Eswatini is not usually associated with strong support for freedom of expression. Yet here is the high court doing exactly that, and coming to the conclusion that remarks by an employee of the Royal Eswatini National Airways (Renac,) to the effect that the country’s government was a ‘dictatorship’, amounted to a constitutionally protected, legitimate opinion under the constitution and international law.
The case concerns Godfrey Exalto, an airline accountant, in trouble with the airline for bringing it into ‘gross disrespect’ through a comment Exalto had posted on his Facebook page during November 2019.
On 10 December 2019 – ironically enough, this is also international human rights day – the employer started disciplinary charges against Exalto, saying he had used social media irresponsibly.
What Exalto actually said on FB was the following: ‘We can go on and on, but nothing will change, because there is no will to change, because kutokhala umzaqa. Dictatorship 101.’ (The high court explained that ‘kutokhala umazqa’ means ‘someone will get hurt’.)
Renac said that the statements Exalto posted had the effect of labelling the ‘Eswatini systems of government as a dictatorship’, and that they have ‘brought the corporation into disrepute in the mind of her shareholders.’ Further, his comment amounted to the ‘irresponsible use of social media’ in that it ‘brought the corporation into disrepute’.
After several initial skirmishes at the disciplinary hearing, Exalto brought an urgent application to the Industrial Court, to interdict the disciplinary hearing as well as to review and set aside rulings of the chair of the hearing.
Among others, Exalto asked for a declarator from the court as follows: ‘The disciplinary charge faced by me does not disclose any misconduct in respect of my employment, such conduct even if proven would constitute an exercise of my constitutional rights to freedom of thought and/or conscience and/or expression.’
While he waited for the Industrial Court to hear his matter, Exalto brought a further application before that court to have the matter referred to the high court for the question of the declarator to be decided by it, given that the declarator he sought raised constitutional issues.
The Industrial Court duly stayed the main application before it and referred the constitutional question to the high court but before the matter was heard by the high court, Exalto’s lawyers changed the wording of the declarator that he wanted. Now it read that the disputed conduct by Exalto ‘falls within the exercise of the freedoms guaranteed’ by various sections of Eswatini’s constitution.
Three judges of the high court heard argument in the matter during December 2021 and have now given their decision by way of a split finding.
The majority, Judges Titus Mlangeni and Qinisile Mabuza, warned themselves not to deal with the merits of the case. ‘The merits are not for this court but for the Industrial Court to determine.’ What the high court had to decide was ‘an abstract determination’, namely whether the words in the FB post ‘fell within the exercise’ of Exalto’s constitutional rights.
Dealing with the preliminary question of whether the high court should deal with the issue before it since it involved a labour dispute between an employer and employee that could be resolved by labour law principles, the majority in the high court had quite a lot to say. This included a brief musing on its constitutional responsibility to ‘enforce the fundamental human rights and freedoms guaranteed by this constitution.’
The majority said this suggested that the high court had to ‘embrace every opportunity to breathe life into this relatively new constitution and give meaning to the rights that it confers.’
The court said that the question it needed to decide, as crystallised by Exalto, was this: ‘if indeed it is assumed that my post, … referred to the government of the kingdom of Eswatini as a dictatorship, would this not be an exercise of my rights … under the constitution …?’ The related question was whether the company’s policies, on which the charges against Exalto were based, ‘constitute a justifiable limitation’ of his right to freedom of expression?
The court accepted that this was the issue for determination, adding that while elsewhere courts had had a great deal to say on the subject, it ‘has no precedent in this jurisdiction’.
It then quoted from several South Africa decisions, the African Charter on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights on the significance of freedom of expression in a democratic society.
Clearly, in this case, the FB post had been written in the context of a public debate on new luxury cars bought by government. ‘Undoubtedly, the perceived sting in the post is the reference to dictatorship, the obvious innuendo being that the government … is a dictatorship.’
In relation to the FB post, Exalto had ‘expressed his thoughts, his views, his opinion.’
‘He thinks that there is no will on the part of the government to change, that someone could get hurt and the government is a dictatorship. He could be right, he could be wrong.’
The issue was open to debate and the question of how public funds were utilised was a public matter about which tax payer and non-tax payer were entitled to engage in a democratic society.
Why should the person who kept silent on such questions deserve applause or protection more than the person who, ‘through his or her views, contributes to debate that can only benefit nation-building?’
Judge Mlangeni, who wrote the majority decision, commented, ‘On the face of it, [Exalto] was well within his democratic rights in the comments he made on his facebook page’.
Of course, such rights and freedoms were ‘not unbridled’, and the question had to be asked whether, in the context of legitimate limitations would there be exceptions based on considerations of defence, public safety, public order, morality or health? Or to protect the reputations, rights and freedoms of others?
‘In my view the answer is a resounding ‘no’.
‘To say that someone may get hurt and to opine that [the government] is a dictatorship does not in any way impact on defence, public safety , public order [etc]; neither does it impact upon anyone’s reputation or anyone’s rights and freedoms. It is just an opinion. Period.’
But what about curtailment of free expression and conscience ‘with free consent’? This related to a submission by the airline company that through his employment contract, Exalto had agreed to limitations on his constitutional rights. The answer to this, said the majority, lay with the Industrial Court and was not for the high court to deal with.
The high court thus, by a majority of two to one, issued the declarator sought by Exalto, namely that his conduct fell within the exercise of the free speech guarantees of the constitution. It then referred the case back to the Industrial Court to decide the merits of the main dispute, taking the declarator into account.
As to the minority dissent, Judge Mzwandile Fakudze said the constitution provided for the right to expression to be limited with the words, ‘A person shall not, except with the free consent of the person …’.
Once a person had consented to deprivation of the enjoyment of the right of expression ‘he cannot then turn around and assert the right.’
By accepting the company’s social media policy as part of his contract, Exalto consented to being deprived of his right to freedom of expression.
‘I am of the view that the issue raised by [Exalto] is contractual in nature and can be dealt with by the Industrial Court in terms of … the Industrial Court Act.’