South Africa’s unforgotten and relevant past (mind your language)

01 Jun 2018

In the decision in Rustenburg Platinum Mine and SAEWA obo Meyer Bester and Others, the Constitutional Court dealt with the question of whether an employee referring to a colleague as a “swart man” (“black man”), within the facts set out below, constituted misconduct justifying dismissal.

The adjacent large 4×4 vehicles

The employee in this matter, Mr Bester, was employed by the Rustenburg Platinum Mine (the “employer”). He had been allocated a specified parking bay at his place of work. In April 2013, the manager in charge of allocating parking bays, a Mr Sedumedi, allocated the adjacent parking bay to Mr Tlhomelang, an employee of a sub-contractor at the mine. Mr Tlhomelang drove a large 4×4 vehicle that was similar in size to Mr Bester’s vehicle. Though parking in a limited space was possible, it was difficult to reverse into it and Mr Bester became concerned that the vehicles may be damaged in the process.

Mr Bester decided to take the matter up with Mr Sedumedi in an effort to arrange for the other vehicle to be parked elsewhere. Mr Bester made repeated efforts to raise the issue with Mr Sedumedi, which included phoning and emailing him, but without success.

The incident on 24 April 2013

On 24 April 2013, an incident occurred that led to Mr Bester’s dismissal. The reason for the dismissal was the allegation that Mr Bester had made certain racist comments. He challenged his dismissal in the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

At the CCMA arbitration, the version proffered by the employer’s witnesses was that Mr Bester stormed into a meeting with other employees convened by Mr Sedumedi. He pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must “verwyder daardie swart man se voertuig”, (“remove that black man’s vehicle.”). If Mr Sedumedi did not do so, Mr Bester said he would take the matter up with management.

Mr Bester testified that there was no meeting in progress, and that Mr Sedumedi and a colleague were casually discussing jogging routes. When they had finished chatting, Mr Bester raised his parking difficulty with Mr Sedumedi. Mr Sedumedi responded by saying that he would not speak to a C5 grade employee. According to Mr Bester, Mr Sedumedi said “jy wil nie langs ’n swart man stop nie…dit is jou probleem” (“you do not want to park next to a black man…this is your problem”). Mr Bester said that Mr Sedumedi should not turn the matter into a racial issue and that he intended taking the matter up with senior management.

The CCMA accepted that Mr Bester had utilised the terms “swart man” but came to the conclusion that the term had been used in a descriptive sense rather than a derogatory sense. On review, the Labour Court set aside the CCMA’s finding. It accepted the version of events described by the employer’s witnesses and came to the conclusion that the remark had had racist connotations. The Labour Appeal Court, in turn, disagreed with the Labour Court’s approach and accepted that the dismissal on this ground had been unfair.

This decision was then taken on appeal to the Constitutional Court.

Findings of the Constitutional Court

Was the use of the term “swart man” racist and derogatory?

The Constitutional Court found that:

  • in interpreting “swart man”, the reality of South Africa’s past of institutionally entrenched racism cannot be ignored. Therefore, the starting point for interpreting the use of “swart man” cannot be presumed to be from a neutral context.
  • the term “swart man” was racially loaded, and hence, derogatorily subordinating.

In particular, the Constitutional Court held that:

“…racism and racial prejudices have not disappeared overnight, and they stem, as demonstrated in our history, from a misconceived view that some are superior to others. These prejudices do not only manifest themselves with regards to race but it can also be seen with reference to gender discrimination. In both instances, such prejudices are evident in the workplace where power relations have the ability ‘to create a work environment where the right to dignity of employees is impaired’”.

The Constitutional Court went on to hold that:

“Gratuitous references to race can be seen in everyday life, and although such references may indicate a disproportionate focus on race, it may be that not every reference to race is a product or a manifestation of racism or evidence of racist intent that should attract a legal sanction. They will, more often than not, be inappropriate and frowned upon. We need to strive towards the creation of a truly non-racial society. The late former President of the Republic of South Africa, Mr Nelson Mandela, said that ‘de racialising South African society is the new moral and political challenge that our young democracy should grapple with decisively’. He went on to say that ‘we need to marshal our resources in a visible campaign to combat racism – in the workplace, in our schools, in residential areas and in all aspects of our public life’. This Court has echoed such sentiments when it recognised that ‘South Africans of all races have the shared responsibility to find ways to end racial hatred and its outstandingly bad outward manifestations’.”

Was dismissal the justified sanction?

The Constitutional Court found that Mr Bester had shown no remorse. He had steadfastly denied ever using the term “swart man”. In denying ever using the term, the employee was dishonest. Such dishonesty weighed heavily against him when considering sanction.

In finding that dismissal was the appropriate sanction, the Constitutional Court found that:

“By his actions he has shown that he has not made a break with the apartheid past and embraced the new democratic order where the principles of equality, justice and non-racialism reign supreme.”

The test to be applied by the courts

The Constitutional Court found that the test to be applied in determining whether the term ‘swart man” was racist and derogatory “is whether objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning.”

Lessons to be learnt

South Africa’s history is an important consideration in interracial relations. The use of racist and derogatory terms is seen, depending on the facts, as failure to embrace the new principles of equality, justice and non-racialism. In this case, South Africa’s history is the context in which the term “swart man” must be contextualised.

The question involving what constitutes racism is not only a constitutional issue but one that goes to the heart of South African democracy.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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