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[2018] ZACC 13
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Rustenburg Platinum Mine v SAEWA obo Bester and Others (CCT127/17) [2018] ZACC 13; (2018) 39 ILJ 1503 (CC); 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC); 2018 (5) SA 78 (CC) (17 May 2018)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 127/17
In
the matter between:
RUSTENBURG
PLATINUM
MINE
Applicant
and
SAEWA
obo MEYER
BESTER
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
KOBUS
ERASMUS
N.O.
Third
Respondent
Neutral
citation:
Rustenburg Platinum Mine v
SAEWA obo Bester and Others
[2018] ZACC
13
Coram:
Zondo ACJ, Cameron J, Froneman J, Jafta J,
Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
Judgment:
Theron J (unanimous)
Heard
on:
9 November 2017
Decided
on:
17 May 2018
Summary:
Referring to a fellow employee as a
“swart man” — test for whether words are derogatory
and racist is objective
— starting point must take into account
the history of apartheid
Lack
of remorse and no acknowledgment of wrongdoing — no possibility
of rehabilitation — dismissal is an appropriate
sanction
ORDER
On
appeal from the Labour Appeal Court (hearing an appeal from the
Labour Court, Johannesburg):
1. Rustenburg Platinum Mine is substituted by Sibanye Rustenburg
Platinum Mines (Pty) Ltd as the applicant.
2. The appeal is upheld.
3. The order made by the Labour Appeal Court is set aside and
replaced with:
“
The
appeal is dismissed with costs.”
4. There is no order as to costs.
JUDGMENT
THERON
J (Zondo ACJ, Cameron J, Froneman J, Jafta J, Kollapen AJ, Madlanga
J, Mhlantla J and Zondi AJ concurring):
Introduction
[1]
This Court must determine whether
referring to a fellow employee as a “swart man”
(black man), within the context
of this case, was racist and
derogatory and whether it was unreasonable for a commissioner,
appointed by the Commission for Conciliation,
Mediation and
Arbitration (CCMA), to conduct arbitration proceedings and find that
the use of the term was racially innocuous.
If it is found to
be racist and derogatory the further enquiry is whether the sanction
imposed by the employer, namely dismissal,
was appropriate.
Parties
[2]
The applicant is Rustenburg Platinum
Mine, which conducts mining operations at Thembelani Mine,
Rustenburg.  The first respondent
is the South African Equity
Workers Association (SAEWA or respondent), a registered trade union,
which is acting on behalf of Mr
Meyer Bester who had previously been
employed by the applicant at the Mine as a senior training officer.
The second respondent
is the CCMA, a statutory body established
in terms of section 112 of the Labour Relations Act.
[1]
The third respondent is Mr Kobus Erasmus N.O.
(the commissioner), a commissioner who had conducted the
arbitration
proceedings relating to an alleged unfair dismissal
dispute between the applicant and Mr Bester.  No relief was
sought against
the second and third respondents and they have not
participated in these and the previous proceedings.
Background
[3]
On 28 May 2013, the applicant
dismissed Mr Bester on grounds of insubordination and the making of
racial remarks.  The essence
of the complaint was that Mr Bester
had referred to a co-worker as a “swart man” and in so
doing breached a workplace
rule that prohibits abusive and derogatory
language.  Mr Bester had been employed by the applicant since 1
March 2008.
[4]
The facts giving rise to Mr Bester’s
dismissal are detailed below.  The applicant provided specified
parking bays to
certain employees.  The applicant’s chief
safety officer, Mr Ben Sedumedi, allocated a parking bay to Mr
Bester.
At some stage, Mr Sedumedi allocated the adjacent
parking bay to Mr Solly Tlhomelang, an employee of a
sub-contractor
at the Mine.  During the beginning of April 2013,
Mr Bester found a large 4x4 vehicle similar in size to his own
vehicle,
parked in the adjacent parking bay.  Though parking in
a limited space was possible, it was difficult to reverse and he was

concerned that the vehicles may be damaged in the process.
Mr Bester decided to take the matter up with Mr Sedumedi
in
an effort to arrange for the other vehicle to be parked elsewhere.
Mr Bester made repeated efforts to raise the issue
with Mr
Sedumedi, which included phoning and emailing him, but without
success.
[5]
On 24 April 2013, an incident
occurred, the details of which are not common cause.
According to the version presented
by the applicant, Mr Sedumedi held
a safety meeting at which Mr Pieter Van der Westhuizen,
Ms Salome Moeng,
Mr Tshepo Segona, Mr Phumzile Gobinamba
and Mr Tlhomelang, were present.  The applicant’s version
is
that Mr Bester stormed into the meeting while it was in progress,
pointed his finger at Mr Sedumedi and said, in a loud and aggressive

