South African Constitutional Court Rules Employee Dismissal Warranted for Racial Remarks

safrica-politics

The dismissal of a White employee who referred to a Black colleague as the “swart man” over a parking space at work was upheld on May 17th, 2018.[1]

What happened

A series of events in April of 2013 led Mr. Bester, a former employee of Rustenburg Platinum Mine, to allegedly interrupt a safety meeting with demands to remove a car parked next to his.

That month Mr. Bester had unsuccessfully attempted to raise a parking issue with the mine’s chief safety officer. With his complaints ignored, Bester is said to have pointed his finger at the safety officer, and said in a loud voice, “verwyder daardie swart man se voertuig” (remove that Black man’s vehicle).[2] Mr. Bester was subsequently charged and found guilty of insubordination for disrupting a safety meeting and for making racial remarks for referring to a fellow employee as a “swart man”.[3]

Decision

By the time the case rose to the Constitutional Court, one of the main issues considered whether referring to a fellow employee as a “swart man”, within the context of this case was racist and derogatory.[4]

The Labour Court took a subjective approach, finding that witnesses at the meeting knew the true state of Mr. Bester’s knowledge and would not have viewed the expression in the given context as offensive.[5]

However, Theron J wrote the unanimous decision, making it clear that the phrase “swart man” in the context in which it was used was a racially loaded term, hence derogatorily subordinating.  Moreover, he emphasized that the correct test to determine whether the use of the words is racist follows an objective approach– whether a reasonable, objective and informed person, on the correct facts perceive “swart man”, to be racist and derogatory.[6]

Why this matters

The Constitutional Court of South Africa reminds us that by ignoring the reality of past institutionally entrenched racism and beginning enquires from a presumption that the context is neutral “fails to recognise the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present”.[7]

Yet, the issue of when an apparently neutral race descriptor may be regarded as racially abusive or insulting remains an important one. We should be mindful of how sanitizing the context in which words are used amounts to partiality.

This case illustrates how the Court, as a custodian of the Constitution, ensures that the values of non-racialism, human dignity and equality are upheld, intentionally working towards the eradication of racism.[8]

This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.

[1] Rustenburg Platinum Mine v SAEWA obo Bester and Others [2018] ZACC 13.

[2] Ibid at paras 4-5.

[3] Ibid at para 8.

[4] Ibid at para 1.

[5] Ibid at para 20.

[6] Ibid at para 38.

[7] Ibid at para 48.

[8] Ibid at para 37.