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[2017] ZALAC 23
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SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA45/16
SAEWA
obo MEYER
BESTER

Appellant
and
RUSTENBURG
PLATINUM
MINE

First Respondent
KOBUS
ERASMUS
N.O.

Second Respondent
Held:
21 February 2017
Delivered:
03 May 2017
Summary:
Review of arbitration award – employee dismissed for making
untoward racial remarks towards a fellow employee by
referring to him
as “swartman”.
Held:
Employer bore the evidentiary burden in the arbitration proceedings
to prove that the language used was objectively derogatory.
The test
is an objective one - the court must examine the entire context in
which the misconduct is alleged to have occurred and
decide on a
balance of probabilities whether the employee is guilty of such
conduct and whether the employer has discharged the
onus
of
proof - 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.
Although
the impact of a derogatory or racist word upon a person to whom it is
addressed is not entirely irrelevant, the fact that
he or she felt
offended is only one element; the word itself must be shown to be
derogatory and racist in context. Evidence shows
that the employee
had no reason to denigrate his fellow employee as he did have a need
to identify the other employee
-
a person whose name, rank and
division was unknown to him
-
and he used race as a descriptor in
doing so. The employee was charged with “making a racial remark
by referring to a fellow
employee as a “swartman” when
requesting that he moved his vehicle”
-
but that was not the only plausible
inference that could be drawn from the proven facts and the
probabilities. The inference that
the employee used the word
“swartman” in context to describe the other employee
whose name he did not know, was equally
plausible. This was the
outcome that the Commissioner arrived at in the arbitration award. In
view of  the ambivalence on
the evidence in relation to whether
the employee’s  use of the word “swartman” in
context was derogatory
and racist, the decision reached by
Commissioner was one that a reasonable decision-maker could reach.
In
a racially charged society such as ours, where an accusation of
racism has far reaching and serious consequences, it is important
to
carefully scrutinise the context in which a race descriptor is used,
and not to presume that the mere use of a race descriptor
is
axiomatically derogatory and racist.
The
Labour Court, however, erroneously adopted a subjective test in
determining the effect of the word in question. The Commissioner

arrived at a reasonable outcome. Labour Court’s judgment set
aside and replaced with a decision to the effect that the review

application is dismissed. Appeal upheld with costs.
Coram:
Jappie, Davis JJA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
The appellant, Mr Meyer Bester (“Bester”), appeals
against the judgement of the Labour Court (Van Niekerk J) in
which it
set aside on review a Commissioner for Conciliation, Mediation and
Arbitration (CCMA) arbitration award in which the second
respondent
(“the Commissioner”) found the dismissal of Bester by the
first respondent, Rustenburg Platinum Mine (“RPM”)
to be
procedurally and substantively unfair.
[2]
On 28 May 2013, RPM dismissed Bester, a Senior Training Officer
stationed at its Thembelani Mine (“the Mine”), on
the
grounds of insubordination and making certain racial remarks. On 24
April 2013, Mr Ben Sedumedi (“Sedumedi”), employed
by RPM
as a Chief Safety Officer at the Mine, held a safety meeting at which
Mr Pieter van der Westhuizen (“van der Westhuizen”),
Mr
Michael Soko, Ms Salome Moeng (“Moeng”), Mr Tshepo Segona
(“Segona”), Ms Phumzile Gobinamba and Mr Solly
Tlhomelang
(“Tlhomelang”) were present. While the meeting was in
progress, Bester entered the office to raise an issue
falling within
the scope of Mr Sedumedi’s authority relating to parking.
[3]
About two weeks before this date, Bester found a large 4X4 vehicle
(“the vehicle”), similar in size to his own,
parked in
the parking bay adjacent to the one that Sedumedi, as a favour, had
allocated to him. Though reverse parking in so limited
space was not
impossible, it was certainly difficult, and Bester feared that
scratches and bumps may result. He, therefore, decided
to take the
matter up with Sedumedi in an effort to arrange for the vehicle to be
parked in one of the other available bays. Bester
made repeated
efforts to raise the issue with Sedumedi, which included phoning him
several times only to have the phone slammed
down on him.
[4]
On 17 April 2013, Bester took photographs of the two parking spaces.
Sedumedi saw Bester do this, but when Bester tried to approach

