The Afrikaans language proficiency requirement central to the enterprise mannequin of new e-hailing firm Wanatu, at present working in Centurion and Pretoria, has sparked vital debate. Certainly one of Wanatu’s key worth propositions, as said on its web site, is “Restoring dignity in our communities’ jobs in Afrikaans” (direct translation from the web site).
It goes with out saying that the use and thereby preservation of all languages is commendable because it fosters a way of a communally shared identification amongst its audio system. Nonetheless, this should be fastidiously balanced towards the rights of others to make use of their very own languages whereas defending the human dignity and equality of all.
This delicate steadiness permeates all areas of our lives and finds explicit significance within the office. It’s a true testomony to the fact that we don’t exist as islands or micro-communities remoted from the broader South African group, however stay amongst others, interconnected in our communities and social spheres. Subsequently, absolutely the safety of any particular person’s language of selection is undesirable. How we select to make use of our languages issues, if we’re to stay harmoniously, with the utmost respect for the subsequent particular person.
Though the norm for many e-hailing platforms in South Africa is to nominate drivers as impartial contractors, we perceive, from media studies, that Wanatu employs drivers on the platform. Assuming that drivers are certainly workers, Wanatu’s language proficiency practices elevate necessary constitutional and labour legislation issues.
Whereas Wanatu enjoys the correct to commerce in a language of selection, this proper should be balanced towards the constitutional safety of everybody’s proper to make use of a language of their very own selecting. This, after all, additionally implicates the correct to honest labour practices and the human dignity of these looking for employment with Wanatu.
Part 9(4) (the equality clause within the structure) and part 6(1) of the Employment Fairness Act (EEA) prohibit direct or oblique discrimination on the idea of language. If Wanatu requires their drivers to talk Afrikaans as a precondition for employment, then such recruitment/employment practices could be in offence of the equality clause and the EEA. The exclusion of drivers primarily based on language might represent unfair discrimination. The onus would then shift to Wanatu to exhibit, on a steadiness of chances, that discriminating on the idea of language of their recruitment/employment practises is rational and never unfair, or is in any other case justifiable.
Case legislation
Whereas case legislation on unfair discrimination on the idea of language proficiency is sparse, there are a number of instances the place our courts have discovered that differentiation on the idea of language proficiency was justifiable:
- In Stojce vs College of KZN and one other, delivered on 7 September 2006, a candidate for a senior lecturer place was not appointed on account of, amongst others, challenges skilled in speaking in English. The labour court docket discovered that, though the put up for which the applicant was being assessed didn’t require English as a part of the job description, it did require a stage of fluency in English which might allow him to speak successfully.
- The labour enchantment court docket in De Bruyn v Metorex Proprietary Restricted (delivered on 21 July 2021), a case coping with routinely unfair dismissal, recognised the “legitimacy of the enterprise rationale for appointing Chinese language-speaking mine managers and a Chinese language-speaking CEO by Metorex”. The court docket accepted that the requirement was rationally related to the corporate’s monetary restoration technique. The court docket agreed with Metorex that proficiency in Chinese language was important for “environment friendly communication between the GMs, the CEO, and the Chinese language banks and different shareholders in Hong Kong”. It was additionally integral to the place that the appointed candidate possesses the related expertise and experience in mining in accordance with the Jinchuan mannequin – a framework established by Jinchuan Group Worldwide Assets, Metorex’s holding firm.
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Stojce and Metorex set up that language proficiency will probably be justifiable the place such a requirement is inherently a part of the job. To determine inherency, Wanatu should present that using Afrikaans-speaking drivers is rationally related to the efficiency of the job. It must also be borne in thoughts {that a} official business rationale just isn’t adequate to flee the clenches of the EEA. That is particularly necessary provided that in line with media studies, Wanatu does cater to non-Afrikaans-speaking customers – the app has an English translation button. The lodging of a multilinguistic and multicultural market might undermine the argument that Afrikaans proficiency is indispensable to the job.
If Wanatu’s drivers are appointed as impartial contractors moderately than workers, the EEA wouldn’t apply. Nonetheless, Wanatu’s language proficiency practices would nonetheless be topic to constitutional scrutiny and will probably be challenged below the Promotion of Equality and Prevention of Unfair Discrimination Act.
Certainly, the survival of any language is dependent upon its use and transmission to future generations. In South Africa, a multicultural and multiethnic society, the preservation and promotion of languages must be inspired. Nonetheless, these efforts should be balanced with the necessity to construct and contribute in the direction of a various, inclusive and equal society. Wanatu’s Afrikaans-centric mannequin raises necessary questions on how language insurance policies and practices within the office can coexist with the rules of equality and non-discrimination. Putting this steadiness is crucial for advancing the shared objective of a united South Africa the place all languages are valued and celebrated.
- The authors of this opinion piece are Sandile July, head of employment, and Nonkosazana Nkosi, senior affiliate, each at Werksmans Attorneys
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