South Africa: South Africa's Unforgotten And Relevant Past (Mind Your Language)

Last Updated: 20 June 2018
Article by Victor Mndebele

Most Read Contributor in South Africa, July 2019

In the decision in Rustenburg Platinum Mine and SAEWA obo Meyer Bester and Others, the Constitutional Court dealt with the question of whether an employee referring to a colleague as a "swart man" ("black man"), within the facts set out below, constituted misconduct justifying dismissal.

The adjacent large 4x4 vehicles

The employee in this matter, Mr Bester, was employed by the Rustenburg Platinum Mine (the "employer").  He had been allocated a specified parking bay at his place of work. In April 2013, the manager in charge of allocating parking bays, a Mr Sedumedi, allocated the adjacent parking bay to Mr Tlhomelang, an employee of a sub-contractor at the mine. Mr Tlhomelang drove a large 4x4 vehicle that was similar in size to Mr Bester's vehicle.  Though parking in a limited space was possible, it was difficult to reverse into it and Mr Bester became 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.

The incident on 24 April 2013

On 24 April 2013, an incident occurred that led to Mr Bester's dismissal. The reason for the dismissal was the allegation that Mr Bester had made certain racist comments. He challenged his dismissal in the Commission for Conciliation, Mediation and Arbitration ("CCMA").

At the CCMA arbitration, the version proffered by the employer's witnesses was that Mr Bester stormed into a meeting with other employees convened by Mr Sedumedi. He pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must "verwyder daardie swart man se voertuig", ("remove that black man's vehicle."). If Mr Sedumedi did not do so, Mr Bester said he would take the matter up with management.

Mr Bester testified that there was no meeting in progress, and that Mr Sedumedi and a colleague were casually discussing jogging routes. When they had finished chatting, Mr Bester raised his parking difficulty with Mr Sedumedi. Mr Sedumedi 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" ("you do not want to park next to a black man...this is your problem"). Mr Bester said that Mr Sedumedi should not turn the matter into a racial issue and that he intended taking the matter up with senior management.

The CCMA accepted that Mr Bester had utilised the terms "swart man" but came to the conclusion that the term had been used in a descriptive sense rather than a derogatory sense. On review, the Labour Court set aside the CCMA's finding. It accepted the version of events described by the employer's witnesses and came to the conclusion that the remark had had racist connotations. The Labour Appeal Court, in turn, disagreed with the Labour Court's approach and accepted that the dismissal on this ground had been unfair. 

This decision was then taken on appeal to the Constitutional Court.

Findings of the Constitutional Court

Was the use of the term "swart man" racist and derogatory?

The Constitutional Court found that: 

  • in interpreting "swart man", the reality of South Africa's past of institutionally entrenched racism cannot be ignored. Therefore, the starting point for interpreting the use of "swart man" cannot be presumed to be from a neutral context.  
  • the term "swart man" was racially loaded, and hence, derogatorily subordinating.  

In particular, the Constitutional Court held that: 

"...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. These prejudices do not only manifest themselves with regards to race but it can also be seen with reference to gender discrimination. 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'".

The Constitutional Court went on to hold that:

"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'.  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'. 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'."

Was dismissal the justified sanction?

The Constitutional Court found that Mr Bester had shown no remorse. He had steadfastly denied ever using the term "swart man". In denying ever using the term, the employee was dishonest. Such dishonesty weighed heavily against him when considering sanction. 

In finding that dismissal was the appropriate sanction, the Constitutional Court found that: 

"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."

The test to be applied by the courts

The Constitutional Court found that the test to be applied in determining whether the term 'swart man" was racist and derogatory "is whether objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning."  

Lessons to be learnt

South Africa's history is an important consideration in interracial relations. The use of racist and derogatory terms is seen, depending on the facts, as failure to embrace the new principles of equality, justice and non-racialism. In this case, South Africa's history is the context in which the term "swart man" must be contextualised. 

The question involving what constitutes racism is not only a constitutional issue but one that goes to the heart of South African democracy. 

Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions