There is nothing like a national crisis to get citizens tapping on their keyboards and publishing their thoughts. Some may be erudite, and some may be foolish, but social media gives everyone a platform to say what they think whether it be good, bad or ugly. Although there is now a regulatory ban on the dissemination of “fake news” in terms of the Disaster Management Act, there is no ban on earnestly held opinions. However, if those opinions descend into unlawfulness or they brush up against policies or rules which the social media user is obliged to follow due to their employment, professional association or other affiliation our courts are unlikely to be sympathetic.

A cursory glance on the various popular social media platforms today shows that there are increasing levels of frustration and anguish during the lockdown and users are becoming less careful about the type of language that they use to express that. It is incredibly important for citizens to be able to express themselves and to be allowed to criticize and interrogate their elected leaders and the decisions that are being taken regarding their civil liberties. However, that does not extend to the use of discriminatory epithets.

South Africa has a unique history which also effects what is considered acceptable expression and what is not. This concept has received judicial notice in two Labour Court matters in the past year. In Edcon v Cantemessa an employee was dismissed for making an inappropriate ‘racial comment on Facebook’. Cantamessa had referred to the government as ‘f…ing stupid monkeys’ and a member of the public had complained to her employer resulting in the termination of her employment. In the Labour Court, Cantamessa argued that her usage of the ‘monkey slur’ whilst perhaps offensive, was not meant to be racist. The court held that: ‘…The usage of the monkey slur by Ms Cantamessa should therefore never be seen in isolation as though such usage had no history. …It is of importance that the history behind the monkey slur be considered. It is an emotive expression of our sad past where racial discrimination in South Africa, and in the workplace in particular, was the order of the day…’

In Onelogix v Meyer, decided two months after Edcon, the Labour Court was deciding whether the dismissal of an employee for sending a ‘meme’ was unfair. The meme showed a white child, holding a can of beer, and smoking a cigar. The caption said: ‘GROWING UP IN THE 80’S BEFORE ALL YOU P…S TOOK OVER – MAY AS WELL DIE YOUNG’. The employee sent the meme to his supervisor in error and was subsequently dismissed.

The Labour Court held that ‘…it cannot be correct to ignore the reality of our past and our racially charged present and to proceed form a presumption of neutrality…. the totality of all the circumstances must necessarily be taken into account to determine whether a communication that on the face of it appears neutral is in fact derogatory…’ The Court held that, if the meme was regarded as racist then the dismissal was justified and that the South African context and history was an important consideration. In the result, the court held that the meme was racist, given the South African context and that dismissal was justified.

These cases are important to reflect on whilst South Africans are relying on social media as a source of entertainment, solace, news and distraction during this unique time in history.  As the Labour Court has articulated in the cases above, the history of our country will be considered in deciding whether a comment is regarded as racist or not. The rules and nuances that apply to other countries do not necessarily apply in South Africa and what would be regarded as a ‘neutral’ comment elsewhere may be regarded as highly inflammatory here. Freedom of expression is vital to keep any government in check, but citizens need to understand that this freedom is not unfettered.

Our recommendation is that criticism on social media should be carefully considered, cogent and unemotional. The use of racist terms or innuendos will not be countenanced by our courts given our fraught history. Given the heightened tension during this extended lockdown period, all citizens, online and offline, should be mindful of the manner in which they voice their frustration.