Sibanye Rustenburg Platinum Mines (Pty) Ltd v Saewa obo Bester
This judgment of the Constitutional Court concerning unacceptable racist language is significant because it explains what comments are regarded as racist or not and the test is objective and not subjective. So everyone needs to pay careful attention to the reasoning of the Court and take extreme care when using language that may be offensive.
The employee’s comment was racist and derogatory and was a valid and fair reason to dismiss especially as he did no show any remorse nor accept it was derogatory
Discussion by GilesFiles
Referring to a fellow employee as a “swart man” — test for whether words are derogatory and racist is objective — starting point must take into account the history of apartheid
Lack of remorse and no acknowledgment of wrongdoing — no possibility of rehabilitation — dismissal is an appropriate sanction
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 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 2017.
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.”
Quotations from judgment
Note: Footnotes omitted and emphasis added
. . . . . .
 The evidence before the commissioner, on which both the applicant and respondent were agreed, was that the use of such terminology within Anglo’s workplace constituted derogatory language deserving of dismissal. It is against this evidentiary background that the commissioner was required to make his ruling.
 The Labour Appeal Court correctly stated the test to be applied:
“The test that applies to the determination of whether the use of the words ‘swart man’ by Mr Bester was derogatory or abusive, and in contravention of Rustenburg Platinum Mine’s disciplinary code, is an objective one. The employer, in this case, Rustenburg Platinum Mine, bore the evidentiary burden in the arbitration proceedings to prove that the language used by Mr Bester was objectively derogatory. The test is not based on how the employer understood the words nor on the subjective feelings of the person/s to whom the remark was made, but rather whether a reasonable, objective and informed person would on the correct facts perceive it to be so. Once that is established on the evidence, the burden of proof shifts to the employee to prove the existence of a ground of justification and that the derogatory or racist remark was not made with the intent to demean.” (Emphasis added.)
 The Labour Appeal Court unfortunately misdirected itself by finding in favour of Mr Bester, on the basis of an unarticulated defence not supported by the evidence. It was never Mr Bester’s defence that he used the words “swart man” as a descriptor or that he did not mean to “demean” any person. He denied using the words and conceded that if he had done so, it could be a dismissible offence. There was no evidence in the record justifying a finding for Mr Bester on the basis that the Labour Appeal Court did.
 In applying the test, namely, whether a reasonable, objective and informed person would, on the correct facts perceive it to be racist or derogatory, the Labour Appeal Court made a fundamental error, like the commissioner, as it failed to identify the correct facts and relied on evidence that had not been placed before it. The Labour Appeal Court erred by relying on a defence which was not raised by Mr Bester.
 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 enquiry. It cannot be correct to ignore the reality of our past of institutionally entrenched racism and begin an enquiry 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. In this sense, the Labour Appeal Court’s decision sanitised the context in which the phrase “swart man” was used, assuming that it would be neutral without considering how, as a starting point, one may consider the use of racial descriptors in a post-apartheid South Africa.
 The Labour Appeal Court, by sanitising the context in which the words were used, incorrectly applied the test to determine whether the words used are derogatory, in the context of this matter, to the facts in this matter.
The Labour Appeal Court, as well as the commissioner, failed to approach the dispute in an impartial manner taking into account the “totality of circumstances”. Not only was “swart man” as used here racially loaded, and hence derogatorily subordinating, but it was unreasonable to conclude otherwise. It was unreasonable for the commissioner, within this context, to find that using “swart man” was racially innocuous.
 Furthermore, in scrutinising the version of the witnesses as to whether they viewed the statement made by Mr Bester as being racist, the Labour Appeal Court applied a test that was too strict. The test was not whether they were correct in the context of the statement to have understood it as being racist; the test was whether, objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning.
Only Mr Bester could have given evidence that he uttered the words with no racist intent. He failed to do so. The commissioner made a similar error in coming to the conclusion that Mr Bester used the words “swart man” to identify and not to denigrate a person whose vehicle was parked next to his. The commissioner failed to have regard to the evidence before him and failed in particular to appreciate the context in which the words concerned were uttered. During the arbitration proceedings both parties were ad idem (of one mind) in this respect. They agreed that using such language at the applicant’s workplace would be detrimental and could warrant dismissal.
 The commissioner’s award fell to be reviewed and set aside as he reached a conclusion that a reasonable decision-maker could not have reached. This is the test for review that this Court has established in Sidumo. The Labour Court was therefore correct in reviewing and setting it aside.
 The past may have institutionalised and legitimised racism but our Constitution constitutes a “radical and decisive break from that part of the past which is unacceptable”. Our Constitution rightly acknowledges that our past is one of deep societal divisions characterised by “strife, conflict, untold suffering and injustice”. Racism and racial prejudices have not disappeared overnight, and they stem, as demonstrated in our history, from a misconceived view that some are superior to others. These prejudices do not only manifest themselves with regards to race but it can also be seen with reference to gender discrimination. In both instances, such prejudices are evident in the workplace where power relations have the ability “to create a work environment where the right to dignity of employees is impaired”. Gratuitous references to race can be seen in everyday life, and although such references may indicate a disproportionate focus on race, it may be that not every reference to race is a product or a manifestation of racism or evidence of racist intent that should attract a legal sanction. They will, more often than not, be inappropriate and frowned upon. We need to strive towards the creation of a truly non-racial society. The late former President of the Republic of South Africa, Mr Nelson Mandela, said that “de racialising South African society is the new moral and political challenge that our young democracy should grapple with decisively”. He went on to say that “we need to marshal our resources in a visible campaign to combat racism – in the workplace, in our schools, in residential areas and in all aspects of our public life”.
