Rustenburg Platinum Mine v SAEWU obo Meyer Bester and Others  ZACC 13
Court: Constitutional Court of South Africa
Date of judgment: 17 May 2018
On 17 May 2018, the Constitutional Court of South Africa (Constitutional Court) held that referring to a fellow employee as a “swart man” (which translated from Afrikaans to English means “black man”) was racist and derogatory in the circumstances, and justified the dismissal of the employee who uttered the words.
The applicant had dismissed the employee in question, Mr Bester, on 28 May 2013 on the grounds of insubordination and the making of racial remarks. The complaint against Mr Bester was that he had referred to his co-worker, Mr Sedumedi, as a “swart man”, and in so doing breached a workplace rule that prohibits abusive and derogatory language. Although the details of the incident were not common cause, the dispute between Mr Bester and Mr Sedumedi centred on a disagreement over a parking bay.
According to the applicant, Mr Bester stormed into a meeting, pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must “verwyder daardie swart man se voertuig” (translation: “remove that black man’s vehicle”) or Mr Bester would take the matter up with management. According to Mr Bester’s version, he tried to raise the issue with Mr Sedumedi, who responded that “jy wil nie langs ’n swart man stop nie … dit is jou probleem” (translation: “you do not want to park next to a black man … this is your problem”). Mr Bester claimed that he then told Mr Sedumedi not to turn the matter into a racial issue, and that he intended taking the matter up with senior management.
Following a disciplinary enquiry, Mr Bester was dismissed. He referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), which found that Mr Bester’s dismissal was both substantively and procedurally unfair. The CCMA ordered that the applicant reinstate Mr Bester with retrospective effect, and awarded him backpay.
The applicant then approached the Labour Court to have the CCMA award reviewed and set aside. The Labour Court concluded that there was no cogent reason for the CCMA commissioner to have rejected the evidence of Mr Sedumedi and the others present at the meeting. The Labour Court concluded that Mr Bester had committed an act of serious misconduct that warranted his dismissal, and that the CCMA award stood to be reviewed and set aside.
The matter then went before the Labour Appeal Court (LAC). The LAC was of the view that the real issue was whether Mr Bester’s use of the descriptor “swart man” to identify the owner of the vehicle parked in the parking bay next to him was derogatory. The LAC held that the test is an objective one, and that the Labour Court had erroneously adopted a subjective test in determining the effect of the words “swart man” on the persons present at the meeting. While it held that a racist remark made in the workplace is a serious offence, it concluded that in this case the dismissal was both substantively and procedurally unfair, and that the Labour Court had erred in reviewing and setting aside the award of the CCMA commissioner.
Before the Constitutional Court
It was accepted by both the applicant and the first respondent that the use of the words “swart man” was not racist in itself, and that the context within which the words were used would dictate whether they were used in a racist or derogatory manner. It was further accepted that the test to determine whether the use of the words is racist is an objective one of whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory.
The Constitutional Court noted that it had never been Mr Bester’s defence that he used the words as a descriptor, and did not mean to demean any person; rather, Mr Bester had maintained that he had never used the words, and had conceded that if he had done so, it could be a dismissible offence. The Constitutional Court stated (at paras 48-49) that:
The [LAC’s] starting point that phrases are presumptively neutral fails to recognise the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present. This approach holds the danger that the dominant, racist view of the past – of what is neutral, normal and acceptable – might be used as the starting point in the objective enquiry without recognising that the root of this view skews such enquiry. It cannot be correct to ignore the reality of our past of institutionally entrenched racism and begin an enquiry into whether or not a statement is racist and derogatory from a presumption that the context is neutral – our societal and historical context dictates the contrary. In this sense, the [LAC’s] decision sanitised the context in which the phrase ‘swart man’ was used, assuming that it would be neutral without considering how, as a starting point, one may consider the use of racial descriptors in a post-apartheid South Africa.
The [LAC], by sanitising the context in which the words were used, incorrectly applied the test to determine whether the words used are derogatory, in the context of this matter, to the facts in this matter. The [LAC], as well as the [CCMA] commissioner, failed to approach the dispute in an impartial manner taking into account the ‘totality of circumstances’. Not only was ‘swart man’ as used here racially loaded, and hence derogatorily subordinating, but it was unreasonable to conclude otherwise. It was unreasonable for the [CCMA] commissioner, within this context, to find that using ‘swart man’ was racially innocuous.
The Constitutional Court expressed further that, in scrutinising the evidence of the witnesses, the test was whether, objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning; in this regard, the test was consequently not whether they were correct in the context of the statement to have understood it as being racist. Mr Bester had not provided any evidence that he uttered the words with no racist intent.
In considering race-related speech in South Africa more generally, the Constitutional Court further noted (at para 53) 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’.
In determining the appropriate sanction against Mr Bester, the Constitutional Court had regard to the fact that Mr Bester has demonstrated a lack of remorse for his actions, persisted with a defence of a complete denial, did not acknowledge that his conduct was racist and inappropriate, and made no attempt to apologise. The Constitutional Court also took into consideration that the fact that Mr Bester was dishonest by denying making the statement weighed heavily against him when considering the sanction. Accordingly, the Constitutional Court held that dismissal was the appropriate sanction under the circumstances.
The judgment is accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].