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[2012] ZALCJHB 61
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Modikwa Mining Personnel Services v Commission for Conciliation Mediation and Arbitration and Others (JR1904/2010) [2012] ZALCJHB 61 (29 June 2012)
15
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR1904/2010
In the matter between:
MODIKWA MINING
PERSONNEL SERVICES
…............................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…..................................................
First
Respondent
TALANE S (NO)
….........................................................................
Second
Respondent
RAMAEPADI S E
…............................................................................
Third
Respondent
THE NATIONAL UNION OF
MINEWORKERS
…...........................
Fourth
Respondent
HEARD: 24 May 2012
DELIVERED: 29 June
2012
Summary: Review –
Dismissal for racist remarks – What constitutes racist slurs or
remarks – Role of arbitrator
JUDGMENT
GAIBIE, AJ
Introduction
This is an application
to review and set aside the arbitration award issued by the second
respondent (‘the Commissioner’)
under case number
LP6158-09 dated 21 June 2010.
This matter concerns
racism or the utterance of a racial slur by a black employee
(‘Ramaepadi’) against white employees,
and his dismissal
in consequence thereof. Mr Ramaepadi challenged the substantive
fairness of his dismissal.
Background facts
The applicant’s
mining operations comprise of two shafts, the north shaft and the
south shaft. The applicant has employees
who are known as Multi Task
Team Members (“MTTMs”). They provide geological,
surveying, sampling and planning services
to the applicant. Their
primary function is to collect various soil and ground samples from
the different underground working
areas for analysis. This
information is shared on a daily basis with the technicians. The
information gathered is used for a
variety of purposes including an
assessment of the roof conditions where underground mining
activities take place in order to
determine the appropriate roof
support required in particular areas of the mine.
While the north shaft
has more white employees, the south shaft consists of essentially
black employees.
The incident in this
matter occurred on 4 August 2009, at an economic resources
management staff meeting (‘the meeting’).
A large number
of employees and MTTMs from both the north and south shafts attended
the meeting including Ramaepadi, who was
the applicant’s
trainee resource technician and a shop steward of the National Union
of Mineworkers.
It is not disputed that
the applicant had previously experienced issues of racism at the
mine and in consequence thereof adopted
a zero tolerance policy
towards racism. In a management brief numbered 016/2005, dated 30
August 2005, the applicant issued the
following directive to all
employees:
‘
This brief
serves to inform all employees that it has come to management’s
attention that there has been a high number of
allegations of racism
at Modikwa.
In terms of Modikwa Code of Conduct
clause 7.7 bullet point 8 such racism incidents/cases are prohibited
and will not be tolerated.
I hereby urge everyone to refrain from
any form racism. Anyone found guilty of any racism related incidents
will be DISMISSED.
Yours in zero tolerance
...’
The applicant contends
that after the formal business of the meeting was concluded, and at
a point when many of the attendees
got up to leave, Ramaepadi stood
up to address the meeting and said that there was a problem with the
use of the ERM office in
the mornings at the north shaft. He said
that MTTMs were unable to use that office because other employees
such as technicians
would be sitting in that office, and that the
problem ‘had to do with concentration, we need to get rid of
the whites.’
For convenience this
event will be referred to as the ‘incident’ and the words
quoted will be referred to as the ‘slur’
or the ‘racial
slur’.
On 10 September 2009 and
pursuant to grievances lodged by several employees, the following
charge was formulated against Ramaepadi:
‘
Use of
racial remarks in that he uttered the words “we need to get rid
of the whites” on the 4
th
August 2009 during the meeting at central.’
Pursuant to disciplinary
proceedings, Ramaepadi was found guilty of that charge and he was
dismissed.
Ramaepadi denied that he
had uttered the slur and much of his defence turned on establishing:
Whether or not the
slur was uttered; and
If so, at what stage
of the meeting the slur was made. The relevance of this issue
will become apparent later in this
judgment.
