The DA has filed an urgent two-part court application in an effort to stop reinstated group CE Brian Molefe performing any duties at Eskom and receiving any benefits associated with the position.
In the second part of the application, the opposition party asks the court to review and set aside his appointment.
Molefe returned to his position at the state-owned utility on Monday morning after leaving amid controversy in 2016.
This followed the release of former public protector Thuli Madonsela’s State of Capture report, which pointed to a “cozy relationship” between Molefe and the Gupta family.
The DA argues that the decision to rehire Molefe was irrational and should be set aside.
Last week, Public Enterprises Minister Lynne Brown said Molefe’s reinstatement at Eskom was a “significantly better value proposition to the South African fiscus than the previous pension proposal”.
DA federal executive committee chairman James Selfe said in his founding affidavit to the court: “I am advised that the decision of the minister to ‘reinstate’ Mr Molefe on this basis is irrational and is noncompliant with the relevant provisions of the applicable legal framework.
“Therefore, the decision to reinstate Mr Molefe is unlawful and falls to be reviewed and set aside.”
Eskom board spokesman Khulani Qoma said the parastatal had received the DA’s application and would defend it.
Brown’s spokesman, Colin Cruywagen, confirmed that the minister had received the DA’s court papers.
The minister was summoned to meet ANC officials on Monday to discuss Molefe’s reinstatement. This was after the ANC said the move was reckless and fed into the perception that the government was lacklustre when dealing with corruption.
On Tuesday, Molefe is to make his first public appearance since his return as Eskom boss. He is scheduled to deliver the welcome address at the Africa Utility Week conference in Cape Town before Brown takes to the podium.
Former interim Eskom CEO Matshela Koko was due to speak, but he was replaced by Molefe after he took leave from Eskom pending the outcome of an inquiry into allegations of impropriety.
Molefe announced his resignation from Eskom in November 2016, stating at the time that he was doing so in the interest of good corporate governance.
Selfe said it was on this basis that the relief sought by the DA should be determined on an urgent basis. He said the matter would be heard by the court in the next two weeks.
Last week, the Eskom board said Molefe had not resigned from his position, but had taken early retirement.
The Council for the Advancement of the South African Constitution said it had written to Parliament for a copy of Molefe’s resignation letter.
In its court papers, the DA said that according to the revised rules of the Eskom Pension and Provident Fund, Molefe could not have taken early retirement because he had not turned 55.
Molefe is 50 years old.
“He did not purport, at the time, to take early retirement, nor could this have been done legally,” said Selfe.
“The evidence … shows that Mr Molefe did not take early retirement, but that, in fact, he resigned.”
With Linda Ensor
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