, MLL5901
ASSIGNMENT 2 SEMESTER 2
2026
DUE 1 SEPTEMBER 2026
The Evidentiary Burden in Racism Claims: Analysing the Approach of South African Courts
Introduction
The South African legal landscape regarding workplace racism has undergone significant
development since the advent of constitutional democracy. The Labour Court's decision in Sasol
Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others
(2019) represents a pivotal moment in this evolution, establishing that mere allegations of racial
discrimination are insufficient to sustain a claim (Sasol Chemical Operations 2019: para 38). This
judgment, while seemingly procedural, reflects a deeper judicial commitment to balancing the
constitutional imperative of substantive equality with the need for evidentiary rigour in
discrimination disputes.
The Sasol Case and the Evidentiary Threshold
In Sasol Chemical Operations (2019), the employee, Mr Mokoena, alleged unfair discrimination
based on unequal pay between himself and a white colleague, Mr De Lange, who performed similar
work. Critically, Mokoena initially failed to attribute the salary differential to race, only raising the
issue when prompted by the Commissioner during arbitration. When asked directly whether the
discrimination was based on race, Mokoena responded affirmatively, but provided no supporting
evidence (Sasol Chemical Operations 2019: para 42).
The Labour Court found this insufficient, holding that an employee claiming discrimination based
on race must produce evidence sufficient to raise a "credible possibility" that unfair discrimination
occurred (Sasol Chemical Operations 2019: para 45). The Court emphasised that a "mere allegation
of discrimination is not sufficient" and that the Commissioner had erred by "placing his own gloss
on the evidence" and effectively articulating a complaint not advanced by the employee (Sasol
Chemical Operations 2019: para 47). This approach reflects a crucial principle: while the burden of
proof shifts to the employer once a prima facie case of discrimination on a listed ground is
established, the employee must first discharge the initial evidentiary burden.
ASSIGNMENT 2 SEMESTER 2
2026
DUE 1 SEPTEMBER 2026
The Evidentiary Burden in Racism Claims: Analysing the Approach of South African Courts
Introduction
The South African legal landscape regarding workplace racism has undergone significant
development since the advent of constitutional democracy. The Labour Court's decision in Sasol
Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others
(2019) represents a pivotal moment in this evolution, establishing that mere allegations of racial
discrimination are insufficient to sustain a claim (Sasol Chemical Operations 2019: para 38). This
judgment, while seemingly procedural, reflects a deeper judicial commitment to balancing the
constitutional imperative of substantive equality with the need for evidentiary rigour in
discrimination disputes.
The Sasol Case and the Evidentiary Threshold
In Sasol Chemical Operations (2019), the employee, Mr Mokoena, alleged unfair discrimination
based on unequal pay between himself and a white colleague, Mr De Lange, who performed similar
work. Critically, Mokoena initially failed to attribute the salary differential to race, only raising the
issue when prompted by the Commissioner during arbitration. When asked directly whether the
discrimination was based on race, Mokoena responded affirmatively, but provided no supporting
evidence (Sasol Chemical Operations 2019: para 42).
The Labour Court found this insufficient, holding that an employee claiming discrimination based
on race must produce evidence sufficient to raise a "credible possibility" that unfair discrimination
occurred (Sasol Chemical Operations 2019: para 45). The Court emphasised that a "mere allegation
of discrimination is not sufficient" and that the Commissioner had erred by "placing his own gloss
on the evidence" and effectively articulating a complaint not advanced by the employee (Sasol
Chemical Operations 2019: para 47). This approach reflects a crucial principle: while the burden of
proof shifts to the employer once a prima facie case of discrimination on a listed ground is
established, the employee must first discharge the initial evidentiary burden.