It was not contended on
behalf of Ramaepadi that the words ‘
we
need to get rid of the whites
’
did
not constitute a racial slur or a racial remark. In fact, it was
contended on his behalf
1
that he was aware that
‘
the
use of racial remarks is not allowed at the applicant’s mine
’
.
Was the racial slur
made, and if so when?
In respect of this
matter, the applicant led the evidence of:
Jacques Hansen
(‘Hansen’), a resource technical surveyor, who
worked on the same shift as Ramaepadi. Hansen
had previously
worked for the applicant, but left for a year and then returned
to the applicant in July 2009. Hansen
was seated approximately
four to five metres from Ramaepadi at the meeting. He had no
previous altercations or interactions
with Ramaepadi as at the
time of the incident.
Wiehann Raith
(‘Raith’), a stope observer, who has been employed
by the applicant since February 2006, and
worked on the same
shaft as Ramaepadi. He had a good relationship with his
colleague, Ramaepadi. It was estimated that
he was approximately
eight metres from Ramaepadi.
Nardus Cronje
(‘Cronje’), a resource leader surveyor, who has had
a contractual relationship with the applicant
since 2001, first
as a contractor and then as an employee. He took the minutes of
the meeting and was seated approximately
five metres from
Ramaepadi. He had no previous altercations with Ramaepadi.
Hansen, Raith and Cronje
heard Ramaepadi utter the slur at the meeting. Their accounts of
exactly what was said were broadly similar.
All three witnesses
confirmed that the slur was made at the end of the proceedings
either slightly before the meeting was adjourned
or shortly
thereafter. It was common course between them that they were
offended by the slur. Their evidence was coherent, consistent
and
was not seriously challenged by Ramaepadi’s representative.
There was, in any event, no suggestion by Ramaepadi that
their
evidence was fabricated, or that it was conspiratorial in any sense.
Ramaepadi gave evidence,
and on his behalf the evidence of three employees: Khaya Mabutya
(‘Mabutya’), Beverley Kgetsi
(‘Kgetsi’) and
Sylvester Maake (‘Maake’) was led.
Ramaepadi denied that he
had uttered the slur but indicated that he had said that ‘there
is a high concentration of white
technicians in North Shaft and we
need to take some to South Shaft in order to create a balance. The
chairperson Mr Bob Van Rhyn
acknowledged my input and said that he
will make a follow-up on it. The meeting proceeded until it was
officially closed’.
He suggested that he had made this
contribution at item 2 of the agenda and he confirmed the
proposition put to him by the commissioner
that ‘the meeting
then proceeded for quite some time before it was officially closed’.
Mabutya also denied that
Ramaepadi had uttered the slur, but contrary to him, indicated that
Ramapaedi had raised the issue of
the concentration of white
technicians in the north shaft, at the end of the meeting.
Kgetsi’s evidence
was broadly similar to Ramaepadi’s evidence. Maake’s
evidence was almost in its entirety led
by the commissioner. His
account of what was said at the meeting is captured in the following
excerpt from the transcript of
the arbitration proceedings:
2
‘
MR
COMMISSIONER
:
Now you said how far were you seated from [Ramaepadi] that is the
employee?
....
MR COMMISSIONER
: Now you can –
you can estimate here. I do not know how broad your chairs are. You
can estimate.
....
MR MAAKE
: Yes. Something like
four metres
MR COMMISSIONER
: Okay, about
four metres roughly. Now did he say – did you hear the words
that he uttered, let us get rid of the whites?
MR MAAKE
: Yes.
MR COMMISSIONER
: Okay. If he
was seated some four metres away from you, if he had said these
words, would you have heard that?
MR MAAKE
: Definitely.’
Under cross examination
Maake confirmed his evidence in chief in the following exchange:
‘
MR
MBETHE
:
I am saying this issue, were they uttered these words to say let us
get rid of white people ... at the end of the meeting?
MR MAAKE
:
Right in the meeting.
