Ten judges of the Constitutional Court have ruled that using the K-word amounted to hate speech and that the then-commissioner of the South African Revenue Services (Sars), Finance Minister Pravin Gordhan, had been correct in firing an Afrikaner employee for using the word in a work setting.
The court ruled in favour of Sars that its employment relationship with employee Jacobus Johannes Kruger had become intolerable and that rulings by an arbitrator of the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court that he should be reinstated were incorrect.
The court confirmed Kruger’s dismissal, but ordered Sars to pay him six months’ salary.
In a unanimous judgment written by Chief Justice Mogoeng Mogoeng, the court described the use of the K-word as “a very egregious, derogatory and humiliating expression” and that the use of it amounted to hate speech.
They said courts were obliged to act fairly but firmly against those who used it to contribute to the eradication of racism in line with the fundamental values of the constitution.
The chairperson of a disciplinary inquiry initially only gave Kruger a warning, suspended him without pay for 10 days and referred him to counselling after he pleaded guilty to calling his team leader a k*#fir.
The commissioner was not satisfied with the sanction and dismissed Kruger. An arbitrator subsequently ruled that the commissioner did not have the power to alter the sanction and ordered his reinstatement.
The Labour Court also ruled in Kruger’s favour, despite Sars’ contention that reinstatement was inappropriate, as their relationship with Kruger had become intolerable and that his conduct was insubordinate, racist, derogatory and abusive.
Sars took the matter to the Constitutional Court, submitting that the CCMA arbitrator and Labour Court should not have ordered Kruger’s reinstatement, although they admitted that Kruger’s dismissal had been procedurally unfair.
The judges concluded that based on the seriousness of Kruger’s misconduct and the evidence led to demonstrate the intolerability of the employment relationship between Sars and Kruger, the CCMA arbitrator had acted unreasonably and should not have ordered his reinstatement.