achieve this, | would resume my duties as the Eskom Chief Executive. | pause here to point out that as appears from the Minister’s explanatory affidavit filed in response to the DA application, the Minister shares in the view that because the EPPF Rules did not permit a payment to me given that | had not reached the required retirement age, the early retirement agreement concluded between Eskom and me was based on a “common misunderstanding” of the rules of the Fund. | refer to the Minister's affidavit comprising pages 138 to 140 of the paginated papers in the DA application marked "BM14” from which the aforesaid appears. On 3 May 2017 Eskom addressed a letter to me confirming that Eskom had engaged with the Minister and that the board had reviewed its decision of 21 November 2016 to grant me early retirement. The letter further recorded that Eskom had decided to rescind its decision to grant me early retirement. I was called upon to resume my duties as the Group Se46. 47 CO Chief Executive of Eskom. A copy of this letter is annexed hereto marked “BM15” | annex hereto a copy of the minutes of the board dated 2 May 2017 as “BM16". The minutes recorded the following: 46.1. — that | had not resigned but had applied for early retirement; 46.2. the board's decision to approve the application for early retirement would be rescinded which would mean that the previous status quo would once again prevail; 46.3, the board resolved to rescind the decision to approve my application in November 2016 for early retirement; 46.4. _ board representatives would be mandated to engage with me in an attempt to procure my return as Group Chief Executive with immediate effect. | then received a letter from Eskom signed by the chairman on 14 May 2017, a copy of which | annex hereto marked “BM17". The letter advised me that the board had resolved to rescind the early retirement agreement. As a consequence, the board tendered the resumption of my duties as Group Chief Executive Officer by 15 May 2017. | signed the letter on the same date. On the same date, | also signed the W49. 50. 51 wel reinstatement agreement (‘the reinstatement agreement’) annexed hereto marked “BM18” ‘As appears therefrom the reinstatement agreement made provision for the continuation of the contract of employment entered into with Eskom in 2016, the resumption of my duties from 15 May 2017 and Eskom taking all administrative steps necessary for me to repay to the EPPF all amounts paid to me. | therefore did not resign from Eskom with my departure having been on account of a purported “early retirement’ on terms which could not be placed into effect as a matter of law. The consequence is that the purported early retirement could not be given effect to and was for that reason rescinded by Eskom. The early retirement agreement was therefore based on a common fundamental mistake on the part of Eskom and myself that early retirement could be given effect to, but as a result of such mistake the early retirement agreement is void. My contract of employment entered into in March 2016 therefore did not come to an end and | continued to remain ‘employment as the Group Chief Executive in terms thereof. Eskom acknowledged in its answering affidavit to the DA application that the status quo as it existed prior to the purported conclusion of the early byt52. 53. OC retirement agreement had to be restored. | refer the Court to paragraph 41 of the Eskom answering affidavit in the DA application. A copy of the relevant extract from the answering affidavit is annexed hereto marked “BM19". The Minister too in her explanatory affidavit filed in response to the DA application adopted the stance that because Eskom’s Pension Fund Rules did not permit a payment to me, the entire agreement between Eskom and me was based on a common misunderstanding of the rules of the Fund, I refer the Court to "BM14” hereto. The Minister further accepted that this would inevitably mean a restoration of the status quo ante. | refer the Court to paragraph 33 of the Minister's explanatory affidavit. The relevant extract from her affidavit is annexed hereto marked "BM20" Based on her understanding of the facts as set out in her explanatory affidavit, the Minister then issued a statement on 12 May 2017 indicating that | had agreed with the board to serve out the remainder of my original contract of employment concluded in March 2016. I refer the Court to paragraph 39 of the Minister's explanatory affidavit with the relevant extract from her affidavit annexed hereto marked “BM21” In the explanatory affidavit in the DA application the Minister stated in or conclusion that:55. 56. CS 20 54.1. the true facts were that | had not resigned unilaterally but had rather entered into an early retirement agreement with Eskom; 54.2. on the strength of legal advice received by Eskom and communicated to her which she had no reason to doubt once the early retirement agreement had been mutually rescinded on the basis of a common error, it inevitably meant that the status quo would have to be restored. (I refer the Court to paragraphs 45.1 and 45.3 of the Minister's explanatory affidavit with the relevant extracts annexed hereto marked “BM22”). In sum then, the correct position is that my original contract of ‘employment did not come to an end. This flows from the fact that the early retirement agreement | had reached with Eskom when | left 31 December 2016 was premised on the mistaken understanding by both Eskom and me that | was eligible for and taking early retirement as contemplated in the EPPF. We jointly held the belief that | would entitled to the pension benefits arising from early retirement. As already explained, and as acknowledged by all parties concerned, this understanding was erroneous. The purported retirement from my employment with Eskom was therefore not effective, having been materially influenced by our ‘common error. Because the early retirement agreement was entered into ye57. 58. Zu ‘on the basis of a common mistake, it is void ab initio and as a result, my contract of employment entered into during March 2016 did not in fact come to an end but continued to endure. The conclusion of the reinstatement agreement did no more than regulate the consequences arising out of the implementation of my early retirement, which was at a time prior to Eskom or myself understanding that the early retirement agreement was void. All that the reinstatement agreed did was to regulate the unwinding of the financial consequences of Eskom and me having performed in terms of the early retirement agreement at a time when we both thought it was valid. It had no legal consequences beyond this. The resultant effect is that: 58.1, _ my early retirement agreement was a nullity; 58.2. _ my contract of employment dated 7 March 2016 did not come to an end on 31 December 2016 or at any other date; 58.3. my retum to Eskom on 15 May 2017 was pursuant to a valid and operative employment contract concluded on 7 March 2016 and was not an appointment by either the Eskom board or the ye Minister in terms of the MOI or otherwise.59. 61. £> It is a matter of public knowledge that my return to the position of the Eskom Chief Executive Officer has been the subject of intense media and political scrutiny. Notwithstanding the Minister having previously deposed to an affidavit under oath in terms of which she not only made plain her understanding of the circumstances surrounding the resumption of my employment with Eskom but expressly made common cause with the facts giving rise to the resumption of my employment, the Minister on 31 May 2017 purported to issue a directive to the Eskom board to rescind the decision to reinstate me as Group Chief Executive Officer. As appears from the letter annexed hereto marked “BM23", the Minister adopted a total change of position and recorded that she believed that the appropriate process was not followed in my appointment. She therefore instructed board to rescind the decision to reinstate me as the Group Chief Executive Officer. The aforesaid letter was handed to me on the morning of Friday 2 June 2017. | had been summoned to attend an urgent meeting of the board. | recused myself from the meeting and on being asked to retum, | was advised by Dr Ngubane that as directed by the Minister, the board had resolved to rescind the reinstatement agreement concluded between me and Eskom on 11 May 2017. | was informed that | was no longer the Chief Executive Officer and | was handed a letter signed by Dr Ngubane dated 2 June 2017 (“BM2" hereto), a copy of the board resolution of the62. 63. 64. ach same date and a copy of the letter from the Minister annexed hereto marked “BM23”. The letter from Dr Ngubane dated 2 June 2017 recorded that in giving effect to the directive from the Minister, the board resolved to rescind the reinstatement agreement entered between me and Eskom on 11 May 2017 as a consequence of which, | was no longer the Group Chief Executive. A copy of the board resolution is annexed hereto marked "BM24" In response to my summary dismissal, | immediately consulted with my legal team and instructed my attorneys to address a letter of demand to Eskom. The letter of demand annexed hereto marked “BM25” recorded the fact that the conduct of the board was both procedurally unfair and unlawful. The letter further recorded that | regarded the board's conduct as a repudiation of my employment contract which | did not accept. The letter recorded that | intended to hold Eskom to my employment contract. Eskom was further requested to notify my attorneys by no later than 17h00 on Friday 2 June 2017 that it would withdraw its repudiation and honour my employment contract failing which | would approach the Court oy for urgent relief.wer THE BASIS FOR THE RELIEF 65. 66. 67. 68. The decision the board took on Friday 2 June 2017 effectively brought about my summary dismissal from the employ of Eskom. | respectfully ‘submit that the decision was unlawful in a number of respects which | deal with below. Firstly, the board has no power to remove me from the position of Group Chief Executive. This power is exclusively entrusted to the Minister as appears from clause 14.3.6 of the MOI. The board accordingly acted in breach of my contract of employment read with the applicable provision of the MOI in that it purported to dismiss me in circumstances where it simply did not have the power to do so. Secondly, my dismissal was required to be effected in terms of section 186(1)(a) of the LRA and as appears from the express wording of clause 14.3.6 of the MOI. The provisions of the LRA therefore applied to my removal from office as the Group Chief Executive. Nowhere does the MOI or my employment contract permit Eskom or the Minister to impose a summary dismissal on me. My dismissal was not effected because of reasons that related to my conduct, capacity or because of operational requirements. As appears from the answering affidavit deposed to by Dr Ngubane on behalf of Gu?18 Eskom as recently as 22 May 2017 in the context of the DA application, Eskom specifically recorded that: “Molefe has fulfilled his responsibilities with efficiency and also in a manner which brought stability to Eskom in difficult circumstances. During his tenure, Eskom was able to successfully deal with the significant issues relating to procurement and also achieved stabilisation of the electricity grid, thereby initially reducing the problem of load shedding and eventually avoiding the load shedding. The circumstances in which Molefe took over as Group Chief Executive were dificult, Molefe though confronted these difficulties with vigour and was substantially responsible for assisting in restoring stability to the functioning of Eskom particularly in its ‘most. significant function, namely to ensure the continued uninterrupted supply of electricity to South Africans.” The relevant extract from the Eskom affidavit is annexed hereto marked "BM26". Eskom can therefore point to no grounds upon which my dismissal can be said to have been effected in a manner which were substantially fair. In addition, no fair procedure was followed before effecting my dismissal. This was plainly in breach of my employment contract read with clause 14.3.6 of the MOI. Thirdly, and even if it is accepted that my summary dismissal was effected at the instance of the Minister to bring the dismissal within the purview of clause 14.3.6 of the MOI (which is denied), the Minister plainly had no authority to do so. | say so for two reasons: 70.1. her conduct amounted to an unlawful repudiation of my contract of employment as she had no legal grounds premised on either capacity, operational or misconduct reasons to effect my yy aie71. 