Suspended Cosatu General secretary Zwelinzima Vavi arrives for day 2 at Johannesburg High court where he is opposing his suspension from the federation. 280314 Picture: Boxer Ngwenya

Johannesburg - Should suspended Cosatu general secretary Zwelinzima Vavi win his court bid to be reinstated there is a very real chance the disciplinary hearing he is facing in May will no longer take place.

Metalworkers union Numsa, which is one of the applicants and wants Vavi’s suspension declared unlawful, is also asking the Johannesburg High Court to rule that the disciplinary action following his suspension is just as illegal.

Vavi and three unions want his suspension to be set aside since it did not happen according to Cosatu’s constitution.

Last year Vavi was suspended for having sex with an employee at Cosatu’s offices. The decision was made at a central executive committee meeting in August. According to the constitution, the committee was meant to vote on Vavi’s suspension as well as the disciplinary action, but instead members only gave oral input.

Cosatu believes this was enough because there was a simple majority in support of the suspension – which has since been questioned – and that there was a precedent from past meetings where the committee often did not vote when it was meant to.

If Deputy Judge President Phineas Mojapelo declares that the committee acted unlawfully, it could apply to all decisions taken.

And although Cosatu could reinstate disciplinary action against Vavi, it would be much more difficult to do so because he would wield more influence inside the federation than outside.

However, Vavi has not made the same request as Numsa, the Food and Allied Workers Union, and the SA Football Players Union on the disciplinary action.

He has said through his senior counsel that he looks forward to defending himself. Vavi is facing nine charges including financial irregularities relating to the sale of Cosatu’s old building and the purchase of its new one, and bringing the federation into disrepute.

On Friday, advocate Karel Tip SC, for Cosatu, argued that the disciplinary process should go forward.

He said a probe had been concluded, there was also a forensic investigation, there was a charge sheet, and independent chairman, advocate Wim Trengove, had been appointed to hear the matter in May.

“There is a duty on Cosatu, especially with such a senior person, to have these allegations tested,” Tip said.

He asked Judge Mojapelo to take into account that Vavi’s disciplinary hearing would determine his fate.

Cosatu’s lawyers spent most of the day arguing whether the high court had the jurisdiction to hear the matter. They believe it should have been taken to the Labour Court or the Commission for Conciliation, Mediation and Arbitration since the suspension was an employment matter.

It would be more difficult for Vavi to win in the Labour Court because it is a specialised court and therefore the interrogation of his employment contract and relating laws would be much more stringent.

Vavi’s senior counsel, advocate Paul Kennedy, countered, saying that although Vavi was an employee of Cosatu, he was also an elected official under the federation’s constitution, which was not covered by the Labour Relations Act.

Another attorney for Cosatu, Kirsty McLean, was less successful in her argument on what forum should hear Vavi’s case, saying Cosatu’s constitution should not be taken into account.

She was interrupted several times by a frustrated Judge Mojapelo because the case she was presenting was different to the one in her heads of argument.

“I haven’t been given these heads. The other side hasn’t been given these heads and I’m expected to digest them,” he said.

Tip told the court there would be no complaint from Cosatu if the judge ordered it to conduct itself properly in the future, but did not make a ruling on the suspension or disciplinary action.

But Kennedy scoffed at this suggestion, as well as the argument that a quasi vote at the central executive committee would have sufficed, as it had in the past meetings. “There was a multiplicity of views… If they have done it wrong 10 times, they have done it wrong 10 times.”

Judgment was reserved. - Saturday Star