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Gauteng MEC for Sport and Recreation Faith Mazibuko drew widespread controversy when a recording of her delivering a threatening rant went viral. AmaBhungane reported her February senior staff meeting, in which she was attempting to get her staff to install multi-sport courts ahead of the May 8 election.
Mazibuko blew her top at her senior staff, specifically at two apparently white and Indian managers present in the meeting.
But did she violate any labour laws? A top labour lawyer, who spoke to Fin24 on condition of anonymity, said: "I do not think it’s so much about the number of laws/conventions broken, but the content and tone of her tirade.
"Everyone, including employees, must be treated with dignity and respect. She does not do so."
The lawyer added: "Most laws about what one may or may not do focus on employees, and there is general recognition of managerial prerogative. This gives employers and managers wide powers on decisions and instructions and, to some extent, also how instructions are conveyed to employees. Employees may be insubordinate if they refuse or fail to obey instructions."
Here is how Mazibuko issued the instructions, according to a transcript of the meeting’s recording by News24.
"You better do it. I want those, no rollover of that money for combi-courts. You two! How you do it, even if you go fly a magic, you better do it. Those combi-courts, I want to use (them) to campaign to win the elections. I don't want to hear stories, Monica. I want combi-courts and no stories.
"If you want to give me stories, then give me your resignation letters. I will fire you, you people who are not prepared to spend my money (sic)," Mazibuko is heard saying on the tape.
She has since offered an apology and denied her instructions were illegal.
Doing the impossible
"Employees may refuse to obey instructions that are unlawful or unreasonable," says the lawyer. "It seems that this is the case here. The employees try hard to tell her that there are no contracts in place, et cetera, but she does not listen, and insists they do the impossible.
"What she tells them is obviously unreasonable and probably unlawful too."
He says that the employees can protect themselves from discrimination by becoming whistle-blowers and by making a protected disclosure in terms of the law.
Protection against employer
Mazibuko may also be in violation of the Labour Relations Act. The law provides protection against an employer who makes employment intolerable for the employee.
"The employees in this case would clearly be able to lodge grievances against her and, if not dealt with properly so that it does not reoccur, they may resign and claim constructive dismissal," said the labour lawyer.
Mazibuko’s tirade was directed at the general staff but she targeted two women employees – one of whom is Indian and the other white.
"It doesn't matter. Don't tell me (in) English. I want combi-courts. Ngithi (I'm saying), or bring your resignation letters. That's all I want. We empower you, you are not empowered. Which department has an Indian that is a CFO, and an HOD who is a mlungu (white)? Ayikho (There isn't one) including national (departments). You must thank me for empowering you. So don't sabotage me, you better do your work or get out (sic)," said Mazibuko.
'Racist and discriminatory'
Mazibuko continues with her rant: "That's why some departments don't want to see a white woman or an Indian woman. Ababafuni (They don't want them). It is not racism, it's because you like talking English (sic)."
The statements about Indians and whites are clearly racist and discriminatory, said the labour lawyer who spoke to Fin24. He said that anti-discrimination clauses in both the Employment Equity Act and the BEE laws could be used to in cases against Mazibuko.
"Imagine a man had said what she did about (using employment equity) as a box-ticking exercise which had backfired?"
"Being a public servant today is very difficult," says Dr. Ivor Chipkin, who has published widely on public administration and the interface between the political class and the bureaucracy.
"Public servants come under the most atrocious pressure," says Chipkin, who has worked in the national, provincial and local government spheres. This is because South Africa has not decided on what sort of civil service it wants: an American or British model.
In the American model, the public service is political whereas in the other model, civil servants are independent and operate at arm's length from political office bearers.
Mazibuko’s meeting shows she is practising a highly irregular model where she is closely involved with how government operates. She is heard trying to override budgeting systems and processes and using government funds toward the short-term end of securing the election for the ANC.
While political office-bearers have the right to ensure that the civil service meets a political mandate, says Chipkin, this has to be done within the law and within acceptable governance frameworks and systems.
* This article was updated at 21:40 on Thursday, March 14, to reflect that Mazibuko has offered an apology and denied her instructions were illegal.