Sedumedi to speak to him about his parking difficulty, Sedumedi
brushed Bester off. Bester then sent an e-mail to Sedumedi to which

he attached the photographs. In the covering note to the e-mail, he
wrote: “you don't want to talk to me so I think I must
take
this [matter] a little bit further”. However, Sedumedi regarded
the message as “valueless” and chose neither
to open the
attachment to the e-mail nor reply to it. Mr Charles Cantor discussed
the problem with Sedumedi at Bester’s request,
but Sedumedi
still refused to speak to Bester about it. Sedumedi instead
instructed Tlhomelang, the owner of the vehicle, to take
no notice of
Bester’s concerns and to continue parking his vehicle in the
parking bay next to Bester.
[5]
On the morning of 24 April 2013, Bester walked into Sedumedi’s
office. There is a dispute as to what took place there.
On Bester’s
version, there was no meeting in progress. He testified that Sedumedi
and van der Westhuizen, the Engineering
Safety Officer, were
discussing jogging. When they finished chatting, he asked to talk
about his parking difficulty, but Sedumedi
responded by saying that
he would not speak to a "C5" grade employee. After being
told that Bester was actually a D -
grade operative, Sedumedi jumped
up from behind his desk and said “jy wil nie langs ‘n
swartman stop nie… dit
is jou problem”. After asking
Sedumedi “not to turn this into a racial issue”, Bester
indicated that he proposed
to take the matter up with senior
management. Sedumedi responded by saying that he should do as he
wished.
[6]
The thrust of RPM’s version as testified to by Sedumedi, Moeng,
van der Westhuizen and Tlhomelang is that Bester stormed
into a
safety meeting that was in progress, pointed his finger at Sedumedi
and said, in a loud and aggressive manner, that Sedumedi
must
“verwyder daar die swartman se voertuig” (from the
parking bay) otherwise he would take the matter up with management.

RPM charged Bester with two acts of misconduct: insubordination and
making racial remarks by using the word “swartman”
to
refer to a fellow employee when he requested that he move his
vehicle. On 25 April 2013, RPM suspended Bester pending the outcome