72. ed dismissal but was in fact motivated by political considerations which did not amount to lawful grounds on any possible construction; 70.2. _ the Minister failed to follow the mandatory requirement laid down by clause 14.3.6 which stipulates that the LRA applies to any removal of the Group Chief Executive Officer and which at the very least, required the Minister to give me a proper hearing in compliance with the requirements of procedural faimess laid down in the LRA. Finally, Eskom was not entitled to rescind the reinstatement agreement. In having elected to enter into the reinstatement agreement Eskom in effect exercised an election to honour the contract of employment concluded with me in March 2016 and in so doing divested itself of any tight which it may have had to dismiss me. ‘Once Eskom had realised that | was not entitled to early retirement, it had the option to reach a financial settlement of continued employment or to permit my employment to continue. Eskom elected to honour my continued employment through the continuation of my contract of employment on its terms and for me to resume my duties in terms thereof. This appears more fully from paragraph 39 of Eskom's Wy74, yor answering affidavit in the DA application, the relevant extract which is annexed hereto marked “BM27’. Having therefore been left with a number of options as listed in paragraph 32 of the Minister's explanatory affidavit (see “BM14”), Eskom elected to honour my employment contract. It was therefore not legally entitled to change its mind by purporting to dismiss me. Simply put, once it exercised a particular election to uphold the employment contract such an election was exhaustive and irrevocable whereafter it was not open to Eskom to turn back and make another decision. Eskom simply cannot blow hot and cold as it chooses. Hurther submit that because my early retirement agreement was a nullity from inception as it was illegal to perform, it was not strictly necessary for Eskom to resolve to rescind the early retirement agreement for it to become a nullity. The reinstatement agreement was therefore legally not required to declare that the early retirement agreement was a nullity. It did no more than to regulate an unwinding of the financial consequences of both Eskom and me having performed in terms of the early retirement agreement at a time when we were both under the mistaken impression that it was valid and capable of being given effect to. It had no legal fr? ww consequences beyond this.75. 76. Ol As such the reinstatement agreement did no more than to formalise the recognition of the legal position that my employment contract had not been validly terminated. It did not under any circumstances effect the continuation of my employment contract with the consequences that the resolution to rescind the reinstatement agreement as a matter of law cannot bring about my dismissal. | am therefore entitled to insist on the enforcement of my employment contract. I therefore respectfully submit that my dismissal is invalid and must therefore be treated as a nullity. As a consequence, an order declaring my dismissal to have been invalid will have the effect that my dismissal never took place. URGENCY 77. | respectfully submit that this application by its very nature is urgent. There is considerable importance in me being allowed the opportunity of having my employment status restored. As | have already indicated, the DA application is due to be heard on Tuesday 6 June 2017 and absent an order from this Court declaring my dismissal to have been unlawful and void ab initio, considerable prejudice will be caused to me in that it will render the application brought by the DA academic to my ultimate disadvantage.78. 79. 80. woe Significant costs and time have been dedicated to opposing the DA’s application as evidenced by the fact that I have instructed three counsel to appear on my behalf. I annex hereto marked “BM28" the last page of my heads of argument in the DA application which demonstrates the seriousness with which | have approached the application. | have every reason to oppose the relief sought both for purposes of Part A and Part B, but unless my dismissal is declared unlawful and void ab initio, the current status quo will prevail which will effectively sound the death knell to any prospect of opposing the DA application. Following the board meeting of 2 June 2017 where my summary dismissal was communicated to me, | immediately consulted my attorneys and counsel whereafter a letter of demand ("BM25") was prepared and despatched to Eskom without a favourable outcome having been received. Papers were prepared over Friday night (2 June 2017) and a further consultation was held on Saturday 3 June 2017 with a view to finalise the papers without delay. Eskom refused to provide the requisite undertaking. I therefore submit that the application is inherently urgent and that adequate redress in due course so as to restore my employment before the DA application is heard is otherwise not at my disposal. Approaching this Court on a semi-urgent basis or in the normal course is therefore not a viable proposition and will leave me without adequate recourse. | need G79S my employment status restored so that | can effectively participate and oppose the DA application set down for Tuesday 6 June 2017 WHEREFORE | pray for an order as set out in the notice of motio1 DEPONENT THUS SIGNED AND SWORN TO at on this 8°... day of .SEern8.........2017 the deponent having acknowledged that the deponent knows and understands the contents of this affidavit, that the deponent has no objection to taking the prescribed oath, that the oath which the deponent has taken in respect thereof is binding on the deponent's conscience, and that the contents of this affidavit are both true and correct. Snag Ge aspera 3 8 Foe asenaia SME Lg2 NAT EO COMMISSIONER OF OATHS Nosan' =RiLN39 3OIAMaS ANG! [SSeS aorIOd NVSRIAY HIN“en @€skom By Brian Molefe 759 Camelford Road Comwall Hill Estate IRENE Dear Brian ESKOM HOLDINGS SOC LIMITED / YOUR POSITION 4. In terms of a letter dated 31 May 2017, the Minister of Public Enterprises has directed the Eskom Board to rescind its decision “to reinstate Mr Molefe as the Group Chief Executive of Eskom”. A copy of the letter is attached hereto. 2. You were invited to the urgent meeting of the Board held on 2 June 2017. The item on the agenda was the letter from the Minister of Public Enterprises dated 31 May 2017. You were asked to recuse yourself as you have a conflict of interest. You duly did. 3. In giving effect to the directive of the Minister of Public Enterprises, the Board has resolved to rescind the Reinstatement Agreement concluded between you and'Eskom on 11 May 2017, as a consequence of which, you are, effective immediately, no longer the Group Chief Executive of Eskom. 4. Tl enclose for your records a copy of the Board resolution. Yours sincerely CHAIRMAN Date: 0z-[9b [7 Head Office ‘Megawatt Park Maxwell Drive Sunnirghill Sandton PO Box 1051 Johannesburg 2000 SA “Tel +27 11 800 2030 Fax +27 11 800 5803 wiwn.eskomn.co.7a [Eckom Holdings SOC Ltd Rog No 2002/016527/30,sf " BMee va 3S CASE wo:380 \ | i IN THE HIGH COURT OF SOUTH AFRICA In the matter between: DEMOCRATIC ALLIANCE Applicant and MINISTER OF PUBLIC ENTERPRISES First Respondent ESKOM HOLDINGS LIMITED Second Respondent BRIAN MOLEFE Third Respondent ee NOTICE OF MOTION a PART A: INTERIM RELIEF ‘TAKE NOTICE THAT the applicant will apply to this Court on TUESDAY, 30 MAY 2017 (or such other date as may be set by way of special allocation, to be applied for from the Deputy Judge President) at 10:00 or so soon thereafter as counsel may be heard for an order in the following terms: 4 The forms and service and ordinary time periods provided for in the rules are dispensed with and this application is dealt with as one of urgency in terms of Rule 6(12).2Z 2 Pending the determination of the relief sought in Part B of the notice of motion: Sb 2.1 The third respondent ("Mr Molefe’) is interdicted from performing any duties and/or functions or receiving any benefits or entitiaments deriving from or associated with the position of Group Chief Executive at the ‘second respondent (“Eskom”). 2.2 Mr Molefe is interdicted from receiving any payment or sum of money in respect of any purported pension agreement or proposal between him and Eskom. 3 The costs of this application are to be paid jointly and severally by any respondent opposing it, alternatively costs In respect of Part A ara to be costs in the cause in Part B, alternatively costs for Part A are to be reserved for determination by the Court when deciding Part B of this Notice of Motion. 4 Further and/or alternative relief. TAKE NOTICE FURTHER THAT the accompanying affidavit of JAMES SELFE will be used in support of this application. TAKE NOTICE FURTHER that the applicant has appointed the office of its attorneys, as set out below, as the address at which it will accept notice and service of all be pk°3 documents in these proceedings and Applicant elects to receive service electronically 5 + at the email address, elzanne@mindes.co.za and venashan@kebd.co.za. TAKE NOTICE FURTHER THAT if you intend to oppose Part A of this application you are required to: 1. Notify the applicant's attomey in writing and by email at eizanne@mindes.co.za and yenashan@kebd.coza of your intention to oppose on or before WEDNESDAY, 17 MAY 2017; 2. Appoint an address that complies with the requirements of rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings. 3. File your answering affidavit, if any, in respect of your opposition to Part A of this application, on or before 17:00 on MONDAY, 22 MAY 2017. Kindly set the matter down for hearing accordingly. Py i Ri KINDLY TAKE NOTE THAT the applicant intends to make application to this Court on a date to be determined by the Registrar for an order In the following terms: 1 The forms and service and ordinary time periods provided for in the rules are dispensed with and this application is dealt with as one of urgency in terms of Rule 6(12). Gy‘4 2. The decision by the first respondent to appoint andlor reinstate Mr Molefe tothe Sw position of Group Chief Executive at Eskom is reviewed and set aside. 3 Any payment or sum of money received to date by Mr Molefe pursuant to any purported pension agreement between him and Eskom is declared to be invalid and Mr Molefe is ordered to repay such amount(s) to Eskom within ten days of this order. 4 The costs of this application are to be paid jointly and severally by any respondent opposing it. § — Further and/or alternative relief. TAKE NOTICE FURTHER THAT in respect of Part B of this application: - The first second and third respondents are called upon, in terms of Uniform Rule 53(1){a), to show cause why the decision should not be reviewed and set aside. ~The first respondent is called upon in terms of Rule §3(1)(b) to despatch, within 40 days after service of this notice of motion, to the Registrar the record of the decision sought to be reviewed and set aside, together with such reasons as she by law is required or desires to give or make, and to notify the applicant that it has “ done so.