manner, that Mr Sedumedi must “verwyder daardie swart man
se voertuig”,
[2]
otherwise he, Mr Bester, would take the matter up with
management.
[6]
According to Mr Bester there was no
meeting in progress, rather Mr Sedumedi and Mr Van der
Westhuizen were casually discussing
jogging routes.  When they
had finished chatting, Mr Bester raised his parking difficulty with
Mr Sedumedi but he responded
by saying that he would not speak
to a C5 grade employee.  According to Mr Bester, Mr Sedumedi
said “jy wil nie langs
’n swart man stop nie . . . dit is
jou probleem”.
[3]
Mr Bester said he told Mr Sedumedi not to turn the matter into a
racial issue and that he intended taking the matter up with
senior
management.
[7]
In a statement dated 2 May 2013, Mr
Bester set out his version of what had transpired:
“
Mr Sedumedi then started going on and on
about me who does not want to park next to a ‘swart man’.
I then said
to Mr Sedumedi he must not try and make this issue of the
parking area a racial issue.
When I realised what Mr Sedumedi was trying to achieve and in which
direction he wanted to force this issue I just turned around
and
left.
The next thing I have heard is that I have been charged and that I
will be suspended.
I have not shouted at anybody in Mr Ben Sedumedi
office neither had I pointed fingers at anyone or in any direction.
I did
not make any comments using the words ‘swart man’.”
[8]
On 25 April 2013, the applicant
suspended Mr Bester pending the outcome of a formal disciplinary
enquiry.  The applicant subsequently
charged Mr Bester with two
acts of misconduct.  The first charge was for insubordination
for disrupting a safety meeting.
The second charge was for
making racial remarks by referring to a fellow employee as a “swart
man”.
[9]
On 21 May 2013, Mr De Jager, the
chairperson of the disciplinary enquiry, found Mr Bester guilty on
both charges.  Mr De Jager
recommended the sanction of dismissal
and, on 28 May 2013, the applicant dismissed Mr Bester.
Litigation
history
CCMA
[10]
On 3 June 2013, Mr Bester referred
an alleged unfair dismissal dispute to the CCMA.  The dispute
was not resolved through conciliation
and was referred to
arbitration.  The commissioner handed down his award on 19
December 2013.  The commissioner held
that the dismissal of Mr
Bester was both substantively and procedurally unfair.
[4]
[11]
The commissioner’s reasoning
on the substantive unfairness of the dismissal was:
“
Both the applicant as well as the person
referred to (Mr Solly Tlhomelang) further indicated that they did not
know one another
prior to the incident on the 24
th
of April 2013.  It would therefore in my opinion have been
highly probable that the applicant might have used the term
‘swart
man’ to identify the person who parked next to him as he by
that time did not know his name.  I find it
less probable that
Mr Sedumedi (who was in my opinion an extremely poor and very
evasive witness) would without being triggered
by something that was
said to him, accuse the applicant of not wanting to stop next to a
‘swart man’.  No other
derogatory words or phrases
were used by the applicant (according to the witnesses).  I
really do not see how such a phrase
(referring to a physical
attribute in order to identify a certain person) could be classified
as a racial remark.  It would
be similar to the situation where
someone comes into the CCMA offices not knowing my name and then
asking for me by stating the
‘wit man’ who for instance
parked next to the entrance gate.  I will not take any offence
to this even if the
person who utters these words is talking in a
loud voice in front of all CCMA users.
The chairperson’s reasoning for finding the
applicant guilty of both insubordination and racial remarks is with
respect farfetched
and nonsensical.  It was clear that he was
under immense pressure when dealing with the allegations of racial
remarks and
in the circumstances failed to keep a cool head and
properly dissect what exactly was done and said.”
[5]
[12]
The commissioner ordered that the
applicant reinstate Mr Bester with retrospective effect to his
position as a senior training officer
and awarded him back pay
in the amount of R191 834.21.
[6]
Labour
Court
[13]
Aggrieved by the arbitration award,
the applicant launched an application in the Labour Court to review
and set aside the award.
The Labour Court held that the
evidence of Mr Van der Westhuizen and Mr Sedumedi, with regards to
the meeting that was underway
when Mr Bester stormed through the
door, was consistent with the evidence of the other employees present
at the meeting and there
was no cogent reason for the commissioner to
have rejected this evidence.
[7]
The Labour Court further found that the commissioner’s
finding that Mr Bester uttered the words “swart man”

was supported by the evidence and, despite Mr Bester’s denial,
clearly correct.
[8]
The Labour Court was of the view that “the commissioner’s
failure properly to resolve the material dispute
of fact before him
resulted in factual findings that are entirely arbitrary”.
[9]
[14]
The Labour Court found that there
was no conceivable reason why race might justifiably have served as
an identifier:
“
To the extent that context is relevant, it
should be recalled that Mr Bester stormed into a meeting that was in
progress, that he
was aggressive and belligerent, that he pointed his
finger at Mr Sedumedi and in a loud voice demanded that Mr Sedumedi
remove
the ‘swart man’s’ car from next to his.
Those present in the meeting were offended by Mr Bester’s

conduct.  Mr Bester was not, as the commissioner suggested,
benignly ‘referring to a physical attribute in order to

