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[2017] ZALCJHB 50
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Solidarity obo Pio v Department of Public Works: Roads and Transport, North West and Others (JR960/14) [2017] ZALCJHB 50 (7 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 960/14
In the
matter between:
SOLIDARITY
obo JF PIO
Applicant
and
DEPARTMENT
OF PUBLIC WORKS:
ROADS
AND TRANSPORT, NORTH
WEST
First Respondent
BOIKANYO
ELISHA, THE MEC:
DEPARTMENT
OF PUBLIC WORKS:
ROADS
AND TRANSPORT, NORTH WEST
Second Respondent
GENERAL
PUBLIC SERVICE SECTOR
BARGAINING
COUNCIL
Third Respondent
ROOPA,
P
N.O
.
Fourth Respondent
Heard:
14 DECEMBER 2015
Delivered:
07 February 2017
Summary:
Racial slurs –
Kaf
a slang for an invective, found
derogatory and its use a dismissable offence.
JUDGMENT
MOSIME,
AJ
[1]
The applicant seeks an
order to review and/or to set aside an arbitration award issued by
the fourth respondent (the Commissioner)
on 20 March 2014 under the
auspices of the third respondent, with case reference number GPBC
1432/2013
.
This Court is moved through application and the founding affidavit of
Mr. James Frederick Pio (the applicant).
[2]
The applicant seeks
furthermore, and order that the finding that the applicant’s
dismissal was procedurally and substantively
fair be substituted with
a finding that the dismissal was procedurally and substantively
unfair, alternatively, remitting the matter
back to the third
respondent for a hearing
de
novo
before a
different commissioner other than fourth respondent, costs and
further or alternative relief.
[3]
The facts in this case
are summarised in the questioned commissioner’s award and the
record, and are outlined as follows hereunder.
The first and second
respondents are opposing this application, and have supplied the
Court with the opposing affidavit of Mr.
Makhothi Samuel Thobakgale,
the Head of Department: Department of Public Works: Roads and
Transport and Head of Administration,
and Accounting Officer, North
West.
[4]
At the contentious
arbitration hearing, the fourth respondent heard the evidence of Mr
Pule January Pheto (Pheto), Mr Jacobus Dematikus
“Koos”
Du Toit (Du Toit) and Mr Jacobus Booysens (Booysens) – all
testifying for the respondents, on the one
hand, and that of Mr Pio,
as the applicant, on the other.
[5]
The
salient facts are that on the 1 January 2013, Pio encountered
technical problems with operating his new phone and asked Pheto
to
call it in order to test if it would ring. Pheto’s placed the
call from his own phone, and when Pio’s phone rang,
Pheto
noticed that his name appeared on the screen of Pio’s phone as
“
Jerry
Kaf
”.
This was also noticed by another colleague, “Koos” (Du
Toit)
[1]
who was in the presence
of both Pio and Pheto when the latter placed the call. According to
Du Toit, he understood the word “
Kaf
”
as an abbreviation of the word “kaffir”. Du Toit
confirmed in the arbitration that he saw the image on the phone.
[6]
Pio’s explanation
is that he was attempting to transfer his contact list from the
computer to his new phone. He had asked
a Du Toit to assist him. The
names of his colleagues in the laptop were saved according to the
workplace they are stationed at.
Thus, those that are stationed at
the “
Kamp”
(Afrikaans for “camp”) he saved as “—
Kam”
and those that worked at the office, as “—
Kan”
short for “
kantoor
”
(Afrikaans for “
office
”).
However, he failed to produce the evidence in the laptop during the
hearing, and when cross-examined on his failure to
produce this
evidence, he said that he had no thought about it at that time. The
commissioner drew an adverse inference against
him. Pio also raised
the defence that Pheto did not tell him what he was unhappy about and
he only heard about the complaint from
Du Toit.
[7]
It is common cause that
Pheto did not say anything immediately after the incident. However,
after facing insomnia that Friday evening,
he decided to call Pio in
the next morning, Saturday and confronted him about what he saw on
the screen of his phone. According
to Pheto, Pio’s response to
him as I understand, unsolicited by anything, was: “
I
did not say you were a kaffir”
.
Pio denies the confrontation. Pheto then asked Du Toit, who witnessed
the writing on the screen, to accompany him to report the
matter to
Booysen, which he did. Booysens confirmed that the meeting took place
on Monday. Pio was subsequently charged with misconduct,
brought
before a disciplinary inquiry, and after he was found guilty,
dismissed. He challenged his dismissal at the bargaining
council.