°$ ~ _ In terms of Rule 53(4) of the rules of this Court, the applicant reserves the right to S| amend, add to or vary the terms of its notice of motion and supplement its founding affidavit within 7 days after the Registrar has made the record available to it. - If you wish to oppose the relief sought you are required within 20 days of the expiry of the time referred to in Uniform Rules of Court 53(4), to deliver any affidavits as you may desire in answer to the allegations made by the applicant. ‘TAKE NOTICE THAT given the urgency of the matter, the applicants have shortened the time perlods provided for under uniform rule 53. TAKE NOTICE FURTHER that the applicant has appointed the office of its attorneys, as set out below, as the address at which it will accept notice and service of all documents in these proceedings and Applicant elects to receive service electronically at the email address, elzanne@mindes.co.za and venashan@kebd.co.za. TAKE NOTICE FURTHER THAT if no notice to oppose is given, the application for the relief sought in Part B will be made on 18 JULY 2017 at 10h00 or so soon thereafter as counsel may be heard. DATED and signed at PRETORIA on this 15th day of MAY 2017.AND TO: AND TO: AND TO: NRO & SMITH INC. Applicant's attorneys Tyger Valley Office Park Building Number 2, Cnr Willie van Schoor & Old Oak Roads, Belville Tel: +27 21 918 9000 C/O KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC. 220 Lange Street (Muckleneuk PRETORIA Tel: 012 452 8900 Fax: 012 452 8901 e-mall: venashan@kebd.co.za (REF: R NYAMA/ VS / H$001003) THE REGISTRAR OF THE GAUTENG DIVISION, PRETORIA THE MINISTER OF PUBLIC ENTERPRISES First Respondent Care Of: THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA ESKOM HOLDINGS LTD Second Respondent Megawatt Park, 1 Maxwell Drive Sunninghill, Sandton MR BRIAN MOLEFE Third Respondent 759 Camelford Road Comwall Hill Estate Irene, PretoriaIN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO.: In the matter between: ECONOMIC FREEDOM FIG! and 207 -05- 13 sodistanais ESKOM HOLDINGS SOC LIMITED MINISTER OF PUBLIC ENTE! Applicant Figst Respondent Secohd Respondent BRIAN MOLEFE Third Respondent NATION UNION OF MINEWORKERS Fouth Respondent NOTICE OF MOTION TAKE NOTICE THAT the Economic Freedom Fighters (the Applicant) intends to make an urgent application to this Honourable Court on TUESDAY, MAY 2017 at 10100 or so soon thereafter as counsel may be heard for an order terms— y PARTA the following 1. Condonation of the Applicant's non-compliance with the rules felating to i form, service and time periods and permitting Part A of this application to. be disposed of as urgent in terms of Rule 6(12) of the Uniform Rules of Court;2. 24 2.2. 2.3. Pending the hearing and finalisation of Part B of this application, to operate as an interim interdict pendente lite be issued that: ue g a rule nisi E76 the board resolution(s) and/or decision(s) of the board of directors of the First Respondent purporting to re-appoint (and or 1 resignation or early retirement application) of the Third Ré scind the spondent as Group Chief Executive of the First Respondent be suspdnded and that no (or further) effect shail be given thereto; the board of directors of the First Respondent be inte: icted and restrained from taking steps (or such further steps) to implement the purported board resolution(s) and/or decision(s) as set out in Paragraph 2.1 above; and | to the extent applicable, all steps taken to give effect to the| purported board resolution(s) and/or decision(s) referred to in meena are suspended, Ordering the Respondents who oppose Part A of this application, , jointly or severally, to be liable for the costs cccasioned by such: opposition, including the costs of two counsel; altemtively, in the event being unopposed, that the costs associated with Part A be cause for determination by the Court hearing Part B of this appli i Further and/or alternative relief. of Part A ts in the ation; b/;e B TAKE NOTICE FURTHER THAT the founding affidavit of JULIUS SELLOMALEMA’ 7 and the annexures thereto will be used in support of this application TAKE NOTICE FURTHER THAT the Applicant has appointed the offices of KWINANA & PARTNERS INC c/o NKOME INC as set out below as the address at which it will accept service of all process and documents in these proopedings. TAKE NOTICE FURTHER THAT if you intend to oppose Part A of this application, you are required to: 1. forward written notification of your intention to oppose to the Applicant's attorneys of record on or before 17H00 19 MAY 2017; 2. appoint in such notification, an address referred to in Rule 6(6)(b) of the Uniform Rules of Court at which you will accept notice and|service of all process and documents in these proceedings; : 3. file an answering affidavit, if any, in respect of Part A of this septation ‘on or before 12H00 24 MAY 2017 4. the Applicant to file a reply, if any, in respect of Part A of this {2pptcaton i 42H00 Friday, 26 May 2017 | | KINDLY SET THE MATTER DOWN FOR HEARING ACCORDINGLY; | me 3uy & TAKE NOTICE THAT the Applicant intends to make an urgent appiication to te Honourable Court in terms of Rule 53 of the Uniform Rule of Court on a date to be arranged with the Registrar for an order in the following terms— Declaring that the members of the Board of Directors of Eskom have acted in breach of the fiduciary duties, which they owe to Eskom. Directing the Minister of Public Enterprises, forthwith, to take appropriate steps to remove the members of the Board of Directors of the Eskorn. Declaring that the decision of the board of directors of Eskom to re-appoint Mr Brian Molefe as Chief Executive Officer of Eskom is irrational, unlawful, unconstitutional and invalid. ‘Setting aside the decision of Eskom to re-appoint Mr Brian Molefe. Declaring that the decision of the Minister of Public Enterprisera to approve the re-employment of Mr Brian Molefe by Eskom to m4 unlawful, unconstitutional, irrational and invalid, | Declaring that Mr Brian Molefe is disqualified and/or unsuitable b hold the position of Group Chief Executive Officer of Eskom. Setting aside the decision of the Minister to approve the re-employment of Mr Molefe. ius § 8 Ordering the Respondents who oppose Part B of this applicatibn, jointly bei 1 and severally, to be liable to pay the Applicant's costs, including]the costs of two counsel. 9. — Further and/or alternative relief. TAKE NOTICE FURTHER THAT the founding affidavit of JULIUS SELLO MALEMA and the annexures thereto will be used in support of Part B of this appilcation. TAKE NOTICE FURTHER THAT the Applicant has appointed the offices of KWINANA & PARTNERS INC c/o NKOME INC as set out below as the address at which it will accept service of all process and documents in these procgedings. I TAKE NOTICE FURTHER THAT that the First Respondent is called lipon, in terms of Rule 53(1)(a) of the Uniform Rules of Court to show cause why the decision referred to above should not be reviewed and set aside. | TAKE NOTICE FURTHER THAT that the First Respondent is tes upon to dispatch within fifteen (15) days of receipt of this notice of motion to 7 Registrar of the Honourable Court, the record of the decision to be reviewed (ingluding but not limited to all correspondence (Including emails), minutes, attendance registers, reports, memoranda, documents, evidence, transcripts of recorded proceedings and other information that served before the board of directors of the Fit Respondent when the decision was made) together with such reasons that are desirable or necessary to provide, and to notify the Applicant that this has been done ! 7 i | ! smk(We & TAKE NOTICE FURTHER that the Applicant, may, within ten (10) days after the HBO Registrar of this Honourable Court has made a complete record available to it, by notice of motion in respect of Part 8 of this application and supplemer delivery of notice and accompanying affidavit, amend, add to or vary the terms of this 1 the founding affidavit insofar as it pertains to Part 8. TAKE NOTICE FURTHER THAT if you should you intend to oppose the relief ‘sought in Part B of this application, you are required to: 1. Within 15 (fifteen) days after receipt of this notice of motion or arly amendment thereof, to deliver notice to the Applicant that you intend to oppose and, in such notice, to appoint an address within 15 kilometres of the office of the Registrar at which you will accept notice and service of all process and |documents in these proceedings. 2. Within 30 (thirty) days after the expiry of the time referred to fe 53(4), to deliver an affidavit that you may desire to answer to the allegafions made by the Applicant. ' TAKE NOTICE FURTHER THAT if no such notice of intention to oppose is given, the application for the relief sought in Part B will be made in the next vallable court date or soon thereafter as the matter may be heard without further notice to you. DATED AT JOHANNESBURG on 18 MAY 2017.r Docex #8, Rosebank Ref: Mr Kwinarate Mrerwa lo NKOME INC Suite 204 Hatfipld Forum East 1077 Arcadia Street Hatfield PRETORIA Tet 012 342 6009 Ref: Mr A Nkome TO: THE REGISTRAR OF | THE ABOVE HONOURABLE HIGH COURT | AND TO: { ESKOM HOLDINGS $0C LIMTED Received a copy hereof First Respondent __May 2017 1 Maxwell Drive, Sunninghill ‘Sandton —_| 2157 First Responder Email: ben.nqubane@eskom,co.za / suzanne.danie's@eskom,co.za ATTENTION: CHAIRMAN: BOARD OF DIRECTORS & COMPANY sponevany Service by hand and email AND TO: MINISTER OF PUBLIC ENTERPRISES Received a copy hereof Second Respondent __May 2017 C/O Office of the State Attorney, Pretoria Old Mutual Centre 8" Floor, 167 Andries Street Pretoria ‘Second Respon 0001 Email: ministry.reqistry@dpe.gov.za / kim.davids@dpe.gov.za / Masenya.Selatswa@dpe.gov.za vi hi ind emailAND TO: BRIAN MOLEFE Received hereof a copy Third Respondent — May 2017 clo ESKOM HOLDINGS (S0C)LIMITED 1 Maxwell Drive, Sunninghill Megawatt Park ‘Third Respondent Sunninghill Emait: brian.molefe@eskom.co.za / DurranL@eskom.co.za Service by hand and e-mai AND TO: NATIONAL UNION OF MINEWORKERS Fourth Respondent 7 Rissik Street Received a copy hereof Comer Frederick Street ___May 2017 Johannesburg 200 Email: TMakgolane@num.ora.za Fourth Respondent Service by hand and email AND TO: DEMOCRATIC ALLIANCE Received a copy hereof Thebe Hosken House _—_May 2017 Mill Street Cape Town Email: leader@da.org.za | clo MINDE SCHAPIRO & SMITH INC | DA's Attorneys For Democratic Allianos Building No.2, Tyger Valley Office Park Chr Willie van Schoor & Old Oak Roads Belville | $38 % ‘Company, the use.of which is-goveret by.the Company's rules and policies epplicable thereto tram tine to ime, 13.1.1.2, The Executive shall be responsible for any taxes payable by him, in respect of ny taxable pereonal benefit which he derives therefrom. 13.1.2, Financial/Tax Planninig Foes 13.4:21. ‘The Executive shall-be sititied to recaive both fingnolal and tax planihing advice, the ressorable costs‘of which will be bome by the ‘Company In accordance with the rules and polldies applicable thereto from time to time, 184.22. The Exeoutle shell be-responeible for al and any tax consequences arising therefrom. 124.8. Peruonal Security 13.1.3.1, The Company ia desirous of ensuring the safety of the Executive anid the wecurtty of the: Executive's residence. 13.1.32. The Company wil bear the.reasonable costs associated with the Executive's home secury system, the Installation and maintenance ‘thereof, the monthly. subscription to a sacurly company, gues, Velo ‘racking and-arned rmeponse, in eccordanos ‘withthe rules and polices ofthe Company applicable thereto from fie t time. 4843.9, The Executive ahall be responélble for ail. ahd. any:tax consequences arising herstrom. 18.14. Telephone Services 12.1.44. The Company will bear the coats of the Executive's telephane that Is utllined for business purposes at the residence of the Executive end Jn dooordance with the rules’and policies of the Company applicable ‘thereto from time to tne, 184.42, ‘The Executive is issued with 8 cel! phone afd the Company will bear the business usage cosis thereof in accordance with the ‘Company's ‘niles snd policies sppitcatie therets from tine to time. br Oh, paw334% 13.1.4.3, The Executive shall be responsible for any taxes payable by him. in ‘respect of any taxable personal benefit which he derives therefrom, 40 ANNUAL LEAVE ‘The Executive shall continue to qually Yor annul leave In accordance with the Company's annual leave policy. The Executive acknowledges that he has had sight of that policy. ‘SICK LEAVE ‘The Executive shall continue to qualify for sick leave In eccordance with the Company's ick leave Policy. The Executive acknowledges thet he had sight of that policy. CONFIDENTIALITY 16.1, {In performing his duties and responsiblitiés with the Company and/or any Group Company, the Execurtve wil have acces to non-pubile information or materials describing or relafing to ‘the Company andlor any Group Company, its clients andfor third parties to whom the ‘Company and/or any Group Company hes # duty of confidentiality {the “Third Parties") ‘cluding, but not linited to, materials describing or relating to the business, affairs, processee, ‘rade svorets, ofent lists, trade connections, policies and/or procedures of the Company andor any Group Company, tts cilents snidfor the Third Parties; formulne, stratagies, imathods, ptocssses, computer materiale (tictuding but not limited to source or abject codes, data fles, computer stings, computer programe and other computer materials regardiess of the medium in which they are stored), and/or other confidential Information of the Gompeny and/or any Group Company, Its clients and/or the Third Parties (the "Confidential Information”). ‘With respect to such Gonfidential Information, ihe Executive agreés thet during his ‘employment by the