of a formal disciplinary enquiry. On 23 May 2013, Mr De Jager (“De
Jager”), the chairperson of the disciplinary enquiry,
found
Bester guilty of insubordination and making racial remarks to a
fellow employee. De Jager recommended the sanction of dismissal
and,
on 28 May 2013, RPM dismissed Bester.
[7]
Having unsuccessfully appealed against his dismissal, Bester referred
an unfair dismissal dispute to the CCMA on 3 June 2013.
The dispute
was not resolved through conciliation and was referred to
arbitration. The Commissioner handed down his award on 19
December
2013. Finding that De Jager’s decision was “far-fetched
and nonsensical”, the Commissioner held that
Bester’s
dismissal was both substantively and procedurally unfair. He
accordingly ordered RPM to reinstate Mr Bester with
retrospective
effect to his position as Senior Training Officer and awarded him
back pay in the amount of R191 834 21.
[8]
Although the Commissioner concluded, in the award, that Sedumedi was
an “extremely poor and very evasive witness”,
he accepted
that Bester had used the expression “swartman”. In
support of this conclusion, he relied on the probabilities
and an
apparent concession, to this effect, in the version which Bester’s
representative had put to Moeng.
[9]
Aggrieved by the arbitration award, RPM launched an application to
review and set it aside. In the review, the Labour Court
outlined the
issues as being twofold: (a) whether there was a reference by Bester
to a co-worker as a “swartman”, and
(b) whether in making
that remark, Bester breached a workplace rule that prohibits abusive
and derogatory language and in particular
racist remarks? On the
former issue, the Labour Court rejected Bester’s testimony over
that of Sedumedi, Moeng, van der Westhuizen,
and Tlhomelang who were
present at the meeting, and found that the Commissioner had been
right to conclude that Bester used the
expression “swartman”
to refer to the person who parked next to him.
[10]
In relation to the latter issue, the Labour Court’s critique of
the Commissioner’s evaluation of the evidence,
which was
presented at the arbitration hearing, is summed up in the following
two paragraphs of the judgment:
‘
[The
Commissioner] accepts Bester’s version that there was no
meeting underway at the time he entered the office, this despite
the
evidence of all of the other witnesses present who confirmed that the
meeting had commenced, and van der Westhuizen’s
denial that he
had been engaged in conversation with Sedumedi about jogging routes.
The Commissioner then accepted that Bester
had pointed his finger at
Sedumedi, not because of any evaluation of the evidence but on
account of his personal observation of
Bester's mannerisms while
giving evidence. He also appears to accept that the applicant's
witnesses had a clear recall of the sequence
of events and in
particular that Bester had used the word ‘swartman’ to
refer to the person parking next to him. Because
Tlhomelang did not
know Bester prior to the incident, it is highly probable that Bester
might have used the term ‘swartman’
to identify him.
The
basis of the commissioner’s factual findings leaves one with a
sense of bewilderment. In essence, he accepts that the
meeting had in
fact commenced only on account of the detailed nature of Bester's
account of a conversation that he says was being
conducted between
Van der Westhuizen and Sedumedi, a conversation they both deny ever
took place. The detail of Bester's version
in these circumstances is