identify a certain person’.  Mr Bester’s
reference to Mr Tlhomelang, as a ‘swart man’ was
derogatory
and racist.”
[10]
[15]
In considering whether dismissal was
an appropriate sanction, the Labour Court had regard to a
memorandum circulated by the
applicant to all employees on
16 April 2013, which reads:
“
It has come to the 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.”
[11]
[16]
The terms of the memorandum made it
clear that abusive and derogatory language would not be tolerated at
the workplace.  The
Labour Court also noted that the undisputed
evidence before the commissioner was that the applicant adopted a
zero tolerance approach
to the use of derogatory and abusive
language.
[17]
The Labour Court held that Mr Bester
had committed an act of serious misconduct that warranted his
dismissal and concluded that,
on that ground alone, the award stood
to be reviewed and set aside:
“
In my view, on a proper assessment of the
evidence that served before the commissioner, he reached a decision
that a reasonable
decision-maker would not have reached.  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.”
[12]
Labour
Appeal Court
[18]
The Labour Appeal Court stated that
the test to determine whether the use of the words “swart man”
by Mr Bester was
derogatory or abusive, and in contravention of the
applicant’s disciplinary code, was an objective one.
[13]
It reasoned that, in order to determine whether the words
“swart man” are derogatory, the use of the words must
be
looked at in the context in which they were uttered.
[14]
[19]
The Labour Appeal Court was of the
view that the real issue was whether Mr Bester’s use of
the descriptor “swart
man” to identify the owner of the
vehicle parked in the parking bay next to him was derogatory:
“
The objective facts are that Mr Bester was
angry with Mr Sedumedi for refusing to assist him to resolve his
parking problem.
This caused him to act precipitously by
storming into Mr Sedumedi’s office and demanding in an
‘aggressive and belligerent’
manner that Mr Sedumedi must
instruct the ‘swart man’ to remove his car from next to
his.  Mr Bester did not know
Mr Tlhomelang, the owner of the 4x4
vehicle which parked in the bay next to him, and neither did Mr
Tlhomelang know him.
An important contextual fact is that Mr
Bester is white and to his knowledge the person parked next to him
was black.  Whilst
Mr Bester’s status as a white person
would bring him within the scope of potential condemnation, that
alone is insufficient
for such a finding.”
[15]
[20]
The Labour Appeal Court held that
the Labour Court erroneously adopted a subjective test in determining
the effect of the words
“swart man” on the persons
present at the meeting.  The Labour Appeal Court further held
that “the question
that the Labour Court ought to have asked
was whether, in the opinion of a reasonable person possessed of
all facts, Mr Bester’s
use of the word[s] ‘swart man’
in this context was derogatory and racist”.
[16]
It found that “[h]ad Mr Sedumedi and Ms Moeng known the
true state of Mr Bester’s knowledge . . . they would
not have
viewed the expression ‘swart man’ in context as
offensive”.
[17]
[21]
The Labour Appeal Court held
that Mr Bester did not know Mr Tlhomelang and therefore had no reason
to denigrate him:
“
While it is clear on the evidence that Mr
Bester had no reason to denigrate either Mr Sedumedi or Mr
Tlhomelang, he did have
a need to identify Mr Tlhomelang – a
person whose name, rank and division were 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”.
[18]
[22]
The Labour Appeal Court
concluded that even though Mr Bester was charged with making racial
remarks by referring to a fellow employee
as a “swart man”
the context disclosed that the perception that the words were
derogatory and racist was certainly
not the only plausible inference
that could be drawn from the proven facts and the probabilities.
[19]
The inference that Mr Bester used the words “swart man”
in the context, to describe Mr Tlhomelang, whose name
he did not
know, was equally plausible.
[20]
[23]
The Labour Appeal Court held that
the Labour Court had erred in reviewing and setting aside the award
of the commissioner.  It
confirmed the conclusion of the
commissioner that the dismissal of Mr Bester was both substantively
and procedurally unfair.
[21]
In addition, the Labour Appeal Court held that a racist remark made
in the workplace is a serious offence which warrants
dismissal.
[22]
In
this Court
Condonation
[24]
The applicant filed three
applications for condonation: for the late filing of its application
for leave to appeal, the late filing
of the record and the late
filing of its written submissions.
[25]
The application for leave to appeal
was filed three days late.  The reason for the delay was that on
1 November 2016 the applicant
was sold as a going concern by Anglo
American Platinum Limited (Anglo) to Sibanye Rustenburg Platinum
Mines Proprietary Limited
(Sibanye).  This sale created
confusion as to who the correct litigant was as Mr Bester was not
identified as a transferring
employee nor was he working in the
operations that were transferred.  The record was filed three
days late.  The reason
provided for the delay was an
“unfortunate and regrettable diary error” on the part of
the applicant’s attorney.
No prejudice was caused by the
delay and a reasonable explanation was offered for it.  The
written submissions were filed
two days late and no prejudice was
caused by the delay.  Condonation is granted for the late filing
of the application for
leave to appeal, the record and the written
submissions.
Substitution
application
[26]
Sibanye has applied to substitute
itself as applicant.  The applicant supports the substitution
application.  According
to the applicant, the substitution
application is necessitated by virtue of the operation of section 197
of the Labour Relations
Act in that:
(a) Anglo has become incompetent to continue as the applicant in the
main application;
(b) By operation of law Sibanye, which is a competent juristic
person, is the applicant in the main application;
(c) Sibanye has effectively been substituted as the employer by the
operation of section 197 of the Labour Relations Act; and
(d) Sibanye has a direct and substantial interest
in the outcome of the main application.
[27]
Section 197(2) of the Labour
Relations Act states:
“
If a transfer of a business takes place,
unless otherwise agreed in terms of subsection (6) ––
(a) the new employer is automatically substituted in the place of the
old employer in respect of all contracts of employment in
existence
immediately before the date of transfer;
(b) all the rights and obligations between the old employer and an
employee at the time of the transfer continue in force as if
they had
been rights and obligations between the new employer and the
employee;
(c) anything done before the transfer by or in relation to the old
employer, including the dismissal of an employee or the commission
of
an unfair labour practice or act of unfair discrimination, is
considered to have been done by or in relation to the new employer;

and
(d) the transfer does not interrupt an employee’s
continuity of employment, and an
employee’s
contract of employment continues with the new employer as if with the
old employer
”.  (Emphasis
added.)
[28]
The automatic consequences which
flow from section 197 were lucidly explained in this Court’s
judgment in
NEHAWU
:
“
Subsection (2) tells us the consequences
that flow from a transfer of a business as a going concern as
contemplated in subsection
(1).  It refers back to subsection
(1) which envisages two categories of transfer: one from a solvent
employer and the other,
broadly speaking, from an insolvent
employer.  In both instances, the transfer of the business as a
going concern results
in the transfer of the workers to the new
business. . . .  The section is premised on the continuity of
employment of the
workers which is not interrupted by the transfer
contemplated in subsection (1).  ‘That employment’,
subsection
9(4) says, ‘continues with the new employer as if
with the old employer’.
Reading the section as a whole and, in particular, having regard to
the fact that all the rights and obligations flowing from employment

with the transferring employer are transferred to the new employer in
the case of a solvent business; that in the case of an insolvent

business the contracts of employment are transferred; that the
transfer of business does not interrupt the workers' continuity
of
employment; the inference that the transferee employer takes over the
workers and that the transferee employer is, by operation
of law,
substituted in the place of the transferor employer is irresistible.
It follows by necessary implication.
If there is any doubt on this score, the recent
amendment to section 197 puts matters beyond doubt by providing that
‘the
new employer is automatically substituted in the place of
the old employer in respect of all contracts of employment’.

