Freedom of Speech has its restrictions

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October 7, 2019

Due to our controversial past, South Africa has been faced with a difficult task of eradicating all forms of racial animosity and behaviour. This is a problem we often find in the employment sphere as well, between the employer and the employee or between colleagues themselves. As part of its founding provisions, the Constitution states that the Republic of South Africa is founded on the following values, inter alia: human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism. These values are integrated into the employment legislation, such as the Employment Equity Act and the Labour Relations Act, both of which address racism in the workplace.

In numerous cases in the media, we have seen people using derogatory words to express their views of certain racial groups. In most cases, this could lead to claims at the Equality Court and/or criminal charges of crimen injuria, of which we have seen former real estate agent, Vicki Momberg, sentenced to an effective two years in prison for her racist tirade in 2016. 

However, what happens when you are faced with racism in the workplace?

The Constitutional Court held in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] JOL 37679 (CC), that “’k*****’ 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 or quintessence.”

This position was further supported by the court in Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC), where the court held that even seemingly neutral language may be offensive and constitute racism depending on the context and the intention of the speaker. In this case, an employee was dismissed for calling an African colleague a “swartman.” Considering the facts and context of this specific matter, the court held that the dismissal was considered fair in the circumstances.

In a recent judgment in Makhanya v St Gobain [2019] 7 BALR 720 (NBCCI), the CCMA held that the word “boer” carries similar derogatory connotations to the “k-word” and dismissed an application for unfair dismissal that arose after an African employee used the word “boer”.

Recent cases have emphasised that our courts have taken a zero-tolerance policy towards racism and the use of racially derogatory language in the workplace. There is a duty on the employers to alert their employees to the severe consequences that may follow the use of derogatory language both in and out of the workplace.

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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. Errors and omissions excepted (E&OE)