[8]
In argument, Mr Fritz,
on behalf of Pio, submitted that the dictionary meaning of the word
Kaf
,
in Afrikaans, did not mean “
kaffir”
.
It was also not established that Pio had indeed saved Pheto’s
name as ‘
Jerry
Kam’
on his
phone. He also submitted that Pheto benefitted from his dismissal as
he had been acting in Pio’s position after the
latter’s
dismissal.
[9]
Mr Voorby, on behalf of
the respondents, submitted that two people saw the writing in the
screen of Pio’s phone and they could
not both be wrong. The
fact that Pheto was appointed to act in Pio’s position was
peripheral and should be ignored. Mr Voorby
submitted that word ‘
Kaf’
was understood as slang for the word ‘
kaffir’
and that was what Pio meant by saving Pheto’s name as he did on
his phone.
The
Arbitrator’s Award
[10]
In the arbitrator’s
award, the latter identifies the issue he was called upon to
determine as whether or not Pio committed
the offence that he was
charged with, which was framed as follows at the disciplinary
inquiry:
“
That
on or about the 1
st
June 2012 at or near Camp K, you connoted racial abuse against your
colleague (Mr Pheto) by storing his name as “
Jerry
Kaf”
on your cell phone which
showed (displayed) on your cell phone screen when he called your
number when assisting with the ring tones
thereof at Camp K which is
your workplace”
[11]
He duly dealt with the
evidence and accepted substantially the evidence of Pheto, Du Toit
and Booysens, and held, without any doubt
in his mind, that Pio did
have Pheto’s name saved as
Kaf
on his phone. He also accepted the evidence of the statement alleged
by Pheto, that Pio told him “
I
did not call you a kaffir”
,
as it was never challenged and disputed.
[12]
He rejected Pio’s
testimony on the existence of computer evidence that would have shown
that Pheto’s name was not saved
as
Kaf
therein, on two grounds. Firstly, Pio did not raise that defence at
all when confronted by Booysens, and secondly, that the evidence
would not have been reliable, as it could have been altered with ease
anytime by anyone.
[13]
He found that the word
that was used as Pheto’s ID on Pio’s phone was
derogatory, and therefore his dismissal was fair.
The
test on review
[14]
Numerous
judgments in this Court have dealt with the test that must apply when
deciding whether the arbitrator’s decision
is reviewable, and
these have been rehashed innumerable times since the Constitutional
Court judgement in
Sidumo
v Rustenburg Platinum Mines Ltd
[2]
and should be now crystallised. The test is whether the conclusion
reached by the arbitrator was so unreasonable that no other
arbitrator could have come to the same.
[15]
In
Sidumo
[3]
the
Constitutional Court very clearly held that the arbitrator’s
conclusion must fall within a range of decisions that a reasonable
decision-maker could make. This reasonable test was succinctly
adumbrated in the pre-
Sidumo
case
of
Computicket
v Marcus NO and others
[4]
,
thus: ‘The question I have to decide is not whether [the
arbitrator’s] conclusion was wrong but whether ... it was
unjustifiable and unreasonable.’
[16]
Furthermore,
Waglay DJP (as he was then) recently pointed out in
The
National Commissioner of the South African Police Service v Myers and
Others
:
[5]
“
Whatever
one’s personal view may be, the test as set out in
Sidumo
... is whether or
not the arbitrator’s decision … is a decision that a
reasonable decision-maker could reach”.
[17]
In
Fidelity
Cash Management Service v CCMA and others
[6]
Zondo
JP applied the
Sidumo
test
thus:
“
The
test enunciated by the Constitutional Court in
Sidumo
for determining whether a decision or
arbitration award of a CCMA commissioner is reasonable is a stringent
test that will ensure
that such awards are not lightly interfered
with. It will ensure that, more than before, and in line with the
objectives of the
Act and particularly the primary objective of the
effective resolution of disputes, awards of the CCMA will be final
and binding
as long as it cannot be said
that such a decision or award is one that a reasonable decision-maker
could not have made in the circumstances
of the case
.
It will not be often that an arbitration award is found to be one
which a reasonable decision-maker could not have made but I
also do
not think that
it will be rare that an
arbitration award of the CCMA is found to be one that a reasonable
decision-maker could not, in all the
circumstances, have reached”
.
(My emphasis)
[18]
This
Court will, and must therefore scrutinise the award to determine its
score on the normative test-card for reasonableness. In
so doing it
is suggested by the Labour Appeal Court in
Herholdt
v Nedbank Ltd
[7]
to look into the Hegelian dialectical interplay between
process
and
substance
.