entirely irrelevant – there was no cogent reason for the
commissioner to reject the evidence of
both Sedumedi and Van der
Westhuizen in this respect – their evidence (that the meeting
was underway when Bester stormed
through the door) was consistent,
and consistent with the evidence of the other employees present at
the meeting. The next factual
finding, that Bester had pointed his
finger at Sedumedi, is made without any reference to the evidence.
The commissioner’s
finding is sustained by no more than the
commissioner’s personal observation of Bester's demeanour. The
finding that Bester
uttered the word ‘swartman’ is
sustained by the evidence and despite Bester's denial, clearly
correct.'
[11]
The Labour Court then referred to
Modikwa
Mining Personnel Services
[1]
and the judgements of this Court cited there
[2]
and reasoned that:
'
What
the
Modikwa
Mining
judgment (and many others) demonstrate is that despite the formal
dismantling of institutional apartheid, issues of race and racism

remain prevalent in South African workplaces. The use of racial
identifiers plays an obvious role in the perpetuation of negative

stereotypes. The concept of race, as a social construct, continues to
be imbued with ideological baggage and can serve the purpose
of
subjugation, where particular race groups continue to be viewed as
‘other’.’
[12]
The Labour Court went on to hold that “[i]n the present
instance, there is no conceivable reason why race might justifiably

have served as an identifier”. In relation to context, it
stated that:
‘
To
the extent that context is relevant, it should be recalled that
Bester stormed into a meeting that was in progress, that he was

aggressive and belligerent, that he pointed his finger at Sedumedi
and in a loud voice demanded that Sedumedi removes the ‘swartman’s

car from next to his. Those present at the meeting were offended by
Bester’s conduct. Bester was not, as the Commissioner

suggested, benignly ‘referring to a physical attribute in order
to identify a particular person’. Bester’s reference
to
Tlhomelang as a ‘swartman’ was derogatory and racist.'
[13]
On sanction, the Labour Court found that the Commissioner had failed
to appreciate the significance of the memorandum issued
by RPM’s
General Manager on 16 April 2013 which read:
‘
It
has come to management's attention that some employees use abusive
language with fellow employees. It was also raised with management

that some senior management are swearing and shouting at their
subordinates.
This
practice is not in accordance with our values and does not
demonstrate care and respect towards each other and will therefore

not be tolerated at Thembelani Mine.
Disciplinary
action will be taken against anyone who uses abusive language towards
another person on Thembelani Mine. Let us refrain
from using
derogatory language against each other and strive to work together
harmoniously as One Team.’
[14]
In relation to the memorandum, the Labour Court stated that RPM had
adopted a zero-tolerance approach to the use of derogatory
and
abusive language, a fact of which Bester was aware. It accordingly
concluded that on a proper assessment of the evidence presented
at
the arbitration hearing, the Commissioner “reached a decision
that a reasonable decision-maker would not have reached”.
In
this regard, it reasoned:
‘
Even
if the Commissioner’s flawed reasoning were to be disregarded,
the result cannot be sustained on the basis that it nonetheless

