There is no possible way the pending court battle between the National Union of Metalworkers of South Africa (Numsa), the Food and Allied Workers’ Union (Fawu) and the South African Football Players’ Union (Safpu) against their trade union federation Cosatu can end amicably. If anything, it will sour relations irrevocably as opting for litigation takes the high-stakes conflict in Cosatu out of the hands of the federation and the alliance and places it at the discretion of a non-political player: a high court judge. Rolling the dice does not get riskier than that.

But Numsa, Fawu and Safpu will argue that they had no other option than to try and strong-arm Cosatu through the courts. They have applied to the South Gauteng High Court to overturn the decision of a special Cosatu central executive committee (CEC) meeting on 14 August to suspend the federation’s general secretary Zwelinzima Vavi pending the outcome of a disciplinary hearing. Vavi and a junior Cosatu employee were both suspended by the CEC for having sex in an office at the federation’s Johannesburg headquarters. The three unions believe the convening and conduct of the special CEC meeting was unconstitutional and therefore the decision to suspend Vavi is invalid.

Cosatu is contesting the challenge, and is now being supported by seven affiliate unions, who all believe there was nothing unprocedural about Vavi’s suspension, and that he should remain on special leave until a disciplinary hearing clears him of misconduct.

Numsa’s court papers cite the federation’s constitution which states that “the national office bearers (NOBs) or not less than one-third of the affiliates on requisition, can request a special meeting of the CEC”.

In his affidavit, Numsa general secretary Irvin Jim argues that “the meaning of ‘request’ must be derived from the plain meaning of the word, namely ‘politely or formally to ask’ for something, rather than ‘to demand’ a meeting or ‘to convene’ one. “It lies ill in the mouth of the NOBs to arrogate to themselves the right and power unilaterally, and to the exclusion of the respondent’s (Cosatu’s) affiliates to demand or to purport actually to convene a special meeting of the CEC,” Jim states in his affidavit.

Jim says there will be “irreparable harm” for the applicants (Numsa, Fawu and Safpu) as the conduct of Cosatu “serves fundamentally to undermine democratic governance in forcing through decisions by way of unconstitutional procedures that do not enjoy majority support”.

On Tuesday seven Cosatu affiliates, including the National Union of Mineworkers (NUM), the National Education Health and Allied Workers Union (Nehawu) and the South African Democratic Teachers Union (Sadtu), were granted permission to intervene in the matter in support of the federation’s decision to suspend Vavi. They have until 20 September to file affidavits opposing Numsa’s application and will no doubt have elaborate and cutting accusations of their own to volley against Numsa and co.

The matter is to return to the high court on 8 October where a hapless judge will have to wade through all these arguments and give one of the sides the right to dance triumphantly outside. But that’s as far as a courtroom victory will go. Whatever the judgement will be, it will not address the divisions and paralysis within Cosatu and it will definitely not resolve Vavi’s untenable position in the federation.

This is why next week’s regular CEC meeting is likely to be even more fraught than the past few gatherings – one of which stalled due to the antagonism in the room and inability to make progress. With three affiliates now facing off against seven others in court, and the national office bearers (minus the suspended one) the respondents in the court action and firmly in one camp, it will be virtually impossible to set aside all the bad blood and discuss normal business. If they suspend normal business and focus on the points of contention, such as Vavi’s suspension, there are likely to be objections that the matter is before the courts and it would thus be improper to discuss it.

So how will this meeting of Cosatu’s senior leadership proceed beyond roll call?

Cosatu’s president S’dumo Dlamini seems to think it can. Speaking to reporters outside the high court on Tuesday, Dlamini said the postponement of proceedings in court gave the federation the time to resolve the matter at next week’s CEC meeting.

How would that happen though?

Is there a possibility that everyone in the room would uncock their guns and start discussing the underlying tensions in Cosatu rationally? What about Vavi’s accusation that there were people at the last meeting who had already prejudged his matter and were in any event prejudiced against him by being influenced by a bogus intelligence report? If this were true, would the people gunning for Vavi suddenly decide to set aside their resentment and accept him back?

Or would Vavi’s supporters decide to cut him loose for the sake of Cosatu’s unity? Would they apologise for dragging Cosatu’s problems before the courts and undermining the federation’s leadership? And would ANC secretary general Gwede Mantashe and SACP general secretary Blade Nzimande, and their respective organisations, disregard the attack on them from Jim (he accused them of being behind the divisions in Cosatu), and give the cessation of hostilities their blessing?

Highly improbable. All of it. These are hell-freezing-over scenarios, not likely outcomes of next week’s meeting. All attempts at political interventions and conflict resolution in Cosatu have failed because there is no middle ground. There is no way for the warring factions to find each other and negotiate out of the conflict, especially now that there is a legal showdown. And the alliance partners are no longer willing that Vavi, Jim and their merry men be able to come back to the fold.

So what was Dlamini implying then? To nullify the Numsa court action, there could be discussions that Cosatu concedes that Vavi’s suspension at the 14 August meeting was unprocedural and have a do-over, this time in a properly constituted meeting. Alternatively Dlamini and his allies could be aiming to summarily dismiss Vavi. This could be on the basis that Vavi violated the terms of his suspension by addressing striking Numsa workers on Monday.

Dlamini said on Tuesday that by addressing the Numsa strikers, Vavi had breached the terms of his suspension. “There are conditions of the suspension. You can’t address workers. That’s going to be in breach of the condition of your suspension,” Dlamini was quoted by the Mail & Guardian. “We said he was not to perform his duties as the general secretary of Cosatu.”

But Vavi and Numsa claim that Vavi was addressing the workers in his personal capacity, not as Cosatu general secretary. This issue is destined to be another issue of contention and yet another accusation of improper conduct on the part of Vavi.

If Dlamini and his allies are planning a surprise manoeuvre next week, it will again come down to the numbers game – which side has greater support in the room. That means there needs to be fierce lobbying, especially among the fence-sitters, to decipher the balance of forces. It would be deadly for either side to enter that meeting without knowing how a vote would play out. And if you are likely to lose a vote, by all means avoid one happening.

The pro-Vavi faction has up its sleeve the threat of the Numsa special congress in December where a decision to split Cosatu could be taken. They also have six out of the seven unions required who support the holding of a special Cosatu congress to allow the general membership to decide Vavi’s fate and the future of the federation. The Dlamini faction would try by all means to fight this off, so while the numbers in CEC might lean in their favour, they might need to avoid going for broke there, as this would almost guarantee that the special congress be called.

But whatever happens at next week’s meeting and in court, the dye is cast and there is no turning back. And while there might be short-term victors, Cosatu and its two million members will remain losers. DM

Photo: Numsa members demonstrate outside the High Court in Johannesburg on Tuesday, 10 September 2013 during the hearing of an application to have Cosatu general secretary Zwelinzima Vavi’s suspension overturned. The application was postponed by the court. In court papers, Numsa called Vavi’s suspension “unconstitutional and unprecedented”. Vavi was suspended last month for bringing Cosatu into disrepute after he admitted to having an affair with an employee. Picture: Werner Beukes/SAPA