In October 2024, a newIn October 2024, a new player entered the South African e-hailing market – Wanatu. It is said to be the first “Afrikaans” e-hailing service. The name ‘Wanatu’ is derived from the Afrikaans phrase “waarnatoe?”, which, in English, translates to “where to?”. Unlike other e-hailing platforms, Wanatu’s drivers are required to drive the vehicles owned by Wanatu. This provides opportunities of employment for individuals who do not own a car. The platform further allows users to request a specific driver to fetch them. This is meant to encourage the building of community through the platform. Since its inception, Wanatu has employed close to 100 drivers and has around 30,000 subscribed users on the platform.
What makes Wanatu different?
What distinguishes Wanatu from its competitors is that it requires all drivers to be proficient in Afrikaans. The users of the e-hailing service, however, are not required to be fluent in Afrikaans. The platform has a feature that makes provision for translation between Afrikaans and English, thus allowing English speakers to navigate the application with ease. The requirement for drivers of the platform to be proficient in Afrikaans has, however, recently sparked much debate which has been centred around whether the Afrikaans requirement amounts to unfair discrimination.
What does the law say?
In terms of section 6 of the Employment Equity Act, 1998 (“EEA”), no person may unfairly discriminate, whether directly or indirectly, against an employee in any employment policy or practice. An employment policy or practice includes, but is not limited to, recruitment procedures, selection criteria, appointments and the appointment process. The EEA expressly prohibits unfair discrimination on the basis of language. Most importantly, section 9 of the EEA stipulates that the EEA’s provisions relating to the prohibition of unfair discrimination further extend to applicants for employment (and not only existing employees). Accordingly, once an applicant for employment is able to prove that they have been treated differently on the basis of language, this could constitute discrimination. The onus would then shift to the employer to prove that the discrimination is fair.
Have there been similar language requirements in the past?
The application of the above principles is illustrated by the decision in Stokwe v MEC, Department of Education, Eastern Cape Province & Another. In this matter a black female teacher had applied for promotion to the post of school principal. The interviewing committee initially rated her equally with a coloured male candidate, but after a vote, she was recommended for appointment. The school governing body (“SGB”) rejected that recommendation, and in turn, recommended the coloured male candidate for appointment because there were doubts about the employee’s fluency in Afrikaans. The Department of Education rejected the recommendation because it was of the view that the decision not to appoint her discriminated against the employee on the basis of language.
The Department of Education subsequently appointed a “review panel”, consisting of three white male primary school principals. The review panel insisted that the proceedings be conducted in Afrikaans. The black female employee refused, but agreed to speak English. She was advised that she ought not have applied for the post because the language of instruction at the school is Afrikaans.
The Labour Court noted that the issue of language had not arisen before the interviewing committee decided to nominate the employee and that the advertisement had merely stated that the school was an Afrikaans-medium school. The interviewing committee was further satisfied with the employee’s proficiency in Afrikaans. The language issue had only reared its head when the SGB had realised that the employee was a black woman. Taking the above into account, the Labour Court held that, on the probabilities, the employee’s race and language had been the reason for rejecting her appointment. The fact that the evidence showed that the employee was sufficiently proficient in Afrikaans to be appointed to the job rendered the discrimination unfair.
Comment
An employer who wishes to impose a language requirement must be able demonstrate that this decision (based on language) is fair. Although there may be other grounds on which such a decision may be justified, the most evident ground would be that reflected in section (6)(2)(b) of the EEA, which provides that it is not unfair discrimination to distinguish, prefer or exclude a person on the basis of an inherent requirement of the job. The phrase has been interpreted mean “a permanent attribute or quality forming an … essential element … and an indispensable attribute which must relate in an inescapable way in the performance of the job”.
An example where the ‘inherent requirements of job’ defence has been successfully upheld can be found in the Labour Appeal Court’s (“LAC”) decision in De Bruyn v Metorex Proprietary Limited. In this matter, the LAC dismissed Mr De Bruyn’s claim in which he had alleged that Metorex had discriminated against him when he was retrenched on the basis that he could not speak Chinese. Mr De Bruyn had contended that he ought to have been “bumped" into Mr Qiao’s position in circumstances where he had longer service with Metorex than Mr Qiao. The LAC found that Metorex had a legitimate business rationale for appointing Chinese speaking mine managers, who were required to report to Mr Qiao. The reason for Mr Qiao’s appointment was related to the fact that efficient communication between the company’s general managers, the CEO, and the Chinese banks and other shareholders in Hong Kong was an imperative given Metorex’s adverse financial situation.
Considering the exceptional nature of this defence, our courts are likely to interrogate the employer’s defence carefully to ensure that the employer’s decision to implement the language requirement is rationally connected to the job. Accordingly, employers should exercise caution when formulating the requirements for the job. Discriminatory requirements, if not rational and justifiable, may attract potential liability for the employer.
We note that the issue that has sparked debate in respect of Wanatu’s language policy has not yet been challenged before the Courts.
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