Case CCT 127/17
 ZACC 13
Judgement Date: 17 May 2018
Media Summary of Judgment
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 17 May 2018 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Labour Appeal Court.
Mr Bester, who is represented by the first respondent, the South African Equity Workers Association (SAEWA), a registered trade union, was an employee of the applicant, Rustenburg Platinum Mine (“the mine”). During April 2013, Mr Bester attempted to raise a parking issue with the mine’s chief safety officer, Mr Sedumedi. His attempts were ignored which led to the events of 24 April 2013. On that day, Mr Bester allegedly interrupted a safety meeting, and demanded the removal of a car parked next to his. He is said to have pointed his finger at Mr Sedumedi, said in a loud voice “verwyder daardie swart man se voertuig”, and threatened to take the matter further by approaching management. On 25 April 2013, Mr Bester was charged with insubordination for disrupting a safety meeting. In addition, he was charged with making racial remarks for referring to a fellow employee as a “swart man”. He was suspended and on 28 May 2013, after being found guilty on both charges at a disciplinary hearing, he was dismissed.
Mr Bester approached the Commission for Conciliation, Mediation and Arbitration (CCMA) and on 19 December 2013, the commissioner presiding over the arbitration, found that Mr Bester’s dismissal was both substantively as well as procedurally unfair. Mr Bester was awarded reinstatement and back pay of R191 843.21.
The mine approached the Labour Court for a review of this decision. On 26 January 2016, the Labour Court found that the commissioner had reached a decision that no reasonable decision-maker could have reached. The Labour Court held that the use of the words “swart man”, within the context of this case, was derogatory and racist which constituted an act of serious misconduct and warranted the dismissal of Mr Bester.
The Labour Court took into consideration that the mine had, on 16 April 2013, circulated a memorandum to all employees, which clearly indicated that the mine would not tolerate abusive and derogatory language in the workplace.
SAEWA lodged an appeal in the Labour Appeal Court. On 3 May 2017 the Labour Appeal Court handed down judgment in which it held that the Labour Court had erred by applying a subjective test to determine whether the term “swart man” was racist and derogatory. It stated that the correct test was objective and must include a consideration of the context in which the words were uttered – a court must be satisfied that the only reasonable inference from the proven facts was that the use of the words “swart man” was racist and derogatory and that it was said with the intention to demean. The Labour Appeal Court found that Mr Bester could have said “swart man” as a way to describe the driver of the other vehicle, whose name he did not know. On this basis, the Labour Appeal Court held that Mr Bester’s dismissal was both substantively and procedurally unfair.
The mine lodged an application for leave to appeal against the order of the Labour Appeal Court in the Constitutional Court. The matter was heard on 9 November 2018.
The main issue to be decided in the Constitutional Court was whether referring to a fellow employee as a “swart man”, within the context of this case, was racist and derogatory and whether it was unreasonable for the commissioner of the CCMA to have found that the use of the term was racially innocuous. A further issue for consideration was whether, if it were found to be racist and derogatory, dismissal was an appropriate sanction.
In a unanimous judgment penned by Theron J, the Constitutional Court held that the correct test was whether a reasonable, objective and informed person would, on the correct facts perceive “swart man” to be racist and derogatory. Theron J held that 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 starting point carries the danger that the dominant, racist view of the past – of what is neutral, normal and acceptable – may skew an objective enquiry. By ignoring the reality of our past of institutionally entrenched racism and by beginning the enquiry from a presumption that the context is neutral, the Labour Appeal Court sanitised the context in which in which the phrase “swart man” was used. As such the Labour Appeal Court, like the commissioner of the CCMA, failed to take into account the totality of circumstances in this case and came to an unreasonable conclusion that “swart man” was used innocuously. Consequently, Theron J held that Labour Court was correct in reviewing and setting aside the commissioner’s award as he had reached a conclusion that a reasonable decision-maker could not have reached. The Labour Appeal Court’s order therefore stood to be set aside.
With regards to sanction, Theron J held that as Mr Bester had demonstrated a complete lack of remorse for his actions and made no attempt to apologise, dismissal, under these circumstances, was an appropriate sanction.
In the result, the appeal was upheld and the decision of the Labour Appeal Court was set aside. No order as to costs was made.
The Full judgment here.