Call­ing col­league ‘swart man’ is racist, Con­sti­tu­tional Court rules

CCMA had ear­lier stated de­scrip­tion was neu­tral

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GIVEN the coun­try’s past that le­git­imised racism, re­fer­ring to a black African as a “swart man” dur­ing a fit of rage can­not be seen as a neu­tral de­scrip­tion.

It was plain racist and war­ranted dis­missal from work, the Con­sti­tu­tional Court ruled yes­ter­day.

The judg­ment sealed the fate of Meyer Bester, who wanted to re­tain his job as se­nior train­ing of­fi­cer at Sibanye Rusten­burg Plat­inum Mines.

The mine axed him in 2013 af­ter find­ing him guilty of in­sub­or­di­na­tion and mak­ing racist re­marks.

It found him guilty of racially abus­ing Solly Tl­home­lang, a con­trac­tor, by re­fer­ring to him as a “swart man”, an

Afrikaans phrase trans­lat­ing to “black man”, while an­gry over park­ing.

Dur­ing the in­ci­dent, Bester stormed into the of­fice, shout­ing that a car be­long­ing to a black man should be moved.

Sibanye took the mat­ter to the Con­sti­tu­tional Court in a bid to over­turn a Labour Ap­peal Court rul­ing that favoured Bester. This court con­cluded that it could not find that Bester re­ferred to Tl­home­lang in a racial con­text.

“Race de­scrip­tors such as ‘black man’ and ‘black wo­man’ are neu­tral and only by lo­cat­ing them in a ‘pe­jo­ra­tive’ con­text should their use be con­demned as racist,” the Labour Ap­peal Court’s rul­ing read.

A com­mis­sioner of the

Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion had ear­lier ruled in Bester’s favour.

“It would be sim­i­lar to the sit­u­a­tion where some­one comes into CCMA of­fices not know­ing my name and then ask­ing for me by stat­ing the ‘ wit man’ (white man) who for in­stance parked next to the en­trance gate.”

But Con­sti­tu­tional Court Justice Leona Theron yes­ter­day found fault with both the CCMA and Labour Ap­peal Court rul­ings.

She said both the CCMA and the court had erred be­cause their rul­ings were based on ev­i­dence that had not been placed be­fore them.

Both said Bester’s ut­ter­ances were not racist. But

Bester de­nied Tl­home­lang a “swart man”.

Said Justice Theron: “The Labour Ap­peal Court’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 inquiry.

“It can­not be cor­rect to ig­nore the re­al­ity of our past, of in­sti­tu­tion­ally en­trenched racism and be­gin an inquiry

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. Bester’s in­tran­si­gence through­out his le­gal bat­tles also cost him dearly.

“(He) has demon­strated an ab­so­lute lack of re­morse for his ac­tions and per­sisted with a de­fence of com­plete de­nial,” Justice Theron said.

“He did not ac­knowl­edge that his con­duct was racist and in­ap­pro­pri­ate.

He made no at­tempt to apol­o­gise.

“Bester failed to demon­strate a will­ing­ness to change. In­stead, he re­sorted to a vi­cious at­tack on the wit­nesses who tes­ti­fied on be­half of the ap­pli­cant dur­ing the dis­ci­plinary hear­ing.”


BURN­ING IS­SUE: Pro­test­ers burn US and Is­raeli flags yes­ter­day near the US Em­bassy in Manila, Philip­pines, in con­dem­na­tion of the Gaza Strip killings.

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