Indeed its declared purpose is ‘. . . the clarification of the
transfer of contracts of employment in the case of transfers
of a
business, trade or undertaking as a going concern’.”
[23]
[29]
In
Success
Panel Beaters & Service Centre CC
the
Labour Appeal Court held that the enforcement of an Industrial Court
order against the new employer was permissible, as the
order was made
and transfer of business affected after the commencement of the
Act.
[24]
The granting or dismissal of the main application would
therefore be enforceable against Anglo and Sibanye.
[30]
In the circumstances, Sibanye has
made out a case for substitution and this relief should be granted.
Jurisdiction
[31]
The applicant relies on section
167(3)(b)(i)
[25]
to argue that this Court has jurisdiction to hear this matter as it
directly involves and implicates a number of constitutional
rights,
namely, the right to fair labour practices,
[26]
dignity
[27]
and equality.
[28]
[32]
To determine whether a matter is a
“constitutional matter” requires a broad
interpretation.
[29]
This matter relates to the assessment of evidence in labour disputes
and the test to determine whether, in a given context,
a statement is
racist.  This case – and the issues it raises –
clearly implicates the rights to dignity and equality,
and how racism
in the workplace might affect the right to fair labour practices.
Given our country’s history and the
remaining legacy of
apartheid that our Constitution attempts to redress, a question
involving racism and, more pointedly, what
constitutes racism, is
undoubtedly a constitutional issue and one that goes to the heart of
our democracy.
[30]
Leave
to Appeal
[33]
The applicant argues that it is in
the interests of justice to grant leave to appeal on the grounds that
the Labour Appeal Court
incorrectly applied the law and set a
standard of proof that was unfair as it was higher than the standard
at common law.  A
mere misapplication of the law would not
ordinarily entitle this Court to interfere with a decision of the
Labour Appeal Court.
The Labour Appeal Court is a specialist
court which functions in a specialised area of law.
[31]
In
NEHAWU
,
this Court recognised that judges of the Labour Court and Labour
Appeal Court have the skill and experience to resolve labour
disputes
speedily and that this Court will only hear appeals from the Labour
Appeal Court if the appeal raises “important
issues of
principle”.
[32]
[34]
The Labour Appeal Court stressed
that the words must be looked at in the context in which they were
uttered.  In the Labour
Appeal Court’s view, “swart man”
is prima facie a neutral phrase that requires context in order to
acquire
a pejorative – or laudatory – meaning.
[33]
As a consequence, the matter turned on whether the context in this
instance transformed a neutral term into a pejorative
one.
[35]
The Labour Appeal Court recognised
the potential impact of using racial descriptors as identifiers,
particularly given the lingering
legacy of apartheid but held that
the “othering” implicit in the use of racial descriptors
did not elevate them to
pejorative expressions, stating:
“
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.”
[34]
[36]
The issue of when an apparently
neutral race descriptor may be regarded as racially abusive or
insulting is an important one that
has not yet been considered by
this Court.  This issue is one which encompasses interests
beyond those of the parties involved
and the approach of the courts
in such matters is of general public importance.
[35]
[37]
In addition, this Court is obliged,
as a custodian of the Constitution, to ensure that the values of
non-racialism, human dignity
and equality are upheld and in doing so
it has a responsibility to deliberately work towards the eradication
of racism.
[36]
Our Constitution is the embodiment of the values, both moral and
ethical, which bind us as a nation and which as a nation
we strive to
achieve.
[37]
As this Court aptly held “[t]he Constitution is the
conscience of the nation”.
[38]
Having regard to the values of non racialism, human
dignity and equality and that there are reasonable prospects of

success, it is in the interests of justice for this Court to grant
leave to appeal.
[39]
In the circumstances, leave to appeal is granted.
Merits
The
context in which the words were uttered
[38]
It was accepted by both parties (the
applicant and first respondent) that the use of the words “swart
man”, per se,
is not racist and that the context within which
the words were used would dictate whether they were used in a racist
or derogatory
manner.  It was also accepted that the test to
determine whether the use of the words is racist is objective –
whether
a reasonable, objective and informed person, on hearing the
words, would perceive them to be racist or derogatory.  This is

