Durban: A Durban metro police inspector has been suspended for alleged misconduct after his social media post, following July’s unrest, was deemed defamatory with connotations of incitement.
On July 28, Persilen Naidoo shared a post on the history of violence experienced by Indian South Africans. It made reference to the Durban Riots of 1949 and the Inanda Riots of 1985.
The post then mentioned the recent unrest and questioned why Indians were the only ones targeted when they fought back.
The post was shared with the words: “Sometimes we need to think and understand why ppl do what they do.” (sic)
It is alleged that a colleague screenshot the post and shared it on metro police’s WhatsApp group, demanding that action be taken against Naidoo.
Two days later, on July 30, Naidoo was issued with a precautionary suspension.
The suspension note from his south regional command superintendent stated: “It is alleged that you have misconducted yourself with regards to your recent post on (the) social media platform, Facebook, which is believed to be racial and contains connotations of incitements thus bringing the metro police department into disrepute by such defamatory statements.”
The suspension letter further stated that the eThekwini Municipality had reason to believe that Naidoo would jeopardise investigations into the allegations of misconduct, interfere with potential witnesses, or commit further acts of misconduct.
“You are therefore advised that the municipality intends to suspend you on full remuneration, pending the conclusion of the investigation and the conclusion of any disciplinary action arising out of the investigation.”
Naidoo was asked to make written submissions to the department head, Steve Middleton, by August 3. He had to provide reasons why he should not be suspended.
This information was provided by his attorney, Kurshivan Rama Munsamy, of Purdon & Munsamy Attorneys. Munsamy said Naidoo had deactivated his Facebook account and would not engage on social media, pending the investigation. He said his client had also promised not to interfere with evidence, witnesses, or anything relating to the investigation.
Munsamy said Naidoo had denied that his post constituted misconduct, was defamatory or brought the department into disrepute.
“Our client’s post was on a private Facebook page … He is not the author of the content and merely shared the same with a caption explaining that the public must, at the very least, pay attention to the history behind the reactions between the respective communities in the latest unrest.
“Our client’s sharing of that information is his freedom of expression and cannot for any purpose give rise to disciplinary action.”
Middleton reviewed the written submission.
In correspondence to Munsamy the next day, Middleton said: “I am of the view that notwithstanding the representation as attached, your client’s continued presence in the workplace is going to cause harm to not only metro police as a unit, but also to eThekwini as an organisation. That said, I am hereby informing that the intention to suspend will stand.”
His attorney said in Naidoo’s 22 years of service, this was the first time he had faced disciplinary action.
He said his client apologised if he offended anyone by the post and said it was never his intention.
“It was more explanatory than reactive ... It was intended to explain that the reactions and response to the violence may also have been out of fear of what had previously transpired when government failed to protect Indians.”
Munsamy said the post had created tension between Naidoo and his colleagues.
“When it went viral at work, my client was labelled as a racist.”
Munsamy said they would proceed with an unfair labour practice dispute to challenge the fairness of the suspension.
“My client was exercising his right to freedom of expression on a private social media platform.
“He is not the author of the post itself. He shared it with a caption that he felt explained the current unrest and response from the minority community.
“One cannot run away from the fact that the post is largely factual.
“The post does explain what happened in 1949 and 1985.
“To date, the client received no complaints or private messages from his individual friends on Facebook regarding the content of the post that he shared. The employer ought to have considered the same prior to its knee-jerk reaction to suspend him.”
Munsamy said the response from the department was inadequate.
“The employer’s response to the client’s written representations was vague and embarrassing. No explanation proffered and it simply relied on its powers to do so without any further direction as to how it is in the public interest for the client to remain at home on suspension.”
Sipho Shinga, the spokesperson for the Independent Municipal and Allied Trade Union, said Naidoo had not reached out to the union for help but should he do so, it would be more than willing to help.
“Many members are dealing with suspensions and not everyone comes to us for help.”
Senior Superintendent Parbhoo Sewpersad, the spokesperson for metro police, said that due to the recent unrest, one had to be careful not to make remarks that could cause further division.
“We saw the posting and we immediately instituted a preliminary investigation in line with the collective agreement we have with the union.
“Naidoo was in fact suspended from duty pending a disciplinary hearing. The south regional command of metro police is dealing with the matter,” said Sewpersadh.
Verlie Oosthuizen, the head of social media law at Shepstone & Wylie, said any social media user would be regarded as responsible for the content of their social media posts. She said they should be aware of the repercussions of the content and its lawfulness.
“Ignorance of the legal consequences of social media use will not be regarded as a valid excuse and freedom of expression is not absolute. It is not lawful to publish discriminatory content and there may be serious legal consequences such as civil claims or criminal charges.”
She said the rights to freedom of expression would always be balanced against other peoples’ rights to dignity, privacy and reputation.
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