IN THE SOUTH GAUTENG HIGH COURT
(HELD IN JOHANNESBURG)
CASE NO: 32657/13
In the application of:
ZWELINZIMA VAVI - Applicant In the Main Application:
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA- First Applicant
FOOD & ALLIED WORKERS UNION - Second Applicant
SOUTH AFRICAN FOOTBALL PLAYERS UNION - Third Applicant
And
CONGRESS OF SOUTH AFRICAN TRADE UNIONS - First Respondent
POLICE AND PRISONS CIVIL RIGHTS UNION - Second Respondent
NATIONAL UNION OF MINEWORKERS - Third Respondent
SOUTH AFRICAN TRANSPORT AND APPLIED WORKERS' UNION- Fourth Respondent
SOUTH AFRICAN DEMOCRATIC TEACHERS' UNION - Fifth Respondent
NATIONAL EDUCATION HEALTH AND ALLIED WORKERS - Sixth Respondent
CHEMICAL ENERGY PAPER PRINTING WOOD AND ALLIED WORKERS UNION - Seventh Respondent
THE FINANCE UNION - Eighth Respondent
APPLICANT'S AFFIDAVIT IN SUPPORT OF HIS APPLICATION FOR LEAVE TO INTERVENE
I, the undersigned, ZWELINZIMA VAVI do hereby make oath and state:
1. I am an adult male residing in Johannesburg.
2. The facts set out herein fall within my own personal knowledge unless the context indicates otherwise and are to the best of my knowledge and belief true and correct.
3. I am the General Secretary of COSATU (first respondent, hereinafter referred to as "COSATU"). I am presently under suspension which suspension will be dealt with more fully hereafter.1 4. I am the applicant in this application for leave to intervene in the Application No. 32567/13 as the fourth applicant.
5. I will herein refer to the applicants and respondents as per the parties in the Main Application subsequent to the order of this Honourable Court made on 10 September 2013 in Case No. 32567/13, allowing the other respondents to intervene in the Main Application as second to eighth respondents.
6. Any legal submissions are made upon the advice of my legal representatives.
7. I have been advised that it is not necessary in this application for me to deal in-depth with each and every allegation contained in both the application papers and the papers of the respondents.
8. For the sake of brevity I will therefore deal mainly with the necessary allegations required for leave to intervene.
9. The contents hereunder respectfully show that:
9.1 I have a direct and substantial interest in this matter and the outcome thereof;
(This is common cause and undisputed. respectfully refer to the COSATU affidavit paragraphs 53 to 60, and 2nd to 81 respondents' affidavit paragraph 28).
9.2 I have a prima facie case for the relief that I claim;
9.3 This application for leave to intervene is seriously made and not frivolous;
and
9.4 My relief largely depends on the same questions of law and/or fact that the Main Application depends on.
10. The relief I shall seek, if admitted as an applicant, shall be:
10.1 an interim order interdicting and restraining first respondent from in any way enforcing, acting upon or putting into execution any decision purportedly taken at the COSATU Central Executive Committee meeting on 14 August 2013 to suspend me;
10.2 final relief to review and set aside the purported decision to suspend me and to institute disciplinary proceedings against me;
10.3 costs in relation to both the interim and final relief.
11. In summary, my application for leave to intervene relies upon the following:
11.1 The "decision" to suspend me was made contrary to the provisions of clause 5.6 of COSATU's Constitution and therefore does not comply with the principle of legality;
11.1.1 there was no vote taken in this regard;
11.1.2 the provisions of clauses 5.6 and 11.4 of COSATU's Constitution have therefore clearly been violated and any "decision" to suspend me was unlawful and should be set aside;
11.1.3 the respondents' attempts to justify their willful disregard of the Constitution is a matter of grave concern, and adds to the urgency of this matter. (COSATU affidavit paragraph 76) 11.1.4 The allegations made in COSATU's answering affidavit as to which unions supported my suspension at the meeting of 14 August 2013 appear to be untrue and misleading, having regard to information furnished to me by individuals present at the meeting that neither SACCAWU nor SASAWU supported my suspension. I will endeavor to obtain confirmatory affidavits in that regard and have these served and filed as soon as possible.