in accordance with the test for whether a statement is defamatory, as
enunciated in
Sindani
:
“
The test to be applied is an objective one,
namely what meaning the reasonable reader of ordinary intelligence
would attribute to
the words read in the context of the article as a
whole.  In applying this test it must be accepted that the
reasonable reader
will not take account only of what the words
expressly say but also what they imply.”
[40]
[39]
It is thus necessary to have regard
to the evidence in this matter.  In his evidence in chief, Mr
Bester testified:
“
I also know that in this era that we are
working now and at this time, it would be devastating for your career
to go into an office,
start shouting and pointing fingers and
shouting the word swart man in front of a hundred people.  Even
in front of one person.
You just do not do it and therefore I
say Mr Sedumedi is sucking this out of his thumb . . . that this
incident has ever
[taken] place.”
[40]
Relevant portions of Mr Bester’s
evidence under cross-examination read:
“
Mr Yeates:      You
said to him jy moet daardie swart man se kar langs my wegvat.
Mr Bester:        No I did not.
. . .
Mr Yeates:       Using derogatory
language like that would be detrimental to a person in your position.
Mr Bester:        Absolutely.
Mr Yeates:       And a person that
would utter things like that should be dismissed.
Mr Bester:
Yes.”
It
is clear from this extract that it was Mr Bester’s evidence
that he did not use the term “swart man”.  He
went
on to acknowledge that using such language could be “detrimental
to a person in his position” and could result
in his dismissal.
[41]
Four main witnesses, namely, Mr Van
der Westhuizen, Mr Sedumedi, Ms Moeng and Mr Tlhomelang,
testified on behalf of the applicant
at the arbitration hearing.
They said they were present at the meeting when Mr Bester made
the statement attributed to him.
Mr Tlhomelang, while not
strictly part of the meeting because he had arrived late, was
standing just outside the doorway.
Mr Sedumedi,  Mr Van
der Westhuizen and Ms Moeng further testified that they had
considered the remarks to be inappropriate.
[42]
The commissioner found that Mr
Bester did utter the words “swart man” and that he had
pointed his finger at Mr Sedumedi
whilst discussing the parking
issue.
[41]
He went on to hold that the dismissal was unfair on the basis
that Mr Bester did not use the term in a derogative or racist
manner
but did so to identify the person who had parked next to him as he
did not, at that time, know the person’s name.
[42]
[43]
The defence, that the term “swart
man” was not used in a derogatory or racist manner, was not
raised or relied upon
by Mr Bester.  Mr Bester denied having
used the term “swart man”.  This defence, on which
the commissioner
hinged his entire ratio for his finding, was not
based on any evidence before him.
[44]
The evidence before the
commissioner, on which both the applicant and respondent were agreed,
was that the use of such terminology
within Anglo’s workplace
constituted derogatory language deserving of dismissal.  It is
against this evidentiary background
that the commissioner was
required to make his ruling.
[45]
The Labour Appeal Court correctly
stated the test to be applied:
“
The test that applies to the determination
of whether the use of the words ‘swart man’ by Mr
Bester was derogatory
or abusive, and in contravention of Rustenburg
Platinum Mine’s disciplinary code, is an objective one.  The
employer,
in this case, Rustenburg Platinum Mine, bore the
evidentiary burden in the arbitration proceedings to prove that the
language used
by Mr Bester was objectively derogatory.  The test
is not based on how the employer understood the words 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.”
[43]
(Emphasis added.)
[46]
The Labour Appeal Court
unfortunately misdirected itself by finding in favour of Mr Bester,
on the basis of an unarticulated defence
not supported by the
evidence.  It was never Mr Bester’s defence that he used
the words “swart man” as a
descriptor or that he did not
mean to “demean” any person.  He denied using the
words and conceded that if he
had done so, it could be a dismissible
offence.  There was no evidence in the record justifying a
finding for Mr Bester on
the basis that the Labour Appeal Court
did.
[47]
In applying the test, namely,
whether a reasonable, objective and informed person would, on the
correct facts
perceive it to be racist or derogatory, the Labour Appeal Court
made a fundamental error, like the commissioner, as it
failed to
identify the correct facts and relied on evidence that had not been
placed before it.  The Labour Appeal Court
erred by
relying on a defence which was not raised by Mr Bester.
[48]
The Labour Appeal Court’s
starting point that phrases are presumptively neutral fails to
recognise the impact of the legacy
of apartheid and racial
segregation that has left us with a racially charged present.
This approach holds the danger that
the dominant, racist view of the
past – of what is neutral, normal and acceptable – might
be used as the
starting point in the objective enquiry without
recognising that the root of this view skews such enquiry.  It
cannot be correct
to ignore the reality of our past of
institutionally entrenched racism and begin an enquiry into whether
or not a statement is
racist and derogatory from a presumption that
the context is neutral – our societal and historical
context dictates
the contrary.  In this sense, the
Labour Appeal Court’s decision sanitised the context
in which the phrase
“swart man” was used, assuming
that it would be neutral without considering how, as a starting
point, one may
consider the use of racial descriptors in a
post-apartheid South Africa.
[49]
The Labour Appeal Court, by
sanitising the context in which the words were used, incorrectly
applied the test to determine whether
the words used are derogatory,
in the context of this matter, to the facts in this matter.  The
Labour Appeal Court, as well
as the commissioner, failed to approach
the dispute in an impartial manner taking into account the “totality
of circumstances”.
[44]
Not only was “swart man” as used here racially
loaded, and hence derogatorily subordinating, but it was unreasonable

