Prescribed Cases
Rustenburg Platinum Mine v SA Equity
Workers Association on behalf of Bester &
Others (2018) 39 ILJ 1503 (CC)
Misconduct - racial abuse: infringing on the dignity of other employees/persons
Facts:
Incident:
• Mr. Bester (“B”) was dismissed for insubordination and making a racist remark by
referring to a fellow employee as a “swart man” (“black man”) during an incident where
he aggressively demanded the removal of a parked vehicle.
• B had stormed into a meeting and stated: “Verwyder daardie swart man se voertuig”
(“Remove that black man’s vehicle”).
• B maintained a complete denial of wrongdoing, did not apologise, and displayed no
remorse.
Procedural History:
• The CCMA found that the phrase “swart man” was not racist or derogatory in the context,
as B was merely using it to describe someone whose name he did not know. B’s dismissal
was ruled unfair.
• On review, the Labour Court (LC) overturned the CCMA decision, finding that the phrase
was racially derogatory in the workplace context and upheld B’s dismissal.
• The Labour Appeal Court (LAC) reinstated the CCMA’s finding, reasoning that the
context did not clearly indicate that the words were racist, and there was an equally
plausible interpretation that B used the words descriptively.
• The Constitutional Court (CC) was then approached to determine the matter.
Issue:
a) Was the use of the term “swart man” in this context racist and derogatory?
b) If so, was dismissal an appropriate sanction?
Rules:
1. Racism in the Workplace:
• Courts have consistently held that racism in the workplace is intolerable. Employees
have a duty to act in good faith and maintain harmonious working relationships with their
employer and colleagues.
• In the context of South Africa’s history of apartheid and racial discrimination, language
that carries racial connotations can have a deeply harmful and divisive effect,
particularly in sensitive workplace environments.
,2. Determining Racism:
• The context in which racially charged words are used is crucial to determining whether
they are racist and derogatory.
• Words may be considered racially loaded if they perpetuate the legacy of subordination
or inequality based on race, regardless of the speaker’s intent.
3. Sanction for Racism:
• Employers are entitled to adopt zero-tolerance policies toward racist behavior.
• Dismissal for a first offense may be appropriate if the behavior undermines workplace
harmony, negatively impacts the employer’s business, or fails to align with the employer’s
duty to promote social justice and equality.
• The absence of remorse, denial of wrongdoing, or failure to apologise may be
aggravating factors justifying dismissal.
Analysis:
a) Was the phrase “swart man” racist and derogatory?
• The Constitutional Court (CC) held that in the context of apartheid’s legacy, the term
“swart man” is racially loaded and thus derogatory.
• The court reasoned that such language, especially when used in an aggressive and public
manner, can perpetuate racial subordination.
• Even if B’s intention was merely descriptive, the perception and impact of the words
must be considered.
• In this case, the tone and circumstances—B storming into a meeting and using “swart
man” aggressively—underscored the racially charged nature of the utterance.
b) Was dismissal an appropriate sanction?
• The court emphasized that racism in the workplace cannot be tolerated, especially in
industries like mining, which are historically and socially charged with racial inequality.
• Bester’s conduct breached the employer’s zero-tolerance policy on racial abuse, which
explicitly allowed for dismissal for a first offense.
• B displayed no remorse, persisted in a complete denial of wrongdoing, and made no
effort to apologise, indicating that he did not recognize the harm caused by his behavior.
• The court noted that B’s actions undermined the employer’s commitment to fostering a
workplace rooted in social justice and equality, as required in post-apartheid South
Africa.
• Given the facts, dismissal was found to be a proportionate and appropriate sanction.
Conclusion:
• The Constitutional Court upheld the appeal, finding that:
1. The term “swart man,” as used in the context of this case, was racist and derogatory,
given the legacy of apartheid and the racially charged connotations of the words.
2. The sanction of dismissal was appropriate, as Bester’s conduct was inconsistent with
the duty to maintain harmonious workplace relations, violated the employer’s zero-
tolerance policy, and undermined the employer’s business interests in promoting
social justice and equality.
