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[2018] ZALCJHB 114
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Dagane v SSSBC and Others (JR2219/14) [2018] ZALCJHB 114; [2018] 7 BLLR 669 (LC); (2018) 39 ILJ 1592 (LC) (16 March 2018)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2219/14
In
the matter between:
JUDA
PHONYOGO DAGANE
Applicant
and
SSSBC
First
Respondent
COMMISSIONER
JOYCE NKOPANE
Second
Respondent
MINISTER
OF POLICE
Third
Respondent
Heard
:
14 March 2018
Delivered
:
16 March 2018
Summary:
Racist remarks by member of SAPS on Facebook. Employee dismissed.
Dismissal ruled to be fair by arbitrator.
Application to review
arbitration award dismissed with costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
A
police officer made vitriolic racist comments on the Facebook page of
the leader of the Economic Freedom Fighters (EFF), Mr Julius
Sello
Malema.
[1]
The South African
Police Services (SAPS) dismissed the member, Warrant Officer Juda
Phonyogo Dagane. He was unhappy and referred
an unfair dismissal
dispute to the Safety and Security Sectoral Bargaining Council
(SSSBC). A panellist, Ms Joyce Nkopane, found
that the dismissal was
fair: Amongst Mr Dagane’s comments were the following:
“
Fuck
this white racist shit! We must introduce Black apartheid. Whites
have no ROOM in our heart and mind. Viva MALEMA.”
“
When
the Black Messiah (NM) dies, we’ll teach whites some lesson.
We’ll commit a genocide on them. I hate whites.”
[2]
Mr
Dagane was legally represented at the arbitration by attorneys
(Manugeni Incorporated) and by counsel (Adv Matimbi). Despite
that,
he seeks to have the arbitration award reviewed and set aside on the
grounds that the arbitrator’s conclusion is not
one that a
reasonable decision maker could have reached (i.e. the
Sidumo
[2]
test). He was initially represented in the review application by
Manugeni Inc and then by Sisa Nhlabati attorneys; but when the
review
application was argued, he appeared in person.
Background
facts
[3]
The facts are fairly straightforward. The vitriolic and racist
comments quoted above were posted on Mr Malema’s Facebook
page,
on the face of it, by Mr Dagane. Alarmingly, Malema did nothing about
it. (There was no dispute in the arbitration or in
the review
application that the relevant Facebook page was that of Mr Julius
Sello Malema, then ANCYL president and current EFF
leader, and not a
fake account or that of someone else bearing the same name).
[4]
A reporter of
Beeld
newspaper, Ms Hilda Fourie, picked
up the comments and the newspaper published an article titled “Ek
haat wittes, sê
polisielid op Facebook”. The then
Divisional Commissioner of SAPS, Lieutenant General Khomotso
Phahlane, received a complaint
from the Parliamentary Portfolio
Committee. He discussed it with Brigadier John Lambert who
investigated the complaint and also
appointed a departmental
investigator, Lt Col Mngadi, to investigate it further.
[5]
Brigadier Lambert initially did his own investigation. He was
unable to directly access the applicant’s Facebook
account as
Dagane had restricted any access to it. Lambert however accessed the
internet using the Google search engine and found
extensive articles
and information pertaining to the applicant’s comments on
Facebook, including a copy of Dagane’s
post on Malema’s
Facebook page.
[6]
Following the investigation SAPS instituted disciplinary charges
against the applicant. He was charged with four counts of misconduct
comprising him prejudicing the discipline and efficiency of the SAPS
and contravening the SAPS Regulations, Code of Conduct and
Code of
ethics by unfairly and openly discriminating against others (whites)
on the basis of race; through blatantly discriminatory
racial
remarks; by threatening the future safety and security of white
persons; and by making uncalled for remarks on Facebook
which
amounted to hate speech .
[7]
An internal disciplinary enquiry was conducted and the chairperson
found that Dagane had committed the misconduct. SAPS dismissed
him.
Following an unsuccessful appeal, he referred a dispute to the SSSBC
where he challenged his dismissal. This resulted in the
arbitration
award he now seeks to have reviewed and set aside.
Evaluation
/ Analysis
[8]
Before I deal with the merits of the review application, Ms
Tilly
raised four points
in limine.