 This Court has echoed such sentiments when it recognised that “South Africans of all races have the shared responsibility to find ways to end racial hatred and its outstandingly bad outward manifestations”.
 Subsequent to the hearing of this matter, this Court invited the parties to file written submissions on whether, should it conclude that the finding of the internal disciplinary committee should be reinstated, the sanction imposed was too harsh and what alternative sanction could be considered. Both the applicant and the respondent filed additional submissions in this regard.
 In Sidumo, this Court listed a number of factors that a commissioner must consider when deciding on the fairness of a dismissal. The Court emphasised that the factors do not represent a closed list and that the weight to be attached to each factor would differ from case to case. The factors are:
(i) the importance of the rule that was breached;
(ii) the reason the employer imposed the sanction of dismissal;
(iii) the basis of the employee’s challenge to the dismissal;
(iv) the harm caused by the employee’s conduct;
(v) whether additional training and instruction may result in the employee not repeating the misconduct;
(vi) the effect of dismissal on the employee; and
(vii) the long-service record of the employee. 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.  They owe a duty of good faith to their employers which duty includes the obligation to further their employer’s business interests. In making racist comments in the public domain, the actions of the employee may foreseeably negatively affect the business of his employer or the working relationship between him and his employer or colleagues. The chairperson of the disciplinary hearing was alive to this. This is evident from his statement that “[d]ismissal will be imposed for a first offence if the circumstances so warrant it and the employee’s behaviour destroy[s] the employment relationship”.
 As a country in transition, South Africa faces the on-going challenge of how to generate and maintain processes that restore dignity, create political and economic equality, and promote a culture of human rights. The mining industry is a racially charged environment. The applicant, as a responsible employer, is tasked with creating an organisation that advocates and practices social justice. To this end, a memorandum warning against abusive and derogatory language was circulated to all employees at the applicant’s mine a few days prior to the incident. It was this memorandum which gave rise to the charges levelled against Mr Bester. The applicant had introduced a behavioural policy in terms of which the offence of racial abuse could attract a sanction of dismissal, even for a first offence.
 In contending that dismissal was too severe a sanction in the circumstances of this matter, the respondent, in its additional submissions, argued that Mr Bester had given the applicant five years of loyal service and during that time he had trained numerous miners on how to keep themselves and their colleagues safe and accident-free while working underground. It was also contended that Mr Bester was capable of being rehabilitated and that the incident sparking his dismissal was an extraordinary occurrence unlikely to occur again.
 Mr Bester has demonstrated an absolute lack of remorse for his actions and persisted with a defence of a complete denial. He did not acknowledge that his conduct was racist and inappropriate. He made no attempt to apologise. This Court has previously stated that the fact that an employee who is guilty of racist conduct apologised, admitted wrongdoing and demonstrated a willingness “to take part in whatever programme could be designed to help him embrace the values of our Constitution, especially equality, non-racialism and human dignity” may be a relevant factor in determining whether dismissal was an appropriate sanction. As mentioned, Mr 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. The chairperson of the hearing criticised Mr Bester’s conduct in the strongest terms:
“As chairperson I was astounded by the viciousness of the attacks by Mr Bester during the hearing. The behaviour carried out with intense violence and an apparent desire to inflict aggressive language, cruel and malicious act against a fellow employee and employees in a threatening manner during the hearing was irresponsible.”
The chairperson further noted that Mr Bester had, during the hearing, used foul language and behaved in an insolent, disrespectful, rude, offensive and disruptive manner. He explained:
“Mr Bester challenged the authority of the hearing, being verbally rude and insulting and disrupting the ER Officer Mr Bogatsu Ramoenyane by verbally swearing (inappropriately) at him to keep quiet.”
 At the disciplinary hearing, and after having been found guilty, Mr Bester was invited to make submissions in mitigation. He used this opportunity to justify his misbehaviour during the hearing:
“It is human to react in the same manner as what I have done during the hearing as I have realised it is futile to argue whatever is being said as I am being framed. Seven witnesses against me with no witnesses? What was/is my chances? Therefore I have had all the same emotions as the normal man in the same circumstances would have had. Devastation, flabbergasted, revolt, being cross.”
Even at this late stage, there was no recognition that he had behaved badly during the hearing and more so, that he had once again insulted his colleagues. An acknowledgement of wrongdoing by Mr Bester would have gone a long way in evidencing the possibility of rehabilitation including an assurance to the applicant that similar misconduct would not be repeated in the future. The fact that Mr Bester was dishonest in denying making the statement weighs heavily against him when considering sanction. In Sidumo, this Court stated that “[t]he absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal”.
These sentiments were endorsed in Timothy, where the Court said:
“[G]iven the fact that the appellant had an unblemished record and that, until this point, there was no indication in his conduct of any dishonesty or any impropriety prior to the events that gave rise to this dispute, a form of progressive sanction would have been more appropriate. I have no doubt that these arguments would have carried far greater weight had there been a scintilla of recognition by the appellant of his wrongdoing. . . . Throughout the disciplinary hearing . . . [the] appellant continued to take the view that the allegations brought against him were no more than lies. [The] [a]ppellant showed no remorse, no recognition of misconduct, save for a blatant and clearly dishonest denial.”
 Mr Bester has not learnt to conduct himself in a manner that respects the dignity of his black co-workers. 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.
 This Court is satisfied that dismissal was an appropriate sanction under the circumstances.