17 October 2019
560
As South African’s we can be proud of our rich and diverse history, where we have come from, and where we find ourselves today. Unfortunately, South Africa, like most countries, also has a part of its history of which it can’t be proud. For South Africa that part is the apartheid era. Although, immense progress has been made in becoming the “rainbow nation” and eradicating all forms of racial discrimination, our country unfortunately still has some citizens who have an underlying resentment and may I even say hatred, of other races. This resentment is often publicly expressed by the use of derogatory and racist language towards people of other races. One area of life where this behavior is particularly problematic and often followed with severe consequences, is the workplace.
In South Africa we have various legislation in place to regulate the above behavior, with the primary piece of legislation being the Constitution. The Constitution of South Africa tackles racial discrimination by protecting every individual’s right to equality (section 9) and dignity (section 10). Apart from this, the Constitution also specifically limits individual’s right to freedom of expression by exclude the promotion of race-based hatred (section 16(2)). In the workplace, this legal position is also reflected and enforced by the use of two Acts, the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998.
It is evident from recent case law that our courts and society are following a zero-tolerance approach towards the use and promotion of racism and racially derogatory language. In the ANC v Sparrow (01/16) [2016] ZAEQC 1 case, Ms Penny Sparrow was found guilty of crimen injuria after referring to black Africans as “monkeys”. Even more recently in August 2019, the Randburg Magistrate’s Court found Peter-Paul Ngwenya guilty of crimen injuria. In this case the co-CEO of Investec, Fani Titi, claimed that his former friend Ngwenya impaired his dignity by calling him a “QwaQwa k****r”. The court held that the K-word showed ultimate disrespect and that it is a term that cannot be heard without cringing, even when used by one African individual against another African individual.
It is also evident from case law that the same approach is followed with regards to case law on racism in the workplace. In the case of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] JOL 37679 (CC) (hereinafter SARS v CCMA), the court found that the term “k****r” is most probably the worst insult that could be inflicted upon an African individual, especially by a white person and when taking into account the history of South Africa and the apartheid era. The court found that the dismissal of the offending employee was procedurally unfair, but because of the nature of his actions the court limited the amount of compensation which was owed to the offending employee.
In Makhanya v St Gobain [2019] 7 BALR 720 (NBCCI), the ruling of the Commission for Conciliation, Mediation and Arbitration (hereinafter CCMA) highlighted that nobody, regardless of their race, is immune to the legal related consequences of racism in the workplace. In this case the CCMA dismissed an application of an African employee who alleged that he was unfairly dismissed, because he used the term “boer”. The CCMA determined that the term “boer” carries similar derogatory undertones as the term “k****r”.
In the context of the workplace it is therefore advisable for employers to keep their employees informed about the above legal position and consequences when it comes to racially offensive and discriminatory language. Current case law should serve as a warning and example to all South Africans regardless of their race, that they should take ownership of the language they use