What is incitement?
The definition of incitement in terms of labour law was affirmed in the case of Albion Services CC v CCMA (2013) ZALCD 12, where the court held that the test for incitement is whether the employee had the intention to reach and sought to influence the minds of his/her fellow employees. The court further held that the means adopted by the employee to incite the other employees are of second importance.
Must the other employee be aware that their actions are unlawful?
In the case of Economic Freedom Fighters v Minister of Justice and Constitutional Development (2019) ZAGPPHC 253, the court held that incitement does not require that the incited crime should have been committed. The questions that must be asked are whether the inciter believed that the act is unlawful despite the fact that the incitee may be unaware that the act is unlawful. There must therefore be a clear direct intention to influence the mind of another in order for them to commit an unlawful act.
What about freedom of expression?
In Makhoba v CCMA (2021) ZALC 11 (13 September 2021), the court held that although a person has the constitutional right to freedom of expression, this right does not extend to the advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.
Can incitement occur via Social Media?
In the recent CCMA matter of National Union of Mineworkers obo Namathe/Imerys Refractory Minerals SA (Pty) Ltd (2024) 2 BALR 212 (CCMA), an employee was dismissed for incitement after he posted a WhatsApp message to a WhatsApp Group that he intended to meet with the community in order to induce them to engage in a strike action against the employer.
The Commission held that the content of the message of the employee was to persuade the union members to join an unprotected strike. It further held that it is probable that the employee wanted to bring the employer’s operations to a halt without going through the required process as required by the Labour Relations Act to embark on a protected strike or face possible disciplinary action.
Conclusion:
From the above, it is clear that in order for an employer to dismiss an employee for incitement, the employer needs to prove that there was a clear intention from that employee to influence the minds of his/her fellow employees to commit an unlawful act. The manner in which the employee does this is not important.
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Author:
Justin Blignaut
Multiproduct Legal Advisor
B.Com, LLB