The Constitutional Court of South Africa recently held that referring to a colleague as a “swart man” was racist and derogatory in the circumstances and justified the dismissal of the employee who uttered the words.
In Rustenburg Platinum Mine v SAEWU obo Meyer Bester and Others  ZACC 13 Mr. Bester (a senior training officer at a mine) had been allocated a parking bay for his large 4×4 vehicle. The owner of a similar vehicle began using the bay alongside Bester’s, which made it difficult to get in and out of the parking bay. Bester had complained, but nothing was done about the matter.
Eventually, Bester walked into a safety meeting and according to 1 manager (Sedumedi), Bester told him in an aggressive and loud voice: “verwyder daardie swart man se voertuig”. Bester had a different version. He claimed that Sedumedi had told him that he, Bester, did not want to park next to a black man. Bester was charged with insubordination and using a racial label while referring to a colleague. He was dismissed.
At the commission and in court:
- The CCMA commissioner found the ruling of the presiding officer “far-fetched” and “nonsensical” and reinstated him.
- At the Labour Court 2 issues emerged, 1 factual and the other philosophical – did Bester use the expression “swart man” and, if so, did it amount to an abusive and racist expression? The Labour Court held that racial identifiers play an obvious role in the preservation of negative stereotypes. The court confirmed Bester’s dismissal.
- In the Labour Appeal Court (LAC), it had to be decided whether the use of term “swart man” was derogatory and abusive and whether it had been intended as such. The LAC found that the commissioner was correct by reinstating Bester.
Whether a reasonable, objective and informed person would, on the correct facts perceive “swart man” to be racist and derogatory.
Before the 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.
Theron J held 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.”
Both the LAC and the commissioner of the CCMA failed to consider all the circumstances in this case and erred in concluding that “swart man” was used inoffensively.
Theron J, therefore held that the Labour Court was correct in reviewing and setting aside the commissioner’s award as he had reached an unreasonable conclusion. The LAC’s order, therefore, stood to be set aside.
Theron, J held that Mr. Bester had demonstrated a complete lack of remorse for his actions and has not made any attempt to apologise and therefore found that dismissal under these circumstances was, in fact, the appropriate sanction.
On appeal from the LAC (hearing an appeal from the Labour Court, Johannesburg):
1) Rustenburg Platinum Mine is substituted by Sibanye Rustenburg Platinum Mines (Pty) Ltd as the applicant.
2) The appeal is upheld.
3) The order made by the LAC is set aside and replaced with: “The appeal is dismissed with costs.”
4) There is no order as to costs.
ABOUT THE AUTHOR
Kyle Slier obtained his LLB from The University Of South Africa in 2016 and joined SEESA in June 2017. He has since been employed as a Labour Legal Advisor at SEESA Head Office in Pretoria.