Company and thereafter In perpetuity, regardiees of the reason for the ‘termination of his employment, he shat 1621, hold the Confidential Information In strict confidence dnd will:not, nor will he: permRany other perso to, copy, reproduce, aml, assign, ticanse, market, transfer oF otherwise diepoee cf, give and/or diecioss the Confidential Information to any Lunsuthorieed person; oe VB, 4 i i i17 SJ 16.2.2. take ell reasonable steps to minimise the risk of disclosure of the Confidential Information to unautfiorised persons, end to ensure the proper, and secure ‘storage of any such Confidential Information; 16.2.3. not, during his employment by the Company or thereafter, use for his own benefit ‘or for the benefit of any ather persion or divulge or communicate to any pereon or ‘persons, except to thoss officals of the Company and/or any Group Company ‘whose province It Is to know same, arty of the Company's or such Group ‘Company's secrets or any other Confidential Information which he mey receive or obtain in relation tots affairs orf clans, 16.3. Upon the termination ot his enipioymert for any reason whatsoever, the Exvscutive:shell return to the Company ary documents, papers and other materials relating to the Comparty or obtalned or developed in the course of his emplyment by the Company andor whist providing services to any Group Conipany or containing or derived from the Confidential Informetion in his possession, and all spies thereat. INVENTIONS, DISCOVERIES, COPYRIGHT AND DOCUMENTS 47.4. Any discavery ot ‘invention or aaoret process or Improvement in procedure made or discovered by the Exenitive in the course and scope of his employmnant by:the Company in connection wit or in any-way atfectiig or releting to the Business or capable of being used ar adapted for use by the Comparly andior:any Group Compeiny or’in connection with (is business shall be dlsckieed to the Company and/or any Group Company and shalt belong to ‘and be the absolute. property of the ‘Company andlor eny Group Company or any other company nominated by it. 17.2. ‘The Executive shall, if and when required by the Company endior eny Group Company, apply cor join with the Compeny and/or any Grou Caripany concamed atts expense in appiying for Letters Patent or other equivalent protection in the Republic of South Aftica.er in any other part-of the world for such dlacovery, invesiton, proosss or Improvement snd shell at the ‘expense of the Company andicr ary Graup Company concerned sksvute ell inptruments and do all things necessary for vesting the sald Letters Patent or other equivalent protection in the name of the Company and/or ary Group Company 2s sole beneticil owner or I the name of ‘auch other company as the Company and/or Group Company may nominate, 47:3. Insofar es may be-risceésary the Executlve hereby assigns to the Company and/or any Group ‘Company the copyright In all present and future works ‘sigible for sopyrigtt, . without. a pw174, oO 34 ah Keto, Mera. or atts works cr sofware prograrimes of wtich he may be the suber, ‘wich works wer or are crsted, compiled, devised or brought nto being curtg the course nd ecope of his employment by the Compary ardor wilt providing sérvices to any Group Company. No consideration shall be payable by the Company to the Executive In respect of this assignment, ‘At repors, manuals, hancil statements, budgets, Inices, research papers, laters or other simllr documents (the nature of which Js not linited by the specie reference to the ‘foregcing Meme) which are ereatid, comped or devised or brought Into belng by the Exeosthe or come into the Executes posession during the couse end scope of his employment by the Company (chug whilst providing services to any Group Company) and all copies thereot wil be.the property af the Company andlor any Growip Company and, Pon the Termination Dats or earlier if required by the Company andlor any Group Company, ‘such documents and ell copies shall be returied tothe Company andlor any Group Company, 4 ‘STIPULATIO ALTERI ‘Without deregatig trem the generally of cause 2.3 abave, the undortakinge givon by the Exocutlve in ‘leues 18 and 17 ofthis Agreement constiute & stpulato ate in favour of any Group Campeny and Sr capable of acceptance at any me by such Group Company, whether before or afer the Termination Data, GENERAL 184, 10.2, 19.3, 104, 19.8, “The Ezouttve shal achere to the Company's'witien policies; procedures or the Hike which are ‘spplicable from tine to tine, save for where they have been amended by this Agreement, ‘No remedy granted by this Agreement shai exclude any other remedy available at sw, No amendment of this Agreémerit or ery: ccnsériuel cancaliation thereof of any part thereot ‘shall bs binding on the partes unlees rettuced to a written document and signsd by them. {T any of the terms af this Agreamant, such as the rate of remuneration payable to the Executive, are varied, the other terma shail, uniass otherwise agreed In writing, remain of fut ‘force and effect. No relaxation or Indulgence which elther Party miiy show to the other shall in any wey Prejudice or be deemed to be # waiver of Its-rights hereunder nor shell-such relaxation or G7 ety,bol .. 34 Indulgence preclude er estop the other Party from exercising tts rights in terms of this ‘Agreement in respect of any further breach. 196. This Agreement constitutes the whole agrsemit between the Parties and no werrarties or ‘epresentations whether express or implied have been givan or made by the Company to the Executive, ‘187 The Company shall be entiled to cede arid delegete all or any of ie rights and obligations tundor this Agreement to any Group Cotpany, whether such cession and delegation takes lace bafore or aftr the Termination Dete, DOMICILIA CITANDI ET EXECUTANDI 20.1. The Patties choose aa their domicila cftand! et axecutand! for all purposes under thie Agreement, whether in respect of cout process, notices or other documents or ‘communications of whatsoever nature (Incuding the exercise of any option), the folowing addresses - 20.1.4. the Company: ‘Megawatt Park, Mesvell Drive, Sunninghill, Johannesburg Postat P.O, Bax 1091, Johannesburg, 2000 Fooiec — OfT eon eiee 20.4.2. the Executive: Physica: 769 Gemeliord Road, Comwall Hill Estate, irene, 0178 Postal: 2. O- BOX 1 Cony ‘Telephone: Sooo %, AL WIL, OFF 20.2. Any notice of communication required or pérritisd to be given in terms of this Agreement. ‘shall be valid and effective only ifn writing but It shalt be competent to give notice by telefax. 20.3. Either Party may by notice to the other party change the physical sddraes chosen ae ite domicttum ckand! et executancl to another physical address where postal delivery occurs in ‘Gauteng or its postal eddress or Its-telefax nurnber, provided that:the chenge shall become ‘effective on the 10th (tenth) Business: Day from the deerned receipt of the notice by.the other party, 204, Any notice toa Party ~ 204.1. sant by prepeki registered past'{by sifmal it appropriats) in correctly addressed ‘envelope to i at in address chiseh 98 Rs dommlallum tend! et executandl to Which post is delivered shall be desmed to hava bedn received"on the gr hsa bt | 33 14 ‘10th (tenth) Business Day afier posting (unless the contrary Is proved) and Drovided that any notice to @ party sent by prepaid registered post shall only be ‘valid such note is simultaneously sent by telefax io the chosen telefax number ‘siipuleted in clause 20.1;" 2042. delivered by hand to a respariaible person during ordinary business hours at the physical address chosen aa its domoliun cand! et execufaridl shall be deemed to have been received on the day of dailvery; or 2043. sent by tolefax to its chosen telefaxx number stipulated In clause 20.1, shal be Seemed to tiave been recélvid on the date of despatch (unless the contrary is proved), 20.5. Notwithstanding anything to the ‘contrary herein contained @ writion notice or communication ‘sctually received by a Party shall be an adequate waitten notice or communication to it otwithetanding, thet i was not sent to or dalvéred t'fts choserr domiclium cand! et exeoutand RESIGNATION 21-1. On the Termination Date, the Executive: val ipso fircto be deemed to have resigned ax ‘rector of tha Company and any other Group Company of which he is a director at that date. 24.2. ‘The Executive hereby irrevocably sppoints the then auditors of the Company as his agent in fem suam to signal! such documents and to do-all such acts as may be necessary to effect ‘and Implement euch resignation. ELECTRONIC AND OTHER COMMUNICATIONS: ‘The Executive hereby expressly glves the Company periniseion t9 intercept, monitor, read, block or ‘act upon any of the Executive's electronic and other corituhloationa made from the Company ‘telephone, Company computer snd other Company devices which shalt include, but not be limited to, telephonic conversaticins, e-inallé and any stored tes. or Ve x6S 6 RULES, REGULATIONS AND POLICIES ‘The Company has various res, fspuations,pofcies and procedures (the Polfeies”) in place wich imay be amended from time to Ue in the sole. ctecraion of the Company. ‘The Poficies may be Sccecsed Via the Companys Intranet, altematvely copies may. be requested from the Company’s human resowces department. it fs tho Executve'sobitgation to famarse hime with al of the {any provision ofthis Agreement is found by a court cf aw to be lnvald or vold, such provielon shal ‘be severed from the remaining provisions, which shail conthus to be of force. and effect, costs ‘The casts of and cident othe srawg ofthis Agreement hal be pad by the Company. ARBITRATION In the event that the Company's Inteml mechanlarns coftaripleted fh clause 3,3 above have baen ‘erausted, then any depute conceming the taimess or othérwiée of the termination of the Executive's employment, the Executive's performance, a greivarios lodged by the Extautve, cr any other dispute ‘rising out ofthe Executive's employment that would, eave fr Ihis cusp, fall to be determined by the ‘COMA or a Court having the requisite jurediction, shall bo fhally rasolved by arbitration conducted In ‘accordance with the rules of the Arbitration Foundation of South Attica, by on arbitrate agreed to by the Parties or, faling such agreement, appojtment by that Foundation, The Comper wil be responsible for the costs of the arbitrator, the venue and any recording or transcription services retated toany such arbitration, Stoned at atagewmt Pare Taye ARCH sine oo Nheteev . ee = eevevenersen Fe FE) sar 41 INTERPRETATION — In this Memorandum of incorporation- 141 Capitaiond words fat are not defined In this MOI wil bear the some meaning in the Companiee Actor he PFA, uriees te conden! proves ctherwiea, 1.2 Uniean the content provides or requires ctharwise, the folowing words and expressions beer {he meanings assigned to hem and cognets expressions bear corresponding meanings: — 121 "Ad Hoc Coumaltive” means sn ad hoc committe eetablahed boy the Board from tne 1» thas for a spect task or cbjective and desolved after the completion of the task or (be achievement of the objective; 122 Paegateter metas the person spponad by th Shareholder tne of cau 3 of ‘his BNq" =) 123 "Approval of the Shareholder” mesns a wrtien notice ttm the Shareholder to the Company rvendng the Sharebote' approval of «mare copy of» Gharhoksers 124 “Autdting Profeselen Act meena the Audting Profession Act, No. 26 of 2008; 126 © “Boanf" meena the “board” of the Company fom fine to time, as defined in the ‘Companiee Act, which is also the Accounting Authadty for purposes ef the PFMA; 128 “Business Day’ means any day other than a Salurday, Sunday or oftelal public holday Inthe Republic; fe 127 “Oreup Cet acute” means te cup ctl execute of he Cornea: 128 “Group Chiet Financial Officer meane the group chiel financial cficer of the Company, 129 © "Gonupanies Act’ means the Companies Act, No. 71 of 2008 2 amervied, consaidated ‘re-enacted from tne to tna and incucee afl echedules hereto end the Regulations; “Company” means Eskom Holdings 80C Lif, Registration no, 2002101862700 ‘whatever other name may be inown by from fimo to tne; * 12.41 “Company in general meeting” means 1 formal mmseing of oF a resokition ‘ es passed by, 1212 “Consuttalion/Consult” moans a forms! engagement requesied by one pasty, et such ‘ine, in such manner and st such piace agreed to between the partes, having fret Ftmaby ene, aa Siand wih th rloert kaon asthe pay might reasonably require, Inching infoanslion party may speaiicaty request, to allow the pay te conalor tho mali upon which the party i bag Consabed, . 