to conclude otherwise.  It was unreasonable for the
commissioner, within this context, to find that using “swart
man”
was racially innocuous.
[50]
Furthermore, in scrutinising the
version of the witnesses as to whether they viewed the statement made
by Mr Bester as being racist,
the Labour Appeal Court
applied a test that was too strict.  The test was not whether
they were correct in the context
of the statement to have understood
it as being racist; the test was whether, objectively, the words were
reasonably capable of
conveying to the reasonable hearer that the
phrase had a racist meaning.
[45]
Only Mr Bester could have given evidence that he uttered the words
with no racist intent.  He failed to do so.
The
commissioner made a similar error in coming to the conclusion that Mr
Bester used the words “swart man” to
identify and
not to denigrate a person whose vehicle was parked next to his.  The
commissioner failed to have regard to the
evidence before him and
failed in particular to appreciate the context in which the words
concerned were uttered.  During
the arbitration proceedings both
parties were
ad idem
(of one mind) in this respect.  They agreed that using such
language at the applicant’s workplace would be detrimental
and
could warrant dismissal.
[51]
The commissioner’s award fell
to be reviewed and set aside as he reached a conclusion that a
reasonable decision-maker could
not have reached.  This is the
test for review that this Court has established in
Sidumo
.
[46]
The Labour Court was therefore correct in reviewing and setting it
aside.
[52]
The past may have institutionalised
and legitimised racism
[47]
but our Constitution constitutes a “radical and decisive break
from that part of the past which is unacceptable”.
[48]
Our Constitution rightly acknowledges that our past is one of deep
societal divisions characterised by “strife, conflict,
untold
suffering and injustice”.
[49]
Racism and racial prejudices have not disappeared overnight, and they
stem, as demonstrated in our history, from a misconceived
view that
some are superior to others.
[50]
These prejudices do not only manifest themselves with regards to race
but it can also be seen with reference to gender discrimination.
[51]
In both instances, such prejudices are evident in the workplace where
power relations have the ability “to create a
work environment
where the right to dignity of employees is impaired”.
[52]
[53]
Gratuitous references to race can be
seen in everyday life, and although such references may indicate a
disproportionate focus on
race, it may be that not every reference to
race is a product or a manifestation of racism or evidence of racist
intent that should
attract a legal sanction.  They will, more
often than not, be inappropriate and frowned upon.  We need to
strive towards
the creation of a truly non-racial society.  The
late former President of the Republic of South Africa, Mr
Nelson Mandela,
said that “de racialising
South African society is the new moral and political challenge
that our young democracy
should grapple with decisively”.
[53]
He went on to say that “we need to marshal our resources in a
visible campaign to combat racism – in the workplace,
in our
schools, in residential areas and in all aspects of our public
life”.
[54]
This Court has echoed such sentiments when it recognised that
“South Africans of all races have the shared
responsibility
to find ways to end racial hatred and its
outstandingly bad outward manifestations”.
[55]
Sanction
[54]
Subsequent to the hearing of this
matter, this Court invited the parties to file written submissions on
whether, should it conclude
that the finding of the internal
disciplinary committee should be reinstated, the sanction imposed was
too harsh and what alternative
sanction could be considered.  Both
the applicant and the respondent filed additional submissions in this
regard.
[55]
In
Sidumo
,
this Court listed a number of factors that a commissioner must
consider when deciding on the fairness of a dismissal.  The

Court emphasised that the factors do not represent a closed list and
that the weight to be attached to each factor would differ
from case
to case.  The factors are: (i) the importance of the rule that
was breached; (ii) the reason the employer imposed
the sanction of
dismissal; (iii) the basis of the employee’s challenge to the
dismissal; (iv) the harm caused by the employee’s
conduct; (v)
whether additional training and instruction may result in the
employee not repeating the misconduct; (vi) the effect
of dismissal
on the employee; and (vii) the long-service record of the
employee.
[56]
[56]
We are dealing here with racism in
the workplace.  Our courts have made it clear, and rightly so,
that racism in the workplace
cannot be tolerated.
[57]
Employees may not act in a manner designed to destroy harmonious
working relations with their employer or colleagues.
[58]
They owe a duty of good faith to their employers which duty includes
the obligation to further their employer’s business

interests.
[59]
In making racist comments in the public domain, the actions of
the employee may foreseeably negatively affect the business
of his
employer or the working relationship between him and his employer or
colleagues.  The chairperson of the disciplinary
hearing was
alive to this.  This is evident from his statement that
“[d]ismissal will be imposed for a first offence
if the
circumstances so warrant it and the employee’s behaviour
destroy[s] the employment relationship”.
[57]
As a country in transition, South
Africa faces the on-going challenge of how to generate and maintain
processes that restore dignity,
create political and economic
equality, and promote a culture of human rights.  The mining
industry is a racially charged
environment.  The applicant, as a
responsible employer, is tasked with creating an organisation that
advocates and practices
social justice.  To this end, a
memorandum warning against abusive and derogatory language was
circulated to all employees
at the applicant’s mine a few days
prior to the incident.  It was this memorandum which gave rise
to the charges levelled
against Mr Bester.  The applicant had
introduced a behavioural policy in terms of which the offence of
racial abuse could
attract a sanction of dismissal, even for a first
offence.
[58]
In contending that dismissal was too
severe a sanction in the circumstances of this matter, the
respondent, in its additional submissions,
argued that Mr Bester had
given the applicant five years of loyal service and during that time
he had trained numerous miners on
how to keep themselves and their
colleagues safe and accident-free while working underground.  It
was also contended that
Mr Bester was capable of being rehabilitated
and that the incident sparking his dismissal was an extraordinary
occurrence unlikely
to occur again.
[59]
Mr Bester has demonstrated an
absolute lack of remorse for his actions and persisted with a defence
of a complete denial.  He
did not acknowledge that his conduct
was racist and inappropriate.  He made no attempt to apologise.
This Court has
previously stated that the fact that an employee
who is guilty of racist conduct apologised, admitted wrongdoing and
demonstrated
a willingness “to take part in whatever programme
could be designed to help him embrace the values of our Constitution,
especially
equality, non-racialism and human dignity” may be a
relevant factor in determining whether dismissal was an appropriate
sanction.
[60]
As mentioned, Mr Bester failed to demonstrate a willingness to
change.  Instead, he resorted to a vicious attack on
the
witnesses who testified on behalf of the applicant during the
disciplinary hearing.  The chairperson of the hearing criticised

