
In this article, we will look at judgments relating to incitement.
Definition of Incitement
Incitement in labour law refers to an employee’s intention to influence the minds of fellow employees to commit an unlawful act. This was affirmed in the case of Albion Services CC v CCMA (2013), where the court emphasized that the means adopted to incite are of secondary importance.
Case law
In Economic Freedom Fighters v Minister of Justice and Constitutional Development (2019), the court held that incitement does not require the incited crime to be committed. The key question is whether the inciter believed the act was unlawful, regardless of the incitee’s awareness. There must therefore be a clear direct intention to influence the mind of another in order for them to commit an unlawful act.
In the case of Makhoba v CCMA (2021) the court highlighted that while freedom of expression is a constitutional right, it does not extend to advocating hatred based on race, ethnicity, gender, or religion that constitutes incitement to cause harm.
In a recent CCMA matter, National Union of Mineworkers obo Namathe/ Imerys Refractory Minerals SA (2024), an employee was dismissed for incitement after posting a message on WhatsApp 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 and that the employee aimed to halt the employer’s operations without following the required legal process.
Conclusion
In conclusion, for an employer to dismiss an employee for incitement, there must be clear evidence of the employee’s intention to influence others to commit an unlawful act. The method of incitement is less important than the intent behind it.
These cases are noteworthy for employers, as it provides a useful discussion of the law on incitement in the context of disciplinary matters.
