A Zimbabwean bakery manager who lost his job after posting a controversial Bible verse on WhatsApp during a tense period of xenophobic anger has won compensation, after the Labour Court in Cape Town ruled that his dismissal was too harsh.
Judge Tapiwa Cecilia Gandidze has dismissed an application by Erarite (Pty) Ltd, trading as Khayelitsha SuperSpar, which had tried to overturn a decision by the Commission for Conciliation Mediation and Arbitration (CCMA). The CCMA had earlier found that the dismissal of bakery manager Cloudious Gogo was substantively unfair and ordered that he be compensated rather than reinstated.
Gogo, a Zimbabwean national, worked as a bakery manager at Khayelitsha SuperSpar until July 2022, when he was fired for posting a verse from the Book of Deuteronomy on his WhatsApp status. The passage, which speaks about foreigners gaining power over locals, read:
"Foreigners who live in your land will gain more and more power while you gradually lose yours. They will have money to lend you, but you will have none to lend them. In the end, they will be your rulers."
The employer viewed this message as provocative and harmful, especially given the mood inside and outside the store at the time.
The WhatsApp post did not appear in a vacuum. It came during a period of heightened tension around foreign nationals working at the supermarket. A Facebook group had publicly accused Khayelitsha SuperSpar of employing foreign nationals instead of locals and had called on people to protest against the store. The situation became so serious that authorities, including the police, were alerted because of fears that the online calls could lead to unrest.
It was against this backdrop that Gogo posted the Bible verse. He later removed the status within minutes and apologised. Despite this, management decided to take disciplinary action. A formal process followed, which ultimately led to his dismissal in July 2022.
At the CCMA arbitration hearing, Gogo did not deny posting the verse. He admitted his conduct and accepted that it was ill-judged. However, he argued that dismissal was too severe and that a final written warning would have been enough punishment, particularly as he had quickly deleted the post and said he was sorry.
The CCMA commissioner agreed with him in part. The commissioner found that Gogo’s conduct was indeed inappropriate and a serious lapse in judgment, especially given the sensitive context. However, the commissioner held that it did not justify the ultimate penalty of dismissal. Instead of ordering that Gogo be reinstated, the commissioner awarded him three months’ salary as compensation. This was in line with Gogo’s own position, as he had not sought to return to his job.
The employer, unhappy with the CCMA’s decision, took the matter on review to the Labour Court. Erarite/ SuperSpar argued that the commissioner had not properly understood the seriousness of xenophobia or the fragile and volatile situation in the workplace and the community at the time. The company said Gogo’s WhatsApp status, given his role as a manager, risked inflaming already high tensions and undermining the trust relationship between him and the employer.
In its challenge, the company stressed that xenophobia is a sensitive and dangerous issue in South Africa, and said that the post could have fuelled anger or violence. On that basis, it insisted that dismissal was the only appropriate sanction, especially for a manager who is expected to set an example and calm tensions, not make them worse.
Judge Gandidze, however, rejected these arguments and found that the CCMA commissioner had taken proper account of the context, the nature of the misconduct and the correct legal principles.
The Labour Court accepted that what Gogo did was wrong and described his conduct as a “grave error of judgment”. But the court agreed with the commissioner that this did not make his actions the same as hate speech, nor did the Bible verse amount to a call for violence or direct incitement.
The judge noted that the commissioner had drawn a clear and reasonable distinction between Gogo’s post and the more dangerous conduct of the Facebook group, which had called openly for protest action against the store. In other words, Gogo had not mobilised people to act; he had posted a verse which could be seen as insensitive and inflammatory, but he had then removed it quickly and apologised.
The court also underlined an important principle in labour law: commissioners do not merely rubber-stamp employers’ disciplinary decisions. They must make their own, independent assessment of whether a dismissal is fair.
“The commissioner made a value judgment,” the court said, noting that simply disagreeing with that judgment is not enough reason to overturn it on review.
Judge Gandidze further pointed out that not all employees linked in some way to the broader xenophobia-related issues at the workplace had been dismissed. This inconsistency weakened the employer’s argument that dismissal was the only reasonable response to Gogo’s conduct and showed that lesser sanctions were possible in serious but not extreme cases.
Ultimately, the Labour Court found that the commissioner’s decision to award compensation instead of upholding the dismissal was within the range of reasonable outcomes. It confirmed that dismissal was too harsh in the circumstances, given that Gogo had removed the post quickly, apologised, and did not repeat the behaviour.
The court dismissed the employer’s review application and made no order as to costs, which means each side will pay its own legal bills.
For Gogo, the ruling is a partial victory. He will receive three months’ salary as compensation for what the CCMA and the Labour Court both found to be an unfair dismissal, although he will not return to his old post. For employers and employees more broadly, the judgment serves as a reminder that context matters in social media cases, and that even in highly sensitive situations, dismissal is not always the only or the fairest answer.
