Introduction
In South Africa, the constitutional right to freedom of expression stands as a cornerstone of democratic society. Enshrined in Section 16 of the Constitution of the Republic of South Africa, 1996, it guarantees individuals the liberty to impart ideas, opinions, and beliefs without fear of governmental censorship. However, this right is not absolute, especially within the confines of the workplace, where employers are legally obligated to maintain order, productivity, and a respectful environment. The tension between personal liberty and workplace discipline came into sharp focus in the recent Labour Court decision of GIWUSA obo Buthelezi v AEL Mining Services Limited and Others, offering valuable jurisprudential guidance on where the line may be drawn.
Background of the Buthelezi Case
The applicant, Mr. Buthelezi, a long-serving employee of AEL Mining Services, was dismissed following an incident at a workplace safety meeting where he used vulgar language. Although he argued that his utterance was not directed at any person and was merely a “slip of the tongue” born of frustration regarding the state of the showers, the employer contended that the outburst was disruptive, disrespectful, and undermined workplace decorum.
The matter proceeded to arbitration, where the arbitrator held that the dismissal was substantively fair but procedurally unfair, awarding compensation for the latter defect. Upon review, the Labour Court upheld the arbitrator’s finding on substantive fairness. As noted by Advocate Tertius Wessels, Managing Director at Strata-g Labour Solutions, the court emphasised that merely acknowledging the use of inappropriate language did not equate to showing remorse. The context—using the expletive in front of colleagues and contractors during a heated exchange with the Safety Health Environment and Quality (SHEQ) facilitator—aggravated the seriousness of the misconduct.
The Constitutional Right to Freedom of Expression: Not Absolute
Section 16 protects freedom of expression, but the courts have consistently recognised that this right may be limited in order to protect the rights and dignity of others. As Wessels observes, “Freedom of speech is a protected right, but it must be exercised responsibly. In the workplace, this means balancing individual expression with the employer’s right to maintain a respectful, productive environment.” Employees may not invoke constitutional rights as a shield for misconduct.
This approach aligns with prior jurisprudence. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and Others [2006] 11 BLLR 1021 (SCA), the Supreme Court of Appeal confirmed that the discretion to determine the appropriate sanction rests primarily with the employer, and that the role of an arbitrator is confined to assessing the fairness—not correctness—of the sanction imposed.
Context, Intent, and Impact: The Triad of Assessment
South African labour law does not adopt a one-size-fits-all approach to offensive speech. Instead, tribunals assess misconduct through three interrelated factors:
- Context: Where, how, and to whom the words were said.
- Intent: Whether the language aimed to highlight a workplace problem or simply vent frustration.
- Impact: The effect of the words on colleagues, workplace relationships, and organisational morale.
In the Buthelezi matter, the Court found that the language was disruptive and disrespectful, factors which outweighed his long service and the absence of malice.
Comparative Jurisprudence on Offensive Language
Other cases provide additional insight into how courts weigh these factors:
- In Van Tonder v Vaal Drift Boerdery Vennootskap (2000) 5 BALR 583, an employee was dismissed for swearing, but the dismissal was overturned because no established workplace rule prohibited swearing. The arbitrator awarded compensation, holding that the employer failed to prove the existence of the rule or the employee’s awareness thereof.
- In Lithotech Manufacturing Cape – A Division of Bidpaper Plus (Pty) Ltd v Statutory Council for Printing, Newspaper and Packaging Industries and Others (2010) 31 ILJ 1425 (LC), an employee who swore at a superior was dismissed. The Labour Court held that dismissal was too harsh given the employee’s long service, impending retirement, and the fact that the words were not personally directed at the superior. The employee was reinstated with a final warning.
- In Ceppwawu obo Evans v Poly Oak (2003) 12 BALR 1324, an employee was dismissed for making a racist comment. Despite claiming it was made in jest and apologising, the arbitrator upheld the dismissal, emphasising the breach of the employer’s code of conduct and the harm to workplace relations.
These cases illustrate that the severity of the offence is closely tied to the target of the offensive language. Swearing used as a general descriptor may be less serious than profanity directed at a colleague, especially in front of others. The audience, tone, and emotional heat of the moment are all material considerations.
The Employer’s Duty: Clear Policies and Consistency
The Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) places the burden on employers to prove:
- The existence of a workplace rule or standard;
- That the rule is valid and reasonable;
- That the employee knew or could reasonably be expected to have known about it; and
- That it has been consistently applied.
Where supervisors regularly use expletives, employees may reasonably assume such behaviour is tolerated. In such cases, management conduct can override written policies, undermining their integrity. Consistency, especially at senior levels, is therefore crucial.
Furthermore, Schedule 8 recommends that dismissal be reserved for serious misconduct or repeated offences. As the Humphries and Jewel (Pty) Ltd v Fedcraw and Others (CLL Vol 15 No 10, May 2006) decision highlights, if the trust and mutual respect underlying the employment relationship are destroyed, continued employment may be intolerable.
The Employee’s Duty: Exercising Expression Responsibly
Employees are entitled to voice grievances, challenge policies, and advocate for change, but how they do so matters. Constructive criticism through proper channels is protected; personal attacks, profanity, or public humiliation are not. Employees must appreciate that freedom of expression does not mean freedom from consequences. As Wessels notes, the law looks at:
- What was said,
- How it was said,
- To whom it was said.
Conclusion
The GIWUSA obo Buthelezi v AEL Mining Services Limited and Others judgment reinforces a critical principle of South African labour law: freedom of expression must coexist with professionalism, respect, and accountability. Employers should foster open dialogue but also enforce behavioural boundaries. Employees should speak up, but with an awareness of context, intent, and impact. Rights carry responsibilities, and in the delicate balance between free expression and workplace discipline, the law demands that both employers and employees tread carefully.
Ultimately, the Buthelezi case serves as a cautionary tale and a guidepost: while robust expression is a democratic right, it must not erode the trust, dignity, and mutual respect on which the employment relationship is built.
For personalised advice tailored to your needs, consult an attorney at SchoemanLaw Inc
Ross Hendriks | SchoemanLaw Inc
Attorney
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