What to do to respond to infringements on your free speech

These suggestions provide a quick guide to the action you can take to challenge infringements on your free speech.

For more detailed advice, please drop a line to us at info@freespeech.org.za and we’ll get back to you.

In the workplace

Accused of saying something offensive at work

  1. An accusation of misconduct on your part of allegedly saying something offensive in the workplace has to be treated by the employer as an act of misconduct and subject to company disciplinary procedures. You must be accorded all your rights in terms of such procedure.
  2. If the employer doesn’t have a written disciplinary procedure then they must comply with the procedure set out in Schedule 8 of the Labour Relations Act, 1995.
  3. If a finding is made against you, you must appeal against the decision in terms of the disciplinary procedure. If no provision is made for an appeal or the appeal is against you, then you may lodge an unfair dismissal claim either with the Commission for Conciliation, Mediation and Arbitration (CCMA) or the bargaining council if a council has jurisdiction over the company by virtue of the industry it is in.
  4. As the FSU SA is not a union in the strict sense we can’t act for you in the above procedures. We would, however, look at whether anything else can be done without compromising your case. With respect to the formal process, we recommend you seek legal advice.

Someone at work inhibits your freedom of speech

  1. If your freedom of speech has been or is being infringed in any way by a co-employee/s or a manager, or if there is an attempt by colleagues to “cancel” you then use the employer’s Grievance Procedure to process your complaint.
  2. In the absence of a grievance procedure we suggest that the issue be raised with a manager that you deem appropriate, preferably first with your immediate manager or supervisor.
  3. If the manager or supervisor fails to deal with the complaint, you may raise it at a higher level of management.
    If the grievance, is not resolved to your satisfaction, you may lodge a complaint to the CCMA or bargaining council for an unfair labour practice.
  4. You may approach the FSU SA for advice at any stage.

Freedom of speech is being attacked or there is an attempt to cancel you

  1. Insults and accusations on the social media space will undermine your sense of what is right or wrong. It is very, very unpleasant and you may feel rattled and instinctively that you should apologise to take the heat off you.

    Do NOT apologise! At least, do not apologise until you have thought the issue and taken advice, and have decided that an apology is warranted. Even if you believe you’re right, but feel you should apologise for allegedly hurting peoples feelings, your de tractors are most likely going to interpret the apology as vindication of their accusations. Even worse, the apology may not be accepted and may just be considered “proof” to justify hurting you further.

  2. Keep off social media. Trying to explain your view to your detractors and or apologise offers no redemption. They usually treat it as a sign of guilt and will just continue the war - don’t explain. In Helen Zille’s view ‘Their purpose is not reconciliation. It is enforced submission and annihilation.’
  3. Anticipate that family or friends may put pressure on you not to pursue the matter or to abandon it at some point. This is understandable, but remember that the decision is yours and yours alone. FSU SA will try to assist you and explain what process is being followed and why.
  4. Please feel free at to contact the FSU SA to discuss the matter and give you strategic advice.

At a tertiary educational institutions

  1. Universities and colleges are not like workplaces, as you have greater autonomy. You are not likely (though it’s not impossible) that you will face disciplinary action at such institution for the allegation of saying something offensive. Any action taken will probably be informal, but very unpleasant. This may allow you to use institutional complaint procedures.
  2. If you believe your free speech is being curtailed, there may be a number of actions that can be used, both formal and informal to raise the issue. Much may depend on the institution concerned.
    Contact the FSU SA and we will discuss the merits and possible actions you can take to tackle the issue.

Remember, free speech is a constitutional right.

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© Free Speech Union SA 2021