A former SARS employee‚ fired in 2007 by then SARS Commissioner Pravin Gordhan for using racist and derogatory language‚ has had the reversal of his dismissal overturned by the Constitutional Court. In what media reports describe as a 'scathing' judgment handed down by Chief Justice Mogoeng Mogoeng yesterday‚ Jacobus Kruger was labelled a racist for using the k-word at work in August 2007. The ruling has inplications for workplaces across the country, notes Legalbrief.

This is evident from the words of Johan Botes‚ head of the employment law practice of law firm Baker & Mckenzie‚ who is quoted in a TimesLIVE report as saying the question the court was asked to deal with was: ‘May an employee who uttered racist statements be placed back into the same workplace.’ Botes said the court left everyone in no doubt that racist behaviour would not be tolerated. ‘The judgment explains and underlines the damaging effect of racism in our society.

It warns employees exhibiting such behaviour in a workplace that there should be no room for them to hide. It extends a hand to embattled employers who have to show why reinstatement is not appropriate by placing a burden on employees to show why continued employment is not intolerable where they dispute this assertion by the employer‚’ Botes said. Another TimesLIVE report notes Kruger‚ who was based at Cape Town International Airport‚ had said after a row with his manager Abel Mboweni: ‘I don't understand how kaffirs think. A kaffir must not tell me what to do.’

In a disciplinary hearing Kruger pleaded guilty and was given a final written warning and placed on suspension without pay. But Gordhan reversed this sanction and sacked him. After Kruger successfully challenged his dismissal at the CCMA and was reinstated‚ SARS approached the Labour Court and Labour Appeal Court, but failed in both instances. The Constitutional Court, however, upheld the SARS appeal‚ saying the seriousness of Kruger's racist remarks could not be overlooked by the courts in a country still fighting the scourge of racism.

First TimesLIVE report

Second TimesLIVE report

The court described use of the k-word as egregious, derogatory and humiliating, according to a Fin24 report. ‘Revelations of our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as to induce a strong sense of revulsion against racism in every sensible South African,’ Mogoeng wrote. ‘But to still have some white South Africans address their African compatriots as monkeys, baboons or kaffirs and impugn their intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite. And does in fact sound a very rude awakening call to all of us.’

He said the k-word was a ‘more assertive insinuation that African people are inherently foolish and incapable of providing any leadership worthy of submitting to’. He added: ‘It bears testimony to the fact that there are many bridges yet to be crossed in our journey from crude and legalised racism to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical reality.’ The court held that the use of that k-word amounts to hate speech and that courts are obliged to act fairly, but firmly against those who use it, to contribute to the eradication of racism in line with the foundational values of our Constitution. It ordered that Kruger's reinstatement be reviewed and set aside‚ but ordered SARS to pay Kruger six months compensation because the organisation had mishandled the dismissal.

Full Fin24 report

Judgment

The Chief Justice also noted that institutions across the board were failing to uphold their constitutional obligations to eradicate racism. ‘Are we perhaps too soft on racism and the use of the k-word in particular? My observation is that very serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response,’ he said, according to a report in The Mercury. He also chastised Kruger for claiming he was forced to admit his racism. ‘He was disbelieved by the (CCMA) arbitrator.

The arbitrator was dealing with someone who tried to conceal his racist remarks and lie about them,’ said Mogoeng. He said the CCMA’s decision to reinstate Kruger was the equivalent of bringing in a ‘ticking time-bomb’, where his African fellow employees knew he regarded them as ‘lazy, incapable of leading him and intellectually inferior to him solely because of their race’. While he acknowledged the correct CCMA ruling that the dismissal was unfair, Mogoeng said a reinstatement was the least rational remedy. The arbitrator should also have factored into her decision that SARS, as an organ of state, was required to eradicate racism in the workplace and society.

Full report in The Mercury (subscription needed)