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How courts have recently interpreted discrimination in the form of hate speech

The Constitutional court case titled South African Revenue Services v Commission for Conciliation, Mediation and Arbitration and others 2017 (1) SA 549 (CC) involved an altercation between staff employees of South African Revenue Services (SARS). Mr Kruger referred to Mr Mboweni as a “kaffir” and SARS, their employer subsequently proceeded with disciplinary proceedings, charging Mr Kruger with using a racist remark, and alternatively derogatory and abusive language.

Mr Kruger pleaded guilty and the chairperson imposed a sanction of a warning, suspension and counselling. However, when the Commissioner of SARS heard about the proceedings, he was outraged and without a hearing changed the sanction and dismissed Mr Kruger. Mr Kruger appealed the decision of the commissioner of SARS to the Commission for Conciliation, Mediation and Arbitration (CCMA). The Arbitrator found in favour of Mr Kruger. The matter was then further appealed by SARS at the Labour Court. The Labour Court upheld the decision of the Arbitrator at the CCMA. Upon SARS’ unsuccessful endeavour, SARS referred the matter to the Constitutional Court.

There were several issues the Constitutional court addressed, however for the purposes of this discussion we will primarily focus on the issue of;

  • Whether the Arbitrators award to reinstate Mr Kruger was unreasonable in terms of section 193 (2) (b) of the Labour Relations Act which says that;
    “The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.”
  • Whether SARS should be ordered to compensate Kruger in terms of section 193(1) (c) of the Labour Relations Act which says;

“If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may.”

The court vehemently condemned the use of the word “kaffir” and stated that “racism should not be condescendingly branded as irrational or emotional. This is so not only because the word kaffir is 'an inescapably racial slur which is disparaging, derogatory and contemptuous', but also because African people have over the years been addressed as kaffirs.” The court further stated “Imagine if the same approach or attitude were to be adopted in relation to homophobia, xenophobia, arrogance of power, all facets of impunity, corruption and similar societal ills. That somewhat exculpatory or sympathetic attitude would, in my view, ensure that racism or any gross injustice similarly handled, becomes openly normalised again.”

The court suggested that it can never be over-emphasised that being called a “kaffir” is the worst insult that can ever be visited upon an African person in South Africa, particularly by a white person. It runs against the very essence of our constitutional ethos.

Nevertheless the court unemotionally and objectively assessed the evidence. The Court disagreed with the finding of the Labour court and said the court did not apply its mind to the application of section 193(2) of the Labour Relations Act, the court added that reinstatement does not follow as a matter of course, and in the circumstance reinstating the employee would make the employment relationship intolerable. Under these circumstances the court instead compensated Mr Kruger in terms of Section 193 (1) of the LRA as compensation for unfair dismissal.

Our new dispensation allows for freedom of expression, however, this freedom is limited to propaganda of law, incitement of imminent violence, advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Unescapably there exists tension between the right of the speaker to freedom of expressions and the obligation of the speaker not to use words constituting hate speech. In a matter where these rights compete, the courts duty is to find a balance.

The Equality Court is aimed at being user friendly and accessible to individuals and aims to create expeditious and informal proceedings. The Court is not meant to mirror the intimidating and costly Magistrate Court and High Court culture.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.