121% “Corporate Plan” meant the three-year plen of the Company ms contemplated In the rei Rages A Cae a Sani 8 a We {he role and kuncfons of the Company, which plen rast inchude out fe not Bniked fe): — 1.2131. sttningie cbjectives and outcomes identiied and agreed on by fre Shareholder in the ‘Shareholders Compact, 1.2432 ehetaglo and business initeves as embodied in business function srategls;Ez Document | 240- MEMORANDUM OF INCORPORATION ‘Wdenlifer _ [esse7ese Re |0 th 1.224 "EX Offclo Director” means an “ex oficlo direct” ofthe Company from time to ene, ' ‘a3 defined in the Companine Act; 1.226 “Finanolal Ansietance” hes the moaning eet out in secon 48(1) of the Companies Act; 1.228° ‘Financial Year” hav the meaning set out i clause 27 of Bis Mt; 1.227 ‘Onnetie' means the Goverreeent Gaztie of the Reply 1228 “Governineat” means the Goverment ofthe Repub: 1228 “Guidelines” means the ‘guidelines for the eppolniment: Chief Executive for a Btate (Owned Entering’ laaued by the Miter rem time 12.30 “weligisie or Disqualified mass inelighle or dequaed 2 coniampleled In the seoken 8 of the Companies Act or as condemplted in cauve 44.{3 of Bie MOL wich, stad apply not ohly in Directo but alap to members of Boer commilises end Prescribed Officers; : . 1.231. “Law* moune any la of genera apploadon, as amended and re-enacted from tene to ‘int, and inckudes the common law, coneifiution, decree, tremiy, ordinance, by-taw, ‘der, reguiation or any othar enactrsent of legiatetive measire of government (icucing \bool and provincial goverment) sixtulory ar reguistory bedy whic hee the force of law, 1232 ‘means the leglialve and registry Bamowork fem te to ‘ime in force which relates to o affects the Company incuding, the Companies Act, the PRA, the Nationa Tressury he Legistadon, Nadonal Enenyy Reotialoc Ae, Elacselly Rleguition Act, the Natonal Husker Regulator Legation and ‘Regulations and eny end every other Law, which relates to or attecte the Company; 1233 » “Minterta” moans “material ss defined in the Companies Act, 1224 “Memorandum of morperaion’ of WOM" means this Mercranckum of Incorporation of ‘te Company, ex amended fem tine to time, H 12368 “Winictar’ ‘meene the Minsler of Pubic Enferprises in hewhis capsctly as the ‘presenta of the Goverment and the Exoative Aharty (ee dened in he PMA) te Company, cri any otter Miniter ts designated as beg tbe ropreseniaive ofthe Goverment or fe evecuive shorty, then thet Miniter acing in euch capacity, 12.38 “Month” means a onlendar month; 1237 “Notice” manne noiice In wating enc delivered according to the provisions of the MOI ‘a more particuiary he provislons of cau 28 of tha MOI; 1.238 “Oftioe’ means the registered office of the Company; 1239 Resolution means » reschilon adopted wih re support of more than 60% Cee are te certs Saree on fe makin ae Shareckers Mecting, of by the Shareholder ‘8 roeetng, 28 contemplated fh ‘ssction 60 of the Companies Act; 1.240 “Ownership Contra, in telson te the Company, means the ability ofthe Sharehoier, |n accontance with the provisions of section 1 of the PFMA, to exercise any of the {olloning powers to govern the financial and operating polkies of the Company In order: ‘to obtain Denotia fom is acts: 4,240.1 te appolnt or remove aor the majority ofthe Directors: ‘ears nt tm mem et. aml ee rer ssn tein ptr eos b prett ttn wpat a@Bret e g80 Us, gh tenarne ad bbe | = bt me te4B ot se remeron EE El tes- ‘© eppotnt or remove the Company's OF; 12403 (0 catt a, or the majorty of, the voles t meetings of he Board: 12404 {© coo a ra fey of, the wong ghee at a general meeting of he Company. 1244 "Person" includes a Jartete Person; 1242 “PPM” means the Pubic Finance Menagartan At, Ho. {of 1906, as amended: ‘Statement, the Sherehoider’s Compact the GN, the Comporaio Pian, Governance Codes of Goad Pracee snd ‘Protoco?s trom fine lo Bree, the Delegaton of Autierty Framework and the Sadr. 1248 “Publla Audit Act meene fe Pubo Aud Act, No. 25 of 2004; 1247 “Regulations” meene the regulations published pursuat-io the Companies Act from fine to tne; 1248 Remuneration Polley” means the Remuneration Pally of the Company which wit oorperaie any “Remuneration Guidelines” enter “Standerts" publehod bythe Moet fom fano tote which wit be condtmed bythe Company on sh annual or Barna! bave ‘s= conlecopiaied In clanee 12.1.1.8 of te MOI; 1249 "Repub" means ihe Republe of South Aiea; 12.60 “Revenue Fund” hes the meaning se out in secon 1 ofthe PEMA; 12.81 "Round Robin Revolution” means a reeclllon passed other than at a. 1.2811 Gharehokler’s Mesting, which — 125814 ‘was euberied for considerntion to the Shareholder; and 125142 ‘wae wolnd on ln Wing by the Sheretoiter or by a Guy authortond representative aha of Sherelickder, win 20 (wreny) Businees Daye ater resohsion ‘was subented to the Shareholder ex conlemplaied in secon 60 (1); 12812 riod av Wty by epg ne ye a be acon ‘voted on in Wetting by 2 reeakiion, wifi Businaes Days after the ‘mein we ected feat ts coteane aid 12.62 “Becaritles” means ‘eecurllee” as teed in the Compeaiee Act, 1288 Tas ttieg Reals” mean the ropa o faued Bocuse of he Company quod @ {o be ostatitchd in erm of esllon 60) of he Ac and referred to in clause B ercot 1254 “Shareholder mesne the Government represented by this Mier, 4288 Fanapegolters Covmpact” means the areament, enleed into purauat othe Tressury ‘Regulations, between the Shershoider and the Boand annually, erences te meiner Samat arent yy mee tee ‘Popa aaa ptt rn cee hg Stats rien Q@ G7 meNEMORANDUM OF INCORPORATION : exscresy | |R™ 10 MA Wad a2 Wad * 145 1464 ‘Tho nerrencutlve Direotore ehall be appointad by the Shareholder far » period af 8 three) years af a fine ('n tera), which eppoinisnent le reviewable arruely, provided thet no non Director ts appointed for longer than 3 (three) consecutive terme, ‘consftute a damisaai aa envieaged in terms of Baction 188(X@) of the Labour Reallone ‘Act 96 of 1096 ("he LRA’) Consequenty, the provialons of the LRA apply fo any uch removal, ‘Process of eonoinimant ofthe Grou Chief Finanolal Officer #* ‘The Board shal hendly, amine, evekuets and appoin a candidate forthe postion of ‘Group Chie! Financial Officer, provided hat the Shareholder shel, in Wiling, approve. ‘much conddate por fo the eepotriment bythe Board. Provided the Shareholder provides such Witten substantive motivation to the Boer, ‘such candidais shall not be appointed as the Group Chief Financial Offer and the Board shell Kienily and nominate an ateralive candidate for appoliment as the Group (Chief Prncial Officer and the process contemplated in this cause 144 shall be repeated unl euch time as an apporiment hee been made. ‘Tho Group Chet Finandal Oticer shail only become an exscullve Director of the ‘Company i appointed to the Bosrd by the Shareholder in terns of clause 44.1.1 of this NOL Ghaimerson of he Board ‘The chalsparson of the Board shall be appointed by the Shareholder. ‘Pact een ese peer en SE Sepa rte tap et rapt pT Rance BOL a oie Go» FO- WS es 447 oBoMes AND COMP IDR! | Rave pleature io ccnfirming your appok tment inthe folowing postion: 1 TROUP CHIEF BEC sR 0 required ta enter into fixed tatm Employment Contract. Tha Otter cf Employment “Sr sunject (o Fskom's Conditions of Service « abeidged version attached. ‘Your samuneration package wil be etiuctusd ae follower ‘Yolal quaranteed package of Ft? dts 200.00 per annum. 70% of the total quaranteed amourt wil be deemed to be pensionable earnings as a ‘acts for the calouiation af vertatn benefits; for example, pertaion fund. ‘he packene may be stteteed w ertds fora car akowanca and 13° cheque |n edition, the package wil be intisatced by fectore described below etcuctions are applicable te the folowing benefit, iC man Be sony PS techese Sewer F425 1 ob SB Pee 22724 O80 S00) vanes HRIE OMEEDG EOE Le Rag He DeeauRitna % s30 298. AWPU EEE foaoi ne: Medical Aig ~ Subject fo your agreement wit the Chairmen that you continue with your van medical sk, you wil be requred to subscribe to one af the Eskom approved ‘Medical Add Schemes (oreesnty Hestmed, Beritas or Medihep). ivalied ta R12 000.06 per annum. Bank flest card for operating ard maintenance expenses en your cer, ‘he sollawing benefits are non-taxabie: ‘es of the Executive gymnasium st Megawail Park Heath Centre, aymunit of Professional fees (maximum ct 2 work related institutions), ‘9up Lite Cover — equal to three tines annual pensionable eerringe. ‘oma instalad telephone For business usage,SMe Bae ESOWTION aC AT ITS MEETING ON 9 FEBRUARY 2016, THE PEOPLE AND GOVERNANCE COMMITTEE OF ‘THE ESKOM BOARD RESOLVED THE FOLLOWING: 1. The current Eskom Pension and Provident Fund (EPPF) rule that Employees may proceed ‘on retirement from age 50 with 10 years’ service, remains applicable. 2. In cases where Executive Director's (appointed on fixed term contracts) decide to take early retirement and there is a shortfall regarding the EPPF 10 years’ service rule, Eskom shall: |. Bridge the gap to make up for the 10 years’ Il. Waive penalties applicable to early retirement Ill, Refund EPPF actual costs for additional service added, plus penalties applicable to early retirement Dr BS Ngubane Msi klein CHAIRMAN: ESKOM (CHAIRPERSON: PEOPLE AND GOVERNANCE COMMITTEE yr (G7 «Brian MOLEFE P.O. Box 18 Comweo Hill, 0178. mbmi@mweb.co.20 ‘11 November 2016 Dr. B Ngubane Chairman Eskom SOC Megawatt Park SUNNINGHILL Sir EARLY RETIREMENT ~EMPLOYEE NO 4610263 ‘hereby request for approval for early retirement in terms of the rules of the Eskom Pension Fund read in conjunction with a resolution of the People and Governance subcommittee of the board dated 09 February 2016. My last day of service will be 31 December 2016. { would like to take this opportunity to thank the board for its guidance and leadership through very difficult times during my tenure as Froup Chief Executive of Eskom, MM Phe EO? Ber mk@®€skom AY Mr B Molefe UN: 06102575 Dear Brian EARLY RETIREMENT ‘Your letter dated 11 November 2016 is hereby acknowledged and It Is confirmed that your fast day In service will be 31 December 2016. In terms of the rules of the Eskom Pension and Provident Fund (EPPF) and Board resolution, your early retirement is approved. The following payments are due to you: ‘+ Salary up to 31 December 2016 (also refer "Suspense Account” below), © Accrued leave pay. + Short Term Bonus calculated on your Pensionable Earnings (nine months proportional bonus: based on 2 50% on-target performance). = Payments in terms of the LTI Scheme. Currently, there are two grants outstanding to the letter dated November 2016, namely: co Grant 11 that was awarded in April 2015 and vests in March 2018. © Grant 12 that was awarded In April 2016 and vests in March 2019 Tn terms of the rules of the scheme, the LTI payments will be made as soon as possible after the two vesting dates. Both grants will vest at 50%. 1, Pension Fund ‘Your early retirement has been approved in terms of EPPF rule 28 and 21.4, which means that penalties will be waivered and that potential service to age 63 is granted. ‘enawat Perk ‘Maxwell Drive. Sunninghill Sandton PO Box 3091 Johannesburg 2000. SA & Riel ee a le? ™ a Z4. Certificate of Service A certificate of service covering the period of your employment with Eskom will be handed to you on 31 December 2016, 5. Eskom Property ‘Any other Eskom equipment in your possession, including the following should be retumed to beecutve Support (Megenatt Park, C3 Uf) en BL Decomber sone, Eskom has copyright on all documents, records and any other material which you may have Prepared or have come into possession since your Your erplzyment starting dete wits Eon, Tt is necessary that this should remain in Eskom’s possession. 6. Tax Certificate An IRPS tax certificate in respect of the 2016 / 2027 tax year will be issued. T wish you every success for the future, Yours sincerely ae Go? ; gol?SUNNINGHILL, SAS Eo es of naony BSNGUBANE Wa of Baplopes uoacunrrana) CHAIRMAN: Deignaion of Bapiaye ‘31 DECEMBER 2016 Certificate of Completed Service (Chis certificate is insned without alterstions and etasures of any kind) Date: 31 DECEMBER 2016 Reference Number: 4610263 \ hereby certify thet BRIAN MOLEFE (identity Number. 