Points
in limine
[9]
After
SAPS had raised the preliminary points in its answering affidavit,
Dagane filed an application for condonation for his non-compliance
with clauses 11.2.2 and 11.2.3 of the Practice Manual of this
Court.
[3]
[10]
In terms of these provisions, an applicant in a review application
must file the record within sixty days of the date on which
the
applicant is advised by the Registrar that the record has been
received. If the applicant fails to file the record within the
prescribed period, the application will be deemed to have been
withdrawn by the applicant, unless the applicant during that period
requested the respondent’s consent for an extension time and
consent has been given.
[11]
In this case the applicant filed the record well outside the sixty
days. The applicant delivered the review application on
15 October
2014. The Bargaining Council filed the record (with a CD of the
arbitration proceedings), it appears, two days later,
on 17 October
2014. The applicant only filed the transcribed record on 26
September 2016. The record was thus filed approximately
one year and
ten months after he had launched the review application and after the
record had been filed.
[12]
After the Minister had raised the points
in limine
the
applicant filed an application for condonation for non-compliance
with these provisions and, although not directly stated,
also seeking
condonation for his failure to comply with section 145(5) of the
Labour Relations Act 66 of 1995 (“LRA”),
which placed an
obligation on him to apply for a date for the matter to be heard
within six months of delivery of his review application,
which was on
15 October 2014.
[13]
As
Ms
Tilly
correctly conceded, the filing of an application for condonation is
competent.
[4]
However, she
submitted, unless condonation is granted the review application is
deemed withdrawn and should be dismissed with costs.
Alternatively,
it should be struck from the roll, as set out in
Ralo
v Transnet Port Terminals
[5]
. She submitted that condonation should not be granted for
non-compliance with clauses 11.2.2 and 11.2.3 of the Practice Manual.
The principles in this regard are trite.
[6]
She argued that condonation should not be granted for the following
reasons:
13.1
The delay in serving the record – one year and ten months - is
inordinate;
13.2
The applicant failed to set out a satisfactory or reasonable
explanation for his default, seeking to blame his
erstwhile attorney.
It is trite that a litigant cannot hide behind the tardiness of his
representative. He has also not provided
convincing proof of his
allegations that he made follow up requests with the attorney. He
only gave proof of a bank statement that
purportedly demonstrated
that he paid the erstwhile attorney. Even this does not support his
contention that he paid the attorney
as it merely states “external
transfers” and the sum does not correlate with the figure
stated by the applicant. The
applicant’s conduct is dilatory
and should not be condoned;
13.3
The applicant has no prospects of succeeding in his review
application as the Award by the Commissioner is one
that a reasonable
decision-maker would have reached in relation to the totality of
evidence that was before him
13.4
The applicant’s conduct and delay in prosecuting the review
application clearly prejudices the SAPS insofar
as the incurring of
unnecessary costs the effluxion of time .
[14]
Although I share Ms
Tilly
’s concerns about the
applicant’s non-compliance, I take into account that, at these
proceedings, he was no longer represented
by any legal
representatives. At the arbitration he was represented by Manugeni
Incorporated attorneys and by Adv Matimbi. It appears
that those
attorneys delivered the application for review on 15 October 2014;
but nine months later, in July 2016, Manugeni informed
him that he
was no longer practising law. Manugeni had done nothing to have the
record transcribed or to pursue the review application.
He then
instructed new attorneys, Sisa Nhlabati, who pursued the matter
further and signed all the pleadings until shortly before
this
hearing. On the day of the hearing, Mr Dagane represented himself
(although, in his heads of argument, he still gave the address
of
Sisa Nhlabati attorneys).
[15]
The applicant appears to have been badly served by two firms of
attorneys. He does, of course, have other methods of recourse
against
them; but I do not think it is in the interests of justice to deprive
him of a hearing at this stage. Condonation is granted
for the late
filing of the record.
[16]
The applicant and his attorneys have also been dilatory in pursuing
his review application. The review application was instituted
on 15
October 2014. As set out above, they filed the full record and Rule
7A(8)(b) notice some one year and ten months later. Ms
Tilly
further submitted that he should be barred from proceeding
further until he tenders a satisfactory explanation for the delay.
But
in this regard also, the Court has sympathy for the fate of an
employee who has been let down by his erstwhile legal
representatives.
In my view, it is in the interests of justice that
the application be heard on the merits.
