High on emotions but low on facts; this is how disgraced former Eskom boss Brian Molefe's lawyer has summed up the legal bid to have declared unlawful both the power utility's decision to reinstate Molefe to the CEO position, and his R30-million pension payout.

His lawyer, advocate Arnold Subel SC, told the full bench of the North Gauteng High Court in Pretoria yesterday that the litigants - trade union Solidarity, the DA and the EFF - have difficulty demonstrating the legal basis for their review application.

The crux of Subel's argument was the same as before: that Molefe never resigned from Eskom but took an early retirement, so there was no reinstatement but rather a continuation of employment.

"It was the continuation of a contract that was not ended and not reinstatement," he said.

Subel said that based on these facts, there was no administrative action to be set aside. "What is the basis for this review? It will be difficult to identify," he said.

Subel said Molefe took up the position as an ANC MP because he believed that the termination of his employment was valid. "He misunderstood whether his contract had been legally terminated. "This term 'resigned' is not Molefe's term, it was used by Public Enterprise Minister Lynne Brown. Stepping down was on the basis that he was eligible for early retirement," he argued.

Advocate Paul Kennedy SC, for the DA, earlier argued that reinstating Molefe was not in the interest of good governance and fundamentally irrational. He asked the court an order forcing Molefe to pay back his pension payout, saying the pension fund should calculate the amount he should pay back.

Meanwhile, Molefe has courted fresh controversy with revelations last week that he has been working for the military on a salary of R57000 a month since August as a colonel, despite having no military background.

However, the SA National Defence Force defended the payments, saying Mofele is regarded as a reserve force member and is remunerated accordingly.