2
, • The appeal was upheld, and the dismissal was confirmed.
Key Takeaways:
Context Matters:
• The meaning and effect of language depend heavily on the context in which it is used,
particularly in a workplace within a society with a history of racial inequality.
Zero-Tolerance for Racism:
• South African courts take a firm stance against racism in the workplace and support
employers in implementing strict policies against racial abuse, even if it is a first offense.
Impact Over Intent:
• Even if racially charged words are intended to be descriptive, courts will consider their
impact on workplace relations and whether they perpetuate racial inequality or harm.
Remorse and Accountability:
• A lack of remorse, failure to apologise, and denial of wrongdoing can aggravate the
seriousness of misconduct and justify a harsher sanction, such as dismissal.
Employer’s Duty:
• Employers in South Africa have a duty to promote social justice and equality in the
workplace and to take appropriate action against behavior that undermines these
principles.
Three commonly encountered rules are a generic ‘use of abusive language or conduct’, a
more specific ‘sexist or racial abuse’, and also ‘sexual harassment’
• Where remarks were racist is that laid down in Rustenburg Platinum Mine v SA Equity
Workers Association obo Bester:
◦ ‘whether a reasonable, objective and informed person would on the correct facts
perceive it to be racist or derogatory’ , provided that this test is NOT ‘sanitised’ and
applied in the abstract but placed in the historical context of SA.
Department of Home Affairs & Another v
Ndlovu & Others (2014) 35 ILJ 3340 (LAC)
Department of Home Affairs v Ndlovu 2014 (LAC), concerned misconduct in relation to
CV fraud
Facts
• In this case, the employee, was appointed as an area manager. Later it became clear that
he had misrepresented the fact that he possessed a degree in technology marketing on
his CV. The employee thus faced charges of gross dishonesty, misrepresentation, breach
of obligations on good faith, trust and confidence and a breach of the SMS handbook.
The employee was subsequently dismissed by the employer
• The arbitrator of the GPSSBC upheld the dismissal
3
Rustenburg Platinum Mine v SA Equity
Workers Association on behalf of Bester &
Others (2018) 39 ILJ 1503 (CC)
Misconduct - racial abuse: infringing on the dignity of other employees/persons
Facts:
Incident:
• Mr. Bester (“B”) was dismissed for insubordination and making a racist remark by
referring to a fellow employee as a “swart man” (“black man”) during an incident where
he aggressively demanded the removal of a parked vehicle.
• B had stormed into a meeting and stated: “Verwyder daardie swart man se voertuig”
(“Remove that black man’s vehicle”).
• B maintained a complete denial of wrongdoing, did not apologise, and displayed no
remorse.
Procedural History:
• The CCMA found that the phrase “swart man” was not racist or derogatory in the context,
as B was merely using it to describe someone whose name he did not know. B’s dismissal
was ruled unfair.
• On review, the Labour Court (LC) overturned the CCMA decision, finding that the phrase
was racially derogatory in the workplace context and upheld B’s dismissal.
• The Labour Appeal Court (LAC) reinstated the CCMA’s finding, reasoning that the
context did not clearly indicate that the words were racist, and there was an equally
plausible interpretation that B used the words descriptively.
• The Constitutional Court (CC) was then approached to determine the matter.
Issue:
a) Was the use of the term “swart man” in this context racist and derogatory?
b) If so, was dismissal an appropriate sanction?
Rules:
1. Racism in the Workplace:
• Courts have consistently held that racism in the workplace is intolerable. Employees
have a duty to act in good faith and maintain harmonious working relationships with their
employer and colleagues.
• In the context of South Africa’s history of apartheid and racial discrimination, language
that carries racial connotations can have a deeply harmful and divisive effect,
particularly in sensitive workplace environments.
,2. Determining Racism:
• The context in which racially charged words are used is crucial to determining whether
they are racist and derogatory.
• Words may be considered racially loaded if they perpetuate the legacy of subordination
or inequality based on race, regardless of the speaker’s intent.
