Dagane v SSSBC and Others [2018] 7 BLLR 669 (LC); (2018) 39 ILJ 1592 (LC)

Principle:

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.

Facts:

A police officer made vitriolic racist comments on the Facebook page of the leader of the Economic Freedom Fighters (EFF), Julius Malema. Amongst the police officer'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."
A reporter of Beeld newspaper picked up the comments and the newspaper published an article titled "Ek haat wittes, se polisie lid op Facebook". The then Divisional Commissioner of SAPS received a complaint from the Parliamentary Portfolio Committee. He appointed a departmental investigatorto investigate it further.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.

The South African Police Services (SAPS) dismissed the police officer. He was unhappy and referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council (SSSBC). An arbitrator found that the dismissal was fair.

The police officer sought 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. In the Labour Court it was held that the Commissioner was reasonable in finding that, on a balance of probabilities, thepolice officer 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.

The Labour Court upheld the arbitrator's award and confirmed that the dismissal for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others on the basis of race through blatant 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. The court said that 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.

Extract from the judgment:

[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.

[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.

[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...

[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...

[35]   ...

[36]   ...

[37]   ...

[38]   ...

[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.

....

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 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]   ...

[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:

"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.