The Afrikaans language proficiency requirement central to the business model of new e-hailing company Wanatu, currently operating in Centurion and Pretoria, has sparked significant debate. One of Wanatu’s key value propositions, as stated on its website, is “Restoring dignity in our communities’ jobs in Afrikaans” (direct translation from the website).

It goes without saying that the use and thereby preservation of all languages is commendable as it fosters a sense of a communally shared identity among its speakers. However, this must be carefully balanced against the rights of others to use their own languages while protecting the human dignity and equality of all.

This delicate balance permeates all areas of our lives and finds particular significance in the workplace. It is a true testament to the reality that we do not exist as islands or micro-communities isolated from the broader South African community, but live among others, interconnected in our communities and social spheres. Therefore, the absolute protection of any person’s language of choice is undesirable. How we choose to use our languages matters, if we are to live harmoniously, with the utmost respect for the next person.

Although the norm for most e-hailing platforms in South Africa is to appoint drivers as independent contractors, we understand, from media reports, that Wanatu employs drivers on the platform. Assuming that drivers are indeed employees, Wanatu’s language proficiency practices raise important constitutional and labour law considerations.

While Wanatu enjoys the right to trade in a language of choice, this right must be balanced against the constitutional protection of everyone’s right to use a language of their own choosing. This, of course, also implicates the right to fair labour practices and the human dignity of those seeking employment with Wanatu.

Section 9(4) (the equality clause in the constitution) and section 6(1) of the Employment Equity Act (EEA) prohibit direct or indirect discrimination on the basis of language. If Wanatu requires their drivers to speak Afrikaans as a precondition for employment, then such recruitment/employment practices would be in offence of the equality clause and the EEA. The exclusion of drivers based on language could constitute unfair discrimination. The onus would then shift to Wanatu to demonstrate, on a balance of probabilities, that discriminating on the basis of language in their recruitment/employment practises is rational and not unfair, or is otherwise justifiable.

Case law

While case law on unfair discrimination on the basis of language proficiency is sparse, there are a few cases where our courts have found that differentiation on the basis of language proficiency was justifiable:

In Stojce vs University of KZN and another, delivered on 7 September 2006, a candidate for a senior lecturer position was not appointed due to, among others, challenges experienced in communicating in English. The labour court found that, although the post for which the applicant was being assessed did not require English as part of the job description, it did require a level of fluency in English which would enable him to communicate effectively.
The labour appeal court in De Bruyn v Metorex Proprietary Limited (delivered on 21 July 2021), a case dealing with automatically unfair dismissal, recognised the “legitimacy of the business rationale for appointing Chinese-speaking mine managers and a Chinese-speaking CEO by Metorex”. The court accepted that the requirement was rationally connected to the company’s financial recovery strategy. The court agreed with Metorex that proficiency in Chinese was essential for “efficient communication between the GMs, the CEO, and the Chinese banks and other shareholders in Hong Kong”. It was also integral to the position that the appointed candidate possesses the relevant experience and expertise in mining in accordance with the Jinchuan model – a framework established by Jinchuan Group International Resources, Metorex’s holding company.

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Stojce and Metorex establish that language proficiency will be justifiable where such a requirement is inherently part of the job. To establish inherency, Wanatu will have to show that employing Afrikaans-speaking drivers is rationally connected to the performance of the job. It should also be borne in mind that a legitimate commercial rationale is not sufficient to escape the clenches of the EEA. This is especially important given that according to media reports, Wanatu does cater to non-Afrikaans-speaking users – the app has an English translation button. The accommodation of a multilinguistic and multicultural market could undermine the argument that Afrikaans proficiency is indispensable to the job.

If Wanatu’s drivers are appointed as independent contractors rather than employees, the EEA would not apply. However, Wanatu’s language proficiency practices would still be subject to constitutional scrutiny and could potentially be challenged under the Promotion of Equality and Prevention of Unfair Discrimination Act.

Indeed, the survival of any language depends on its use and transmission to future generations. In South Africa, a multicultural and multiethnic society, the preservation and promotion of languages should be encouraged. However, these efforts must be balanced with the need to build and contribute towards a diverse, inclusive and equal society. Wanatu’s Afrikaans-centric model raises important questions about how language policies and practices in the workplace can coexist with the principles of equality and non-discrimination. Striking this balance is essential for advancing the shared goal of a united South Africa where all languages are valued and celebrated.