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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 32567/13

DATE: 4 APRIL 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA………………………………………………………First Applicant

FOOD AND ALLIED WORKERS’ UNION…………………………..Second Applicant

SOUTH AFRICAN FOOTBALL PLAYERS’ UNION………....………Third Applicant

ZWELINZIMA VAVI……………………………………………………Fourth Applicant

and

CONGRESS OF SOUTH AFRICAN TRADE UNIONS……………...First Respondent

POLICE AND PRISONS CIVIL RIGHTS UNION………………..Second Respondent

NATIONAL UNION OF MINE WORKERS…………………………Third Respondent

SA TRANSPORT & ALLIED WORKERS^’ UNION………………..Fourth Respondent

SA DEMORATIC TEACHERS’ UNION……………………………....Fifth Respondent

NATIONAL EDUCATION HEALTH & ALLIED

WORKERS’ UNION…………………………………………………….Sixth Respondent

CHEMICAL ENERGY PAPER PRINTING WOOD &

ALLIED WORKERS’ UNION………………………………………Seventh Respondent

THE FINANCE UNION……………………………………………..Eighth Respondent

JUDGMENT

MOJAPELO, DJP:

[1] The first to third applicants seek, on the papers before court, as a final relief, an order in the following terms:

1.1 Declaring that:

1.1.1 the convening and conduct of the special meeting of the CEC of 14 August 2013 was unconstitutional (in terms of the constitution of the respondent), invalid and of no force and effect;

1.1.2 the purported decision of the respondent that the special meeting of the CEC of 14 August was constitutional (in terms of the constitution of the respondent) and valid (which decision was purportedly taken at the special meeting of the CEC of 14 August 2013) is unconstitutional (in terms of the constitution of the respondent), invalid and of no force and effect and is, accordingly, set aside;

1.1.3 the purported decision of the respondent that Zwelinzima Vavi, the secretary general of the respondent, be put on suspension (which was taken at the special meeting of the CEC of 14 August 2013) and that disciplinary proceedings be set in train in respect of him is invalid, unconstitutional (in terms of the constitution of the respondent) and of no force and effect and is,accordingly, set aside;

1.1.4 all other decisions taken at, all consequences that flowed from and actions that were taken consequent upon the special meeting of the CEC of 14 August 2013 are invalid, unconstitutional (in terms of the constitution of the respondent) and of no force and effect and are, accordingly, set aside;

1.2 Reviewing and setting aside the purported decisions taken by the respondent at the special meeting of the CEC of 14 August 2013 to place Zweiinzima Vavi on suspension and to set disciplinary proceedings in respect of him in train.

1.3 Costs of this application, to include the costs of two counsel.

[2] The fourth applicant, Mr Zwelinzima ( “Vavi’), intervened and was joined after the institution of proceedings. He seeks, in a separate notice of motion, the following relief:

2.1 as a final relief, an order reviewing and setting aside the ^udecision” to place him on special leave/suspension, purportedly taken at COSATU’s Central Executive Committee meeting on 14 August 2013, and to declare it to be invalid, unlawful, contrary to the principles of legality and of no force or effect;

2.2 alternatively, an interim order to suspend the “decision” purporting to suspend him, pending the outcome of an appeal against his suspension to be dealt with at a Special National Congress of COSATU.

[3] The application was initially instituted by the first to the third applicants (three trade unions) against the first respondent (COSATU). The fourth applicant as well as the second to eighth respondents intervened after the institution of the initial proceedings and have been admitted. The fourth applicant is the affected party while the second to eighth respondents are affiliates of the first respondent. The second to eighth respondents supported the impugned decision and defend it against the attack launched by the applicants in these proceedings.

[4] The first to third applicants are trade unions which are affiliated to the first respondent. The first respondent, Congress of South African Trade Unions, abbreviated as COSATU, is a federation of trade unions which include a number of other trade unions.

[5] The applicants, broadly stated, content that in convening the meeting of 14 August 2013 and in taking decisions at that meeting, the first respondent failed to comply with and acted contrary to the provisions of the constitution of the first respondent. They content that the meeting and the decisions that were taken at that meeting are invalid, unlawful and of no force and effect, and should be set aside. The respondents oppose the contentions of the applicants and the reliefs that they seek.

[6] The first to third applicants as well as the second to eighth respondents are all affiliates (or members) of the first respondent which is a federation. The fourth applicant is the Genera! Secretary of the first respondent. He is an elected official and one of the National Office Bearers (NOBs) of the first respondent. He, together with the Deputy General Secretary, are the only two full-time office bearers of the first respondent. The fourth applicant is therefore both an elected office bearer as well as an employee of the first respondent. The relationship between all the parties in the first respondent (COSATU) is thus governed by the constitution of the first respondent. The relationship between the fourth applicant and the first respondent is also governed by the terms of employment with the first respondent to which the Labour Relations Act 66 of 1995 (“LRA”) applies.

Jurisdiction

[7] The respondents have raised jurisdiction as a point in limine against the applications. They assert and argue that this court does not have jurisdiction to adjudicate the dispute in this matter, and that the dispute falls to be decided by the Commission for Conciliation, Mediation and Arbitration (“CCMA”) and the Labour Court which have jurisdiction to hear the matter. For the sake of brevity I will refer to the CCMA and the Labour Court as “the labour forums”. They content that the labour forums have exclusive jurisdiction over the dispute between the parties, to the exclusion of the High Court.

[8] The applicants in this case have framed their claims as contractual claims. They seek to assert, as against the respondents, a right under the provisions of the constitution of the first respondent which, they contend, govern their relationship with the respondents. That is a common feature between the claims, though based on different prayers and in different notices of motion. The claims are formulated on the common law right to enforce contractual obligations. The applicants assert their right to have the provisions of the constitution of first respondent complied with. This is a fact, and the court has to entertain and decide the claim as thus formulated or stated. The applicants are entitled to a result on the claim as they have it before the court. This has nothing to do with the question whether the claim is good or bad. As Nugent JA puts it in Makhanya v University of Zululand 2010(1) SA 62 (SCA) at para 71:

“…the claim that is before a court is a matter of fact When a claimant says that the claim arises from the infringement of the common law right to enforce a contract, then that is the claim, as a fact, and the court must deal with it accordingly. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution, then, as a fact, that is the claim. That the claim might be a bad claim is beside the point.”