To position this philosophy, the LAC followed on the oft quoted and
judicially inspirational dictum of Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and others
[8]
:
“
In
summary, section 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner’s decision)
must fall within a band of reasonableness, but this does not preclude
this Court from scrutinising the process in terms of which
the
decision was made. If a commissioner fails to take material evidence
into account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or
a
gross irregularity
during the proceedings under review and a party is likely to be
prejudiced as a consequence, the commissioner’s decision
is
liable to be set aside regardless of the result of the proceedings or
whether on the basis of the record of the proceedings,
that result is
nonetheless capable of justification”.
[9]
[19]
A
commissioner should be criticised if, when determining the matter
before him or her, fails to ensure, before reaching a conclusion
on a
decision that he or she is about to make, that the award will be
legitimised by reasonableness, justifiability (in the light
of the
material that he took into account), and freedom from prejudice.
Deviation will result generally in gross unreasonableness.
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA
[10]
Van
Niekerk J also observed that it may be inferred from the judgment of
the Constitutional Court in
Sidumo
that
section
145
also invites scrutiny of the process by which arbitrators reach their
conclusions.
[20]
And,
in
Herhold
v Nedbank Ltd
the Labour Appeal Court endorsed
[11]
the approach by the Labour Court (
a
quo
),
in which the latter had accepted that an award is reviewable if
it suffers from substantive unreasonableness, namely, where
a
proposition is not supported by facts, the law, (and it might be
added) the argument, and considerations recognised as valid.
[21]
The LAC held further in
Herholdt
:
‘
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby prevented the aggrieved
party from having its case fully and fairly determined. Proper
consideration of all relevant and material facts and issues is
indispensable to a reasonable decision and if a decision-maker fails
to take account of a relevant factor which he or she is bound
to
consider, the resulting decision will not be reasonable in the
dialectical sense. Likewise, where a commissioner does not apply
his
or her mind to the issues in a case the decision will not be
reasonable.’
[12]
[22]
It
was held in
CUSA
v Tao Ying Metal Industries and Others
[13]
,
that
a commissioner is obliged to apply his or her mind to the issues in a
case. Commissioners who do not do so are not acting lawfully
and/or
reasonably and their decisions will constitute a breach of the right
to administrative justice.
[23]
In
this case, the Court was drawn to the following written
submissions
[14]
made by the
union official from Solidarity, Ms Nicolette Greef, representing the
applicant:
“
3.11
Schwartz
Lions over the Throne
:
(1987) at 133 explains that in the context of a review, a court deals
with a test of ‘reasonableness, not the rightness
of agency
(sic) findings of fact. The question under it is whether the evidence
is such that the reasonable person acting reasonably
could have
reached the decision from the evidence and the inferences’
‘
3.12
Although the judgement in Sidumo supra superseded the test for review
as contained in the decision of this
court in
Carephone
v Marcus
1999 (3) SA 384
(LAC)
at para
37, the following dictum in the latter judgement is helpful in order
to illustrate the nature of the test: ‘
Is
there a rational objective basis justifying the conclusion made by
the administrative decision-maker between the material properly
available to him and the conclusion he or she eventually arrived at’
.
‘
3.14
It is important to emphasise, as is exemplified from
Carephone
,
and in
Schwartz
,
supra, that the ultimate principle upon which a review is based is
justification for the decision as opposed to it being considered
to
be correct by the reviewing court; that is whether this court might
consider to be a better decision is irrelevant to the review
proceedings as opposed to an appeal. Thus, great care must be taken
to ensure that the distinction, however difficult it is to
always
maintain, is respected”.
[24]
The decision of the
commissioner in the present case shall be viewed in the light of
these principles.
Grounds
of review
[25]
This application is
made on the basis that the commissioner committed a gross
irregularity on the following grounds:
i.
The
commissioner exceeded his powers conferred to him in terms of the
Labour Relations Act
[15]
(“the
LRA”);
ii.
The commissioner did
not properly, rationally and justifiably apply his mind to the facts
or the law; and that
iii.
The commissioner did
not properly apply the provisions of the LRA in this instance.
[26]
The applicant submits
in this regard that the commissioner misconstrued the evidence and
came to a wrong conclusion that his dismissal
was fair. It is
submitted in this regard that the commissioner did not have a full
regard of all the evidence before him, and therefore,
has littered
his award with unreasonable findings that are irrationally connected
to the question he was called on to answer.
