Following a long legal wrangle, the Constitutional Court says a ruling by the Commission for Conciliation Mediation and Arbitration (CCMA) that a former Sars employee found guilty of calling his supervisor the K-word should be reinstated is unreasonable and must be set aside.
On Tuesday morning, Chief Justice Mogoeng Mogoeng dismissed Jacobus Kruger’s submissions to the court challenging the dismissal saying his conduct must be met with a firm response if the country ever hopes to remove racism.
The Constitutional Court ordered that Kruger’s reinstatement (as ordered by the Labour Appeal Court) be reviewed and set aside.
The matter relates to Finance Minister Pravin Gordhan’s tenure as the commissioner of South African Revenue Services (Sars). Gordhan had fired Kruger following a heated argument with his supervisor, Amos Mboweni on July 27, 2007.
Kruger was an officer based at OR Tambo International Airport.
At the time, Kruger had said to Mboweni: “Ek kan nie verstaan hoe ‘* k****r dink nie (I don’t know how a k****r thinks)”.
He eventually appeared before a disciplinary inquiry on August 31, 2007, where he pleaded guilty, attributing his racist remarks to stress.
A plea bargain was apparently struck in terms of which the chairperson of the disciplinary inquiry gave a final written warning and suspended him without pay for 10 days. But Gordhan overturned the ruling and imposed a sentence of dismissal on October 3.
Kruger challenged the dismissal at the CCMA, arguing that the then-commissioner did not have the powers to substitute the sanction of the chairperson with dismissal.
The tax authority argued that because it was entrusted with the responsibility to collect tax from the public, the offence was very serious and a mere final written warning wouldn’t send a strong message against incidents of racism.
The CCMA had ruled in favour of Kruger and ordered Sars to reinstate him, subject to the original ruling.
The Labour Court ruled in favour of Kruger when approached by Sars challenging the order to reinstate him again leading to the matter being heard by the constitutional court after Sars also lost an appeal to the Labour Appeal Court.
The ConCourt has also ordered Sars to pay Kruger six months compensation because the organisation had mishandled his dismissal.