[9] This principle has been confirmed by the Constitutional Court in Chirwa v Transnet Ltdand Others [2007] ZACC 23; 2008 (4) SA 367 (CC) paras 155 and 169 and Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) para 73. In Gcaba, the Constitutional Court, confirming the position stated:

“Furthermore, the LRA does not intend to destroy causes of action or remedies and s 157 should not be interpreted to do so. Where a remedy lies in the High Court, s 157(2) cannot be read to mean that it no longer lies there and should not be read to mean as much. Where the judgment of Ngcobo J in Chirwa speaks of a court for labour and employment related disputes, it refers to labour- and employment-related disputes for which the LRA creates specific remedies, it does not mean that all other remedies which might lie in other courts, like the High Court and the Equality Court, can no longer be adjudicated by those courts. If only the Labour Court could deal with disputes arising out of all employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common law or other statutory remedies.”

[10] As I have said, the fourth applicant’s relationship with the first respondent (COSATU) is also one of employment. The provisions of the LRA are thus applicable to that relationship. Certain aspects of that relationship are subject to the exclusive jurisdiction of the labour forums under the LRA while others are not.

[11] The mere fact that, in a sense, the fourth applicant seeks to enforce a contract of employment does not necessarily mean that the jurisdiction of the High Court (this court) is excluded. The position is summed up by SCA in Makhanya’s case. In that case Prof Makhanya had instituted an action against the University of Zululand in the High Court inter alia for an order compelling the University to comply with his contract of employment and to pay him his remuneration and other moneys due to him. The University had challenged the jurisdiction of the High Court by a special plea. At para 2 (page 65) Nugent JA stated the position as follow:

“The jurisdictional challenge is curious because claims for the enforcement of contracts are commonplace in the High Courts. Some eight years ago it was argued before this court - in Fedlife Assurance Ltd v Wolfaardt - that claims for the enforcement of contracts of employment had been excluded from the jurisdiction of the High Courts by the Labour Relations Act 66 of 1995 (LRA), but that argument was rejected, and is not sought in this case to be revived. And if there is any residual doubt as to whether a High Court has the power to consider such a claim it is put to rest by s 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which was enacted after the LRA, and which makes it perfectly clear that the High Courts have not been divested of their ordinary jurisdiction to enforce contracts of employment (the section confers equivalent jurisdiction on the Labour Court also to consider such claims).”

[12] The CCMA and the Labour Court have exclusive jurisdiction in matters where the rights under consideration as those created by the LRA, namely “the right not to be unfairly dismissed” and “the right not to be subjected to unfair labour practice” (sec of 185). The SCA in Makhanya case stated the position as follows:

"[11] The LRA creates certain rights for employees that include ‘the right not to be unfairly dismissed and [not to be] subjected to unfair labour practices’. I will refer to those rights interchangeably as ‘LRA rights’. Yet employees also have other rights, in common with other people generally, arising from the general law. One is the right that everyone has (a right emanating from the common law) to insist upon performance of a contract. Another is the right that everyone has (a right emanating from the Constitution and elaborated upon in the Promotion of Administrative Justice Act) to just administrative action.

[12] Thus there is the potential (I emphasise that I refer only to the potential) for three separate claims to arise when an employee’s contract is terminated. One is for infringement of his or her LRA right. Another is for infringement of his or her common-law right. And where it occurs in the public sector, a third is for infringement of his or her constitutional right.

[13] An LRA right is enforceable only in the Commission for Conciliation, Mediation and Arbitration (CCMA) or in the Labour Court...The common-law right is enforceable in the High Courts and in the Labour Court"

[13] The respondents also seek to rely on sections 157(1) and 158(1) (e) (i) of the LRA. Sections 157(1) read as follows:

“157 (1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court."

Section 158(1) (e) (i) provides as follows:

“158( 1) The Labour Court may -

(e) determine a dispute between a registered trade union or registered employers’ organisation and any one of the members or applicants for membership thereof, about any alleged non-compliance with –

(i) the constitution of that trade union or employers’ organisation (as the case may be); or...

(j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law. ”

[14] It has been held that section 158 (1) grants permissive powers to the Labour Court but does not exclude the jurisdiction of the High Court. While section 158(1) (e) indeed empowers the Labour Court to determine a dispute “between a registered trade union and any of its members concerning the alleged non-compliance with the trade union’s constitution", the present matter does not fall in that category. It is not a dispute between a trade union and its member and is not about the constitution of a trade union. The present matter concerns the constitution of a federation of trade unions. The section also does not deal with a dispute between a federation of trade unions and the affiliates or members of the federation relating to non-compliance with the constitution of the federation. Furthermore the fourth applicant is the General Secretary and not a member of the first respondent. That being the case, the section does not apply to this matter.

[15] In Valuline CC and Others v Minister of Labour and Others 2013 (4) SA 326 (KZP), Koen J held as follows:

“[23] Exclusive jurisdiction is conferred on the labour court in terms of s 157, subject to the Constitution and s 173, only where any other law or 'this Act' (the LRA) provides that it is a matter 'to be determined by the Labour Court’.

[24] Both the Supreme Court of Appeal in Fedlife Assurance Ltd v Wolfaardt and the Constitutional Court in Fredericks and Others v MEC for Education and Training, Eastern Cape, and Others have held that s 157(1) does not purport to confer exclusive jurisdiction upon the labour court generally in respect of employment-related matters.

[25] The respondents primarily rely on s 158(1)(g) as being the provision in ’this Act' in terms whereof a review, of any function provided for in the Act on any grounds permissible in law, is 'to be determined by the Labour Court' exclusively as contemplated bys 157(1).

[26] The express requirement in s 157 that the subject-matter of the dispute must be one of a range of 'matters' which 'are to be determined' by the labour court', must be contrasted with powers conferred on the labour court and which it 'may' exercise when it decides any dispute. Section 158(1)(g) does not provide expressly that such a review '.is' a 'matter' which is 'to be determined by the Labour Court¹, but merely that it is a matter that 'the Labour Court may’ review.

[27] As the provisions of the LRA do not expressly, or by necessary implication, provide that such a review is to be determined by the labour court, the jurisdiction of the high court to determine such reviews is not ousted and jurisdiction of the labour court is therefore not exclusive.

…

[33] The provisions of s 158(1)(g) granting permissive powers to the labour court are a far cry from the kind of specific provisions directing that certain disputes are to be 'determined by the Labour Court', provided for in the LRA, for example in relation to disputes about unfair dismissals and unfair labour practices."

[16] In this matter the true nature of the claims of the fourth applicant is contractual. The relief the applicants seek is based squarely on the first respondent’s constitution. That constitutes a contract not only between the fourth applicant and first respondent, but also between the fourth applicant and the various affiliated unions which make up the federation established in terms of its constitution.