661228 8778 088), was employed in the service of Eskom in the capacities and for the periods herein specified. Date of engagement: 28 SEPTEMBER 2016 Job title on engagement: GROUP CHIEF EXECUTIVE Promotions/Transfers: NONE Date of leaving service: 34 DECEMBER 2016 Job title on leaving service: GROUP CHIEF EXECUTIVE Reason for leaving service: EARLY RETIREMENT Place of employment: ESKOM, MEGAWATT PARK, MAXWELL DRIVE, oy ® Seach?Bmio @€Eskom 34 Pension and Provident Fund DrB Molete Date: 18 February 2017 PO Box 18 Enquiries: 0800-11-4548 CORNWALL HILL Fax: 0866-81-5449 0178 RETIREMENT BENEFITS AS AT: 01/01/2017 PENSION NUMBER : 004610263, ‘On behalf of the Eskom Pension and Provident Fund (EPPF), | wish to welcome you tothe circle of EPP pensioners. We will endeavour to make your well deserved years of retirement a pleasant experience. ‘Your retirement benefits have been calovlated according to the Rulss of the Fund, which determines that the ‘annual pension payable by the Fund to a retired member shall be 1,085/600 of his/her final average‘emoluments ‘over the lest 12 months of service, for every month of pensionable service. According to the option exercised ‘on your application form, you indicted thet you want io commute one hid of your annual pension ino & lump ‘sum. The details are as follows : FORMULA: Final Average Emoluments X Months of pensionable service X 1,085 00 = Annual pension PENSION BENEFITS PAYABLE: Monthly pension (before tax) : R 111 866.17 ‘Lurap sum (before tax): R9767743.68 ‘The Fund hus requested # tax directive (IRP3) from the South A ftican Revenue Service regarding your lump sum, ‘which indicates that an amount of R 1 974 975.77 must be deducted fram the lump sum benefit. Ee Ofte Pa 24 Geo Prine Bo 50 Sryanice 1 cent East Bryanston East 2191 South Arica South africaKindly aote the following:: = Your pension will be paid monthly in advance on the first day of every month and deductions will be made for tax, medical aid (if applicabie) and all other deductions allowed by the relevant legislation and as requested by you on your application form. = Your monthly pension willbe paid to you forthe rest of your life and will be increased annually, depending on the financial investment performance ofthe Fund and in accordance with the Rules and inorease policy of the Fund. In eae of your death your surviving spouse end dependant children (as defined by the Rules) will qualify for ‘a monthly pension. Your spouse will receive monthly pension for the rest of his/her naturel life and your ‘dependant children will receive a monthly pension until they become 21 years of age. All pensions will be colculated 0s « percentage of your original pension before commutation as provided by the Rules of the Fund. ‘The following indicates the basis for calculating pensions for a surviving spouse/s and children : Widow / widower 60% ‘One child PLUS 30% ‘Two or more children PLUS 10% Please keep this letter on record for future reference. Ityou have any enquiries in this regard, please do not hesitate to contact the Fund (always quote your ‘pension number in any future correspondence with the Fund). ‘rust that you fit pe above in order, D Vitale Benefits Processing ManagerBMu CES aT 718% Annexure ESK10 hereto is the communication of the acceptance, by the Eskom Board, of Molefe's request for early retirement. However, and erroneously, the. provision in ESK1O dealing with the retirement benefits in terms of the Pension Fund Rules, incomectly refer to the rules relating to retrenchment as opposed to early retirement. Rules 28 and 21.4 were erroneously reftared to. The acceptance of Molefe's “request for approval for early retirement" was not dealt with in accordance with the terms of that request, namely that it be in terms of the Pension Fund Rules read together with the resolution reflected in annexure ESK6, In other words, the terms of the “approval” did not coincide with the terms of the "request". Furthermore, Eskom was ‘mistaken in its belief that it could permit for early retirement prior to the age of 55. ‘The purported early retirement agreement, concluded es set out above, was then given effect to, Eskom made payment of just over R30 million to the Pension Fund, Molefs then departed fiom Eskom (on the basis of his retirement Proposal) and subsequently became a Member of Parliament for the African National Congress. wall 6 By ..34, 35. 36, 6M 266 © -16- ‘The matter then reared its head wher the Minister, on the 23” April 2017 and following on certain press repotts, issued a press statement, a copy of which is Annexure ESK11 hereto. In order to deal with the issue, the Eskom Board met on 24 April 2017. This was followed by my meeting the Minister on 25 April 2017. We discussed the implications of the carly’ retiremerit agiéement. The Eskom Board concluded that the carly retirement agreement had legal impediments to its implementation and therefore had'to be rescinded and the status quo restored, The "agreement* conichided between Hskom nd Molefe relating to his. "retirement" was concluded in. good faith; but on terms which, insofar as it related to pension benefits, could not be implemented, Molefe's request for early retirement was intricately linked to the Pension benefit terms flowing therefrom. ‘His request was a unitary Tequest which could not be separated out between "retirement" and the benefits flowitig therefrom, Eskom was left in a difficult position because the payment of the ‘amounts referred to above to Molefe and to the Pension Fund were Oe by Nie L mek34, 35. 36, ‘The matter then reared its head wher the Minister, on the 23" April 2017 and following of certain press reports, issued a press statement, a copy of which is Annexure ESK11 hereto. In order to deal with the issue, the Eskom Board met on 24 April 2017. This was followed by my meeting the Minister on 25 April 2017. ‘We discussed the implications of the carly’ retirement agiéement. ‘The Eskom Board thereafter met agairi and, having considered legal advice received, Concluded that the early retirement agreement had legal impediments to its implementation and therefore had to be rescinded and the status quo restored, The "agreement" coricluded between Eskom and Mélefe relating to his "retirement" was concluded in good faith; but on terms which, insofar as it related to pension benefits, could not be implemented. Molefe's request for early retirement was intricately linked to the Pension benefit terms flowing therefrom. His request was a unitary Tequest which could not be separated out between "retirement" and the benefits flowing therefrom, Eskom was left in a difficult position because the payment of the amounts referred to above to Molefe and to the Pension Fund were br37. 38. et 27 -17- made pursuant to‘a "rétirement" but the Rules of the Pension Fund did ‘not permit for eatly retirement at the age of 50. Early retirement could only be taken at the age of 55. Eskom, mistakenly, had acted on the basis of the resolution set out in annexure ESK6 hereto. Eskom’s ‘mistaken belief was, inter alia, that the resolution (ESK6) could have ‘been passed and implemented on its terms, But the Pension Fund rules do not permit for “retirement from age 50”. ‘When it became clear to Eskom, on the basis of legal advice received, that it was wrong in this regard and that its agreement with Molefe for his retirement was concluded on a logal premise which was incorrect, Eskom was left with the task of undoing what had been done. Consequently, Eékorn passed a resolution to rescind its decision to approve Molefe's: request for retirement. The consequence thereof ‘was that the status quo had to be restored. ‘The amounts paid out by ‘Eskom on account of Molefe's "retirement" would have to be repaid to Eskom and, in order to restore the status quo, Molefe would resume his duties as the Eskom Chief Executive, Consequently, on 3 May 2017, I addressed a letter-to Molefe, in these terms, a copy of which is annexure ESK12 hereto, The minute of the be By LBs- SMa “3S Expnstory Afi 63) 21082017! PENULTIMATEML -i- transpired. 29. I thus requested Eskom to consider rescinding the early retirement agreement and to renegotiate a package wih Mr Molefe. in “requesting the Board to renegotiate Mr Molefe's package, | had in mind that they (the Board) might want to consider less expensive ‘options that would also ameliorate Mr Molefe's financial prejudice and any costly Itigation that may result If the agreement they reached was ‘not honoured. 30. Llexpressed my displeasure in a public statement and stated why I could’ not support the pay-out. | simply did not agree with the reasoning. A copy of my stalement is attached hereto marked “LB8"9 ‘and should be read herein as if specifically incorporated. | pointed out in the statement that | was not a party to the contract of employment fand stated that | had requested the Board to report back fo me with : ‘an appropriate pension proposal. 3. On 11 May 2017, Eskom retumed to me with four options which f set out below. The options were put to me after Eskom had informed me that it had taken legal advice from senior counsel which | had no feason to doubt. By this stage, It had become apparent that Eskom's Pension Fund Rules did not permit a payment fo Mr Molefe and that Gy ..Explonetory AB (2) 210820171 PEMULTIMATEN the entire agreement between Eskom and Molefe was based upon a common misunderstanding of the rules of the fund. 32. The options were as follows: 32.1 32.2 32.3 The first option was consensual rescission of the early retirement agreement. In terms of this, the parties wouki agree to cancel the éarly retirement agreement and move fo the status quo ante . Mr Molafe was required to pay back the monies that he had received pursuant to his early retirement and pursuant to the termination of his contract In exchange, he would resume employment as the Group Chief Executive of Eskom. ‘The second option was non-consensual rescission of the early retirement agreement, The third option was for Eskom to advise Mr Molefe that his sarly retirement had been rescinded and he could opt to resign from Eskom's employ. He would therefore be entitled to the ordinary retirement benefits in terms of the rules. The final option was a payment in sattlement of the dispute. oy? su 5 meExplanatory ME (3) 210520174 PENLILTIMATEML -13- Of these options, the Board indicated its preference of consensual rescission. | understood from this option that it would inevitably mean a restoration of the status quo ante. The Board indicated that i was also wiling to accept Molefe as the Group Chief Executive once ‘again. ‘The Board indicated, at paragraph 5 of the letier, that it had resolved to rescind lis approval of Mr Molefe’s retiement package and tendered resumption of his duties as Chief Executive Office with effect from 15 May 2017. Furthermore, at paragraph 6, the Board stated as follows: “A reinstatement agreement was propossd and accepted between the parties. This agreement is required for various administrative issues to be reversed and also to be presented to the Eskom Pension and Provident Fund for ensuring the exit of the early retirement proposal. As this is simply 2 reinstatement of his employment, counsel has advised thet neither you nor Cabinet's formal approval is required for Mr Molefe fo resume his duties a8 an employee. However, given our relationship and in order fo avoid any misunderstanding your approval is nevertheless requested.” | attach a copy of Eskom’s letter as “LB8”. oT SS {x Si Qu @ Eskom 350 |= [SM ‘Ss ‘Dear Brian In view of the lstest development around your retirement from Eskom, as well as engagement with our sharehotder minister, the board has had! to review its decision of 21 November 2016. Having considered a the matters at hand, perticularly that our shareholder minister does not ‘support our decision, we have resolved fo rescind our decision. Therefore, you are hereby requested to resume your duties #s the Group Chief Executive of Eskom. ‘We ere cogniacant of the potential Impact on your current réle, but given the circumstances, we are convinced that this mave would be in the best Interest of South Africa and its people. We took forward to your favourable response. ‘Yours sinoerely Dr BS: Date: 3 May 2017 BM Molefe Date: 3 May 2017 Head Ofce. Bark Maxwe | Santon Eas Ty 800 2030 Pax 227 1 B00 5009 woenethamvcize wile Teton eage B00 a fy Na S070 m } \‘MINUTES OF THE SPECIAL ESKOM BOARD MEETING 03-2017/18 HELD ON 2 MAY 2017 AT THE CHAIRMAN'S OFFICE, ‘TT PARK, SUNNINGHILL AT 14H00 ‘to the spacial meeting of the Board that had been called -conceming the early retirement of Mr-Brian Molefe and d by the Ministor of Public Enterprises. No epecific declarations wore made in reepact of the matter on the agenda. 