Constitutional Court hears case on abusive 'racist' language over parking space

09 November 2017 - 14:20 By Ernest Mabuza
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The Constitutional Court in Johannesburg. File photo.
The Constitutional Court in Johannesburg. File photo.
Image: NICOLENE OLCKERS/GALLO IMAGES

A dispute over parking spaces at work between a black man and a white man culminating in the use of the term “swartman” was heard by the Constitutional Court on Thursday.

Meyer Bester was dismissed from his employ in May 2013 following an incident where he stormed into a meeting at his workplace at Thembelani mine in Rustenburg.

Bester had not been happy with the fact that a parking spot next to his had been given to fellow employee Solly Tlhomelang by safety officer Ben Sedumedi.

On April 26 that year‚ Bester stormed into a safety meeting chaired by Sedumedi and said in a loud and aggressive manner that Sedumedi must “verwyder daar die swart man se voertuig” (remove that black man’s vehicle).

Bester was dismissed following a disciplinary hearing for misconduct and making racial remarks.

However‚ the Commission for Conciliation‚ Mediation and Arbitration declared Bester’s dismissal was inappropriate and ordered him to return to work with backpay.

Unhappy with this decision‚ the employer approached the Labour Court‚ which found in December 2015 that Bester’s dismissal was substantially and procedurally fair.

The Labour Court found that taken into context‚ Bester’s referral to Tlhomelang as a “swartman” was derogatory and racist. But Bester approached the Labour Appeal Court‚ which upheld his appeal in May this year.

The employer argued in the Constitutional Court on Thursday that Bester should have been dismissed for his utterances.

Justice Mbuyiseli Madlanga asked whether it would be improper not to factor in the South African reality that although the legally sanctioned racist past had been replaced by democracy‚ racism had not disappeared.

“Would it be improper in an enquiry (on the use of the words in context)‚ not to factor [in] the reality that those who are at the receiving end to this racism are swart manne and swart vrouens‚” Madlanga asked AP Landman‚ an advocate representing Bester. Landman said it would be proper.

Madlanga asked why was it necessary for Bester to use the description of “swartman” when referring to Tlhomelang. Landman said it was unnecessary. There was a measure of irritation on Bester’s part and he made an uncalled-for statement‚ which was not abusive‚ Landman said.

“The concession you made that it was unnecessary to refer to race is‚ in my view‚ a very important one‚” Deputy Chief Justice Raymond Zondo told Landman.

The court reserved judgement.

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