Mr Bester’s conduct in the strongest terms:
“
As chairperson I was astounded by the
viciousness of the attacks by Mr Bester during the hearing.  The
behaviour carried out
with intense violence and an apparent desire to
inflict aggressive language, cruel and malicious act against a fellow
employee
and employees in a threatening manner during the hearing was
irresponsible.”
The
chairperson further noted that Mr Bester had, during the hearing,
used foul language and behaved in an insolent, disrespectful,
rude,
offensive and disruptive manner.  He explained:
“
Mr Bester challenged the authority of the
hearing, being verbally rude and insulting and disrupting the ER
Officer Mr Bogatsu Ramoenyane
by verbally swearing (inappropriately)
at him to keep quiet.”
[60]
At the disciplinary hearing, and
after having been found guilty, Mr Bester was invited to make
submissions in mitigation.  He
used this opportunity to justify
his misbehaviour during the hearing:
“
It is human to react in the same manner as
what I have done during the hearing as I have realised it is futile
to argue whatever
is being said as I am being framed.  Seven
witnesses against me with no witnesses?  What was/is my chances?
Therefore
I have had all the same emotions as the normal man in
the same circumstances would have had.  Devastation,
flabbergasted,
revolt, being cross.”
Even
at this late stage, there was no recognition that he had behaved
badly during the hearing and more so, that he had once again
insulted
his colleagues.  An acknowledgement of wrongdoing by Mr Bester
would have gone a long way in evidencing the possibility
of
rehabilitation including an assurance to the applicant that similar
misconduct would not be repeated in the future.
[61]
[61]
The fact that Mr Bester was
dishonest in denying making the statement weighs heavily against him
when considering sanction.  In
Sidumo
,
this Court stated that “[t]he absence of dishonesty is a
significant factor in favour of the application of progressive

discipline rather than dismissal”.
[62]
These sentiments were endorsed in
Timothy
,
where the Court said:
“
[G]iven the fact that the appellant had an
unblemished record and that, until this point, there was no
indication in his conduct
of any dishonesty or any impropriety prior
to the events that gave rise to this dispute, a form of progressive
sanction would have
been more appropriate.  I have no doubt that
these arguments would have carried far greater weight had there been
a scintilla
of recognition by the appellant of his wrongdoing. . . .
Throughout the disciplinary hearing . . . [the] appellant continued

to take the view that the allegations brought against him were no
more than lies.  [The] [a]ppellant showed no remorse, no

recognition of misconduct, save for a blatant and clearly dishonest
denial.”
[63]
[62]
Mr Bester has not learnt to conduct
himself in a manner that respects the dignity of his black
co-workers.  By his actions
he has shown that he has not made a
break with the apartheid past and embraced the new democratic order
where the principles of
equality, justice and non-racialism reign
supreme.
[63]
This Court is satisfied that
dismissal was an appropriate sanction under the circumstances.
Costs
[64]
The labour courts have established a
principle in terms of which the general rule that costs follow the
event does not apply in
situations where “there is a
long–standing and continuing labour and employment relationship
[between the parties as]
such orders might not be in the best
interests of that relationship”.
[64]
In a similar vein, this Court will not readily make a costs order
where there was a bona fide (good faith) dispute between
parties who
have a continuing bargaining relationship.
[65]
In this case, the dispute raises important issues not yet pronounced
on by this Court and the impact of this decision will
be felt beyond
the parties to this litigation.  In the circumstances, I make no
order as to costs.
Order
[65]
The following order is made:
1.
Rustenburg
Platinum Mine is substituted by Sibanye Rustenburg Platinum Mines
(Pty) Ltd as the applicant.
2. The appeal is upheld.
3. The order made by the Labour Appeal Court is set aside and
replaced with:
“
The
appeal is dismissed with costs.”
4. There is no order as to costs.
For
the Applicant: F Boda SC and Z Ngwenya instructed by Cliffe Dekker
Hofmeyr Inc.
For
the First Respondent: A P Landman instructed by Ronelda Van Staden
Attorneys.
[1]
66 of 1995.
[2]
Translated to English as “
remove that black
man’s vehicle.”
[3]
Translated to English as “
you do not want
to park next to a black man . . . this is your problem”.
[4]
SAEWA obo Bester v Rustenburg Platinum Mine
, unreported
arbitration award of the CCMA, Case No NWRB1692-13 (19 December
2013) (Arbitration Award) at para 32.
[5]
Id at paras 26.6-7.
[6]
Id at paras 33-4.
[7]
Rustenburg Platinum Mine v SAEWA obo Bester
[2016] ZALCJHB 75 (Labour Court
judgment) at para 19.
[8]
Id.
[9]
Id at para 20.
[10]
Id at para 23.
[11]
Id at para 24.
[12]
Id at para 26.  The test for review was stated in
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC)
at para
110
:
“
To summarise,
Carephone
held that section 145 of the Labour Relations Act was suffused by
the then constitutional standard that the outcome of an
administrative
decision should be justifiable in relation to the
reasons given for it.  The better approach is that section 145
is now
suffused by the constitutional standard of reasonableness.
That standard is the one explained in
Bato
Star
: [i]s the decision reached by the
commissioner one that a reasonable decision maker could not
reach?  Applying it will
give effect not only to the
constitutional right to fair labour practices, but also to the right
to administrative action which
is lawful, reasonable and
procedurally fair.”
It is noted that
the test the Labour Court applied was whether the decision reached
was one which a reasonable decision-maker
would not
, as
opposed to
could not
,  have reached.
[13]
SA Equity Workers Association o.b.o Bester v Rustenburg Platinum
Mine
[2017] ZALAC 23
; (2017) 38 ILJ 1779 (LAC) (Labour Appeal
Court judgment) at para 16.
[14]
Id at para 19.
[15]
Id at para 21.
[16]
Id at para 25.
[17]
Id.
[18]
Id at para 27.
[19]
Id.
[20]
Id.
[21]
Id at para 32.
[22]
Id at para 18.
[23]
National Education & Allied Workers Union
v University of Cape Town
[2002] ZACC
27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEWAHU
)
at paras 63-5.
[24]
Success Panel Beaters & Services Centre CC
v National Union of Metal Workers of South Africa
[2000]
ZALAC 2
;
[2000] 6 BLLR 635
(LAC) at 638.
[25]
Section 167(3)(b)(i) of the Constitution provides that: “
The
Constitutional Court may decide constitutional matters.”
[26]
Section 23(1) of the Constitution provides that:
“Everyone has the right to fair labour practices.”
[27]
Section 10 of the
Constitution provides that:
“Everyone has inherent dignity and the right to have their
dignity respected and protected.”
[28]
Section 9(1) of the
Constitution provides that:
“Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
[29]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 14.  See also Du Plessis et al
“Jurisdiction” in
Constitutional Litigation
(Juta
& Co Ltd, Cape Town 2013) at 19.
[30]
See
South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration
[2016] ZACC 38
;
2017 (1) SA 549
(CC);
2017 (2) BCLR 241
(CC) (
SARS
) where this Court held, with
reference to racism in the workplace, at para 29 that:
“The central feature of this case is the mother of all
historical and stubbornly persistent problems in our country:

