In the recent decision of Economic Freedom Fighters v Minister of Justice and Constitutional Development (87638/2016)  ZAGPPHC 253, the High Court pronounced on the definition of the crime of incitement and defined it as the intention, by words or conduct, to influence the mind of another in the furtherance of committing a crime. The decisive question being whether the accused intended to influence the mind of another towards the commission of a crime.
As per the definition above, for an employee to be charged with incitement, the employer must show that the employee in question sought to influence the mind of another employee to commit a crime. In the case of Albion Services CC v CCMA (D 275/10)  ZALCD 12, the Labour Court affirmed that the test for incitement is whether an employee acted in such a manner so that ‘he reached and sought to influence the minds’ of his fellow employees.
Incitement is mostly used as a charge in the context of strike action, where one or more employees are found to have incited fellow employees to take part in strike action. When charging an employee for such offences, the employer is required to draw up a charge sheet and decide which charge in the disciplinary code fits the transgression. This is a fundamentally important exercise as the employer’s case will stand or fall by these charges.
In this context, the definition of incitement as provided by the High Court has the potential to create difficulties for an employer as it is extremely broad and is wholly dependent on the commission of a crime. These difficulties are further reinforced by the fact that section 64 of the Labour Relations Act, No 66 of 1966 (LRA) specifically provides that every employee has the right to strike.
Strike action would only be regarded as being unlawful when it is in violation of the provisions of the LRA. Therefore, if an employee were to influence the minds of fellow employees to institute strike action in accordance with the LRA, that employee would not be guilty of incitement as the strike would not be unlawful. Further, where an employee calls a gathering or meeting with a number of non-striking employees to ascertain whether those employees will engage in unlawful strike action, it cannot be said that the employee has gone far enough to be charged with the crime of incitement.
For an employee to be found guilty of incitement, extensive evidence would need to be led which shows that the employee reached and sought to influence the minds of his/her fellow employees to commit unlawful strike action.
It is clear that a charge of incitement is wholly dependent on the commission of a crime and it is unlikely that employers will have much success in charging employees for this offence at disciplinary enquiries. In the absence of clear evidence, it may be best to avoid charging employees for such an offence.