MR MBETHE
:
Right at the end of the meeting?
MR MAAKE
:
No, at the end of the meeting he spoke and then he finished and then
BOB answered him, he said he will follow up on that and then
there
... and then he said anyone offended then the answer was no and then
the meeting dispersed.
3
....
MR MBETHE
:
I thought that you were just prepared to come and tell us that the
issue was discussed under communication and you never heard
the words
let us get rid of them and you did not hear anything and you were
seated very far from where he was, 4 metres with other
people
present, you did not hear anything.
MR MAAKE
:
Mr Mbethe when I do my medical fitness they test my ears I am sure I
heard these words.’
4
At some point of the
cross examination, the applicant’s representative suggested
that Maake’s evidence was unreliable
in respect of the precise
timing as to when the slur was uttered. Be that as it may, Maake had
in essence confirmed and corroborated
in formidable fashion the
applicant’s version that the slur had been uttered.
The relevance, if any,
as to when the slur was uttered was raised on behalf of Ramaepadi in
an effort to avoid the implication
of the charge which suggested
that the racial slur was uttered ‘during’ and not after
the formal adjournment of the
meeting. It was argued that if the
slur was made during the meeting, the scribe would have recorded it
in the minutes of the
meeting, and in the absence of such a
recordal, the incident did not occur and the racial slur was
accordingly not uttered.
It was common cause, in
the evidence of all of the witnesses, that either the slur or
Ramaepadi’s comment about the concentration
of whites in the
north shaft was made at the meeting whilst employees were still
present. On Ramaepadi’s own version, his
comment was made
early in the meeting. In any event, the detail as to precisely when
the racial slur was made is neither here
nor there. Once the deed
was committed, it is immaterial whether it was made shortly before
or after the formal part of the meeting.
In the circumstances,
and on the basis of the applicant’s evidence which was
independently corroborated by the evidence
of Maake who testified
for Ramaepadi, I find that the words formulated in the charge were
uttered by Ramaepadi at the meeting.
In other words, he uttered the
racial slur at the meeting.
The context of the
racial slur
Our courts have dealt
with many incidents of racism, the vast majority of which have
involved incidents of overt racism by whites
against Africans.
5
There will no doubt be
occasion when this court will have to deal with implicit, indirect
or covert incidents of racism. The context
in which such incidents
occur or the racial slurs are made will always be important.
In respect of overt acts
of racism, our courts have readily had regard to the social,
political and historical context of racism
in this country. Consider
for instance, incidents of racism that had been dealt with by the
High Court during the apartheid era,
and in respect of which Zondo
JP (as he then was) makes reference in his judgment in
Crown
Chickens
6
.
I quote below the relevant part of that judgment where Zondo JP,
with reference to one of those cases and in respect of which
the ‘K’
word had been used, stated that:
7
‘
Mbatha’s
case came to court because he had sued Mr Van Staden for damages
arising out of assault and calling him a “Kaffir”.
The
basis for the claim for damages relating to being called a “Kaffir”
was that Mr Van Staden’s conduct in calling
Mr Mbatha a
“Kaffir” constituted injuria. At 262H of his judgment,
Didcott J said that already then – that is
21 years ago –
when a black man or woman in South Africa was called a “Kaffir”
by somebody of another race, then
“... as a rule, the term is a
derogatory and a contemptuous one”. He continued and said:
“With much the same
ring as the word “nigger” in
the United States, it disparages the Black race and person concerned
as a member of that
race. It is deeply offensive to Blacks. Just
about everyone knows that by now. The intention to offend can
therefore be taken for
granted, on most occasions at any rate”.
... As I have said, when a person who
is not an African calls an African person a “Kaffir”,
such conduct constitutes
racial abuse. The racial abuse of Africans
by certain whites did not stop in the 1970s and 1980s. It continued
into the early 1990s
and continues even today. It takes different
forms but still remains racial abuse.’
