Racial references met with disapproval

August 1st, 2018

Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester and Others (2018) 39 ILJ 1503 (CC)

By Nadia Froneman

The case of Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester and Others (2018) 39 ILJ 1503 (CC) dealt with the issue of when an apparently neutral race descriptor may be regarded as racially abusive or insulting.

Mr Bester was called to an internal disciplinary hearing to face the allegation of referring to a co-worker as a ‘swart man’, thereby breaching a workplace rule that prohibits abusive and derogatory language.

Briefly, the facts leading to the allegation are as follows:

  • The co-worker was allocated a parking bay next to the one that was allocated to Mr Bester.
  • Due to the size of the co-worker’s car, Mr Bester was concerned that his vehicle would get damaged.
  • Mr Bester made several inquiries to address this with the safety manager, without success.
  • As a result, Mr Bester uttered the words ‘verwyder daardie swart man se voertuig’. Translated to English as ‘remove that black man’s vehicle’.

At the internal disciplinary inquiry, Mr Bester was found guilty of the allegation against him and the chairperson recommended a sanction of dismissal. Mr Bester was subsequently dismissed. The case was taken to the Labour Court and the Labour Appeal Court, however, this article focusses on the outcome of the Constitutional Court (CC).

The CC crystallised the issues to determine as being –

  • whether referring to a fellow employee as a ‘swart man’ in this context was racist and derogatory; and
  • if so, whether dismissal was the appropriate sanction.

The CC held that the words ‘swart man’, per se, are not racist but the context within which they were used will dictate whether they were used in a racist or derogatory manner.

The test is an objective one, being whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory, and further that the reasonable person will not only consider what the words expressly say but what they imply.

The CC highlighted that Mr Bester denied ever saying ‘swart man’ and further conceded that using such language could be a dismissible offence. Mr Bester never raised the defence that he used those words as a descriptor. As such, the CC held that the commissioner and the LAC had erred in relying on a defence that was never raised by him.

Furthermore, and significantly, while the CC recognised that not every reference to race is a manifestation of racism or evidence of racist intent, it had to consider South Africa’s (SA’s) past of institutionally entrenched racism when determining whether a statement is racist and derogatory, even if the statement appeared to be neutral. In this way, the CC rejected the LAC’s starting point of viewing phrases as neutral. This, it held, carried the danger that the dominant, racist view of the past – of what was neutral, normal and acceptable – may skew an objective inquiry. Ignoring the reality of SA’s of institutionally entrenched racism and beginning the inquiry from a presumption that the context was neutral, would sanitise the context in which such phrases were used. As such, the CC held that the LAC and the commissioner failed to consider the totality of circumstances of this case and came to the unreasonable conclusion that ‘swart man’ was used innocently.

The CC was satisfied that, having regard to the context in which the utterances were made, Mr Bester was guilty of the allegation and that the appropriate sanction was dismissal. This was, primarily,
because –

  • he showed absolutely no remorse throughout the proceedings;
  • he conducted himself in an unruly manner during his disciplinary inquiry; and
  • he was dishonest in denying having made the utterances.

It is important to educate employees on this judgment and caution them not to resort to making racial utterances. This will assist in eliminating racist behaviour of any sort in the workplace, which it has been held, can have the effect of destroying working relationships and being disruptive of the employer’s business.

Nadia Froneman BSocSci (Rhodes) LLB (Rhodes) is an attorney at Eversheds Sutherland in Johannesburg.

This article was first published in De Rebus in 2018 (Aug) DR 44.