represents a reasonable result. Bester committed an act of serious
misconduct that warranted his dismissal. On that ground alone,
the
award stands to be reviewed and set aside.’
The
Labour Court accordingly reviewed and set aside the arbitration award
and substituted it with an order declaring that Bester’s

dismissal was both substantively and procedurally fair. It is against
this finding that Bester appeals, with leave of the Labour
Court.
[15]
It is close on two decades since the dismantling of the apartheid
regime, yet racism remains a key challenge to our democracy.
Racism
is particularly pervasive in the workplace, where concerned employers
have adopted a zero-tolerance approach to racist conduct
and the use
of racial expressions or epithets which are derogatory by making such
misconduct a dismissible offence. Our courts
have correspondingly
dealt with acts of racism, and the use of racist language in
particular, very firmly visiting upon such conduct
the sanction of
dismissal.
[3]
[16]
Bester was charged with the offence of making a racial remark by
referring to a fellow employee as a “swartman”
when he
requested that the “swartman” move his vehicle. RPM’s
disciplinary code defines the offence as “racial,
ethnic or
other abuse or harassment”. The memorandum issued by RPM in
early April 2013 prohibits conduct that is “abusive”
and
“derogatory.” The test that applies to the determination
of whether the use of the word “swartman”
by Bester was
derogatory or abusive, and in contravention of RPM’s
disciplinary code, is an objective one.
The
employer, in this case, RPM, bore the evidentiary burden in the
arbitration proceedings to prove that the language used by Bester
was
objectively derogatory. The test is not based on how the employer
understood the word 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.
[17]
As to the first element, which is whether Bester used the expression
“swartman”, the evidence presented at the
arbitration
hearing reveals that Bester emphatically denied using the expression
“swartman” in his exchange with Sedumedi,
recognising
that that would have been foolish in the workplace and devastating to
his career. He, however, accepted that the sanction
of dismissal
would be an appropriate sanction for such misconduct. Despite
Bester’s denial to the contrary, the Commissioner
found that
Bester had, in fact, used the word “swartman” in
referring to the person (Tlhomelang) who parked in the
bay next to
him. Rightly so, it was conceded on behalf of Bester in argument that
the Commissioner’s finding on this issue
is not beyond the
bounds of reasonableness contemplated in
Sidumo
[4]
and it must, as a result, be treated as dispositive.
[18]
Mr Boda, on behalf of RPM, argued that this concession coupled with
Bester’s failure “to come clean” compels
the
inference that he uttered the word “swartman” with intent
to be derogatory to Tlhomelang because of his race, thus
providing a
basis for the Court to demonstrate its moral opprobrium to such
conduct by confirming the sanction of dismissal imposed
by RPM, the
employer. Although I am mindful that racist conduct in the workplace
is a serious offence and “an anathema to
sound industrial
relations” warranting the sanction of dismissal, it is
important to bear in mind the gravity of a judicial
finding of racism
which will surely reverberate for many years after the incident with
potentially long term consequences for all
concerned.
Consequently,
before making such a finding against an employee accused of racist
conduct in the workplace, the court must carefully
scrutinise,
against the totality of the evidence presented, whether on a balance
of probabilities the employee is guilty of such
conduct. Where
certain denials and versions advanced in support of an ill-considered
defence strategy are subsequently found to
be mendacious as is the
case here, that alone should not be the determining factor in
relation to the question of the guilt or
otherwise of that employee.
In dealing with this question, the task of the court is to decide
whether on the assessment of the
evidence as a whole, the
probabilities and the inferences that the employer has discharged the
onus
of proof on a balance of probabilities.
[19]
In determining whether the word “swartman” is derogatory
on the objective test, the use of the word must be looked
at in the
context in which it was made. It is clear from the judgment that the
Labour Court implicitly recognised that the word
“swartman”
is neutral on the face of it, and would require context if it were to
acquire a “pejorative”
meaning. For instance, and as
pointed out in argument on behalf of Bester, the term “black
man”, if used by a black
person to refer to another black
person, would not lose its neutrality: for example, “the
unidentified person who called
yesterday was a black man”.
However, when the word loses the neutrality, it can be pejorative.
But it can equally be laudatory:
for example, a bumper sticker of the
by no means distant past proclaimed: “'I thank God I am a black
man, Amen”. Context
is, therefore, decisive to the neutrality
or otherwise of the term “black man”
[20]
The Labour Court was, indeed, constrained to consider context in
determining whether the expression “swartman”
as used by
Bester, in his exchange with Mr Sedumedi, was derogatory
.
On the objective test, this meant that
the Labour Court had to examine the entire context in which the
misconduct is alleged to
have occurred and the effect thereof. The
context of course had to disclose, as the only reasonable inference
from the proven facts,
that the word “swartman” was
derogatory and racist, and that Bester had acted with intent to
demean. Only then could
the Labour Court upset the decision of the
Commissioner, which was that no intent to demean had been proven
.
[21]
The objective facts are that Bester was angry with Sedumedi for
refusing to assist him to resolve his parking problem. This
caused
him to act precipitously by storming into Sedumedi’s office and
demanding in an “aggressive and belligerent”
manner that
Sedumedi must instruct the “swartman” to remove his car
from next to his. Bester did not know Tlhomelang,
the owner of the
4x4 vehicle which parked in the bay next to him, and neither did
Tlhomelang know him. An important contextual
fact is that Bester is
white and to his knowledge the person parked next to him was black.
Whilst Bester’s status as a white
person would bring him within
the scope of potential condemnation, that alone is insufficient for
such a finding. I say this because
it is clear from the record of
evidence that the issue in dispute has nothing to do with the race of
the person who parked next
to Bester. There is no suggestion on the
evidence that Bester objected to parking next to a “black man”.
The real issue
is whether Bester’s use of the descriptor “black
man” to identify the owner of the vehicle parked in the bay
next to his was derogatory.
[22]
The evidence of Sedumedi and Moeng, although not decisive, is
nonetheless important to the question of context. Mr Sedumedi