[27]
It is submitted further
that the commissioner failed to deal with the evidence that the
applicant did not use derogatory language;
that his inference was not
rationally made bearing in mind the evidentiary material; and
specifically exceeded his powers by concluding
that the word “
Kaf”
appeared in the applicant’s phone and by drawing an inference
that it was a racial term.
Evaluation
of the Award
[28]
Snyman
AJ, in
Kok
v Commission for Conciliation, Mediation and Arbitration and
Others
[16]
,
posits that in considering the applicant’s review application,
the court must do so with the object of deciding if the award
of the
commissioner is, in short, reasonable. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[17]
,
Navsa AJ held that the threshold test for the reasonableness of an
award is: “
the
decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
What the Constitutional Court meant in
Sidumo
was
a review test based on a comparison by a review court of the totality
of the evidence that was before the arbitrator as well
as the issues
that the arbitrator was required to determine, to the outcome the
arbitrator arrived at, in order to ascertain if
the outcome the
arbitrator came to was reasonable
[18]
.
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[19]
applied the
Sidumo
test
as follows:
“
Sidumo
does not postulate a test that requires
a simple evaluation of the evidence presented to the arbitrator and
based on that evaluation,
a determination of the reasonableness of
the decision arrived at by the arbitrator… In other words, in
a case such as the
present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether the
arbitrator misconceived
the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way, whether the
decision that
the arbitrator arrived at is one that falls in a band
of decisions to which a reasonable decision maker could come to on
the available
material”.
[29]
Ms Greef, on behalf of
the applicant, submits that there are two questions around which this
case turn, namely (i) whether or not
there was evidence of the
alleged depiction of Pheto’s name as ‘
Kaf’
in Pio’s Cellphone, and, if so, whether or not (ii)
Kaf
means or is a shortened version of
kaffir
,
a derogatory and racial term.
[30]
It
is common cause, that two witnesses saw the writing on Pio’s
Cellphone. The account of the events was supplied unchallenged
at the
arbitration hearing
[20]
. The
phone was in Du Toit’s (Koos) hand when the call was made and
registered on the handset. There was absolutely no reason
for the
commissioner to disbelieve Du Toit, in the absence of any supply of
facts to the contrary. It is also illogical that Pheto
would have
called Pio in the morning of Saturday, only to tell him that he was
stressing over the fact that his name was merely
saved as
Kam
on Pio’s phone. More inexplicable was Pios’ response that
“
I
did not call you a kaffir
”,
when he had only saved him as
Kam
.
[31]
The commissioner had
also satisfactorily dealt with the question of credibility and
pointed out in his award that Du Toit impressed
him as an honest,
independent witness whose testimony left no doubts in his mind. He
pointed out that the aspects of the evidence
that seem to form the
basis of the applicant’s defence were left unchallenged during
the cross examination of Pheto by the
applicant. I tend in this
regard to agree with Mr. Mmolawa, for the respondents, that it was
Pio himself who first used the word
kaffir
(‘I
did not call you a kaffir’
)
when confronted by Pheto on Saturday morning of 2 June 2012. This
would be unlikely to happen if the name that was saved was
Kam
,
and not
Kaf
.
[32]
The applicant complains
also that the respondents did not request the evidence of the laptop
or phone during the hearing. I do not
see how this evidence would
have any utility to the evaluation of the facts alleged in this case.
It is clear that the arbitrator
would never have placed any value to
it, since it would have been obvious that the probable tempering with
such evidence would
have been extremely high. All that was needed was
for someone to change the settings and delete the initial saving, and
then replace
the name with another. Had the applicant been committed
to his defence, it would have assisted the commissioner if he had
procured
an expert on Information Technology to show that he had
indeed saved the name as he alleged. Furthermore, it was not the duty
of
the respondents to seek for, or invite, evidence that would have
contradicted their own witnesses’ testimony. The duty lay
with
the applicant to produce such evidence if he believed it was crucial
to prove his innocence.
[33]
In
the words of the Judge President of this Court
[21]
,
“
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions to which a reasonable decision maker
could come to on
the available material”.
[34]
The evidence that was
presented before the commissioner in this case, which he evaluated
competently and analysed strictly, in my
view, falls within the range
that could lead any decision maker to this band of decisions.
Therefore, I find no reason to interfere
with the commissioner’s
decision that there was a depiction of Pheto’s identity in
Pio’s Cellphone as
Kaf
,
which decision was reasonable.
Is Kaf
a derogatory term?
