The court described the R30m early-retirement deal entered into by Eskom and Molefe as a "deliberate scheme" concocted after he resigned from Eskom in 2016 as he was never entitled to the benefits after he had been in Eskom's employ for only 18 months.
He explained that when he joined the pension fund an amount of more than R4m, belonging to him, was transferred from the Transnet pension fund into Eskom's pension fund. Molefe said in addition he was required to make contributions to the Eskom pension fund while he worked there.
Former Eskom chief executive Brian Molefe will on Tuesday argue that the High Court was wrong to find that his pension payout was unlawful and that he pay back the money.
The money was paid after Molefe's resignation in November 2016, following the Public Protector's damning state capture report which implicated him in irregular conduct.
He had been in his position since September 2015, but news of the massive pension payout only emerged after his reappointment in May 2017.
Trade union Solidarity vows to oppose the appeal, stating on Monday that the application was "merely Molefe's attempt to postpone the inevitable". "However, we believe that the judge will not delay justice by granting the appeal", said Van der Bijl.
Molefe will seek leave to argue his case before the Supreme Court of Appeal in Bloemfontein, that a full bench of the High Court in Pretoria had erred in ruling that former public enterprises minister Lynne Brown's decision to reinstate him in May previous year had been unlawful and irrational, and that he should pay back his early retirement package.
The union has maintained that Molefe was buying time until he was forced to pay.
Judges Elias Matojane, Hans Fabricius and Sheila Mphahlele in January also set aside then public enterprise minister Lynne Brown's decision to reinstate Molefe.