[17] The first respondent’s constitution determines the rights and obligations of various parties, such as the officials, the committees and constituent unions and their respective officials, on such matters as by whom - and in terms of what procedure - the General Secretary may lawfully be elected, dismissed or suspended. For instance clause 10.4 is the one that empowers the CEC to suspend the General secretary in circumstances specified in that clause. The effect that the constitution has, in this regard, has not been disputed by the respondents.

[18] The first respondent, according to its constitution, is a corporate body with legal existence independent of its affiliates. The affiliated unions are autonomous bodies governed by their own respective constitutions “but they must abide by this [first respondent’s] constitution- The affiliated unions are represented on various structures of the first respondent, such as on the CEC. The unions’ delegates must observe the provisions of the first respondent constitution in discharging their functions on the committees of the first respondent, such as the procedures laid down in clause 5.6 for decision-making.

[19] The fourth applicant raises specific complaints in his affidavits about the contractual unlawfulness of his suspension, as a consequence of a material breach of clause 5.6 of the constitution, in that: no voting has taken place by the Central Executive Committee (CEC) members (including the affiliated unions’ delegates) attending the CEC meeting; second, no decision was taken by the CEC; and third, the fourth applicant was not given a hearing regarding his suspension prior to the “decision” to suspend him.

[20] Nowhere in their papers do the applicants seek to rely on the LRA or invoke the benefits of the LRA. They cannot be compelled to make out a case on the basis of the LRA. Nor should the respondents seek to re-characterise it or convert it from a contractual claim, enforceable in the High Court under its common law powers of review, into a labour claim under the LRA.

[21] The respondents attempt to bring the case within the scope of s 157 and s 158(1) (e) of the LRA. That attempt is ill-founded, for the reasons set out below:

[22] First, that is not the cause of action which the applicants have pleaded or on which they rely. As held in the Makhanya case from which I have quoted above (and as confirmed by the Constitutional Court), it is not permissible for a respondent to re-characterise or mischaracterise the cause of action as pleaded by an applicant.

[23] Second, s 157(2) of the LRA does no more than confer equivalent jurisdiction upon the Labour Court - equivalent to that of the High Court - in so far as alleged violations of fundamental rights entrenched in Chapter 2 of the Constitution are concerned.

[24] Third, s 158(1) (e) of the LRA has no application on the facts of this matter. The section deals with the power of the Labour Court to determine a dispute between a registered trade union and any one of the members of that union, or applicants seeking membership of that union, about inter alia the constitution of that union. The fourth applicant is not employed by any trade union (such as first to third applicants and the second to eighth respondents. He is, instead, employed by a federation of unions, the first respondent. There is no reference to a federation of trade unions in any other section of the LRA.

[25] The fourth applicant is entitled to enforce the provisions of the constitution of the first respondent, for they provide rights and protection for his position as its General Secretary. He was elected, through the democratic processes laid down in that constitution, at a national conference by the delegates from all of the various affiliated unions. He can only be suspended or removed from that elected office by properly authorized structures -in the case of suspension, by the CEC under clause 10.4.1 of the first respondent after its members have followed the process prescribed by the constitution, in particular clause 5.6.

[26] Those provisions give rise to rights and obligations which flow from the constitution, not from the LRA. They are rights the fourth applicant is entitled to enforce against the parties which contractually owe him the obligation to comply which the constitution’s procedures - in particular the unions whose delegates sit on the CEC of the first respondent. The fourth applicant’s dispute does not lie simply against first respondent. It lies also against the other respondents, being unions affiliated to first respondent who have purported to take action in the form of suspending him - from the office to which he was democratically elected at a National Congress.

[27] The fourth applicant cannot enforce those provisions of the first respondent’s constitution against those union affiliates under the LRA, because neither those affiliated unions nor their delegates are his employer. The labour forums set up in terms of the LRA have no jurisdiction to adjudicate a contractual dispute between parties where there is no employment relationship between them.

[28] It is therefore wrong for the respondents to rely on the LRA, for it has no application to a dispute arising from contract between parties who are not in an employment relationship.

[29] The applicants in this case do not assert any of the LRA rights but assert common law contractual rights. The jurisdiction of the High Court is therefore not excluded, even though the Labour Court might also have jurisdiction over aspects of the relationship between the fourth applicant and the first respondent. The latter is however not an issue which this court has to determine and I do not intend to do so. The question that I have to determine in limine is whether this court has jurisdiction. I am satisfied that it has.

[30] The point in limine based on jurisdiction therefore has no merits and is dismissed.

Merits

[31] I now proceed to deal with merits of the application.

[32] At the hearing, all the applicants made it clear that their claims are based solely on the enforcement of the provisions of the constitution of the first respondent and that their claims are contractual in nature. They assert their claims under the common law. They do not seek to make a claim for fair administrative action based on PAJA.

[33] The applicants’ claims are therefore determined within the context of the legal character of the constitution of the first respondent and the provisions of that constitution which are central and material to this application.

[34] The basic foundation of a trade union or indeed a federation of trade unions, like the first respondent, is the mutual agreement among its members and between the members and itself.

[35] The contract among its members and between the members and the trade union is embodied in the constitution - together with whatever rules, regulations or policy documents that might govern the relationship inter se. See Ex parte United Party Cfub 1930 WLD 277; Turner v Jockey Club of SA 1974 (3) SA 633 (AD); Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA) at 440.

[36] The constitution manifests the members’ agreement to the essential characteristics, objects and purpose of the union, and it constitutes a contract concluded by way of offer and acceptance, expressing inter alia the intention of the members to associate with one another.

[37] The constitution determines the nature and scope of the union’s existence and activities, while also prescribing and demarcating the powers of its various functionaries.

[38] Accordingly, as a matter of basic principle, the normal rules of contract, and the construction of contracts, apply to the constitution of a trade union and of a federation of trade unions.

[39] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at pp 603-604 the Supreme Court of Appeal (SCA) laid down a new approach to the construction of legal documents generally, and contracts in particular:

“Over the last century there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own. It is unnecessary to add unduly to the burden of annotations by trawling through the case law on the construction of documents in order to trace those developments. The relevant authorities are collected and summarised in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School. The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax: the context in which the provision appears: the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The “inevitable point of departure is the language of the provision itself. read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.

All this is consistent with the 'emerging trend in statutory construction', it clearly adopts as the proper approach to the interpretation of documents the second of the two possible approaches mentioned by Schreiner JA in Jaga v Dónges NO and Another; Bhana v Dónges NO and Another, namely that from the outset one considers the context and the language together, with neither predominating over the other. This is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and frequently reflect an approach to interpretation that is no longer appropriate. ” (Emphasis added)

[40] This new approach has at its heart that no one factor is to be employed in isolation in interpreting a clause in a contract. As far as possible, all the factors are to be considered.

