NEWS & ANALYSIS

Brian Molefe & Ben Ngubane behaved criminally - Solidarity

Union files charges over the award of R30m in pension monies to ex-CEO

Solidarity files criminal charges against Molefe, Ngubane and others over Eskom pension grant

Solidarity today laid criminal charges with SAPS, the Hawks and the National Prosecuting Authority against former Eskom CEO Brian Molefe and former Eskom board chair Ben Ngubane.

According to Solidarity Chief Executive Dirk Hermann, the facts indicate that Molefe and Ngubane had teamed up to put together an unlawful transaction in terms of which pension monies of R30 million had been awarded to Molefe.

Solidarity is asking that criminal charges be laid against Molefe and Ngubane for, among others, fraud as Molefe has been enriched as a result of an unlawful act to the detriment of Eskom.

Solidarity is also asking that the both be charged in terms of the Public Finance Management Act, the Companies Act, the Prevention and Combatting of Corrupt Activities Act, and the Prevention of Organised Crime Act. Conviction can carry a penalty of ten years’ imprisonment.

According to Hermann, a prima face criminal case can be brought against Molefe and Ngubane. Solidarity is requesting the Hawks to investigate the matter and ask that the allegations be tried in court. Charges have also been filed with the South African Police Service and the National Prosecuting Authority.

Solidarity is also asking that other Eskom executives, such as Anton Minnaar, the manager in charge of the executive team, as well as members of Eskom’s remuneration committee and board members be probed too because they had failed in their legal duty to disclose unlawful activities.

Solidarity’s charges comes in the wake of, among other things, a condemnatory finding by a full bench of the North Gauteng High Court in terms of which criminal prosecution is justified.

In its finding the court referred among others to the pure greed, impenitence and lack of integrity displayed by Eskom’s leadership.

The court also found that the unlawful pension scheme was deliberately devised by Eskom and Molefe.

The court ordered that all monies granted to Molefe in terms of the unlawful pension scheme be paid back.

The charges must also be seen against the background of allegations made in the Public Protector’s State Capture Report implying Molefe in dubious transactions with Tegeta Explorations and Resources which in turn has close ties with the Gupta family and President Zuma’s son, Duduzana Zuma.

According to Hermann, it is clear from the course of events that Molefe and Ngubane colluded to devise the unlawful pay-out. Its final approval was given under Ngubane’s signature and was done in terms of a provision that was not applicable.

“They both knew that Molefe did not qualify for a pension fund pay-out but nonetheless made deliberate misrepresentations,” Hermann said.

Hermann contends that Molefe and Ngubane were wholly responsible for the accounting integrity of a public enterprise. In terms of the Public Finances Management Act it was expected of them to deal with Eskom’s assets with circumspection, and to act in loyalty, integrity and honesty.

According to the Companies Act a person is guilty of an offence if he has been involved in any act of a fraudulent purpose.

The Prevention and Combating of Corrupt Activities Act furthermore provides that the abuse of authority to reach an unfair outcome is punishable.

“Paying back the money is the right thing to do, which Molefe has still not done, but it is not enough. Paying back the money does not undo criminal charges. The fact that Molefe has applied for leave to appeal has no bearing on the criminal case either,” Hermann said.

For the complete affidavid, click here.

Statement issued by Dirk Hermann, Chief Executive: Solidarity and Anton van der Bijl, Head: Solidarity Centre for Fair Labour Practices, 6 February 2018