The central question the ConCourt faced in this matter was whether the use of this K-word made the employment relationship intolerable, which would have ruled out reinstatement as an appropriate remedy.

In a ruling handed down on Tuesday, the ConCourt said that due to the seriousness of the misconduct and evidence that demonstrated “the intolerability of the employment relationship” between Sars and Jacobus Kruger, the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitrator acted unreasonably in ordering the reinstatement of Kruger and should not have done so.

In a unanimous judgment written by Chief Justice Mogoeng Mogoeng, the court highlighted the seriousness of the use of the K-word and described it as a very egregious, derogatory and humiliating expression.

“South Africa’s special sect or brand of racism was so fantastically egregious that it had to be declared a crime against humanity by no less a body than the United Nations itself,” Mogoeng said.

“Revelations of our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as to induce a strong sense of revulsion against racism in every sensible South African,” he wrote.

“But to still have some white South Africans address their African compatriots as monkeys, baboons or kaffirs and impugn their intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite. And does in fact sound a very rude awakening call to all of us.”

He said the K-word was a “more assertive insinuation that African people are inherently foolish and incapable of providing any leadership worthy of submitting to”.

“It bears testimony to the fact that there are many bridges yet to be crossed in our journey from crude and legalised racism to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical reality.”

K-word amounts to hate speech

The Court held that the use of that K-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.

The matter started when Jacobus Johannes Kruger, a Sars anti-smuggling officer since 1991, had an altercation with superior, Abel Mboweni, on 2 August 2007. It was here, that he referred to him with the K-word.

A disciplinary hearing was convened and Kruger pleaded guilty to using the term and was found guilty, the court explained.

At the inquiry, Kruger was accused of saying the following sentences:

“Ek kan nie verstaan hoe ****** dink nie (I can’t understand how ****** think.”

“A ****** must not tell me what to do.”

The chairperson of the disciplinary inquiry imposed the sanction of a final written warning valid for six months, a suspension without pay for 10 days and referred Kruger to counselling.

Dissatisfied with that sanction, the Sars commissioner altered the sanction to a dismissal.

CCMA, Labour Court and appeals court rule in Kruger’s favour

Kruger referred the unfair dismissal dispute to the CCMA on the grounds that his dismissal was substantive and procedurally unfair, the court explained.

He said the commissioner did not have the power to alter the sanction imposed by the chairperson of the disciplinary inquiry.

The CCMA arbiter then ruled that the collective agreement did not allow the commissioner to substitute the sanction imposed by the chairperson of the disciplinary inquiry. The arbitrator ordered Sars to reinstate Kruger subject to the conditions imposed at the disciplinary hearing.

Sars then approached the Labour Court, arguing that his conduct was insubordinate, racist, derogatory and abusive. However, the Labour Court found in favour of Kruger – who used his previous reasons, as did the Labour Appeal Court.

ConCourt overturns ruling

In the Constitutional Court, Sars said the CCMA arbitrator acted improperly by ordering reinstatement and that the award was reviewable because no reasonable arbitrator could have reached that decision.

The ConCourt explained the Sars admitted the dismissal was procedurally unfair, but argued that reinstatement should not have been ordered since the employment relationship had become intolerable.

Having considered the gravity of the misconduct and factors in favour of Kruger, the ConCourt concluded that a just and equitable remedy to grant was compensation.

Since Sars was in principle prepared to pay compensation of not more than six months of Kruger’s salary, the court ordered that he be paid six months’ salary at the time of his dismissal.

“Sars has reconciled itself with the possibility of payment of up to six months. But for its offer and a series of inexplicable and prejudicial blunders, a lesser period or no compensation would arguably have been more appropriate. Compensation for the period of six months for misconduct as gross as that of Mr Kruger and the lies he told, is by any standard generous,” the judgment read.

Each party was ordered to pay its own costs.

Fin24