described the exchange as “frightening” because never
before did someone interrupt a meeting that he was conducting,
and
point a finger at him in the presence of his subordinates. According
to him, they were “all terrified”. He then
put the matter
firmly on the footing that Bester knew the name of the owner of the
vehicle, namely Tlhomelang, by saying this:
‘
I
was very much offended by him classifying the guy parking next to him
as swart man and especially when previously Mr Bester …
knew
exactly the name of [the] person parking next to him but he chose on
that particular day to classify and call him by the name
swart man.’
Moeng
was likewise under the impression that Bester knew Tlhomelang. Under
cross-examination, she sought to equate Bester’s
failure to
refer to Tlhomelang by name, with Bester’s legal representative
calling her “a lady”, when he clearly
knew her name. She
later testified that Bester’s use of the word “swartman”
was offensive as it showed that “[Bester]
did not want a black
man parking next to him”. However, when confronted under
cross-examination with the inaccuracy of her
proposition, she quickly
backtracked from it.
[23]
Sedumedi and Moeng felt offended. Their affront rested squarely upon
the assumption that Bester, a training officer, could
have identified
Tlhomelang (the driver of the vehicle parked next to his) by name as
Bester had inducted him. But on this aspect
Sedumedi was mistaken.
Bester was not responsible for inductions. He, in fact, had only met
Tlhomelang, who had been at the Mine
for a fortnight, during the
course of the incident in Sedumedi’s office, and they chatted
amiably to each other immediately
after the incident. Both
Tlhomelang, who testified in support of RPM’s case at the
arbitration hearing, and Bester made this
clear when they each
testified that they did not know one another nor each other's names
prior to the incident. It is, therefore,
not surprising that
Tlhomelang himself took no offence at being referred to as “die
swartman”.
[24]
The Labour Court found that “Bester stormed into a meeting; was
aggressive and belligerent; pointed his finger at Sedumedi
and in a
loud voice demanded that Sedumedi removes the swartman’s car
from next to his”. Although I accept this finding
to be
correct, I am unable to reconcile this finding with the subsequent
finding that “Bester’s reference to Tlhomelang
as a
‘swartman’ was derogatory and racist”. How the one
relates to the other is not spelt out in the judgment.
The latter
finding, however, is certainly compatible with the related finding
that “those present in the meeting were offended
by Mr Bester’s
conduct”. The Labour Court made this finding even though the
evidence reveals that only Sedumedi and
Moeng felt offended because
they were seemingly ignorant of the true facts. At most, van der
Westhuizen who was also present at
the meeting viewed Bester’s
conduct as inappropriate. And Tlhomelang, as I already indicated was
not offended at Bester’s
conduct.
[25]
Although the impact of a derogatory or racist
word upon a person to whom it is addressed is not entirely
irrelevant, the fact that
he or she felt offended is only one
element; the word itself must be shown to be derogatory and racist in
context. In other words,
the words must be found to be objectively
derogatory on the evidence viewed as a whole. The Labour Court,
however, erroneously
adopted a subjective test in determining the
effect of the word in question upon “all those present at the
meeting”
in Sedumedi’s office on the morning of the
incident. However, how they perceived or understood the word
“swartman”
used in context is not decisive. On the
objective test, the question that the Labour Court ought to have
asked was whether, in
the opinion of a reasonable person possessed of
all the facts, Bester’s use of the word “swartman”
in context
was derogatory and racist?
Had Sedumedi and Moeng
known the true state of Bester’s knowledge, I am of the view
that they would not have viewed the expression
“swartman”
in context as offensive.
[26]
Although cognisant of the danger to speculate, this is precisely what
the Labour Court did in the final analysis. In holding
that “there
is no conceivable reason why race might justifiably have served as an
identifier”, the Labour Court assumed
that Bester had reason to
denigrate both Sedumedi and Tlhomelang. In doing so, it ignored four
cardinal facts on the evidence.
The first and second are that Bester
did not know Tlhomelang (the person he described by race) and
therefore had no reason to denigrate
him. The third is that Bester
had no need to denigrate Sedumedi, with whom he had a close working
relationship. And the fourth,
as emphasised by Bester in his
testimony at the arbitration hearing, is that he would have been a
fool to denigrate black people
in general in front of black
co-employees of a company in which racism is deplored. As we know,
just two weeks prior to the incident,
RPM issued a memorandum to all
its employees, working at the Mine, warning them against the use of
abusive and derogatory language
as this would be visited with
disciplinary action.
[27]
While it is clear on the evidence that Bester had no reason to
denigrate either Sedumedi or Tlhomelang, he did have a need
to
identify Mr Tlhomelang
-
a
person whose name, rank and division was unknown to him
-
and he used race as a descriptor in
doing so. He may have been unwise to opt for this descriptor but his
lack of wisdom is not the
point in issue. He was charged with “making
a racial remark by referring to a fellow employee as a ‘swartman’