In
Crown
Chickens
8
(
supra
)
the LAC dealt with an overt act of racism in the context of our new
constitutional dispensation.
In
that judgment, Zondo JP indicated that South Africa has a
constitution with a justiciable Bill of Rights, and that the
preamble
to the constitution recognises ‘the injustices’
of our past including its racist history. The relevance of the new
constitutional dispensation in this context is articulated in
resounding language by Mohamed J in
S
v Makwanyane and Another
9
in the following terms:
‘
The South
African Constitution is different: it retains from the past only what
is defensible and represents a decisive break from,
and a ringing
rejection of, that part of the past which is disgracefully racist,
authoritarian, insular, and repressive and a vigorous
identification
of and commitment to a democratic, universalistic, caring and
aspirationally egalitarian ethos, expressly articulated
in the
Constitution. The contrast between the past which it repudiates and
the future to which it seeks to commit the nation is
stark and
dramatic. The past institutionalised and legitimised racism. The
Constitution expresses in its preamble the need for
a “new
order ... in which there is equality between ... people of all races.
Chapter 3 of the Constitution extends the contrast,
in every relevant
area of endeavour .... The past was redolent with statutes which
assaulted the human dignity of persons on the
grounds of race and
colour alone; section 10 constitutionally protects that dignity. The
past accepted, permitted, perpetuated
and institutionalised pervasive
and manifestly unfair discrimination against women and persons of
colour; the preamble, section
8 and the postamble seek to articulate
an ethos which not only rejects its rationale but unmistakenly
recognises the clear justification
for the reversal of the
accumulated legacy of such discrimination ...’
It is against this
political and historical background that acts of racism must be
determined. There is no doubt that the use
of the notorious ‘K’
term will almost inevitably amount to racism or racist conduct given
its political and historical
context. It is also conceivable that
the use of clear and unequivocal racist terminology or words that
amount to hate speech,
will in appropriate circumstances, also
amount to racism.
Implicit, indirect and
covert acts of racism, depending on the context in which they occur,
may be as offensive, if not more offensive
than overt racist acts
precisely because they are aimed at achieving the effects of racism
through indirect, underhand or divisible
means.
It is my view that the
terms used by Ramaepadi, on their own and out of context - ‘we
need to get rid of the whites’
– constitute words that
are clear, unequivocal and overtly racist in nature. In other words,
the words speak for themselves
and they conjuctively demonstrate the
intention to be racist. They are, in other words a racist remark or
a racist slur.
During the course of
argument, it was contended on behalf of Ramaepadi that words cannot
on their own amount to a racist slur
and that they must of necessity
be viewed in the context in which they are used for the purposes of
determining whether they
amounted to a racist slur. For reasons
indicated earlier, I disagree with this proposition. Words have
their own meaning and
do not necessarily require a context within
which to acquire meaning. Depending on the words used, there may
however be circumstances
in which words may acquire a different
meaning. I do not believe that the racist slur uttered by Ramaepadi
require a context
for the purposes of interpretation. Their plain
meaning indicate racism.
However, and to the
extent that the context has any bearing on the words used, I believe
that such an exercise is nevertheless
useful.
Given that Ramaepadi had
uttered the words, it is his understanding of the context that is
perhaps the most appropriate place
to begin this process. He said
that he had raised a concern at the meeting about the way the MTTMs
(who were mainly black employees)
were treated and the fact that
they had to use a filthy ‘container’ as an office.
According to him,
the
container was not intended for office use but was meant to store
equipment
10
and did in fact store
overalls, clothes, oils and machines.
11
As a ‘solution’
to this problem, he informed Bob Van Rhyn that there was a high
concentration of whites in the north
shaft and that some of them
should be transferred to the south shaft to create a balance.
12
It appears that he made
this suggestion because whenever the MTTMs wanted to use the office
in the north shaft they were unable
to do so because white
technicians who were concentrated in that shaft occupied that
office.