[41] The first respondent is a voluntary association which was established in December 1985. It is federation of trade unions which are statutorily recognised under the LRA with approximately 2 million members. It currently has 21 unions which are its affiliates. As already stated the first to third applicants as well as the second to eighth respondents are some of its affiliates.

[42] In terms of its constitution, central strategic objectives of the first respondent are: (i) to improve the material conditions of its members and of the body of workers as a whole; (ii) to organise the unorganised; and (Hi) to ensure worker participation in the struggle for peace and democracy.

[43] It is founded upon the principle of democratic governance. In that spirit, its constitution embodies its structural, regulatory and decision ­making architecture.

[44] Its important structures, for the purposes of this case, are the National Congress (NC) which meets ordinarily every 3 years; the National Office Bearers (NOBs) consisting of the President, 2 Deputy Presidents, the Treasurer, the General Secretary and the Deputy General Secretary; the Central Committee (CC) and the Central Executive Committee (CEC). The NOBs are elected by the NC and hold office for 3 years. The Central Committee meets once between ordinary meetings of the National Congress

[45] The Central Executive Committee (CEC) is an all important committee of the first respondent not only for the present case but also for the running of the affairs of the first respondent. It manages the affairs of the Federation between meetings of the National Congress and Central Committee and has powers and duties which customarily vests in an executive body, which includes powers in relation to policy, membership, employment of staff, property, finances and annual report.

[46] The following provisions of the constitution of the first respondent in relation to the CEC are important for the purposes of this case:

“5.2 Composition

The CEC must be composed of the –

5.2.1 NOBs;

5.2.2 Chairperson and Provincial Secretary of each province;

and

5.2.3 representatives from affiliates such that there are –

5.2.3.1. two national leaders, one of whom must be a member of the affiliate, from each affiliate with less than 80 000 members;

5.2.3.2. four national leaders, two of whom must be members of the affiliate, from each affiliate with more than 80 000 members.

5.3 Meetings

5.3.1 Ordinary meetings

5.3.1.1. The CEC must meet at least four times a year.

5.3.1.2. The General Secretary consults the NOBs and decides on the dates, and agenda for the meeting.

5.3.1.3. The General Secretary notifies all affiliates, not less than 21 days prior to date of the meeting.

5.3.1.4. No meeting of the CEC may be invalidated only because any member did not receive the notice and agenda.

5.3.1 Special meetings

5.3.2.1. The NOBs or not less than 1/3 of the affiliates on requisition, can request a special meeting of the CEC

5.3.2.2. The General Secretary must give not less than 7 days notice to the affiliate unions of the special meeting.

5.3.2.3. The meeting may only discuss those issues which necessitated the calling of this meeting.

5.5 Speaking and voting rights

5.5.1The NOBs, the Chairperson and Provincial Secretary of each province have speaking rights but no voting rights.

5.5.2 The representatives from affiliates have full speaking rights and voting rights.

5.6 Decision making

5.6.1 The meeting makes a decision if-

5.6.1.1 the motion is duly seconded; and

5.6.1.2. a simply majority of people vote in favour thereof unless otherwise provided for in this Constitution

5.6.2 The decisions are made by show of hands or by ballot if the meeting so decides.

5.6.3 If less than a simple majority vote in favour of a motion, or as otherwise provided for in this Constitution, then the motion lapses, (emphasis added)

5.6.4 If the CEC cannot meet because of circumstances beyond its control, a decision can be made by way of a resolution signed by a simple majority of the affiliates or as otherwise provided for in this Constitution.” (emphasis added)

[47] An equally important provision with regard to voting is clause 11.4 which provides:

“11.4 Decision making

Except where otherwise provided in this Constitution the meeting makes a decision if:

11.4.1 A motion is duly seconded; and

11.4.2 The motion is carried if a simple majority of participants vote in favour thereof.

…

11.4.5At all meetings where there are more than 50 participants, votes must be counted by scrutinisers who –

11.4.5.1. must be appointed by the meeting; and

11.4.5.2. must record the votes and report the results to the Chairperson.

(emphasis added)

11.4.6 No motion that has been debated and determined may be reopened or varied or rescinded at the same meeting.”

[48] The powers of the CEC to suspend the General Secretary are contained in clause 10.4 which provides:

“10.4.1 The CEC may suspend or dismiss the General Secretary or any other official, if in the opinion of the CEC the official –

10.4.1.1 has committed misconduct;

10.4.1.2 has neglected his/her duties;

10.4.1.3 has acted in a manner detrimental to the Federation; or

10.4.1.4has acted in a manner which conflicts with this Constitution.

10.4.2 The CEC or NC may suspend or dismiss the General

Secretary or any other official for any other reason deemed sufficient. ” (emphasis added)

Background

[49] The background facts that gave rise to the present dispute are set out in brief.

[50] Ordinary meetings of the CEC were scheduled in the ordinary course for 27 to 29 May 2013 and 26 to 28 August 2013. In between those scheduled meetings and on 05 August 2013, the NOBs met and amongst others considered the report of the chairperson of a grievance inquiry into the conduct of the fourth applicant. The subject of the grievance hearing had generated widespread public comments and utterances in the media, including a public admission and apology by the fourth applicant who admitted having had an extramarital relationship with a junior employee in the office. The grievance hearing had ended when the complainant withdrew her complaint and allegations against the fourth applicant. The chairperson had nevertheless referred certain matters to the first respondent. The following day (06 August 2013) the NOBs issued a notice to the affiliates of the first respondent convening a special meeting of the CEC for 14 August 2013. The notice was signed by the Deputy General Secretary of the first respondent.

[51] The crux of the business for the special CEC meeting called was stated as follows in items 6 and 7 of the proposed agenda attached to the notice convening the meeting:

“6. Outcome of grievance hearing against the General Secretary and the public statements attributed to the General Secretary.

7. Way forward.”

[52] The notice immediately drew a strong protest from the first applicant, National Union of Metal Workers of South Africa (NUMSA), which, on 11 August 2013 wrote to the first respondent, COSATU, stating that the notice was irregular, defective and unconstitutional. The protest stated further that the first applicant had not seen any requisition for the special CEC in terms of clause 5.3.2.1. NUMSA tried in vain to have the special meeting called off, It carried its protest right up to the day of the meeting. One or more of the second and third applicants also weighed in on the protest. The fourth applicant also delivered a letter from its legal representatives to the first respondent in an endeavour to cancel the meeting. That too did not achieve its objective.

The meeting summarised

[53] The meeting took place on 14 August 2013 at COSATU House, Johannesburg, notwithstanding the protest against its unconstitutionality. It appears from the transcript of that meeting that 16 affiliates in good standing attended. The first to third applicants also attended and voiced their objections. The meeting proceeded nevertheless. The letter from the first applicant’s attorneys was not circulated to the delegates at the meeting. It was also not discussed. Throughout the meeting, the first applicant, supported by the second and third applicants, maintained their position that the meeting was unconstitutional and irregular in terms of the constitution of the first respondent. That was the genesis of this litigation.

[54] The special CEC meeting of 14 August 2013 did not take off smoothly, nor can it be said that it ran smoothly throughout. It was stopped in its course at least two times during which a side meeting was held between NOBs, Presidents and Secretaries. The side meeting sought to find a way forward and then come back to the proper CEC meeting with a proposal as to how the meeting was to proceed further.

[55] The difficult start to the meeting is best described and summarised in the words of counsel for the first respondent, Mr K Tip SC, who states that there was “an extended period of debate, sometimes acrimonious in tone, on questions about the constitutionality of the meeting, the agenda, and complaints voiced by some affiliates that there had not been an opportunity to obtain mandate on the agenda topics. By lunch time, those debates had not been resolved'. It was at this stage that the meeting accepted the proposal for the first side-meeting that was to look into how to deal with those contentious issues and find a way forward for the CEC.

[56] When the CEC reconvened after lunch there was a general agreement among affiliates that the meeting should proceed. Mr Dlamini, the President of the first respondent, formally opened the meeting. The first applicant again raised its assertion that the meeting was not constitutional. The fourth applicant, Mr Vavi, made a plea that the meeting should be allowed to proceed and that the Deputy General Secretary should present the report as proposed by the NOBs. He hinted that it might be that they would have to hold another side- meeting (or caucus) if the meeting as a whole could not move forward.

[57] The Deputy General Secretary then tabled the grievance hearing report and the discussion of it by the NOBs on 05 August 2013. He pointed out that the chairperson had come to the view that the admitted sex with a subordinate in an office was unacceptable and should be addressed through a disciplinary process, and that there were sufficient grounds to investigate whether the fourth applicant had committed misconduct or acted in a manner detrimental to the Federation (the first respondent). The NOBs, he outlined, had discussed the matter at length and had concluded that a special CEC meeting should be called and that the recommendations of the NOBs should be placed before the meeting. The recommendation of the NOBs was that the CEC should not discuss the merit and the demerit of the issues. The CEC, it was suggested, should rather put in a process whereby the genera! secretaries and the presidents should then discuss and find a way in which the matter should be dealt with.

[58] The fourth applicant then made a statement to the meeting, after which he, on his own, left the meeting saying he wanted to allow the CEC to debate the matter in his absence as he was directly affected. In the statement he in effect repeated his acknowledgement which he had already made publicly and said that he had apologised to each member of COSATU (first respondent). He stated that as an individual he was not above the federation and that the CEC should deal with the matter in a manner that would protect the federation and its reputation as well as its stance on gender violence. There had been no gender violence or gender intimidation in the instance. He indicated that he anticipated that he might have to be censured and that he would accept censure as long as it would be consistent. He concluded by stating that “It should not be a matter that should lead to the splitting of the federation or creating permanent divisions.''

[59] Once the fourth applicant had left the meeting, each of the affiliates present had an opportunity to address the meeting and did so. From the transcript a divergence of views emerged from among the affiliates. The meeting was deeply divided. Constitutionality of the meeting and whether it was appropriate for the meeting to continue was raised again. Some delegates felt that an opportunity should be given to affiliates to go and get mandate from their members before a decision could be taken. Some called for equal treatment between the General Secretary (fourth applicant) and the employee with whom he was involved. Others felt the grievance hearing report should have been made available beforehand.

[60] On the question of suspension of the fourth applicant and disciplinary action, which is the core of the application and therefore of the dispute before this court, Counsel for the first respondent presents the following summary, which I have no reason to quarrel with, regarding the position taken by affiliates at that meeting. Of the 19 unions/affiliates in attendance at the CEC, three were not in good standing and their participation does not count towards decision making. Of the remaining 16, ten spoke in favour of bringing disciplinary action against the fourth applicant. Eight expressed themselves in favour of his suspension or leave of absence.

[61] Once each affiliate had stated its position, the meeting reached the point of the summary being given by the President of the first respondent, who presided, as to where the affiliates stood. A critical phase of the meeting for present purposes then ensued. This concerned the question whether or not there should be a vote. Some affiliates (notably NEHAWU - sixth respondent and SATAWU - fourth respondent) were in favour of the matter being put to a vote. Others (notably NUM - third respondent) questioned whether there was any need for a vote. The third respondent pointed out too that 8 affiliates had clearly called for suspension and disciplinary action.

[62] The positions taken by the President (Diamini who presided) and the Deputy General Secretary at this stage are significant. The President indicated that he was in favour of a vote being taken, saying that he was calling for a vote (“Angibize ke levote ma comrades” - Transcript, p 1067:11). He specifically referred to the constitution and even read out clause 11.4. The Deputy General Secretary (Mr Nshalintshali) weighed in and pointed out that “a simple majority' did not refer to affiliates, but to the participants in the meeting. He drew attention also to the provision regarding scrutineers and stated: “That can’t be for a debate, comrade. No matter how it might be painful, it’s the constitution, if you want to mess it up at the end in terms of how you want to rule on these issues, bad luck” (What a prophetic statement! What a warning; and what an express and direct language.) It was at this juncture that the President (Dlamini) repeated that he wanted a vote. In the end there was no vote, as will emerge.

[63] It was after these exchanges that the suggestion of one affiliate (SADTU - fourth respondent) carried the day. The affiliate suggested that the special CEC meeting should take a 15 minute adjournment so that the presidents and general secretaries could again go into a side meeting where they should try and persuade one another to try and find a way toward for the meeting. The first applicant spoke on the issue and indicated that it would not take part in the suggested side meeting. In their view, “it was too late down the track to be going into another side meeting”.

[64] On that note the CEC then adjourned for the second side-meeting.

[65] After the second caucus or side meeting of the affiliate Presidents and Secretaries, Mr Dlamini presented a summary of the caucus position to guide the CEC as a whole. He first outlined that all the affiliates had been present, other than NUMSA, FAWU, SACCAWU and SASAWU. The matter that was discussed was the process of leave of absence for the General Secretary and the employee, coupled with a disciplinary process in respect of both of them. Dlamini then informed the CEC of the result of this caucus’s deliberations in the following words:

“...after a lengthy discussion, this meeting of the Presidents and the General Secretaries agreed that we should put in place immediately this process that must operationalise the decision as supported by the simple majority or the majority of the people in this meeting. It should be prompt; it should be fair to both comrades. The Presidents in particular should work closely with the National Office Bearers in ensuring that this process is applied consistent with our resolve but also to ensure that it is properly guided to be fair [to] all the parties involved but COSATU in particular.” (emphasis added)

[66] He then added:

“That is where we are. We think that we, with that understanding, we don't need to vote, we have a decision and we checked whether there is no possibility that when we come here those who were inside there might change their minds. We agreed that we’re not going to do that..." (Emphasis added)

[67] After this report, SATAWU moved that the caucus position should be made the formal position of the CEC. There was no formal adoption of this; there was also no dissent. NEHAWU added that the Presidents were to remain behind to discuss the modalities of the implementation, the communication and the conditions. SAFPU reiterated its concern about a mandate and stressed that the process must be fair. NUMSA placed on record again that: “NUMSA stands in opposition of this decision taken" and restated that it stood with SACTWU on the issue of the need for mandates. The special CEC meeting was then adjourned on the basis that the Presidents were to remain, to look into the modalities.

Issue

[68] The question that then arises is whether there was a valid decision taken by the special CEC meeting of 14 August 2013 and what the decision was; or whether the purported decision was invalid, contrary to the constitution of the first respondent and should consequently be declared to be of no force and effect and set aside, as the applicants claim. Naturally, the applicants seek the declaration of invalidity while the respondents wish the court to uphold the decision.

[69] Now what was the decision allegedly taken? It appears from the summary of NUM just before the second side meeting, and indeed from the summary of Dlamini, that the decision was to suspend and start a disciplinary process. The effect of this decision also appears from the letter that the first respondent addressed to the affiliates on 15 August 2013 as well as to the fourth applicant on the same day communicating the decision.

[70] At the hearing of this application and right at the commencement of his address, counsel for the first to third applicants, pointed out that if his clients were successful, they would be content with being granted only prayer 5.3 of their notice of motion, which is paragraph 1.1.3 of this judgment." That prayer relates to the decision to suspend the fourth applicant and start the disciplinary process against him. Counsel made it clear that his clients, the first to third applicants, were not abandoning the other prayers; but that they would be satisfied with being granted only the relief in terms of paragraph 1.1.3. That then is the impugned decision, which I have to decide whether it was validly taken or not. The fourth applicant (Vavi) through his counsel stated that what they challenge and seek to set aside is only the decision to suspend him. Indeed the fourth applicant has no qualms with the first respondent’s decision to start the disciplinary process against him. He did not press for the interim relief, which was his second and alternative prayer.

[71] Counsel for the first respondent has requested the court not to pronounce on or interfere with the first respondent’s decision to start disciplinary proceedings against the fourth applicant, even if the court were to find against the first respondent. He referred to the fact that a number of steps have already been taken to start the disciplinary process.

[72] The focus of this court has to be the decision taken by the first respondent on 14 August 2013 - in relation to the fourth applicant, whatever that decision is. The consideration of a disciplinary process or misconduct enquiry was at the centre of the meeting in question. That appears from the fact that that is the issue which was in the first place referred to the first respondent by the chairperson of the grievance hearing. That issue was first considered on the NOB meeting of 05 August 2013 which then thought it prudent to refer the issue to the CEC. It was therefore central to the CEC meeting of 14 August 2013. Not to review that part of the decision would be tantamount to not reviewing the meeting itself. I depart of course from the point that the court has to examine the taking of the decision.

[73] Consideration of possible disciplinary action was referred to the first respondent by the chairperson of the grievance hearing. The disciplinary action that the chairperson had in mind arose from the proceedings before her, the conduct of the fourth applicant around the adulterous relationship with a junior employee. She appears to have raised possible disciplinary action and not referred to any suspension. The question of suspension arose from the meeting of 14 August 2013 as an add-on to the decision to commence disciplinary action. It appears from the papers before court that the first respondent or some of its members always had in mind to initiate some type of inquiry or investigation even before 05 August 2013. For instance, an investigation into alleged improprieties into the sale and acquisition of COSATU House was considered at the CEC meeting on 27 to 29 May 2013. Decisions taken at any meeting other than that of 14 August 2013 are not before this court. None of the applicants persists with prayer 5.4 of the first to third applicants’ notice of motion (para 1.1.4 above), which would have widened the scope of the enquiry in this matter.

[74] As I understand the applicants’ (first to third) case regarding the convening of the special meeting in question (para 1.1.1 above), part of their complaint is that first applicant had not been furnished with the requisition by no less than V* of affiliates and that the notice convening the meeting was signed and issued by the Deputy General Secretary (DGS) and not by the General Secretary (GS). As I read clause 5.3.2.1 of the constitution of the first respondent, there are two distinct ways in which the process of calling a special meeting may be initiated. One is by the NOBs making a request for that meeting. The other is by the affiliates making such a request. The request by the affiliates must emanate from affiliates who represent not less than % of the affiliates of the first respondent. The affiliates must further make their request on requisition. The requests are made to the GS who then has to respond by issuing notice of a special meeting to the affiliates. It does not appear to me that when the NOBs initiate the request for a meeting, they too need to do so by requisition. The GS is part of the NOBs and would thus ordinarily be part of the decision of the NOB that makes the request of the meeting. It would not make sense if the GS as the secretary of the NOBs were to formulate a requisition and address same to himself. Í am not addressing the question of what should precede the decision by the NOBs to initiate a request for the meeting but simply what they need to do once they on their own wish to initiate the process. I am in particular not addressing the question of whether they need to receive a request or requisition from affiliates before they themselves initiate a request to the GS. In the present case, as I read the record, the NOBs received a request for the special meeting from four affiliates. This was clearly not a requisition by not less than ¹/₃ of the affiliates. The NOBs therefore themselves initiated the process after receiving the request of four affiliates and possibly in response to public utterances that were full in the media. It was an initiation of the process by the NOBs and not by requisition of affiliates. If that was so, then in my view they were not obliged to furnish a requisition. As for the signing or issuing of the notice, it appears that the GS had left the meeting and was not available. It is not inappropriate in his absence for the DGS to act. Furthermore, he was also at the centre of the issue and would, possibly have requested the DGS to issue the notice.

