The Labour Court on Tuesday heard that its decision on whether or not former Eskom CEO Brian Molefe’s dismissal was unlawful would have a direct impact on a separate High Court bid which seeks to have his reappointment reviewed.

This was revealed during arguments made by the Democratic Alliance (DA) in court. Both the DA and the Economic Freedom Fighters (EFF) filed an urgent application, asking to be granted permission to intervene as interested parties in Molefe’s matter.

Molefe was reappointed as Eskom CEO by the parastatal's board on May 12, after a dispute over a R30-million pension payout.

However, Public Enterprises Minister Lynne Brown - who initially objected to the Eskom board's proposed pension payout for Molefe, but then endorsed his return - announced that his reappointment had been rescinded on May 30.

Molefe approached the Labour Court to challenge the decision to rescind his reappointment.

"If the court gave a judgment that Molefe’s dismissal was unlawful, it would beg the question whether his employment was lawful," DA lawyer Paul Kennedy told the court.

"This court cannot find that the dismissal was unlawful if the employment was unlawful."

Kennedy was responding to Molefe’s decision to oppose the two parties’ application.

Molefe resignation

The DA and EFF applied to have Molefe's reappointment reviewed at the High Court in Pretoria earlier in June. The matter was postponed pending the outcome of the Labour Court application, which Molefe launched a few days before.

In the meantime, the High Court issued an order ruling that Molefe should not report for work at Eskom and that Eskom should not expect him to be at work. The High Court also ruled that the DA should indefinitely postpone its application to interdict Molefe from taking up employment at Eskom, pending the outcome of the Labour Court action initiated by him.

"Should Mr Molefe be successful in the Labour Court, the DA will set down our application to interdict Mr Molefe's continued employment at Eskom," DA federal executive chair James Selfe said at the time.

Molefe resigned from his position as the parastatal's CEO in November 2016 after a report, titled State of Capture, by then-Public Protector Thuli Madonsela found that he had communicated regularly with the controversial Gupta family and that he had, on a number of occasions, visited their Saxonwold compound in Johannesburg.

"I have, in the interests of good corporate governance, decided to leave my employ at Eskom from 1 January 2017. I do so voluntarily," Molefe said at the time.

"I will take time off to reflect before I decide on my next career move. "I wish to reiterate that this act is not an admission of wrongdoing on my part. It is rather what I feel to be the correct thing to do in the interests of the company and good corporate governance." Molefe was sworn in as a Member of Parliament shortly after making that announcement.

'That cloud still has not cleared'

EFF lawyer Tembeka Ngcukaitobi told the court on Tuesday that the dark cloud, under which Molefe had resigned, was still hanging over him.

He intended to argue on Thursday that Molefe was not suitable to be a senior official employed by a state-owned entity.

"Our contention is Molefe is clearly unsuitable to be reinstated as CEO of Eskom. When Molefe left, there was a cloud hanging over him. That cloud still has not cleared."

Molefe’s lawyer Noel Graves had argued that his client’s case with the Labour Court was a private and personal matter between an employer and its employee and that the DA and EFF had no right to intervene.

"They don’t have a role to play in every single matter where they believe that they should be there," he told the court.

Just because the matter involved a state-owned entity, he said, it did not mean political parties had an automatic right to attach themselves. In this case, Eskom was involved as a registered company, one which adhered to company acts and regulations, just like any other company, he added.

"The Constitution is not always the first port of call. The first port of call is a matter of private parties," Graves argued.

Judge Connie Prinsloo granted the DA and EFF the right to intervene, with costs.

The matter will be heard on Thursday.