Vusi Sibeko, an employee of Royal Ascor Super Spar in Cape Town, was recently dismissed following an article he wrote in the newsletter of an organisation he belongs to, where he discussed the bad working conditions at Royal Ascot Super Spar. Below is an open letter that the FXI wrote to the mangement of the store. 

Andrew Savvas,
Operational Manager,
Super Spar,

6 December 2005

The Freedom of Expression Institute (FXI) writes the following open letter to you in connection with a matter that has been referred to us by the Commercial, Services and Allied Workers' Union (Cosawu), involving one of its members, Vusi Sibeko.

The FXI was established in 1994 to protect and foster the rights to freedom of expression and access to information, and to oppose all forms of censorship. The FXI undertakes a wide range of activities in support of these objectives, including lobbying, education, monitoring, research, publicity and litigation and the funding of legal cases that advance these rights.

The FXI is deeply disturbed by the decision of Royal Ascot Super Spar in Cape Town , to dismiss Sibeko, which we believe took place on the 17 November 2005. We are made to understand that he was dismissed for writing an article in the newspaper of the Democratic Socialist Movement (DSM) that was critical of working conditions at your company. Apparently, your company dismissed Sibeko on the grounds of misconduct, for '…instilling a negative approach towards management through derogatory speech, and by making derogatory comments in a newspaper article'.

The FXI thinks that this decision will set an extremely negative precedent for freedom of expression at shopfloor level; we also think that the decision is unjust and unconstitutional. In our opinion, your company has abused its position of power to victimize Sibeko for exercising his constitutional right to freedom of expression. Numerous allegations were made in the article, including the fact that your company has not complied with the minimum wage for the retail sector. This is an especially serious allegation that demands public exposure and debate. However, rather than engaging with the allegations, your company has seen fit to attempt to stifle this debate, especially amongst Super Spar workers; a move that we interpret as censorship. In the process of practising censorship, your company has brought itself into disrepute, as you have portrayed yourselves as petty, intolerant, and unreasonable. The decision to dismiss puts your company in a far worse light than if it were to have overlooked the article; in fact if anyone has brought to reputation of Spar into disrepute, it is Spar itself.

If allowed to go unchallenged, your dismissal of Sibeko will set a negative precedent for all workers in South Africa . It will mean that workers will have to refrain from writing articles critical of the companies they work for, or to speak to the media, or even within their own political organizations or trade unions, about such matters, out of fear of being dismissed. This is surely not what a democracy is about. Workers have an inalienable right to raise public debate their working conditions, and should be able to do so freely. This is especially so in the current climate of such high unemployment and inequality in South Africa , where the conditions of workers are so fragile relative to the conditions of the corporate sector.  As a company we believe that you have trampled on this freedom. It should further be noted that derogatory speech is constitutionally protected.

The dismissal also sends a negative message about the right of workers to engage in political speech and activity while in the employ of Spar. Workers in this country have fought an historic struggle to secure their right to participate in political organizations of their choice, which Sibeko's dismissal negates. Given the nature of the DSM's publication, its contents would qualify as political speech. It is recognized internationally that political speech should receive the highest form of protection, precisely because - as a form of speech - it is generally under the greatest threat: a fact that your company does not seem to be aware of. We are also concerned that your company may be victimizing Sibeko for the international exposure the case has received. It should be understood that trade unions have a right to engage freely in activities that advance the interests of their members, including international mobilization, and for your management to hold this against Sibeko is unacceptable.

If your company wishes to build harmonious working conditions, then you should do so by recognizing the fact that in a democracy, workers have rights, and that the employment relationship does not allow the employer to suspend the human rights of the employee. Rights transcend the employment relationship. Failure to respect the rights to freedom of expression and free political activity will inevitably lead to the sort of management-worker conflict that your company fears. In fact the question should be asked, who has contributed more to the breakdown of the trust relationship: Sibeko or your management? Furthermore, according to the company's website you claim that 'it is our people who make our company successful'. Sibeko's dismissal makes a travesty of such a professed worker-centered approach.

If your company feels aggrieved by the contents of the article, then there are numerous forms of redress. The first form of redress is to seek the same space on the DSM's newspaper to publish a right to reply. However, if your company is convinced that the comments were defamatory, then you could approach the courts and sue for defamation. However, we would caution that - in our view - the company is highly unlikely to succeed, given the fact that even if defamation is proved, then there are numerous strong grounds for defence. We suspect that you have not tested the assertion of defamation in the appropriate manner because you know that your case is weak.

We therefore wish to record our support for the call to reinstate Sibeko, as we believe that his dismissal was unjust and a violation of his Constitutional right to free speech. We further call on Spar to respect the right of its workers to free speech and free political activity.

It should be noted that this letter has been written to you as an open letter because of the fact that your company has made its intentions with respect to Sibeko clear, leading to you implementing the severest penalty possible on a worker; therefore, no room is left for mediation or negotiation. Your company has therefore acted in a manner that requires a public response that is as decisive as your own actions, to discourage strongly such dismissals from taking place again in future.

Sincerely,

Jane Duncan

Executive Director