The Constitutional Court on Tuesday confirmed the dismissal of a South African Revenue Service official, Jacobus Kruger, for using the K-word towards his supervisor, Amos Mboweni.
Kruger pleaded guilty to using the derogatory term and at a later disciplinary hearing was found guilty. The chairperson of the disciplinary hearing instituted punishment, which included a final written warning valid for six months, a suspension of 10 days without pay, and ordering Kruger to get counselling. SARS was not happy with the finding and dismissed him instead.
Kruger took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) on the grounds that his dismissal was procedurally unfair.
The CCMA arbitrator found that SARS could not fire Kruger and that they had to reinstate him with the conditions imposed by the disciplinary hearing.
SARS approached the Labour Court and later the Labour Appeal Court, who both found in favour of Kruger.
The case was eventually taken to the Constitutional Court.
In a unanimous judgment, the Constitutional Court found that the K-word is a very egregious, derogatory and humiliating expression.
Chief Justice Mogoeng held that the use of the word amounts to hate speech and that courts are obliged to act fairly but firmly against those who use it, to contribute to the eradication of racism in line with the foundational values of our Constitution.
He found that the CCMA arbitrator acted unreasonably in ordering Kruger’s reinstatement.
The Constitutional Court reviewed and set aside that part of the arbitrator’s award, namely that Kruger must be reinstated.
It was replaced with an order that SARS must pay Kruger the equivalent of six months’ pay according to his salary at the time of dismissal.
Each party was ordered to pay its own costs.
In a statement, SARS welcomed the court’s ruling. The state entity said the ruling was a victory for creating a non-racial society and encouraged all citizens and its staff to immediately report all incidents of racism.
André Grobler