when requesting that he moved his vehicle”
-
but that the context discloses the
word to be derogatory and racist is certainly not the only plausible
inference that can be drawn
from the proven facts and the
probabilities. The inference that Bester used the word “swartman”
in context to describe
Tlhomelang, the driver of the vehicle whose
name he did not know, would be equally plausible.
[28]
This is, in essence, the outcome that the Commissioner arrived at in
the arbitration award. Having regard to the ambivalence
on the
evidence in relation to whether Bester’s use of the word
“swartman” in context was derogatory and racist,
I am
simply unable to say that the Commissioner’s decision, on the
Sidumo
[5]
test, is not one that a reasonable decision-maker could reach.
Notwithstanding the irregularities in his reasoning, as highlighted

in the judgment of the Labour Court, the Commissioner considered the
principal issue before him, evaluated the facts presented
at the
arbitration hearing and came to a conclusion that is reasonable.
[6]
Accordingly, the Labour Court erred in finding that the Commissioner
“reached a decision that a reasonable decision-maker
would not
have reached”.
[29]
It is a valid concern that the use of race descriptors without more
to describe people of different races provides no information
beyond
permitting the audience to lump people into social groupings akin to
racial stereotyping, the perpetuation of which must
be discouraged.
However, in view of South Africa’s legacy of racial
segregation, it would be remiss to overlook the tendency
to identify
people of different race groups by using race descriptors, whether
inadvertently or not. By the same token, it must
be recognised that
racial descriptors can have the effect of perpetuating rather than
healing divisions; “othering”
in the parlance. But this
in itself cannot be regarded as racist. If it were considered to be
so, then organisations seeking to
perpetuate black consciousness and
identity would be subject to outright condemnation
-
and our society has yet to adopt so
absolute a stance.
[30]
As it turns out, van der Westhuisen himself, unwittingly, used a race
descriptor when testifying at the arbitration hearing.
This is
apparent from the following exchange between him and Bester’s
representative during his cross-examination:
‘
MR
ENGELBRECHT:
Dankie. Kan u onthou wie die persone was wat daar was
in die kantoor?
MNR
VD WESTHUIZEN:       Dit is nou ek en
MNR SEDUMEDI, SALOME [MOENG], TSHEPO [SEGONA] – ek
kan nie
daardie ander een
swart mannetjie
se naam onthou nie.
MR
ENGELBRECHT: Die ander wat se naam onthou nie?
MNR
VD WESTHUIZEN:       Die ander
swart
man
se naam.’
Ironically,
van der Westhuizen’s use of this descriptor although of similar
import to that used by Bester to identify Tlhomelang,
whose name he
did not know, went unnoticed by all concerned.
What
this illustrates, is that in a racially charged society such as ours
where an accusation of racism has far reaching and serious

consequences, it is important to carefully scrutinise the context in
which a race descriptor is used, and not to presume that the
mere use
of a race descriptor is axiomatically derogatory and racist.
Race descriptors such as “black man” and “black
woman” are neutral and only by locating them in a “pejorative”

context that their use should be condemned as racist.
[31]
In view of the conclusion that I have arrived at, there is no need to
deal with the appeal against the Commissioner’s
finding that
Bester’s dismissal was procedurally unfair. I also see no need
to deal with the appeal against the Commissioner’s
finding on
the charge of insubordination, as it was not seriously pursued by RPM
on appeal.
[32]
Accordingly, I consider the Labour Court to have erred in reviewing
and setting aside the award of the Commissioner. In the
result, the
finding of the Commissioner that the dismissal of Bester was both
substantively and procedurally unfair must stand.
I see no reason in
law or fairness why costs should not follow the result.
[33]
For all these reasons, the appeal succeeds and it is ordered that:
1
The appeal is upheld with
costs.
2
The order of the Labour Court in the review application is set aside
and
replaced with the following order:
‘
The
review application is dismissed with costs.’
___________________
F Kathree-Setiloane
Jappie
and Davis JJA concur in the judgment of Kathree-Setiloane AJA
APPEARANCES:
FOR
THE APPELLANT

A Landman (Heads of argument prepared by Brassy SC with A Landman)
Instructed by Ronelda van Staden
Attorneys
FOR THE FIRST RESPONDENT:
F Boda SC
Instructed by Cliff Dekker Hofmeyer
[1]
Modikwa Mining
Personnel Services v Commission for Conciliation Mediation and
Arbitration and Others
(2013)
34 ILJ 373 (LC).
[2]
Crown Chickens
(Pty) Ltd t/a Rocklands Poultry v Kapp and Others
(2002) 23 ILJ 863
(LAC) and
Lebowa
Platinum Mines Ltd v Hill
(1998) 19 ILJ 1112 (LAC).
[3]
Crown Chicken’s
(Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[2002] 6 BLLR 493
(LAC) at para 38,
South
African Revenue Services v Kruger
[2017] 1 BLLR 8 (CC).
[4]
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para 110.
[5]
Sidumo and
Another v Rustenburg Platinum Mines Limited and Others
2008 (2) SA 24
(CC).
[6]
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Other
s
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).