2047-05-02 Eskom Board Special Minutes Draft 22 Stity confidential Page 1 of Wwe br © rok3. MATTERS FOR APPROVAL 31 Group Chief Executive (GCE): Early retirement 3S2 Th ate! ce aren Board Serer née othe vet pepars by he GCS ‘which served a2 a. reminder of the previows dinqussions bythe Board conceming the posalble options folowing the pubilo announcement by: the Mr Brian Molate, and that sho had requoeted the forward « palatable pension proposal. It was confirmed from:the note that at:a: Minister hed beer Informed thet: ‘© Based on the relevant rules of the Eakit pension Kloin would be mandated to engage Mr Molefe on bebsif of the Boiard ta’obitaln tile consent to the Board's rescission of tis earlier decision. ‘The meeting confirmed that conéidering that it did.not heve.the support of tts prinaipal for the spproval of the early retirement application and the fact thet there were legel risks 2017-06-02 Eskom Boord Specie! Minutes Draft 22 paje2ot6 we Ys‘associated with all the other options, the proposed option would be a fair and olean solution in the Inierest of all concamed. A legal process would introduce substariial and extended ‘uncertainty which wes not in the interest of Eskorn. Mr Khoza also polited out that the - ‘Board had In fact not expected the appllostion for early-relirement and elfhough it had been ‘accepted, this was In fact a surprise as his suxiden departure wes not actually regarded as being In the interest of Eskom. Mz Mabude johed the meeting. Ma Klein provided @ summary of:the discussion to: ‘was In eupport of the option of @ rescission oti za esis Klein fo meet with Mr Molefe as soon as to the Board, via the Chalimen, on the.cistoome of the the GCS would be reqiested to prepare. lear for Me all legal requirements to give effect to this decision were ett E.S4 ier Bee Spec Mine Dro 22 Pegescts M. u br &it was again noted that considering the Minister's response to the matier, the Board hed no option but to rescind ts original decision to accept the-eerty retirement application. The meeting requested Me Klein and Mr Khoza to aleo brief the interim GE. IT necessary, ok 2017-05-02 Eakom Board Special Minutes Draft 22 m ‘confidential2017-05-02 Eskom Board Special Minutes Draft 22 ‘Stitly cortidentiol ‘Page Gots GY aes@€skom 23 Me Brian Molefo 1D 6612285778086 Dear Brian YOUR EARLY RETIREMENT 1 The above matter has reference. 2 With effeet from 1 October 2015, you were appointed as Eskom Holdings SOC Limited's (‘Eskom") Group Chiet Executive. 3 Anemployment agreement was signed by the parties on 7 March 2016 (“the employment agreement"), 4 On 14 November 2016, you requested the Eskom Board to approve your application for early retirement in terms of the Eskom Pension and Provident Fund Rules ("Rules") read in conjunction with People and Governance Committes resolution dated 9 February 2016. You further indicated that your last day of service would be 31 December 2016. Eskom issued @ letter accepting your application for early retirement on 24 November 2016 (‘the Retirement Agreement’). The Board of Eskom has resoved to rescind the Retirement Agreement. Consequently, the Board tenders resumption of your duties as Group Chief Executive Officer by 15 May 2017, on the basis set out in the re-instatement agreement signed between us. f a Hand Ofte ean saw ht Bencton Pober 18 ‘Falsd7 1400 2000 Fux E711 8008003 ver sohom cas (Eskom Malogs 200 Ld ig We $0020 1877190a rey 7 “Ghoul! the terms of this proposal be soceptable to you, kindly sign a copy of this \ettet.end retum to the Company Secretary by close of business on the 12 May 2017, ‘Yours sincerely wee ‘CHAIRMAN Date: nfos{eq {ACCEPT THE TERMS OF THIS LETTER READ TOGETHER WITH AGREEMENT SIGNED ON 7 MARCH 2016 AND ON 12 MAY 2017, uy THEBM wat 4 YW REINSTATEMENT AGREEMENT ESKOM HOLDINGS SOC LIMITED BRIAN MOLEFE weil Gl G7tothe Agreement — 24\ “Agresment’ means this relnetatement sqresment, 22 "Eakomt’ means Eskom SOG Holdings Liniled, @ Jursts body crested by virtue of + the Eskom Act, No, 40 of 1987, 25 amended trom time to tne, having fs heed office at Magawatt Perk, Maxwell rive, Sunninght, 23 “Eskom Pension and Provident Fund" means « pension fund extablahed by the Pension Funds Act, 24 of 1966 which came ilo operstion on 1 January 1960 and ‘wan ropistared on 21 Apt 1968; 24 "Walete” means Brien Motofe with itentty number 6812285776086; 2.5 *Partios” means the parties to this Agreement, 28 ‘1.. tax! Agreement” means the employment agreement signed between the Parties on 7 March 2016 relating fo Molefe's eppolaiment as Group Chief Executive of Eskor © copy of which is annexed hereto marked annexure “A"; endl 27 words and phrases define '" the Principal Agreement or inthe annexares 0 tbe Principal Agreement wil bear the seme meanings heretn. 3 INTRODUCTION 3.1 The Parties entered into the Principal Agreement, 32 On {1 November 2018, Molofa applied for early retirement. A copy of Motafe’s ‘early relirement application is attached marked "B". 2:9 On 26 Novernber 2016, Eskom iseued a letior sonepting Molefe's early retirement. ‘Acopy ofthe acceptance letier fs etached marked *C* ("Retirement Agresment), Vz hoe? wm34 38 Page 3 ‘To Board es elected Io rescind the decison to approve Molefe’s application for ‘ast retcomere. ‘The Parties accordingly agree as set out herein, PRINCIPAL AGREEMENT For the evoldance of doubt, the Principal Agreement shail continue on its terms. RESUMPTION OF DUTIES: Molete thal resume his duties in terms of the Principle Agreement on 16 May 2017, Eskom shell eke ail administrative slope necessary to ghve effect 10 this ‘Agreement. REPAYNENT OF MONIES BY MOLEPE TO THE FUND \Molefe egress to pay tothe Fund all amounts due fo the Fund which were pald to him pursuant tothe Retiement Agreemont by v0 later than 80 Novernber 2017. PERIOD BETWEEN 1 JANUARY 2047 TO 15 MAY 2017 ‘The period between 1 January 2017 end 16 May 2017 wil be regarded as unpeld leave, WHOLE AGREEMENT ‘This Agreement conetinies the whole of the egreement between the Parties relating to the matiors dealt with herein and, save tothe extent otherwise provided ‘herein, no undertaking, represenlation, tem or condition relating to the subject ‘matter of this Agreement not incorporates herein ahall be binding on the Parties, costs. Each Party wll bear and pay its oun logal costs and expenses of end incidenial to the negotiation, drafting, preparation and implementation of this Agreement. SIGNATURE ‘This Agreement is signad by the Parties on the dates and at the places indicated below, ‘Tie Agreement rnay be executed In counterparts, each of which shal! be deemed ‘an orignal, and ail of which together ehall conetiute one snd the same Ageeement as a the date of signature of the Party net signing one af the counterparte. 427 Aw fy! Bx ye Br42S ree 10:3 The partons signing this Agresment in a representative capecity warrant their uthorty 1 do 20, 104, Th Parties record that It ls not required for this Agraerment to be valid and ‘ervorcenble that a Party shall Intel the pages of this Agreement and/or have its signature ofthis Agreement verified by a wines. BIGNED at Suamaamalecdl ‘on {| Mey 2007. sore Cpe Foon ol wap. MrBM Wolete ee w&SBMq 268- 10.18 Special Eskom Board meeting dealing with the issue is annexure ESKI3 hereto. 1h consequence of the resolution to rescind the purported approval of the carly retirement “request, Molefe and Eskom concluded a reinstatement agreement, a copy of which is annexure SKI hereto (the reinstatement agreement). ‘The reinstatement agreement Provided for Molefe's employment contract to continue on its. tems and for Molefé to resume his duties in terms of his employment contract. Molefe also agreed to repay artounts received by him Pursuant to his purported "early retirement". The parties also agreed that the period betweea 1 January 2017 and 15'May 3017 (i. the date of his purported early retirement and the date of his resumption of his duties), be treated as unpaid leave, Molefe's acceptance ‘of the terms of the retirement agreement is Confirmed by the signature to a letter dated 11 May 2017, a copy of Which is annexure is ESK15 hereto, Jn summary, I make the following points = le be BAa 264 #19. 41.1. Molefe did not resign from Eskom. His departure was on account of & purported "early retirement", on terms though ‘which could not be effected in-law. 41.2, Consequently, the purported early retirement could’ not-be given effect to and was for that reason rescinded by Eskom, The consequence of this was that the status quo as it existed Prior to the purported conclusion of the early retirement ‘agreement Kad to'be restored, ‘Molefe has agreed to repay all amounts which he received from the Pension: Fund, and the Pension Fund will repay to Eskom all amounts paid by Eskom to the Pension Fund in relation to Molefe's purported "early retirement". 41.3. Prior to Molefe’s purported early retitement, Eskom did not consider it appropriate to temove Molefé from his position as Group Chief Executive. In this regard, Eskom's Board was mindful of the terms of the Public Protector’s report, which contained allegations made by various people and observations by the Public Protector, but with the only remedial action (which in form is significant) being that those weer® &- &42, JOC tie *20- allegations and observations be tested by a duly appointed commission of enquiry. 414. The Eskom Boatd is alo mindful of the fact that as Group Chief Executive, Molefe had played a significant role in stabilising Eskom, His performimce in this' regard could not be faulted. It is also significant, in both the DA application and ‘the EFF application, that there are assumptions made and arguments based.on & premise which are either incorrect or ill-founded - 42.1. ‘Thus, a fundamental premise of the DA application is that Molefe had resigned as Group Chief Executive of Eskom and ‘Was thereafter again appointed or reinstated to that position by the Minister. Molefe did not resign. And, there was no decision made by the Minister to reinstate or appoint Molefe ‘again, Molefe resuined his duties as Group Chief Executive on account of the failure of the purported carly retirement agreement. bo BeExponatory Af) 210520175 PEMLLTIMATEME, -13- Of these options, the Board indicated its preference of consensual Fescission. | understood from this option that it would inevitably mean a restoration of the status quo ante, The Board indicated that it was also willing to accept Moléfe as the Group Chief Executive once again. The Board indicated, at paragraph 5 of the letter, that it had resolved to rescind Its approval of Mr Molefe’s retirement package and tendered resumption of his duties as Chief Executive Office with effect from 15 May 2017. Furthermore, at paragraph 6, the Board stated es follows: “A reinstatement agreement waz proposed and accepted between the parties. This agreement is required for various administrative issues to be reversed and also to be presented to the Eskom Pension end Provident Fund for ensuring the exit of the early retirement proposal. As this is simply @ reinstatement of his employment, counse! has advised thet neither you nor Cabinet's formal approval is required for Mr Molete to rasume his duties as an employee. However, given our relationship and in order to avoid any misunderstanding your approval is neverthaless requested.” | attach a copy of Eskom’s letter as "LBS", bev\OC pt Explanatory Aft (C3; 270520171 PENULTIMATEA vies Bmx 37. Attached fo Eskom’s letter was () a letier to Mr Molefe; end (i) an ‘agreement enitied “Reinstatement Agreement”, | attach these documents 2s annexures “LB9” and “LB10” respectively. | pause to point out that, Dr Ngubane had already signed the reinstatement agreement when he sent it to me. | was not a party to the agreement. %. Eskom's Board had sent me a latter with a proposal that t had accepted and signed. it simply requested the courtesy of an approval from me. This approval, according fo its legal advice, was not necessary to regularise Mr Moiefe’s appointment, 38. It was in this context that, on 12 May 2017, | issued out a statement indicating that Mr Molefe had egreed with the Board to serve out the remainder of his original contract and to reconsider the terms of his contract that resulted in the previous pension arangement. A copy of this statement is attached hereto marked Annexure "LB12". 