11.2 The relevant issues on the agenda dealt with the - "6. Outcome of the grievance hearing against the General Secretary and the public statements attributed to COSA TU General Secretary.
7. Way forward." (Letter COSATU 6 August 2013 annexed as "A").
At the grievance hearing all the allegations of sexual harassment or misconduct against me had been withdrawn, and the outcome of the hearing dealt only with my relationship with the complainant and her absence from work without leave. No other issue was on the CEC agenda of COSATU insofar as myself was concerned.
11.3 In its letter of 6 August 2013, annexure "A", first respondent stated in paragraph 5.3.2.3 that - "The meeting may only discuss those issues which necessitated the calling of this meeting".
It is clear from the agenda that the issues necessitating the CEC meeting were only those issues referred to in paragraphs 6 and 7 of the agenda and set out above.
11.4 Clause 11.2 of the Constitution is also clear that only issues on the agenda may be debated.
11.5 Any other considerations such as for instance the alleged irregular appointment of the complainant by me, were therefore not on the agenda and could not have been considered insofar as my suspension was concerned. Any such considerations were therefore also unlawful.
12. My relationship with the complainant in the grievance procedure has been fully admitted by me and is in fact correctly alleged by COSATU to be "a matter of public record". (Paragraph 94)
13. As such no in-depth investigation is necessary. The facts are all there and have been admitted by me. I can therefore not influence any procedures or decisions of the first respondent in this regard, and there existed therefore no objective justifiable reason to deny me access to my workplace. For this reason the suspension should therefore also be set aside.
14. Any reliance by COSATU for my suspension on issues other than those referred to in the agenda was therefore also unconstitutional, unlawful and should have been disregarded.
15. I also rely on the implied contractual right of my employment with COSATU to have been given a hearing prior to the decision to suspend me.
16. I was given no hearing regarding any possible suspension.
17. The allegation in paragraph 95 of COSATU to the effect that a meeting was envisaged with me after the decision of the CEC to suspend me, in order to provide me an opportunity to be heard, is not only farfetched, but also shows that COSATU is now aware of its duty to have done so.
18. The decision to suspend me was taken by the CEC on 14 August 2013 and was conveyed to me in a covering email and letter the following day (annexure "81" and "82"). Only the CEC can reverse such a decision. How could an ex post factohearing by the persons referred to have complied with the first respondent's duty to afford me a hearing prior to my suspension?
19. The statement in paragraph 95 of COSATU's affidavit is indicative of the contempt with which COSATU disregards my rights. How can it seriously be stated under oath that the purpose of the meeting on 15 August 2013 was to hold an "informal pre-suspension hearing", when I had already been suspended on 14 August 2013!
20
20.1 In their letter of 2 September 2013, a copy of which is annexed hereto as annexure "C", COSATU"s attorneys confirm that it was the CEC's decision to suspend me and placed on what they call "preventative suspension". lt is also stated in clause 6.3 of the letter that I was given the opportunity to state a case to be heard before any final decision to suspend was made. They state that they sought to hold an informal pre- suspension hearing with me, that I declined to make any representations prior to my suspension and it was only after that and after a caucus with the NOB's and the Presidents of the affiliates that a decision was taken to suspend me. This is completely contrary to what occurred at the meeting and as admitted by COSATU under oath.
20.2 The following paragraphs and references are with respect very important in this regard:
20.2.1 COSATUS's affidavit paragraph 26. In this paragraph it is stated that the special CEC resolved to place me on leave of absence with immediate effect „ . .
