In 2016 City Press carried a story with the headline, “We know racism when we hear it.”
Although there is no single legal definition for the term “racism”, this confident headline crumbles somewhat when tested against the guidelines for determining when an utterance is racist as laid down by the Constitutional Court in relatively recent judgments.
That begs the question: When is an utterance racist? For example, is calling someone a “swart man” (black man) or singing a struggle song containing the word “boer” racist?
The court was faced with a difficult decision when Bester, a senior employee, was dismissed for referring to a sub-contractor’s employee, one Solly Tlhomelang, as a “swart man”.
When Bester wanted to park his vehicle, there was another large vehicle in the parking next to his. He was worried that one of the vehicles would be damaged if he parked in the narrow space. He raised this grievance with a colleague, Sedumedi, by contacting him several times to no avail before storming into the latter’s office, interrupting a meeting, and saying in a loud aggressive voice that the “swart man” must be told to immediately remove his vehicle.
After conflicting decisions were handed down by the CCMA, the Labour Court and the Labour Appeal Court, the Constitutional Court provided some guidelines to be followed when an employer (or another employee) wants to determine whether such an utterance is used to describe a member of a certain race or whether it was racist.
The court said that the following questions must be asked:
- What was the context in which the words were used?
- Were the words used designed to impair the fundamental human dignity of another?
- Were the words aimed at a particular and identifiable person – or were the words used in general terms to describe a particular race group?
In essence the court focused on Bester’s attitude, and the manner in which he spoke, rather than only on the words “swart man”.
The parties accepted that the words “swart man” were not per se racist. The question as to whether the words were racist turned on the context; that is, the court asked whether he used them in a racist and derogatory manner with the intention to impair the dignity of the “swart man” (Tlhomelang) or whether he simply described a member of the black race.
By analysing the context in which the reference was made, the court concluded that the usage was intended to hurt and humiliate and therefore racist.
The “boer” and the struggle song case
During an unprotected strike the workers saying a number of struggle songs which contained the word “boer”. The employer believed the usage of the word in that context was racist and dismissed the employees.
When the matter finally reached the Constitutional Court, it had to determine whether the word boer” in that context was racist or not.
The court said depending on the context, the word “boer” referred to a white person or a farmer and therefore was not per se racist.
Having considered the evidence the court found that when the word “boer” was used in this context it wasn’t racially offensive because:
- Struggle songs historically contain words or phrases which may, in a different context, be used only to offend or hurt.
- In the context of the struggle song the purpose of the usage was political – it formed part of the freedom struggle
- It was therefore used to object to an oppressive political system known as apartheid
- Strikers have sung struggle songs for decades because they were objecting to some of their terms and conditions of employment
- The purpose of the song, and therefore the words in the song, was not to hurt, humiliate or impair the dignity of someone. It had a completely different purpose.
The court therefore drew a distinction between uttering the word in a struggle song and the act of referring to someone in racist terms.
The court held that while the CCMA and the courts must deal with racism firmly, the alleged perpetrator must be treated fairly.
In finding that the employees’ dismissal was unfair, the court also held at paragraph 48 of the judgment:
(…) even if the singing had amounted to uttering racist words, dismissal of the employees could not follow as a matter of course because there is no principle in our law that requires dismissal to follow automatically in the case of racism (Emphasis added).
The importance of these judgments:
The courts are firm that there is no place for racism at the workplace. They have repeatedly stated that racism must be dealt with “in a manner that will ‘give expression to the legitimate feelings of outrage’ and revulsion that reasonable members of our society – black and white – should have when acts of racism are perpetuated.” 
These Constitutional Court judgments, however, caution employers and employees not to accuse someone of racism on the basis that they just know that a particular utterance is racist and therefore demand that dismissal is the only appropriate sanction.
The decision whether to dismiss may only be taken after the utterance is evaluated in the context in which it was used, and the employee’s conduct was assessed in light of the totality of the circumstances.
 Rustenburg Platinum Mine v SAEWA obo Bester and Others (2018)
 Duncanmec (Pty) Limited v Gaylard N.O. and Others  ZACC 29
 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others