40. | understood that upon rescission of the contract the status quo would have to be restored. | stated that the Boerd should reconsider the contract that resulted in the previous pension arrangement. [ ‘made this statement on the besis of my understanding that there was: ‘an agreement reached with Mr Molefe to grant him an enhanced pension package at the time when his contract of employment was a7,cS He Explanatory At (2) 210520171 PENULTINATEM, a. SMe 15 concluded (which | was not party to nor had | knowledge thereof ) and did not want the package issue to resurface in the future once again. | pause also to point out thet if it is found that the 2016 MOI Is relevant, the early retirement contract was concluded while the 2016 MOI had been in force. As Minister I was not a party to the early retirement contract and this too would inevitably mean that the ‘agreement was invalid and that the status quo would have to be restored, am aware of the third respondents track record at Eskom which | have mad mention of in LB12. 1am also aware that there are certain allegations made against Mr Molefe in the Public Protector’s Report. The status of this report is ‘matter that is currently being address by the Office of the President. | cannot prejudge what may transpire on this aspect. ‘state in conclusion that: 45.4 {did not in any way sct unreasonably when | leamt of the true facts namely that Mr Molefe had not resigned Luniaterally but rather that he had unbeknawn to me entered ge makExplanetory A (23) 210890971 PENULTIMATEML 45.3 -16- into an early retirement with Eskom: It would not have been Proper or fair of me to contend that Mr Molefe had resigned unilaterally after having been appraised of the true facts. in not supporting a 30-million-rand pension pay out to Molefe ‘and in requesting the Board to rescind its decision and to try to resolve the matter | was acting in the beet interest of the country. 1 also believed, on the strength of the legal advice received by Eskom and communicated to me and which | had no reason fo doubt, that once the contract of early retirement had been mutually rescinded on the basis of an eror it Would inevitably mean that the status quo would have to be restored, I was not party to the reinstatement agreement. acted with prudence when | stated in LB 12 that the Board ‘should reconsider the contract that resulied in the previous Pension arrangement es | do not want this issue to resurface in future if there were promises made to Mr Molefe when he contracted with the Board and which contract | was not & THES \ouMINISTRY PUBLIC ENTERPRISES REPUBLIC OF SOUTH AFRICA Pato 16 Hal 08TH 2243 HEED Fae 01241 ‘ia BepbaeT, Capo 9000 Te G21 64 SVE Foe OES SBGT TAY Dr. Ben Ngubane Eskom Chairperson Eskom Holdings SOC Limited PO Box 1091 Johannesburg 2000 Tel: 011 800 2030 Fax: 011 800 6803 Dear Dr Ngubane Directive to the board to rescind the decision to re-instate Mr. Brian Molefe as Group Chief Executive Your letter dated 17 February 2017 has reference Following my engagements with Government through the Inter-Ministerial Committee and ‘ling of respective affidavits, | have come to the conclusion that the appropriate process was not followed in the appointment of Mr. Molefe. | therefore direct the Board to rescind its decision to reinstate Mr. Molefe as the Group Chief Executive of Eskom. ‘As previously communicated to the Board on 08 March 2017, | wish to reiterate that the Board should follow an open competitive recruitment process which must be advertised internally and externally in the selection of the most suitable candidate. in the meantime, I request the Board to provide me with names to consider for acting Group Chief Executive within 48 hours. | further request that the Board takes appropriate steps to ensure that there is stabil in the organization. Yours sincerely (~~ MS{LYNNE BROWN, Mi MINSTER OF PUBLIC ENTERPRISES DATE: 31/0 [aorBMeuy Template le 240-43921804 | Rev 6 @€skom EXTRACT OF MINUTES | pesuinent | 2ao-t2sea7074 | Rev 4 Effective Dato | 08 February 2017 Review Date _| February 2020 EXTRACT FROM THE MINUTES OF BOARD OF DIRECTORS MEETING 06/2017/18 HELD ON 2 JUNE 2017 AT THE HUVO NKULU BOARDROOM, MEGAWATT PARK, AT 9h30 The Board of Directors received a letter from the Minister dated 31 May 2017. A copy of the letter is attached marked 1. In terms of this letter, the Minister has directed the Board to "rescind its decision to re-instate Mr Molefe as the Group Chief Executive of Eskom". ‘The Minister incorrectly made reference to a letter dated 17 February 2017. The letter that was sent to the Minister was 11 May 2017. In giving effect to and on the basis of the Minister's directive contained in the letter dated 31 May 2017, itis resolved: 4. That the resolution of the Board of Directors taken on 2 May 2017 is rescinded. 2. That the Reinstatement Agreement concluded between Mr Molefe and Eskom on 11 May 2017 be rescinded. It is therefore noted that in consequence, Mr’Molefe is no longer the Group Chief Executive of Eskom and will no longer serve as a diréctor on the Board of Eskom. CERTIFIED AS A TRUE EXTRACT S Dariels (Ms) GROUP COMPANY SECRETARY Date: Ql |aoiq ‘STRICTLY CONFIDENTIAL Gr Ie %BM zs eC o | ATTORNEYS \oF NOTARIES CONVEYANCERS INCORPORATED OURREF: B FARBERUCIMZ40 YOUR REF 2.JUNE 2017 ESKOM HOLDINGS SOC LIMITED ATT: MR NGUBANE PER EMAIL: NqubaneBS@eskom.co.za; DanieISM@eskom.co.za Dear Sir/Madam, RE: MR B MOLEFE: EMPLOYMENT MATTERS: 1. As you know we represent Mr Brian Molefe. 2. Our client was summoned to and urgent meeting of the Board of Eskom held this moming. Our client recused himself from the meeting, and on being asked to retum, was advised by the Chairman of the Board that, as directed by the Minister of Public Enterprises, the Board has resolved to rescind the Re-Instatement Agreement concluded between him and Eskom on 11 May 2017. 3. As a consequence, our client was informed that with immediate effect, he was no longer the Chief Group Executive of Eskom. Our client was handed a letter signed by Dr Ngubane dated 2 June 2017, a copy of the Board resolution of the same date and a copy of a letter from the Minister to the Chairman dated 31 May 2017 odelstein farber grobler TcoaPonaTeD ovzaecesevri DIRECTORS: G.A. EDELSTEIN |R. GROBLER J. AFRIATS. PILLAY "ASSISTED BY: J. CORREIA | CONSULTANT: BE, FARBER let Floor 28 Fricker Rd, llovo, Jhb’ P.O, Box 412049 Craighall, hb, 2024 Docex 261 RandburgIT: O11 341 0510/29 F. Litigation O11 341 0537 | Conveyancing O11 341 0524 | Accounts O11 341 0533 cea G7”(O&% eC f ATTORNEYS NOTARIES CONVEYANCERS INCORPORATED 4 Our client requested the Board to indicate the reasons for this decision. The response was that the Board was acting in accordance with the Minister's directive, No reasons were provided. 5. Weare instructed to inform you that our client does not accept this unilateral act by the Board. The conduct of the Board is both procedurally unfair and unlawful. 6. Our client regards this conduct as a repudiation of his employment contract with Eskom and will hold his employer to the contract of employment. 7. We call upon you to inform us in writing by not later than 17h00 on Friday, 2 June 2017 that the Board will withdraw its repudiation and honour our client's ‘employment contract. 8. Unless we receive written confirmation as set out above, our instructions are to approach the Court for urgent relief. Yours faithfully Barry Farber EFG inc Email: barry@efalaw.co.za pp Janita Correia Email: janita@efulaw.co.za (unsigned cue to electronic transmission) COPY TO: ‘THE MINISTER OF PUBLIC ENTERPRISES PER EMAIL: kim.davids@dpe.gov.za ; keromamang.mhlongo@dpe.dov.za ‘THE OFFICE OF THE STATE ATTORNEY ATT: MR P SELEKA PER EMAIL: PSeleka@justice.qov.za ‘edelstein farber grobler [INCORPORATED Peg 2016008657721 DIRECTORS: G.A, EDELSTEIN | R. GROBLER JJ. AFRIAT IS. PILLAY ‘ASSISTED BY: J. CORREIA i CONSULTANT: B.E, FARBER Ist Floor, 28 Fricker Rd, llovo, Jhb! P.O. Box 412049 Craighall, Jhb, 2024 Docex: 261 Randburg!T: O11 341 0510/29 F Ligation 011 341 0537 | Conveyancing O11 341 0524 | Accounts O11 341 0533 aINCORPORATED ATTORNEYS NOTARIES CONVEYANCERS CLIFFE DEKKER HOFMEYER INC ATT: A PATEL PER EMAIL: gadiLpatel@cchlegal.com; Taryn-Jade Moonsamy@edhleaaLcom edelstein farber grobler INCORPORATED eo: o1ecmE687721 DIRECTORS: G.A. EDELSTEIN | R. GROBLER ||, AFRIAT |S. PILLAY ‘ASSISTED BY: J. CORREIA | CONSULTANT: BE. FARBER Ist Floor, 28 Fricker Rd, liovo, Jhb | P.O. Box 412049 Craighall, shb, 2024 Docex: 251 RandburgIT: O11 $41 0510/29 F.Uigation O11 341 0537 I Conveyoncing OI 341 0524 | Accounts O11 341 0538 a BrSuu zZst -o. 19.1. records that Molefé had commenced etiploymeént with Eskom ou | October 2015,. and with effect from that date Eskom appointed him as its Group Chicf Executive; 19.2. ‘was a fixed-term contract expiring om 30 September 2020; 193. gave either party the entitlement to terminate the employment relationship by giving the other not less than six months’ written notice, provided that Eskom was entitled to terminate the employment contract with ot without notice, or on. such other basis as it considered propriate for any reason Justified in law, 19.4, Provided for Molefe to continue'as a member of the Pension Fund subject to its Rules, Since his appointment es Group Chief Executive of Eskom, Molefe has fulfilled his responsibilities with efficiency and also in a manner which brought stability to Eskom in difficult circumstances, ‘During is tenure, Eskom was able to successfully deal with significant issues relating to procurement and also achieved stabilisation of the Slesticity grid, theteby ‘intially reducing the problem of load. bp BY O mr\\ 266 + 10- shedding and eventually avoiding the Jload-shedding. The circumstances in which Molefe took over as Group Chief Executive ‘were difficult, Molefe though conftonted these difficulties with Vigour and was substantially responsible for assiiting in restoring stability to the fimctioning of Eskom, particularly in its most significant fiction, namely to ensure the continued uninterupted * supply of electricity to South Africans, However, during the later part of 2016, the Public Protector published her report, extracts Gf Which are substantially relied upon by both the DA and the EFF in theit applications. ‘The content of the Public Protectors report substantially forms the basis for th attck by both the EFF and the DA On the suitability of Molefe to be the Eskom Group's Chief Executive and the ipproprisieness of him continuing in ‘hat position. I will mot deal with the content ofthe Public Protector’s Tepott and what is stated therein in this regard, for a number of Significant reasons — 21. First, the remedial action proposed by the Public Protector in her report isthe establishment of « commission of enquiry for ‘he very purpose of enquiring into, investigating and receiving wit Br ere39, 41. M25. 263- a l(@ Special Eskom Board mecting dealing with the issue is annexure ESK13 hereto. | consequeince of the resolution to rescind the purported approval of the early retirement -request, Molefe and Eskom concluded a relnststement agreement, a copy of which is annexure ESK14 hereto ("the reinstatement agreement"). ‘The reinstatement agreement Provided for Molefe's employment contract to continue on its terms and for Molefe to resume his duties in terms of his employment contract. — Molefe also agreed to repay artiounts received by him Pursuant to his purported "early retirement". ‘The parties also agreed thatthe period between 1 January 2017 and 15°May 2017 (i.e the date Of his purported early retirement and the date of his resumption of his duties), be treated as unpaid leave, Molefe's acceptance ‘of the terms of the retirement agreement is Confirmed by the signature to a ister dated 11 May 2017, a copy of Which is annexure is ESK1S hereto. In summary, I make the following points =45 BMze primarily because the President had brought review proceedings in respect of this report.” \ (Ss 10° |. The essential edifice underpinning both applications is the Public Protector’s Report. Without this report, neither the DA nor the EFF can show any reason why Mr Molefe's employment with Eskom should be set aside. The circumstances concerning Mr Molefe's employment, once properly explained, show that his employment did not terminate after the early retirement agreement. The Reinstatement Agreement did no more than record the legal position that the employment continued, and made provision for reversing the financial arrangement made under the earlier Retirement Agreement. Consequently, neither of the applicants has a sustainable basis for the interim relief sought. 102. In the circumstance Mr Molefe asks for the dismissal of Part A of the applications of the DA and of the EFF, and an order that each of these applicants pay costs of suit including the costs of three counsel. NJ Graves SC S Miller 1Phalane Counsel of Mr Molefe Chambers, Sandton 2 June 2017 "7 Eskom Answering Affidavit Volume 3 para 25 pp262-263; EFF Founding Affidavit Vol 6 para 14 pagt (a7 nt