[35]
In
the unreported version of the decision of
Rustenburg
Platinum Mine v SAEWA obo Bester and Others (JR130/14)
[22]
Van
Niekerk, J, referred with approval to another judgment from this
court,
Modikwa
Mining Personnel Services
(2013)
34 ILJ 373 (LC), in which Gabie AJ ‘reviewed a number of
decisions by this court in which incidents of racism in the
workplace
were at issue (see, for example,
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others
(2002)
23 ILJ 863 (LAC),
Lebowa
Platinum Mines Ltd v Hill
(1998)
19 ILJ 1112 (LAC))’.
[36]
The Honourable Judge
Van Niekerk observed further that
‘at
the core of these decisions is the decisive break that the
Constitution represent from a past in which racism was
institutionalised
and legitimised
(see
S v Makwanyane
and another
[1995] ZACC 3
;
1995
(3) SA 391
(CC))
and
that racism in the workplace is not to be tolerated
’.
(My emphasis).
[37]
In the judgement in
Modikwa
referred to above, the court had also found that ‘an utterance
by an employee to the effect that ‘
we
need to get rid of the whites’
was clearly and unequivocally racist in nature. To the extent that
the employee dismissed for making this utterance had contended
that
the words ought necessary to be viewed in the context in which they
were used, Gaibie AJ said the following, at paragraph
29 of her
judgment’:
“
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 Ramepadi requires a context for the
purposes of interpretation. Their plain meaning indicates
racism.”
[38]
And
so is the word
Kaf
when used in reference to a black person, at least in South Africa. I
say South Africa because this is the only country in the
world that
has a history of institutionalised separation and racism, was riddled
with and still continues to writhe in the grime
of the racial slur
and the past. Even if one were to take the dictionary meaning of the
word Kaf, as “chaff” in English:
worthless
things, trash, garbage, trash, chopped hay and straws used as fodder
,
one still finds a meaning that denigrates, insults, demeans and
humiliates, Pheto. In any event, there was no doubt that Pio knew
and
understood the word
Kaf
to
mean
kaffir
,
as came out from his retort when Pheto called and asked to speak to
him
[23]
. There is no
indication of anyone accusing him of using the word
kaffir
at all at that time. He knew exactly what he was dealing with, and
that he had to defend or justify himself for the use of the
slur. He
knew what the word was and that any black person would have been
offended by it.
[39]
His defence is only
aggravating than mitigating the situation. It does not make sense
why, if he knew Pheto as “Jerry”,
he also had to use his
race as an identifier. A reasonable inference is that he harbours
prejudice. Our constitutional dispensation
enjoins all employers to
free workplaces from incidents of such prejudices.
[40]
Judge
Van Niekerk states also as follows in his judgement
[24]
:
“
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
purposes of subjugation, where particular race groups continue to be
viewed as ‘other”.
[41] I
will now turn to the submissions that the commissioner has committed
a gross irregularity by misconstruing the evidence before
him and
thus coming to a conclusion not based on the evidence properly before
him. According to Ms Greef, the determinations that
the word
Kaf
did appear on Pio’s phone, and that that word is a derogatory
term are evidence of the commissioner’s gross misconduct
in
this regard.
[42]
In
this regard, Ms Greef because there were phone records submitted
indicating that the names of employees working at the camp were
saved
as
Kam
,
and those at the office as
Kan
,
‘then it should have followed that it is more likely that
the word
Kaf
was not used. Furthermore it has not been disputed that the computer
records were in existence prior to the hearing. It is submitted
that
the award is reviewable on this basis alone’
[25]
.
[43]
The
commissioner states as follows in his award
[26]
:
“
His
testimony on the existence of computer records throws up two
problems. Firstly, how could anyone forget to use such critical
information in his defence and absolve him of any blame? It is less
than convincing, particularly as two witnesses saw things
differently, one of whom was an independent third party who had no
motive to deceive me. Secondly, such evidence would not be
necessarily
reliable, as it can be manipulated and there was no
expert evidence available for its veracity. So too the offer to give
his phone
to Booysens, firstly on the following Monday and which
easily could have been changed after Pio realised the trouble he was
in
over the weekend”.
[44]
A rule sitting as bottom
line of the best evidence rule is that a witness may testify on
personal knowledge about a matter even
if there is a writing,
recording or photograph that documents the same thing. If another
wants to prove the content of the handset
of a cellular phone, it is
his duty to produce the original. The commissioner was correct in
finding that absence the evidence
of an expert witness with a
forensic report, the so-called computer records would have been
unreliable as they could have been
manipulated.
