Labour court rules in round four of Fawu vs Fawu

Suspended Food and Allied Workers Union (Fawu) deputy general secretary Moloko Phakedi has lost the fourth round of the court battle with the opposing faction in the embattled union.

As a result, that faction can now go ahead with a disciplinary hearing against Phakedi.

On Friday, the labour court dismissed a challenge by Phakedi, who is also the deputy general secretary of the South African Federation of Trade Unions (Saftu), to his suspension. The suspension was carried out last month after a court ruled that his earlier dismissal was unlawful and reinstated him as an employee of the union.

Fawu is the second largest affiliate of Saftu, which broke away from the Congress of South African Trade Unions (Cosatu) in 2017.

On Friday the court ruled that Fawu had the right to bring charges against Phakedi as its employee and that the allegations against him, whether of substance or not, had to be addressed so that the union could fulfil its mandate of serving its “long-suffering” members.

In his judgment, Judge Edwin Tlhotlhalemaje said the disciplinary hearing against Phakedi — which had been postponed until the labour court application was heard — could now go ahead. Phakedi could, should he feel his rights were violated in the process, seek remedy at the Commission for Conciliation, Mediation and Arbitration (CCMA) or another forum after the process had reached its conclusion.

The judge said the application was part of the “internal discord” in Fawu, whose current leadership wanted Phakedi out of office because they believed he could not act as deputy general secretary of Fawu and occupy the same post in the federation it belonged to, Saftu.

The fight between the faction led by Phakedi and former general secretary Katishi Masemola, who was also dismissed by the union, and a grouping led by president Atwell Nazo and deputy general secretary Mayoyo Mngomezulu, has brought the union to its knees.

It narrowly escaped being deregistered as a trade union last year because of delays in submitting its financial statements to the registrar caused by the infighting between the two groupings, which began with the launch of Saftu in 2017.

The fight has resulted in Masemola, Phakedi and their supporters, including KwaZulu-Natal secretary August Mbhele and Eastern Cape secretary Mthunzi Madondo, being dismissed by the union.

Masemola, who had acted as chief executive of Fawu’s investment arm, Basebenzi Investment Group, for nearly a decade, was fired for misconduct over a R19.- million write-off and for allegedly using an additional R20-million of union funds to cover its operating expenses without authorisation.  

But Masemola has denied wrongdoing and challenged his dismissal at the CCMA, as did Mbhele and Madondo.

After winning his last court battle against dismissal, Phakedi signed an agreement reinstating Masemola as general secretary and undertaking to pay him three months salary as back pay. Masemola in turn withdrew the challenge to his dismissal, which had been scheduled for June 22 at the CCMA, on the basis of the agreement.

Masemola said last week that “my assumption is that I resume duties” in accordance with the settlement agreement.

But the Nazo-led faction does not recognise the reinstatement of Masemola, who conceded this in an interview with the Mail & Guardian.

“If they do not recognise the settlement agreement, as soon as they violate the agreement, I will approach the court to enforce it,” Masemola said.

He said it was highly likely that the fight between the factions would continue to play itself out in the court.

“We are sitting with two groupings involved in this crisis. At the end of the day, the courts will be able to interpret our constitution and impose a final ruling on how these matters will be resolved,” he said.

The Masemola-led faction argues that the national executive committee, which elected Nazo, Mngomezulu and others in 2017, acted beyond its powers by holding an election because only a Fawu national congress had the power to elect new officer bearers.

“This is going to end up in the courts. That is the only opportunity we have, unless reason prevails and the structures correctly interpret the constitution and take resolutions in the best interests of the organisation. The latter is preferred, but it doesn’t look likely, so going to court is the most likely route,” Masemola said.

Phakedi is set to continue with another legal challenge to the legal status of the meeting that elected Mngomezulu, which had been part of the labour court application but which the court had not heard because it was not urgent.