Ramaepadi was however
unclear as to the precise cause of the problem associated with the
use of the office in the north shaft
or its inaccessibility to the
MTTMs, and his alleged ‘solution’ was no more than a
tentative exercise aimed at assisting
him to achieve answers to a
potential problem that he had not quite worked out. In this regard
he said:
‘
Because the
problem here was in North Shaft, the white resource technicians if
one comment on something they will all fall on that,
so what I wanted
to do is, is to distribute them so that at least the South Shaft and
North Shaft must have equal or even number
for white resource
technicians so that we should see whether really that thing has been
caused by the majority of the white surveyors
there.’
13
It is therefore not
surprising that whilst he appeared to portray this issue as one of
discriminatory treatment against black
employees, he did not elevate
this issue as a grievance or take it up formally with management.
Ramaepadi’s counsel suggested
that the words used were in the
context of his efforts of ‘transformation’ of the
shafts. This proposition is not
sustainable for two reasons: first,
because Ramaepadi was not certain of the reason why there was
unequal access to the office
in the north shaft and could not in
those circumstances have contemplated the noble intentions of
transformation; and second,
because if his intention was to achieve
the noble benefits of transformation, he cannot possible be pardoned
for using ignoble
means of achieving it.
Simply put, the context
in which the words were spoken simply aggravates the purpose for
which they were used. The words constitute
a racial slur or a racial
remark on their own and in the context in which they were used.
Ramaepadi knew that his words constituted
a racial slur and that
white persons who heard it would have been offended by them. He did
the obvious thing. He denied that
he had uttered the words, to his
detriment. His conduct was unacceptable and reprehensible, and it
was conduct that was prohibited
not only by the Constitution but by
the applicant’s disciplinary code.
But Ramaepadi’s
conduct was not only egregious because his conduct was racist or
that it contravened the applicant’s
code, it was so for the
additional reason articulated by Wallis,
14
which was cited with
approval by the court in
Lebowa
Platinum Mines Ltd v Hill
:
15
‘
Perhaps as a
result of South Africa’s history a number of cases in the
Industrial Court and before arbitrators have dealt
with dismissals
arising from the employer taking disciplinary action against
employees engaging in racially offensive conduct towards
co-employees. It does not suffice to explain these cases on the
ground that the employees concerned were acting in breach of specific
provisions of a disciplinary code. Such incidents in the frequently
highly-charged racial or political atmosphere of the workplace
can be
extremely detrimental to working relationships and disruptive of the
entire business operation. It is submitted that a further
foundation
for the disciplinary action taken in these cases is an extension of
the duty of respect owed to superiors by all employees.
Such an
extension involves a recognition of the interdependence of all people
engaged in the enterprise and is consistent with
any reasonable
concept of the importance of human dignity in society. The position
was well expressed by the arbitrator in
Siemens
Ltd v NUMSA
(a
case of racial abuse) in saying: “racial insults go beyond
those to whom they are individually directed. They impact upon
the
workforce as a whole ...”. It is submitted that the proper
basis for regarding the conduct in question .... as misconduct
is
that, irrespective of any provision of an applicable disciplinary
code, such conduct is a breach of the extended duty of respect
identified above.’
Grounds of review
The applicant contends,
in essence, that the commissioner in arriving at the conclusion that
Ramaepadi had not uttered the racial
slur and was consequently not
guilty of the charge proferred against him, took into account
irrelevant evidence and disregarded
relevant evidence, and in so
doing constituted a reviewable irregularity. It is apparent that the
commissioner did not carefully
assess the evidence before him and he
omitted any consideration of relevant evidence, including that of
Maake’s testimony
in reaching his conclusion. In that regard,
the commissioner is
criticised for making various findings relating to the guilt or
otherwise of Ramaepadi, which are premised
on the review test dealt
with below.