[17]
The filed transcribed record is incomplete. The evidence of the
applicant in cross-examination is not transcribed. Whilst this
is so,
both parties agreed the review application can be determined on the
basis of the record as it stands. I proceeded accordingly.
The merits
[18]
Although Mr Dagane’s counsel disavowed any reliance on
procedural unfairness at the beginning of the arbitration
proceedings,
he did argue at the end of the arbitration that his
client’s dismissal was procedurally unfair. And in this
application,
Mr Dagane persisted with an argument that the arbitrator
unreasonably concluded that the dismissal was procedurally fair.
Procedural
fairness
[19]
At the outset of the arbitration the following interaction took place
between the Commissioner, Ms Joyce Nkopane, the employee’s
counsel, Adv Matimbi, and the employee, Mr Dagane:
“
Applicant’s
representative [Adv Matimbi]: Yes, I understand, yes we would like to
submit that procedural fairness, we are
not going to challenge
anything.
Commissioner:
Okay.
[Adv
Matimbi]: Only the substance.
Commissioner:
so can I then note it, that the dismissal was then procedurally fair?
[Adv
Matimbi]: That is correct.
Commissioner:
Is that correct sir?
Mr
Juda Dagane: Yes.”
[20]
Despite this, the applicant and his legal representative made a
volte-face
at the end of the arbitration and insisted on
arguing about procedural fairness as well. The arbitrator, despite
the earlier assurance
to the contrary by Mr Dagane and his counsel,
nevertheless considered the argument and dealt with it fully in her
award.
[21]
The main issue that the applicant raised was that the “charge
sheet” [
sic
] was not adequate, as it did not set out the
date, time and place where the misconduct occurred. He persisted with
that argument
in this Court, despite the fact that he told the
arbitrator at the outset that he knew what the employer’s
complaint was.
[22]
The
arbitrator dealt with this complaint fully. She had regard to the old
case of the former Industrial Court cited by Mr Dagane,
viz
Mkhize
v Chapelot Industries (Pty) Ltd
[7]
and
distinguished it on the basis that, in the case before her, Mr Dagane
had not raised the issue until later in the proceedings.
She then
considered what was the minimum procedural requirements as set out in
the well-known case of
Avril
Elizabeth Home
[8]
:
“
The
rules relating to procedural fairness introduced in 1995 do not
replicate the criminal justice model of procedural fairness.
They
recognise that for workers, true justice lies in a right to an
expeditious and independent review of the employer’s
decision
to dismiss, with reinstatement as the primary remedy when the
substance of employer decisions are found wanting. For employers,
this right of resort to expeditious and independent arbitration was
intended not only to promote rational decision making about
workplace
discipline, it was also an acknowledgement that the elaborate
procedural requirements that had been developed prior to
the new Act
were inefficient and inappropriate, and that if a dismissal for
misconduct was disputed, arbitration was the primary
forum for
determination of the dispute by the application of a more formal
process.
The
balance struck by the LRA thus recognises not only that managers are
not experienced judicial officers, but also that workplace
efficiencies should not be unduly impeded by onerous procedural
requirements. It also recognises that to require onerous workplace
disciplinary procedures is inconsistent with a right to expeditious
arbitration on merits. Where a commissioner is obliged (as
commissioners are) to arbitrate dismissal disputes on the basis of
the evidence presented at the arbitration proceedings, procedural
requirements in the form that they developed under the criminal
justice model are applied ultimately only for the sake of procedure,
since the record of a workplace disciplinary hearing presented to the
commissioners at any subsequent arbitration is presented
only for the
purpose of establishing that the dismissal was procedurally fair. The
continued application of the criminal justice
model of workplace
procedure therefore results in a duplication of process, with no
tangible benefit to either employer or employee.
The
signal of a move to an informal approach to procedural fairness is
clearly presaged by the explanatory memorandum that accompanied
the
draft Labour Relations Bill. The memorandum stated the
following:
“
The
draft Bill requires a fair, but brief, pre-dismissal procedure …(It)
opts for this more flexible, less onerous, approach
to procedural
fairness for various reasons: small employers, of whom there
are a very large number, are often not able to
follow elaborate
pre-dismissal procedures; and not all procedural defects result
in substantial prejudice to the employee.”
On
this approach, there is clearly no place for formal disciplinary
procedures that incorporate all of the accoutrements of a criminal
trial, including the leading of witnesses, technical and complex
‘charge sheets’, requests for particulars, the
application
of the rules of evidence, legal arguments, and the like.”