[75] The views I set out in the preceding paragraph are for the guidance of the parties only. I do not decide the issue as I understand I am not called upon to do. I also do not address issues as to what detail and background the NOB must give out to affiliates when they convene the special CEC meeting; the question of mandate; and whether as a matter of policy the NOBs should initiate the calling of a special CEC without being prompted to it by affiliates; and what form the request of the affiliates should take. These are important considerations that may come to bear if a decision on the issue was to be made.

[76] I now turn to consider whether a valid decision was taken by the special CEC meeting of 14 August 2013 in accordance with the constitution of the first respondent and whether the purported decision should stand. When that special CEC adjourned, they certainly held the view that they had taken a valid decision that needed to be put into effect. They therefore issued a directive to the presidents and secretaries to implement, or as they put it, to look into the modalities. The decision was confirmed in the letter written to the fourth applicant the following day to inform him of the decision. The respondents who were part of the decision contend that a decision was validly taken while the applicants assert otherwise.

[77] The constitution of first respondent is fairly clear. It requires and prescribes that the meeting makes a decision if there is (a) a motion (b) which is duly seconded, and (c) a simple majority of people vote in favour thereof. It provides further that (d) the decisions or voting is to be (i) by show of hands or (ii) by ballot if the meeting so decides. The constitution provides further that if less than a simple majority vote in favour of a motion then the motion lapses. (The same would follow, I suppose, if a motion is not put to the test as to whether it enjoys support or not; i.e. if it is not put to the vote.) It provides further that no motion that has been debated and determined may be reopened, varied or rescinded at the same meeting. There were more than 50 participants at the meeting of 14 August 2013. In those circumstances the constitution further required that “votes must be counted by scrutinizes who (a) must be appointed by the meeting; and (b) must record the votes and report the results to the chairperson”.

[78] It is common cause that there was no vote and no scrutinizers at the special CEC meeting. The meeting was deeply divided on the question of suspension with 8 out of 16 affiliates being in favour of suspension. Even if one was to count a vote by affiliates, there would have been a deadlock, certainly not a majority decision. The constitution however requires a vote by people or participants at the meeting. This was not done.

[79] Was there a decision without a vote? The first respondent argues that there was a decision in the process that I outlined above on the question of suspension. They concede that “it is so that clause 5.6.2 of the constitution provides that decisions of CEC are made by a show of hands or by ballot if the meeting so decides", and that a vote as prescribed did not on this occasion take place. They argue that there was what they call “a fully democratic process” which was followed; which “promoted the objective of participatory democratic decision making”. They conclude that “it was a vote by a spoken word instead of by show of hand or written ballot”. They say this was “in keeping with the tenor and spirit of Cosatu constitution and produced a ‘true result”. This is the one basis on which they argue that there was a decision. The difficulty with vote by spoken words instead of hand or ballot is that on the count of voices there are 8 voices in favour out of a total of 16. That is not a simple majority of voices in favour.

[80] The respondents further argue by counting delegates for each affiliate in good standing who was represented at the meeting. The affiliates were represented by an unequal number of delegates at the CEC: affiliates with iess than 80 000 members are entitled to 2 delegates each, while those with more than 80 000 are entitled to 4 delegates each. The respondents then count the number of delegates that were actually present at the meeting and reach a total of 51 delegates in good standing. Based on the number of delegates that represented each affiliate, they reach a voting result of 28 votes in favour of suspension. They argue accordingly that there was a majority of votes on this basis. Firstly, this approach is based on an assumption (a) that every delegate would have voted - and there would have been no absention and (b) that every delegate would have voted in accordance with the view of the person who spoke for his or her union (the affiliate). None of these assumptions is based on anything in the constitution or on what actually happened at the meeting. The assumption stands in the air and is not much different from speculation. The further and important answer to this approach comes in the words of the fourth applicant (Vavi) who points out in his affidavit (record 454 para 40.4) that each individual delegate is not bound by his or her union’s caucus, but stands as an individual above the union. This statement was not denied. There is thus a possibility that some delegates could have voted differently from the position of their unions to defeat a decision for suspension. The fact of the matter, however, is that the respondents are here trying to count the votes which were never cast to justify a decision that was taken without voting. The will and position of the delegates who are entitled to vote, the decision makers themselves, was not tested or given expression. There can be no vote, other than one that expresses the will of the voter. It is thus not possible to say how many people/participants were in favour and how many were not, because, as individuals, they were not asked or given an opportunity to express any individual views or otherwise indicate their position.

[81] Furthermore, to argue as the respondents suggests that a “true result’ was reached and consequently that one should disregard the prescribed procedure, is bad in law. The CEC was not entitled to reach a “true result or correct outcome by way of any means. The rule of law provides that correct legal processes should be followed and it does not authorise self-help. See: MEC for Education, Gauteng Province and Others and Others v Governing Body Rivonia Primary School and Others 2013 (6) SA (CC) 582 at 589H-I; Head of Department, Department of Education, Free State Province v Welkom High School and Another 2014 (2) SA 228 (CC), [2013] ZACC25 [86], In the words of Makgoro J in Chief Lesaho v N.W. Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409 (CC), at 416-417 para [18];

“This rule against self-help is necessary for the protection of the individual against arbitrary and subjective decisions and conduct of an adversary."

[82] Finally the respondents argue that there is a general and long standing practice of the first respondent (COSATU) that a vote by show of hands or written ballot is employed only where there are two or more motions before the meeting for decision. This, they say, is so not only for the CEC but also for National Congress and Central Committee meetings. The respondent sought to rely on a dicta from Mcoyi and Others v IFP; Magwaza-Msibi v IFP 2011 (4) SA 298 (KZP) at [43] where the court cited the English case of Lewis v Heffer and Others [1978] 3 All ER 354 (CA) to support a proposition that as the first respondent (COSATU) is a voluntary association, it is permissible to have regard to how its subscribing members have conducted their affairs. The respondent then pointed out a number of instances where the CEC allegedly followed the same procedure (of taking decisions without a vote) in relation to dismissal of office bearers and other decisions. The applicant countered this argument stating that the procedure had never been followed where there was dissention or opposition. Having checked the position Mr Tip SC for first respondent magnanimously later confirmed that the procedure had not been used in the face of dissent. It must accordingly be accepted that decisions within COSATU are sometimes, perhaps even regularly, taken without vote in the absence of dissent. In such a case it may be assumed, correctly, that there is a valid decision by unanimity or consensus.

