Sacked Eskom CEO fights back

Johannesburg - Jacob Maroga denies resigning as Eskom CEO and also does not understand why he was sacked for poor performance, the High Court in Johannesburg heard on Tuesday.

Maroga earlier contended that his sacking was unlawful because he had been fired by the wrong party in November last year. He said Public Enterprises Minister Barbara Hogan, who appoints chief executive officers after consulting the board, should have done it, and not the board.

Hogan had nothing to do with Jacob Maroga's sacking as chief executive officer of Eskom, the ministry's counsel told the court.

"The minister's role is of limited ambit. The minister has maintained positions that respect corporate governance and its elements," said Karel Tip.

"The state-owned enterprises such as Eskom are run by boards," he continued.

"That is an unsound view that only the minister can fire him," said Tip.

Earlier, the court heard that Maroga said he wanted to leave Eskom "elegantly and amicably" when he offered to resign during a fallout with former chairperson Bobby Godsell.

"He expressly and unambiguously tendered his resignation," said Tim Bruinders, counsel for Eskom. Bruinders rejected Maroga's claim that he did not resign during the power struggle with Godsell on October 28 last year.

On that day the board held a meeting to discuss strategy documents and unfinished business, as well as the roles of the chairman and the chief executive officer because there had been some uncertainty about this.

Godsell had been unhappy about being left out of meetings he should have attended and there was talk of poor co-ordination.

Members of the board supported Godsell during the discussion, while Maroga was unhappy with the board. He said that if the board wanted to be run according to Godsell then he could not go along with it.

He then put his hand on Godsell's shoulder, said he had known him for a year, but could no longer work with him.

Maroga had thought about it, and had decided to resign in a manner that was elegant and amicable to all concerned.
Godsell also resigned and both left the room to allow the board to talk about it.

That night Maroga had dinner in Sandton with two board members where, Bruinders submitted, they told Maroga that they had accepted his resignation. In line with Maroga's proposal for an "elegant and amicable" solution, they discussed how the resignation should be handled and how the public and media should be told.

The next day Maroga wrote to the board saying that he had thought about the matter, which was "of national importance" and decided that his remarks at the board meeting could not be construed as an offer to resign. He commented that Godsell had also been frustrated but it wasn't construed as an offer to resign.

"I have not offered to resign and I will not offer to resign," Bruinders read from the letter he sent.

But Eskom said that to them, it was a resignation, and they had accepted it. The only things outstanding were the terms.

While the debate over whether he had resigned or not continued, Maroga was fired on November 2 on the grounds of poor performance.

Elegant resignation

Bruinders said there was no need to go through the list of reasons, but mentioned a R9bn accounting loss and his inability to raise capital for the company.

However, Maroga's lawyer Vincent Maleka has argued that because the conditions of "elegantly and amicable" had not been met, the resignation, if it existed, did not hold. This prompted Judge Thokozile Masipa to ask: "And what is an elegant resignation?".

Maleka said that besides not resigning, Maroga could also not understand where the poor performance argument came from.

He had achieved a 70% score on his performance appraisal, considered good. A letter confirming a salary increase contained a hand written note from Godsell thanking him for his good leadership.

He was also awarded a R2.3m bonus, paid in February 2010, based on the company's performance for the financial year March 2008 to 2009 and their being on track to reaching a goal of saving R22bn.

His poor performance was not discussed with him and there was also no documentation to say that it had.

But, said Bruinders, according to Eskom's procedures, there would have been nobody to hold the performance hearing because the procedures only related to managers, supervisors and their subordinates, and not someone as "exalted" as a CEO.

He rejected Maroga's attempt at reinstatement, saying that the relationship with the board had broken down. The case continues on Wednesday.

Maroga is hoping to get an R85m settlement for his contract ending before 2011 as expected.

- Sapa