[23]
Having considered the authority of this Court, the arbitrator
reasonably concluded that Mr Dagane had been provided with an
opportunity to state his case and that there was substantial
compliance with the procedure. This is reasonable in relation to the
totality of evidence before her and the applicable authorities of
this Court.
[24]
She
also considered the applicant’s complaint that the charges did
not contain particulars such as date, time and place. She
found that
this complaint did not hold any substance as the applicant did not
give evidence that he was unable to plead because
he did not know the
time and the commission of the alleged misconduct. This is also in
line with the totality of evidence before
her. The applicant
understood the nature of the alleged misconduct and was able to
address it, both at the internal disciplinary
hearing and again at
arbitration. The Commissioner’s evaluation that he could
address the allegations was also in line with
the authority that an
employer’s failure to inform the employee of the precise
details in its charge sheet is not in itself
sufficient to render
dismissal procedurally unfair as employers are not required to draft
charges with the specificity required
in criminal indictments. It is
sufficient that an employee understands the nature and import of the
charges that is required to
answer.
[9]
.
[25]
The review ground on procedural fairness – belatedly raised at
arbitration despite the undertaking to the contrary initially
given
by Mr Dagane and his counsel – must fail.
Substantive
fairness
[26]
Mr
Dagane argued that the arbitrator did not apply her mind to the
evidence before her and came to a conclusion that another reasonable
arbitrator could not have arrived at.
[10]
[27]
A perusal of the transcript and an evaluation of the Commissioner’s
findings point to the contrary. In considering the
main dispute
before her – whether the dismissal was for a fair reason -- she
first looked at whether a rule existed in the
workplace that governed
conduct or outlawed the making of the remarks such as the ones that
Dagane had made. She considered the
Constitution of the Republic of
South Africa, the SAPS Code of Ethics and the SAPS Code of Conduct,
all of which prohibit discrimination
and exhort the citizens of our
democracy to treat everyone with equal respect and to create a safe
and secure environment for all
South Africans. This is in line with
the evidence presented during the arbitration, the Constitution and
the laws of our democracy.
The Commissioner found that there was a
rule within the workplace that governed SAPS members’ conduct
and outlawed discrimination
based on race. This was not only
reasonable, but correct. There is no basis for the argument that the
Commissioner misdirected
herself by finding that this rule existed.
[28]
The Commissioner also considered the applicant’s argument that
there was no policy regarding social media within the
workplace. She
noted that it was common sense that people should be careful about
what is said on social media as such utterings
would be in the public
domain. This too is a reasonable evaluation by the Commissioner and
one that any reasonable decision maker
could have arrived at.
[29]
The Commissioner furthermore found the rule to be valid as it gave
effect to the prescripts that are contained in the Constitution.
This
is also a reasonable conclusion.
[30]
The Commissioner thereafter pertinently considered whether the
applicant had breached this rule. In so doing the Commissioner
admitted the evidence submitted by Brigadier Lambert which comprised
print-outs from Google (which
inter alia
incorporated the
applicant’s Facebook postings and comments). The applicant
complained – both at arbitration and in
these proceedings –
that it was inadmissible hearsay evidence.
[31]
The
Commissioner carefully considered whether it was hearsay evidence.
She found that it was. She then reasonably assessed whether
it was
nevertheless admissible in terms of
section 3(c)
of the
Law of
Evidence Amendment Act, 16 of 1988
which conferred on her a
discretion to admit hearsay evidence if it is in her opinion that it
was in the interest of justice to
admit it. She did this by
evaluating the matter in line with the factors set out in
section
3(c)
of the
Law of Evidence Amendment Act. She
took into account that
the nature of the proceedings was an arbitration which implored her
to deal with the substantive merits
of the dispute with the minimum
of legal formalities. This is in line with
section 138(1)
of the
LRA.
[11]
[32]
She also considered that the applicant had restricted access to his
Facebook account (which is in line with the evidence at
the
arbitration ); that the only person who could to testify as to
whether he had posted the comments was the applicant himself,
as it
was the SAPS case that it was the applicant who posted the messages;
that it would not assist the process if the journalist
of the
Beeld
article was called to testify as her evidence itself would be
hearsay; that Facebook was an American company and they were the
only
entity that could authenticate the messages in the absence of an
admission by the account holder; and lastly she considered
that
evidence was led by Brigadier Lambert that there were difficulties
involved in obtaining information from these companies
(again in line
with the evidence presented ). (It must also be noted that the
applicant, who complained that the journalist, Hilda
Fourie, was not
called to testify, made no attempt to subpoena her).
