There is an obvious and clear prospect that former Eskom boss Brian Molefe could be successfully prosecuted on criminal charges relating to his massive illegal pension payout, a legal expert has said.
Attorney Llewellyn Curlewis, who is a senior lecturer in criminal procedure at the University of Pretoria, said given the views of a full bench of the High Court in Pretoria that there was at least incriminating prima facie evidence against Molefe, in itself suggested there was a reasonable prospect of a successful prosecution.
Judges Elias Matojane and Hans Fabricius yesterday took less than two minutes to dismiss Molefe’s application for leave to appeal against their damning ruling – that the R11 million pension payout he received from Eskom had been unlawful and that he should pay it back.
The court found there was a strong inference that Eskom and Molefe had deliberately devised a scheme to afford him pension benefits, in the form of a multimillion-rand early retirement package to which he was not entitled.
The court said the total lack of dignity and shame by people in leadership positions, who abused public funds with naked greed for their own benefit, was most disturbing.
Curlewis said apart from the criminal charges already laid against Molefe by trade union Solidarity, he would expect that the National Director of Public Prosecutions would seriously consider prosecuting Molefe, given that a full bench of the court had already suggested that there was something untoward in the evidence that must be looked at.
“The judges already considered some of the evidence against him and obviously made up their minds that there’s sufficient evidence at least for him to have his day in court,” said Curlewis.
“But the difference between a civil matter, which this one was up to now, and a criminal matter is that there is a much higher onus of proof on the state to succeed in getting a conviction.
“Maybe the state will provide some of the same evidence that was before the civil judges or they might be inclined to try other avenues and pursue other witnesses.”
Curlewis said the mere fact that the court allowed the evidence in civil proceedings does not necessarily mean it won’t be objected against in a criminal case, because it’s a different forum with different requirements.
“But I would be hesitant to automatically assume that a conviction will follow merely because judges in a civil matter suggested there is some form of incriminating evidence against him,” said Curlewis.
Solidarity: Brian Molefe’s actions fit the definition of corruption
- Trade Union Solidarity CEO Dirk Hermann said Molefe should hang his head in shame and apologise, but was doing the opposite by trying to defend an unlawful action. “It is an evil day when high-profile South Africans abuse court processes to defend unlawful actions that have enriched them… Molefe’s actions fit the definition of corruption.”
Molefe’s lawyer: We’ve not heard a word from NPA about criminal charges
- Molefe’s attorney, Barry Farber, said he would only consult his client towards the end of the week about the way forward and has not yet received any instructions on a possible petition to the SCA.
- He said neither he nor Molefe had heard a word so far from the NPA or the Hawks about criminal charges against his client. Farber said his client was a law-abiding citizen and would abide by the court order, that he must pay back the Eskom pension, although he believed there was no obligation on him to pay back his Transnet Pension of over R4 million which was transferred to Eskom and to which he was legally entitled.