20.2.2 COSATU's affidavit paragraph 38.5:
"Following the CEC having resolved on 14 August 2013 to place Vavi on special leave of absence with immediate effect ...." 20.2.3 COSATU's affidavit paragraph 51:
"Only the CEC can revisit the matter again." 20.2.4 COSATU's affidavit paragraph 95:
in the light thereof I contacted Vavi again and convened a meeting with him, the NOB's and the Presidents of the affiliates on 15 August 2013 at 09h00 at the COSA TU offices .... The purpose of the meeting was to hold a formal pre-suspension hearing ..„ " (My emphasis) 20.3 Clause 5.5 of the Constitution is also very important in this regard, as it makes clear in 5.5.1 that the NOB's, the chairperson and provincial secretary of each province have speaking rights but no voting rights. The Presidents and NOB's could therefore, on COSATU's own allegations and the Constitution, not have reversed the decision taken on the 14th August 2013 to suspend me with immediate effect.
21. Any so-called subsequent "materially re/ated matters" referred to in paragraphs 105 and 106 are not relevant to my suspension, and merely constitute an attempt to colour and cloud the issues to my detriment. Subsequent issues cannot render an unlawful suspension on 14 August 2013 lawful ex post facto.
21.1 The respondents' actions are calculated and aimed at sidelining me by silencing me through the suspension, and thereby removing me from the political arena.
21.2 That would explain their flagrant disregard for the provisions of COSATU's Constitution, and their feeble attempts to justify and defend those actions.
21.3 The allegations in regard to the issue of a hearing, as referred to above in regard to the alleged subsequent "discoveries", are irrelevant to the present proceedings which deal only with the decision on 14 August 2013 to suspend me. The allegations are scandalous, vexatious and irrelevant.
21.4 The statements in paragraphs 105 and 106 of COSATU's affidavit are not stated as "allegations", and notwithstanding the sanctimonious statement that COSATU does not " wish to prejudice the outcome any reasonable person reading those allegations will regard them as fact.
That is proven by the newspaper reports referred to hereunder.
21.5 The severe prejudice that I suffer through the illegal actions of certain members of COSATU can never be rectified.
21.6 Paragraphs 105 and 106 of COSATU's affidavit should therefore be struck out as irrelevant, scandalous and vexatious.
21.7 To emphasize the great urgency of this matter, I annex hereto as "D" the front page of the Sowetan newspaper of 12 September 2013 where it is stated, amongst other things, "Court documents claim he failed to act against free-spending lover" and on page 4 the headline on which reads:
"Vavi and lover cheated COSATU". The prejudice that I suffer both personally and in my reputation is obvious and vast and I need with respect the protection of this Honourable Court against this vicious, unlawful and malicious campaign against me.
22. lt is respectfully submitted that this application is urgent in that the Main Application will be heard in the next few weeks. Furthermore, I am suffering irreparable harm as a consequence of my suspension and the publicity surrounding it. As General Secretary of COSATU the adverse publicity is vast.
23. The present political environment is such that I am suffering severe personal and social consequences. My freedom to engage in my work severely affects my dignity, my self-esteem and my reputation. The prejudice that I suffer in the public opinion is irreversible. This grave injury to my reputation is not something that is capable of being meaningfully addressed by any other remedy or forum. lt should be pointed out that I am an elected office-bearer elected as such by the National Congress.
24. I therefore deny that:
24.1 The decision to suspend me was taken in accordance with COSATU's Constitution;
24.2 That the matter is not urgent;
24.3 That the balance of convenience favours the respondents;
24.4 That there is any effective alternative remedy available to me.
25. The matter is therefore indeed very urgent and I respectfully request an order as is set out in the notice of application pre-fixed hereto.
26. I will more fully deal with all the relevant allegations in the existing papers once given leave to intervene.
Signed
ZWELINZIMA VAVI
Signed before me at Sandton on this 12th day of SEPTEMBER 2013, the deponent having sworn that the contents of this affidavit are true, acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath, and that he considers the prescribed oath to be binding on his conscience.
COMMISSIONER OF OATHS
Transcribed from the PDF. The original document including annexures can be downloaded from the link below.
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