[33]
The Commissioner’s evaluation of the evidence was reasonable in
relation to what was before her and is in line with what
was required
from her in terms of
section 3(c)
of the
Law of Evidence Amendment
Act, 16 of 1988
and
s 138
of the LRA. Her admission of the evidence
was therefore reasonable and there is no merit to the applicant’s
contention that
the Commissioner committed an irregularity in
admitting it.
[34]
Moreover,
the Commissioner’s understanding and evaluation of Facebook and
Google was in line with authority.
[12]
And the evidence considered by the Commissioner - the
print-outs from Google (which incorporated the applicant’s
Facebook
postings and comments) as submitted by Brigadier Lambert –
were already in the public domain and the Commissioner could have
regard to it without issues of admissibility arising. However, once
this evidence was admitted, the Commissioner, based on
section 3(c)
of the
Law of Evidence Amendment Act, reasonably
and correctly
considered and assessed the weight of the evidence. She considered
the Facebook page which had the applicant’s
profile and a photo
of him, identifying him as the author of the offensive remarks. She
considered that the applicant did not dispute
that the posts were
made but that he only disputed who had made such comments. This
is in line with the case presented by
the applicant at arbitration.
[35]
The
Commissioner was therefore seized with mutually contradictory
versions – the SAPS contention that the applicant had made
the
comments and the applicant’s contention that it was not him. To
resolve it, she employed the correct method to resolve
disputes of
fact as set out in
Sasol
Mining (Pty) Ltd v Commissioner Ngeleni & others
[13]
and
SFW
Group Ltd & Another v Martell Et Cie & Others
[14]
2003 (1) SA 11
(SCA):
“
The
technique generally employed by Courts in resolving factual disputes
of this nature may conveniently be summarized as follows.
To
come to a conclusion on the disputed issues a Court must make
findings on (a) the credibility of the various factual
witnesses; (b) their reliability, and (c) the
probabilities. …”
[36]
The Commissioner considered the defence put forward by the applicant
at arbitration – that someone had created an account
using his
details as contained in his profile; or that someone had hacked into
his account and made these postings. Again, this
is in line with the
evidence presented at arbitration. She also considered the
applicant’s evidence that to access
his Facebook account one
would need his password and that he had not given anyone his
password. This too is in line with the evidence
led before her. The
Commissioner considered both of these scenarios and tested them in
relation to its inherent probabilities,
reliability and credibility.
[37]
In relation to the first scenario - that someone had created another
account using his details and photos – the Commissioner
considered that the applicant had closed his account; there was no
evidence that another account still existed; that the applicant
as an
experienced investigator would have brought proof of this and what
would have motivated another person to use the applicant’s
Facebook account to indicate the hatred for whites. She came to the
conclusion that the applicant’s version was so far-fetched
that
it was not probable. This is a reasonable evaluation of the
probabilities and a conclusion that another arbitrator could have
reached.
[38]
In relation to the second scenario - that someone had hacked into his
account - the Commissioner inter alia considered that
if this was the
case the applicant would have distanced himself from making the
remarks, which he did not do. She also took into
account that Dagane
only approached POPCRU and left the issue to the SAPS to investigate.
She considered that the applicant was
an investigator and that he
understood how Facebook worked. It was unlikely that if someone had
used the applicant’s account
in the manner that is alleged, and
given that he had the skills to clear his name, he did not take steps
in this regard.
[39]
The Commissioner found on a balance of probabilities that the
applicant was the author of the offensive and racist remarks;
that he
had posted them; that he had breached a rule of conduct within the
workplace; and that his remarks on Facebook offended
the Constitution
as they were discriminatory and constituted hate speech. This is a
reasonable conclusion in relation to the totality
of evidence that
was before her.