[83] In the present instance there were vigorous contestations of views prior to the CEC adjourning for the second side meeting. There was clearly no unanimity or consensus. The meeting was divided. The reason why a second side meeting was resorted to is because the divisions were there for all to see. The affiliates had not been able to persuade each other despite their long meeting. There were even different views on whether voting should take place or not. How can the position that prevailed then be relied upon to determine the outcome of a vote or a decision one way or the other, or to suggest which way the vote would have gone? The fact of the matter is that inherent in this approach is that one is trying to determine the outcome of a vote which never took place.

[84] What happened on resumption of the special CEC after the second side meeting or caucus is that the President reported on the proceedings of the caucus. A decision may or may not have taken place in the caucus. There are no minutes of the caucus and the caucus is not the CEC. He told the CEC that the Presidents and the Secretaries had agreed (in the caucus) and that the decision was supported by a simple majority (in the caucus) of the people in the meeting (of the caucus). This clearly referred to a decision of the caucus and not of the CEC. All the decisions had been taken there. He added therefore that “We (the caucus) think ... that we don’t need to vote (in the CEC)”. The caucus had also checked and concluded that when the CEC resumed those that had been in the caucus would not change their minds.

[85] This was a deliberate and express ploy to prevent the CEC from voting and thus taking a decision on an issue for which the special CEC had been convened and which they had debated. Although SATAWU formally moved that the caucus position should be the formal position of the CEC, there was no adoption of such a proposal by the CEC. The special CEC meeting held on 14 August 2013 therefore did not take a decision on the suspension of and the taking of disciplinary action against the fourth applicant, even after the second side meeting. That meeting was fully aware of the constitutional requirements for a vote in order to take a decision within the CEC. They had been informed and reminded of the express provisions of the constitution which were read to the meeting. They had been warned that the provisions are clear and unambiguous. “That can’t be for a debate. No matter how it might be painful. It’s the constitution.” They had been warned of the disastrous consequences of not following the constitution. They knowingly chose not to follow the constitution under which they were obliged to act.

[86] Surprisingly, the person who at the end told the meeting that there is no need to vote is the same person who earlier in the same meeting, had expressed himself in favour of voting and had called for the vote, not once but twice. One wonders what had happened in the side meeting to turn him against the constitution. Ignorance of the constitution is clearly not the reason why the constitution was not followed.

[87] The approach to interpretation of documents, such as the constitution of the first respondent in this case, is set out by the SCA in Natal Joint Municipal Pension Fund v Edumeni Municipality referred to earlier in this judgment. The language of the constitution of COSATU on the relevant provisions, read in context and having regard to the purpose of the provisions, allows for no ambiguity. The plain and clear provisions were not followed, and deliberately so, it appears. Voting, which was necessary was not carried out. There was therefore no decision taken and the purported decision was irregular and unlawful and thus stands to be set aside.

[88] I need to say something about side meetings, lest I be misunderstood, and lest we throw the baby out with bath water. There is nothing negative about them per se. As I understand them they are a useful tool to promote consensus and to allow participants at a meeting to try and find a common ground and find a way forward, especially in the event of a deadlock. That, as I understand is exactly what the first side meeting did at the special CEC meeting of 14 August 2013. As Mr Tip SC for the first respondent, puts it in paragraph 36 of his heads:

“There was nothing objectionable or unconstitutional about a side meeting of this kind. It was intended to move the proceedings forward in a positive way and it achieved exactly that result. In consequence of it, and when the CEC reconvened after lunch, there was a general agreement among all the affiliates that the meeting should proceed"

[89] That too is the positive import that comes from the submission made by the first applicant just before the start of the second side meeting. Side meetings may, however, not be used as a substitute for the main meeting in the sense in which the second side meeting was used. They should and can promote decisions of the main meeting but cannot take decisions for the main meeting. In that sense the proposal made by SATAWU, in the CEC meeting after the second side meeting, that the position of the special CEC meeting should adopt an apparent decision made in the side meeting as a formal position of the CEC, was along the correct line. As we know, it was not taken forward. It was and is important that the main meeting, in this case the CEC, should take the decision itself and that the decision making process within the main meeting should appear from the transcript or minutes of the main meeting. Failing to do so may render worthless the otherwise positive attributes of a side meeting when it is properly utilised.

[90] In the light of the finding I have made, it is not necessary to deal with the second ground of the attack on the first to third applicants, namely, the allegation that the fourth applicant was not given a pre­suspension hearing. That was also one of the lines of attack by the fourth applicant, but not his only one.

[91] The prayer that the first to third applicants seek as set out in paragraph 1.1.3 above, and the final relief, which the fourth applicant seeks as set out in paragraph 2.1 above are capable of being condensed into one relief. Those are the main prayers that the applicants seek and in which they succeed. I propose to condense them into one.

[92] Finally, I have been asked to award the costs of 10 September 2013 separately on the basis that they are wasted costs occasioned by the initial non-joinder. All the parties that were subsequently joined, i.e. the fourth applicant and the second to eighth respondents, are necessary parties to the application in this matter. Their joining of the proceedings has added value to the ventilation of issues. The failure to join them at the institution of proceedings has been adequately explained. I would not award punitive costs for failure to join them initially. There is no reason why the costs of 10 September 2013 and the costs of all the intervention application should not be part of the costs in the course.

[93] In the result I make the following order:

1. The decision to place the fourth applicant, Zwelinzima Vavi, on special leave or suspension purportedly taken by the first respondent’s (COSATU’s) special CEC meeting on 14 August 2013 is declared invalid, unlawful and of no force and effect and is accordingly set aside.

2. The respondents shall pay the costs of the applicants, jointly and severally the one paying the other to be absolved, including the costs of two counsel.

P M MOJAPELO

DEPUTY JUDGE PRESIDENT

HIGH COURT HIGH COURT OF SOUTH AFRICA

Counsel for the 1^st, 2^nd and 3^rd Applicants: Adv J. G. van der Riet SC

Adv J. J. Meiring

Counsel for the 4^th Applicant: Adv P. J. de Bruyn SC

Adv P. Kennedy SC

Counsel for the 1^st Respondent: Adv K. Tip SC

Adv C. Bester

Counsel for the 2^nd - 8^th Respondents: Adv C, Watt-Pringle SC

Adv K. McLean

Attorney for the 1^st, 2^nd and 3^rd Applicants: Vasco de Oliveira Attorneys Attorney for the 4^th Applicant: Fasken Martineau

Attorney for the 1^st Respondent: Cheadle Thompson &

Haysom Inc

Attorney for the 2^nd - 8^th Respondents: Allardyce & Partners

The hearing took place on 27 - 28 March 2014

Judgment was handed down on 4 April 2014

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