undisguised racism.  This, coupled with this Court’s
constitutional duty to help entrench the values of equality,

non-racialism and human dignity, demands that this application be
appealable in the interests of justice.  And the issue central

to this dispute requires the attention of the highest court in the
land, at such a time as this.”
[31]
NEHAWU
above n 23 at para 30.
[32]
Id at para 31.
[33]
The Labour Appeal Court judgment above n 13 noted the impact of a
loss of neutrality as leading to either a pejorative or laudatory

meaning at para 19—
“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’.”
[34]
Id at para 29.
[35]
SARS
above n 30 at paras 31-2.
[36]
Id at paras 12, 14 and 29.  See also
Crown Chickens (Pty)
Ltd t/a Rocklands Poultry v Kapp
[2002] 6 BLLR 493
(LAC) at para
35.
[37]
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC) (
Makwanyane
) at para 262.
[38]
SARS
above n 30
at para 12.
[39]
Id at para 33.
[40]
Sindani v Van der Merwe
[2001]
ZASCA 130
;
[2002] 1 All SA 311
(A) at para 11.
[41]
Arbitration Award above n 4 at paras 26.5-6.
[42]
Id at paras 26.6 and 28.
[43]
Labour Appeal Court judgment above n 13 at para
16.
[44]
Sidumo
above n
12 at para 78.
[45]
Mohammed v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(SCA) at
711.
[46]
Sidumo
above n 12.
[47]
Makwanyane
above
n 37 at para 262.
[48]
Shabalala v Attorney-General,Transvaal
[1995]
ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at para 26.
See also Labour Court judgment above n 7 at para 21.
[49]
Makwanyane
above
n 37 at para 262.
[50]
Minister of Finance v Van Heerden
[2004] ZACC 3
;
2004 (6) SA
121
(CC);
2004 (11) BCLR 1125
(CC)
at para 116.
[51]
Brink v Kitshoff N.O.
[1996]
ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 44.
[52]
Labour Court judgment above n 7 at para 22.
See also
Campbell Scientific Africa
(Pty) Ltd v Simmers
[2015] ZALAC 51
;
(2016) 37 ILJ 116 (LAC) at para 20.
[53]
Address by President Nelson Mandela to National
Conference of the Institute for a Democratic South Africa (Idasa)
Cape Town (18
August 1995), available at
http://www.mandela.gov.za/mandela_speeches/1995/950818_idasa.htm.
[54]
Id.
[55]
SARS
above n 30
at para 8.
[56]
Sidumo
above n 12 at para 78.
[57]
In
Lebowa Platinum Mines Ltd v Hill
(1998) 19 ILJ 1112 (LAC);
[1998] 7 BLLR 666
(LAC) at para 12, Kroon JA stated that the use of
racist remarks or conduct in the workplace should be considered in
light of
the highly charged racial or political atmosphere inherent
in certain workplaces.  Within such workplaces, the use of
racist
remarks can have the effect of destroying working
relationships and being disruptive of the employer’s business.
[58]
Erasmus v BB Bread Ltd
(1987) 8 ILJ 537 (IC) at 544B-C.
[59]
Council for Scientific and Industrial Research v Fijen
[1995]
ZASCA 143
;
1996 (2) SA 1
(SCA) at 9H-10D. See also
Cyberscene Ltd
v i-Kiosk Internet and Information (Pty) Ltd
2000 (3) SA 806
(C).
[60]
SARS
above n 30 at para 45.
[61]
Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal
Industry
(2008) 29 ILJ 1180 (LC) at para 45.
[62]
Sidumo
above n
12 at para 117.
[63]
Timothy v Nampark Corrugated Containers (Pty) Ltd
[2010]
ZALAC 29
; (2010) 31 ILJ 1844 (LAC) at 1849E-H.
[64]
South African Commercial Catering and Allied Workers Union v
Irvin & Johnson Ltd
(
Seafoods Division Fish Processing
)
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC) at para
51.
[65]
National Union of Metalworkers of SA v Intervalve (Pty) Ltd
[2014] ZACC 35
; (2015) 36 ILJ 363 (CC);
2015 (2) BCLR 182
(CC)
(
Intervalve
) at para 73.  Bona fide means “in good
faith” and what constitutes a dispute was thoroughly canvassed
in
Intervalve
at paras 86-8, but, as provided for in
Durban
City Council v Minister of Labour
1953 (3) SA 708
(N) at 712A-B,
essentially a dispute—
“must, as a minimum so to speak, postulate the notion of the
expression by parties, opposing each other in controversy,
of
conflicting views, claims or contentions.”