[40]
In taking her assessment of substantive fairness further, the
Commissioner also considered whether dismissal was an appropriate
sanction. In this regard, she considered that the applicant was
employed as a police officer with a mandate to protect its citizens
irrespective of the race, colour and creed of such citizens. She
considered that to threaten the safety of another sector of the
community was wrong and that the conduct of the applicant did have
the effect of bringing the SAPS into disrepute. This is a reasonable
evaluation and her conclusion – that there was no reason to
interfere with the decision of the SAPS – was one that
a
reasonable decision maker could have reached.
Bias
[41]
In his oral argument, Mr Dagane did not pursue the argument that
Commissioner Nkopane was biased; but he persisted with an
argument
that he was subjected to what he called “retaliatory justice”.
As I understood his argument, this comprised
a conspiracy theory –
not raised at arbitration or in his founding affidavit in the review
application – that the Commissioner
wanted to prejudice him
because he had complained (after the arbitration) to “various
bodies, including the Office of the
Director General of the
Department of Labour” that the SSSBC had not resolved the
dispute “expeditiously”. There
is simply nothing before
this Court to bear out this far reaching allegation.
[42]
Insofar as it needs to be addressed, it is also clear from the
transcribed record that at no stage can it be inferred that
there was
a reasonable apprehension of bias. It cannot be said that the
Commissioner did not bring an impartial mind to the adjudication
of
the dispute. Her evaluation of the evidence simply indicates her
considering the applicant’s versions and testing his
versions
in relation to its inherent probabilities, credibility and
reliability. This cannot be tantamount to an inference of bias
and
for this reason this ground of review is also without merit.
[43]
As
Ms
Tilly
pointed out, in
Raswiswi
v CCMA & others
[15]
this Court set out the
legal basis for the concept of bias and stated:
“
In
the
BTR Sarmcol
case, the Appellate Division, as it then was,
considered the test of bias in the context of when an Industrial
Court judge [
sic
] should recuse himself or herself. The court
found that the existence of a reasonable suspicion of bias satisfied
the test for
recusal. The test was further tightened up by the
decision of the Constitutional Court in the
SARFU
case and
elucidated by it in the
SACCAWU
case. Without, I hope,
detracting from the nuanced reasoning expressed in those judgments, a
major theme in the Constitutional Court’s
refinement of the
test was to emphasise that not only must the apprehension of bias be
that of a reasonable person in the position
of the person being
judged who has an objective factual basis for their suspicion, but
the apprehension of bias they have must
be one that in law would be
recognised as raising a legitimate concern about the adjudicator’s
impartiality.”
[44]
In this case, the applicant has set out no reasonable apprehension of
bias on the side of the arbitrator.
The
gravity of the offence and the fairness of the sanction
[45]
Mr Dagane was dismissed for very serious misconduct. He, a SAPS
officer, had unfairly and openly discriminated against others
(whites) on the basis of race through blatant blatantly
discriminatory racial remarks; by blatantly threatening the future
safety
and security of white people; and by making remarks on
Facebook which amounted to hate speech.
[46]
It
hardly needs to be reiterated that the use of racist language is
despicable. Whilst there has been a plethora of cases on this
most
unfortunate scourge of our society,
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others
[16]
perhaps remains the
locus
classicus
:
“
The
attitude of those who refer to, or call, Africans "Kaffirs"
is an attitude that should have no place in any workplace
in this
country and should be rejected with absolute contempt by all those in
our country - black and white - who are committed
to the values of
human dignity, equality and freedom that now form the foundation of
our society. In this regard he courts must
play their proper role and
play it with conviction that must flow from the correctness of the
values of human dignity, equality
and freedom that they must promote
and protect. The courts must deal with such matters in a manner that
will "give expression
to the legitimate feelings of outrage"
and revulsion that reasonable members of our society -black and white
- should have
when acts of racism are perpetrated.
…
It
was never contended that the use of the racist epithets in question
should not be visited by the sanction of dismissal. Racism
is a
plague and a cancer in our society which must be rooted out. The use
by workers of racial insults in the workplace is anathema
to sound
industrial relations and a severe and degrading attack on the dignity
of the employee in question. The Judge President
has dealt
comprehensively with this matter in his judgment and I wholeheartedly
endorse everything that he says in this regard.”
