Calling colleague ‘swart man’ is racist, Constitutional Court rules
CCMA had earlier stated description was neutral
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.”
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