Man who called colleague 'swart man' living in apartheid past, ConCourt rules

2018-05-17 16:48
Constitutional court. (News24)

Constitutional court. (News24)

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A man who called a colleague "swart man [black man]" over parking space at work has shown that he has not made a break with the country's apartheid past, the Constitutional Court ruled on Thursday.

In a 27-page unanimous judgment, the Constitutional Court ruled that the order made by the Labour Appeal Court be set aside.

In May last year, the Labour Appeal Court found that the Labour Court had erred by applying subjective tests to determine whether the term "swart man" was racist and derogatory.

The court found that Meyer Bester, who was employed at the Rustenburg Platinum Mine, could have said "swart man" as a way to describe the driver of the other vehicle. It found that his dismissal was unfair. 

However, on Thursday Justice Leona Theron said Bester had not embraced "the new democratic order".

"Mr Bester has not learnt to conduct himself in a manner that respects the dignity of his black co-workers," Justice Theron ruled. 

Charged with insubordination, making racial remarks

"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 court said it was satisfied that a dismissal was an appropriate sanction under the circumstances. 

In April 2013, Bester allegedly interrupted a safety meeting chaired by the mine's chief safety officer, Ben Sedumedi, and demanded the removal of a car parked next to his.

A parking space next to his had been given to colleague Solly Tlhomelang. However, Bester had difficulty reversing his vehicle, fearing it might be damaged.  

He apparently stormed into the meeting and pointed his finger at Sedumedi, and said in a loud voice: "Verwyder daardie swart man se voertuig [Remove that black man's car]".

Bester was charged with insubordination for disrupting a safety meeting. He was also charged with making racial remarks for referring to a fellow employee as a "swart man".

CCMA decision 'unreasonable'

Bester was dismissed by his employer in May 2013 after being found guilty on both charges at a disciplinary hearing.

He approached the Commission for Conciliation, Mediation and Arbitration (CCMA) and the commissioner found that his dismissal was both substantively and procedurally unfair.

Bester was awarded reinstatement and back pay of R191 843.21. The mine approached the Labour Court for a review of the decision.

However, the Labour Court found that the commissioner had reached a decision that no reasonable decision-maker could have made and warranted Bester's dismissal. 

The South African Equity Workers' Association (SAEWA), which represents Bester, lodged an appeal in the Labour Appeal Court.

However, on Thursday, Justice Theron found that the Labour Appeal Court failed to recognise the impact of the legacy of apartheid and racial segregation.

Racially loaded term

"By ignoring the reality of our past of institutionally entrenched racism and by beginning the enquiry from a presumption that the contest is neutral, the Labour Appeal Court sanitised the context in which the phrase 'swart man' was used."

Theron found that the Labour Appeal Court and the CCMA had failed to take into account the totality of circumstances and came to an unreasonable conclusion that "swart man" was used innocuously.

She said the test of determining whether the use of the word "swart man" was not racist or abusive was an objective one.

"Not only was 'swart man' as used here racially loaded, and hence derogatorily subordinating, but it was unreasonable to conclude otherwise.

Racism in the workplace

"Only Mr Bester could have given evidence that he uttered the words with no racist intent. He failed to do so. We are dealing here with racism in the workplace. Our courts have made it clear, and rightly so, that racism in the workplace cannot be tolerated.

"Employees may not act in a manner designed to destroy harmonious working relations with their employer or colleagues."

Theron also found that Bester had demonstrated lack of remorse for his actions and persisted with a defence of a complete denial.

She said he did not acknowledge that his conduct was racist and inappropriate, and he made no attempt to apologise.

"The fact that Mr Bester was dishonest in denying making the statement weighs heavily against him when considering sanction."

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