[47]
And
in
SAB
v Hansen
[17]
Kathree-Setiloane AJA reiterated:
“
Although
Hansen had expressly denied using the impugned words at the
arbitration hearing, he did not dispute that dismissal for
such
misconduct would be an appropriate sanction. Notably, in this regard,
our courts have taken a very firm stand on the use of
racist language
in the workplace, in particular, the use of the word “kaffir”,
visiting upon such misconduct the sanction
of dismissal. More
recently, the Constitutional Court in
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[18]
said this in relation to
the history, meaning and implications of the use of the word
“kaffir”:
‘
[T]he
word kaffir was meant to visit the worst kind of verbal abuse ever,
on another person. Although the term originated in Asia
in colonial
and apartheid South Africa it acquired a particularly excruciating
bite and a deliberately dehumanising or delegitimising
effect when
employed by a white person against his or her African compatriot. It
has always been calculated to and almost always
achieved its set
objective of delivering the harshest and most hurtful blow of
projecting African people as the lowest beings of
superlatively
moronic proportions.’
The
Constitutional Court went on to quote the words of Brook J in
Thembani v Swanepoel
, which it said captured the best
rendition of the use of the word kaffir as being “undoubtedly
disparaging, hurtful
and intentionally hateful”:
‘
The
term “kaffir” historically bandied about with impunity,
is a term which today cannot be heard without flinching
at the
obvious derogatory and abusive connotations associated with the term.
It is rightly to be classified as an inescapable racial
slur which is
disparaging, derogatory and contemptuous of the person of whom it is
used or to whom it is directed. Considered objectively,
the use can
only be an expression of racism with a clear intention to be harmful
and to promote hatred towards the person of whom
it is used or to
whom it is directed. This brings its use clearly within the ambit of
section 10 of [the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
].’
[48]
More
recently, dealing with racist utterances similar to those posted by
Dagane, in the context of the #feesmustfall protests at
the
University of Cape Town – such as “kill all whites”
and “fuck all whites”, i.e. words very similar
to those
used by Dagane – the SCA commented in
Hotz
v UCT
[19]
:
“
The
issue of the content of the slogans, whether painted on the War
Memorial and the bus stop or worn on a T-shirt, as well as
statements, such as those made by the third appellant in the
confrontation with a student, is a delicate one. Freedom of speech
must be robust and the ability to express hurt, pain and anger is
vital, if the voices of those who see themselves as oppressed
or
disempowered are to be heard. It was rightly said in
Mamabolo
that:
‘…
freedom to
speak one's mind is now an inherent quality of the type of society
contemplated by the Constitution as a whole and is
specifically
promoted by the freedoms of conscience, expression, assembly,
association and political participation protected by
ss 15 - 19 of
the Bill of Rights’.
But
in guaranteeing freedom of speech the Constitution also places limits
upon its exercise. Where it goes beyond a passionate expression
of
feelings and views and becomes the advocacy of hatred based on race
or ethnicity and constituting incitement to cause harm,
it oversteps
those limits and loses its constitutional protection. In
Islamic
Unity Convention
Langa CJ explained the reason for this:
‘
Section
16(2) therefore defines the boundaries beyond which the right to
freedom of expression does not extend. In that sense, the
subsection
is definitional. Implicit in its provisions is an acknowledgment that
certain expression does not deserve constitutional
protection
because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our
Constitution
is founded on the principles of dignity, equal worth and freedom, and
these objectives should be given effect to.’
A
court should not be hasty to conclude that because language is angry
in tone or conveys hostility it is therefore to be characterised
as
hate speech, even if it has overtones of race or ethnicity. The
message on Mr Magida’s T-shirt said unequivocally to anyone
who
was more than a metre or two away that they should kill all whites.
The reaction to that message by people who saw it,
as communicated to
Mr Ganger, was that this was an incitement to violence against white
people. The fact that Mr Magida sought
to explain away the slogan and
suggest that it said something other than what it clearly appeared to
say, is itself a clear indication
that he recognised its racist and
hostile nature. Whether it in fact bore a tiny letter ‘s’
before the word ‘KILL’
is neither here nor there. The
vast majority of people who saw it would not have ventured closer to
ascertain whether, imperceptibly
to normal eyesight, the message was
something other than it appeared to be. They would have taken it at
face value as a message
being conveyed by the wearer that all white
people should be killed. There was no context that would have served
to ameliorate
that message. It was advocacy of hatred based on race
alone and it constituted incitement to harm whites. It was not speech
protected
by s 16(1) of the Constitution.”