The decision reached by
the commissioner is clearly one that would not have been reached by
a reasonable decision maker in terms
of the principle enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
16
In
Pam
Golding Properties (Pty) Ltd v Erasmus and Others
,
17
Van Niekerk J dealt with
reviewable irregularities of the kind committed by the commissioner
in this matter and held that:
‘
In his
judgment in
Sidumo
,
Ngcobo J reaffirmed the role of reasonableness in relation to conduct
in these terms:
It follows therefore that where a
commissioner fails to have regard to material facts, the arbitration
proceedings cannot in principle
be said to be fair because the
commissioner fails to perform his or her mandate. In so doing ... the
commissioner’s action
prevents the aggrieved party from having
its case fully and fairly determined. This constitutes a gross
irregularity in the conduct
of the arbitration proceedings as
contemplated in s 145(2)(a)(ii) of the LRA. And the ensuing award
falls to be set aside not because
the result is wrong but because the
commissioner has committed a gross irregularity in the conduct of the
arbitration proceedings.’
Based on a proper
assessment of the totality of facts placed before the commissioner,
it is clear that he reached a decision that
a reasonable decision
maker would not have reached. On that ground alone the award stands
to be reviewed and set aside.
Conduct of the
commissioner
There is one further
ground of review, articulated in the applicant’s supplementary
affidavit that requires a brief analysis.
It was contended on behalf
of the applicant that the commissioner assisted Ramaepadi’s
representative in leading his evidence,
and that of his witnesses,
at the arbitration proceedings to such an extent that gave rise to
an apprehension of bias.
Whilst I do not intend
to refer to the detail of the manner or the extent to which the
commissioner became involved in Ramaepadi’s
presentation of
his case, I consider it necessary to make the following comments.
Having regard to the transcript of the arbitration
proceedings, it
is patently clear that there are numerous examples and extensive
periods within which the commissioner got involved
in the
presentation of Ramaepadi’s evidence and the evidence of his
witnesses. His conduct was inappropriate, reprehensible
and created
a justifiable impression that he had a predisposition towards
assisting Ramaepadi in the presentation of his case
and in
challenging the applicant’s version of events. I believe that
the commissioner’s conduct and evidence of bias
is fairly
obvious from the record, and that a reasonable person in the
position of the applicant would have had a factual basis
for drawing
such an inference and for having a reasonable apprehension of bias.
See in this regard
Raswiswi
v CCMA and Others
.
18
Order
In the premises, I make
the following order:
The arbitration
award issued by the second respondent (‘the Commissioner’)
under case number LP6158-09 dated
21 June 2010 is reviewed and
set aside;
There is no order as
to costs.
____________________
Gaibie, AJ
Acting Judge of the
Labour Court
Appearances:
For Applicant: Advocate F
Venter
Instructed by: Cliffe
Dekker Hofmeyr Inc
For Third and Fourth
Respondents: Nomali Tshabalala Attorneys
1
Paragraph
45 of the answering affidavit.
2
At
page 257 of the record.
3
At
pages 278 – 279 of the record.
4
At
page 280 of the record.
5
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[2002] 6 BLLR 493
(LAC);
Lebowa Platinum Mines Ltd v Hill
[1998]
7 BLLR 666
(LAC);
Ciliza v Minister of Police and Another
1976 (4) SA 243
(N);
Mbatha v Van Staden
1982 (2) SA 260
(N);
S v Salzwedel and Others
2000 (1) SA 786
(SCA).
6
See
footnote 5
7
Crown
Chickens
(supra) at para
12.
8
Above
n 5 at para 26.
9
[1995] ZACC 3
;
1995
(6) BCLR 665
(CC) at para 262.
10
Page
179 of the record.
11
Page
180 of the record.
12
Page
178 of the record.
13
Page
184 of the record.
14
Wallis
Labour and Employment Law, at para 25.
15
[1998]
7 BLLR 666
(LAC) at para 12.
16
2008
(2) SA 24
(CC) at para 110.
17
2010
(31) ILJ 1460 (LC) at para 6.
18
(2011)
32 ILJ 2186 (LC) at paras 19-23.