Johannesburg - The contract between Cosatu and its suspended general secretary Zwelinzima Vavi was breached, the High Court in Johannesburg heard on Thursday.
“We rely on a contract between Mr Vavi and Cosatu in the form of the constitution, “ said PJ de Bruyn, SC, for Vavi.
“The constitution was thrown out the window.”
De Bruyn argued that the Congress of SA Trade Unions' constitution was not followed when its central executive committee (CEC) decided to suspend Vavi.
Vavi had three complaints about that meeting, held in August last year. They were the fact that delegates at the CEC did not vote, that consequently no decision was taken, and thirdly, that he was not given a right to be heard.
“Mr Vavi has a right to a fair voting process irrespective of which way it goes,” De Bruyn said.
“Because of the fact that there was no vote we don't know what the outcome of the vote would have been. It's pure speculation.”
A side caucus of Cosatu affiliate presidents and general secretaries took the decision. Cosatu has argued that this was a long standing practice.
However, De Bruyn referred to a transcript of the CEC where deputy general secretary Bheki Ntshalintshali warned delegates that they should vote.
“Cosatu says the people must vote. (However) there was no individual expression of individual participants.”
De Bruyn asked why, if it was a long standing practice not to vote, did Ntshalintshali warn the meeting to do so.
Cosatu had argued in its heads that there was a “vote by spoken word”. De Bruyn wanted to know how many spoken votes there were.
“They messed it up,” he told the court.
“The non-voting means there was no decision.”
In August last year, Cosatu said Vavi had been put on special leave pending the outcome of a disciplinary hearing relating to his affair with the junior employee. The previous month the employee had accused him of rape. He said they had an affair. The woman subsequently withdrew a sexual harassment complaint against him.
Following Vavi's suspension, the National Union of Metalworkers of SA (Numsa), an ally of his, lodged an application in the high court challenging the decision.
Vavi then lodged papers to be added as an applicant in Numsa's challenge. In these, he asks the court to grant him an interim order interdicting and restraining Cosatu from enforcing any decision taken at its CEC meeting in August. He wants final relief to review and set aside the decision to suspend him and institute disciplinary proceedings.
Earlier on Thursday, advocate Hans van der Riet for Numsa argued that Cosatu had not followed its constitution.
“There is crystal clear case that the decision to suspend Mr Vavi is invalid and should be set aside,” he said.
Union officials and supporters filled courtroom E11 in the court on Thursday. Vavi and Numsa general secretary Irvin Jim sat in the front row of the public gallery. Cosatu president Sidumo Dlamini and acting general secretary Bheki Ntshalintshali were also in court.