[49]
In this case, Mr Dagane not only used disgraceful and racist language
constituting hate speech; he did so in his capacity as
a police
officer, and he did so on a quasi-public forum accessible to
potentially thousands of Facebook users. It was not an altercation
between two individuals; it was a public statement aimed at a racial
group generally. There can be no doubt that dismissal was
a fair
sanction.
Conclusion
[50]
The award is not open to review. That leaves the question of costs.
[51]
There
is no reason in law or fairness
[20]
why costs should not follow the result, as both parties had
submitted. Mr Dagane committed egregious misconduct. He contributed
to the scourge of racism and racial hatred that, most unfortunately,
still persists amongst some individuals in our non-racial
democracy.
He has shown no remorse. Instead of upholding the law and the
Constitution as a SAPS officer, he rejected the guiding
principles
set out in the Constitution and the Bill of Rights. He persisted –
in a dilatory fashion – with a meritless
application. He cast
aspersions on the SAPS, the Bargaining Council and the arbitrator, Ms
Nkopane – going so far as to accuse
them of corruption, fraud
and fabricating evidence in is oral argument. And there is no longer
any relationship between the parties.
There is no reason why the
Minister of Police – and thus the taxpayer – should carry
the costs.
Order
[52]
I therefore make the following order:
52.1
The applicant’s application for condonation is granted.
52.2
The third respondent’s points
in limine
are dismissed.
52.3
The application for review is dismissed with costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
In
person.
THIRD
RESPONDENT:
Sumayya
Tilly
Instructed
by the State Attorney, Johannesburg.
[1]
At
the time the comments were made on his Facebook page, Mr Malema was
still the president of the African National Congress Youth
League
(ANCYL).
[2]
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24 (CC).
[3]
At
a pre-enrolment hearing in this Court on 30 May 2017, some 9 ½
months ago, where Mr Dagane was present, Lagrange J made
the
following order:
1.
Condonation and review application is
enrolled on the opposed roll in Johannesburg on 14 March 2018.
2.
No order is made as to costs.
[4]
Minister
of Correctional Services v Mashiya
[2015] ZALCJHB 68 (5 March 2015);
Tadyn
Trading t/a v Tadyn Consulting Services v Steiner
(2014) 35
ILJ
1672 (LC).
[5]
[2015] 12 BLLR 1239 (LC).
[6]
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A);
Foster
v Stewart Scott Inc
.(1997)
18
ILJ
367 (LAC);
SA
Broadcasting Corporation v CCMA and Others
(2003) 24
ILJ
995 (LC).
[7]
1989
(10)
ILJ
903
[8]
Avril
Elizabeth Home for the Mentally Handicapped v Commissioner for
Conciliation, Mediation & Arbitration & Others
(2006) 27
ILJ
1644 (LC) par
[9]
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela NO & others
[2010] 5 BLLR 513 (LAC).
[10]
i.e.
the test set out in
Sidumo
v Rustenburg Platinum Mines Ltd
2008 (2) SA 24
(CC) and
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA) and further clarified by the LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2014]
BLLR 20(LAC).
[11]
See
also
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
(2009
(2) SA 204
(CC);
2009 (1) BCLR 1
(CC) ;
[2009] 1 BLLR 1
(CC) ;
(2008) 29
ILJ
2461 (CC).
[12]
Dutch
Reformed Church Vergesig Johannesburg Congregation and another v
Sooknunan t/a Glory Divine World Ministries
[2012] 3 All SA 322
;
2012 (6) SA 201
(GSJ);
H
v W
2013 (5) BCLR 554
(GSJ) (at paragraphs (10) – (23).
[13]
[2011] 4 BLLR 404 (LC).
[14]
2003 (1) SA 11 (SCA).
[15]
[2011] 9 BLLR 911
(LC) par [19].
[16]
[2002] 6 BLLR 493
(LAC) at paragraphs [37] (Zondo JP) and [63]
(Nicholson JA).
[17]
South
African Breweries (Pty) Ltd v Hansen and Others
(2017) 38
ILJ
1766 (LAC);
[2017] 9 BLLR 892
(LAC) par [13] – [14].
[18]
(2017) 38
ILJ
97 (CC) at para 4.
[19]
Hotz
and Others v University of Cape Town
[2016] 4 All SA 723
(SCA);
2017 (2) SA 485
(SCA) paras [67] –
[69].
[20]
LRA
s 162. See also
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[2018] ZACC 1
par 24-26.