[45]
Furthermore, the
production of the computer record itself in the circumstances would
not have resulted in its automatic admission.
It would still have had
to meet authentication and hearsay objections, and such a foundation
as the evidence of an expert witness
must have been laid by Pio for
its admission. The commissioner was fully alive to these principles
and he properly and correctly
traversed them in the award. Even if
the commissioner was wrong, as was laid down by
Schwartz
above, this
Court
‘deals with a test of ‘reasonableness’, not the
rightness of the agency’.
[46]
Ms
Greef argues further that an assumption that the word
Kaf
means
kaffir
does not itself create a ground for that term to be declared
derogatory. She adds to this submission another argument that the
Afrikaans dictionary meaning of the word
Kaf
,
(
chaff
in English) does not mean
kaffir,
and
thus, not a derogatory term. According to
Wikipedia
[27]
,
the word
kaffir
itself,
is
derived from the
Arabic
term
kafir
(meaning
"
disbeliever
"),
which originally had the meaning "one without religion".
Arab Traders adopted the term to refer to non-Muslim
peoples.
It is recorded (in the same website) that ‘the word was
formerly considered by whites to be
a
neutral term
for
black
South Africans
’
.
The dictionary meaning of the word therefore, could be non-offensive,
but its use and impact matter in the circumstances, because
it has
come to depict blacks as sub-humans. Its use in the workplace must be
strictly proscribed.
[47]
The
commissioner did deal with this aspect in the award. He accepted that
cognisance could be taken that the word
Kaf
is a slang for
kaffir
.
It is also universally known that the
term
kaffir
is used in
South
Africa
to
refer negatively to a
black
person
and
is perceived by black people as a highly offensive
ethnic
slur
.
Even if it were to be accepted that Pio meant
chaff
,
in my view, it would still have been highly inappropriate to identify
your colleague with an invective. Chaff means dirt, and
it could
easily have been perceived by Pheto as a racist term, given the
history of race relations and the continued racial tensions
that are
prevalent in the country. The commissioner has therefore correctly
pointed out that “
our
courts have found that the use of this term was a fair reason for
dismissing an employee”.
[48]
In my view, the third
respondent in this matter has rendered an award which any reasonable
decision maker would have given. I find
that he has properly and
rationally applied his mind and came to justifiable conclusions. His
award is therefore reasonable.
Order
[49]
In the premises, I make
the following order:
1.
The application is
dismissed with costs.
__________________________
Mosime
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Ms Nicolette
Greef
Instructed
by:
Solidarity Union, Tshwane
For
the Third Respondent:
Advocate
M.E Mmolawa
Instructed
by:
State Attorney, Mahikeng
[1]
Indexed
bundle, p14, para20.
[2]
[2007]
12 BLLR 1097
(CC).
[3]
Supra,
paras 118-119.
[4]
(1999)
20
ILJ
343
(LC) 346.
[5]
CA
4/09 (unreported), Labour Appeal Court, Cape Town (2 March 2012)
paras [103] – [104].
[6]
[2008]
3 BLLR 197
(LAC) para [100].
[7]
[2012] 9
BLLR 857 (LAC)
[8]
(2010) 31
ILJ
452 (LC)
[9]
At para
17.
[10]
Supra.
[11]
At para 41.
[12]
At para
36.
[13]
(
2008)
29 ILJ 2461 (CC) at para [134].
[14]
Applicant’s
Heads, 11-12, paras 3.11 to 3.13.
[15]
Act No 66
of 1995 (as amended).
[16]
Unreported
judgement
(JR
2475 / 2010, JHB)
handed down on 20 February 2015.
[17]
(2007) 28
ILJ 2405 (CC), at para 10.
[18]
See
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964
(LAC) at para 96;
Herholdt
v Nedbank Ltd and Another
[2013]
11 BLLR 1074
(SCA) at para 25.
[19]
[2007] ZALC 66
;
(2014) 1
BLLR 20
(LAC) per Waglay JP.
[20]
Record of
Proceedings, 211-212.
[21]
Goldfields
,
supra.
[22]
[2016]
ZALCJHB 75.
[23]
Record of
proceedings, p161; lines 5
ff.
[24]
At
paragraph 22.
[25]
Applicant’s
Heads, 14-15, paras 4.09 and 4.10.
[26]
Indexed
bundle, 26, Award, 4
th
para.
[27]
Wikipedia
Dictionary, https://en.wikipedia.org/wiki/Kaffir_(racial_term).