3. Sanction for Racism:
• Employers are entitled to adopt zero-tolerance policies toward racist behavior.
• Dismissal for a first offense may be appropriate if the behavior undermines workplace
harmony, negatively impacts the employer’s business, or fails to align with the employer’s
duty to promote social justice and equality.
• The absence of remorse, denial of wrongdoing, or failure to apologise may be
aggravating factors justifying dismissal.
Analysis:
a) Was the phrase “swart man” racist and derogatory?
• The Constitutional Court (CC) held that in the context of apartheid’s legacy, the term
“swart man” is racially loaded and thus derogatory.
• The court reasoned that such language, especially when used in an aggressive and public
manner, can perpetuate racial subordination.
• Even if B’s intention was merely descriptive, the perception and impact of the words
must be considered.
• In this case, the tone and circumstances—B storming into a meeting and using “swart
man” aggressively—underscored the racially charged nature of the utterance.
b) Was dismissal an appropriate sanction?
• The court emphasized that racism in the workplace cannot be tolerated, especially in
industries like mining, which are historically and socially charged with racial inequality.
• Bester’s conduct breached the employer’s zero-tolerance policy on racial abuse, which
explicitly allowed for dismissal for a first offense.
• B displayed no remorse, persisted in a complete denial of wrongdoing, and made no
effort to apologise, indicating that he did not recognize the harm caused by his behavior.
• The court noted that B’s actions undermined the employer’s commitment to fostering a
workplace rooted in social justice and equality, as required in post-apartheid South
Africa.
• Given the facts, dismissal was found to be a proportionate and appropriate sanction.
Conclusion:
• The Constitutional Court upheld the appeal, finding that:
1. The term “swart man,” as used in the context of this case, was racist and derogatory,
given the legacy of apartheid and the racially charged connotations of the words.
2. The sanction of dismissal was appropriate, as Bester’s conduct was inconsistent with
the duty to maintain harmonious workplace relations, violated the employer’s zero-
tolerance policy, and undermined the employer’s business interests in promoting
social justice and equality.
2
, • The appeal was upheld, and the dismissal was confirmed.
Key Takeaways:
Context Matters:
• The meaning and effect of language depend heavily on the context in which it is used,
particularly in a workplace within a society with a history of racial inequality.
Zero-Tolerance for Racism:
• South African courts take a firm stance against racism in the workplace and support
employers in implementing strict policies against racial abuse, even if it is a first offense.
Impact Over Intent:
• Even if racially charged words are intended to be descriptive, courts will consider their
impact on workplace relations and whether they perpetuate racial inequality or harm.
Remorse and Accountability:
• A lack of remorse, failure to apologise, and denial of wrongdoing can aggravate the
seriousness of misconduct and justify a harsher sanction, such as dismissal.
Employer’s Duty:
• Employers in South Africa have a duty to promote social justice and equality in the
workplace and to take appropriate action against behavior that undermines these
principles.
Three commonly encountered rules are a generic ‘use of abusive language or conduct’, a
more specific ‘sexist or racial abuse’, and also ‘sexual harassment’
• Where remarks were racist is that laid down in Rustenburg Platinum Mine v SA Equity
Workers Association obo Bester:
◦ ‘whether a reasonable, objective and informed person would on the correct facts
perceive it to be racist or derogatory’ , provided that this test is NOT ‘sanitised’ and
applied in the abstract but placed in the historical context of SA.
Department of Home Affairs & Another v
Ndlovu & Others (2014) 35 ILJ 3340 (LAC)
Department of Home Affairs v Ndlovu 2014 (LAC), concerned misconduct in relation to
CV fraud
Facts
• In this case, the employee, was appointed as an area manager. Later it became clear that
he had misrepresented the fact that he possessed a degree in technology marketing on
his CV. The employee thus faced charges of gross dishonesty, misrepresentation, breach
of obligations on good faith, trust and confidence and a breach of the SMS handbook.
The employee was subsequently dismissed by the employer
• The arbitrator of the GPSSBC upheld the dismissal
3
