While it is established law that racism in the workplace must not be tolerated following the 2012 Labour Court ruling in Modikwa Mining Personnel Services v CCMA and Others, the recent Constitutional Court 'ground-breaking' judgment in Rustenburg Platinum Mine v SAEWA obo Bester and Others has recognised the truth that phrases which may be regarded as neutral are not necessarily so, due to the impact of the legacy of apartheid and racial segregation that has left us with a 'racially charged present'.

In an analysis in the Cape Times, Cliffe Dekker Hofmeyr's Michael Yeates points out that in the 2012 Modikwa ruling, the Labour Court judgment said: 'Implicit, indirect and covert acts of racism, depending on the context in which they occur, may be offensive, if not more offensive than overt racist acts precisely because they are aimed at achieving the effects of racism through indirect, underhand and divisible means.'

Now, in the Rustenburg Platinum ruling, the Constitutional Court's Justice Leona Theron found that the Labour Appeal Court, like the CCMA, failed to take into account the totality of the circumstances and came to an unreasonable conclusion that ‘swart man’ was used innocuously as a descriptor. Yeates says this is a ground-breaking judgment for two main reasons: the decision provides authority for the contention that a CCMA commissioner must come to a conclusion based on the evidence before him and cannot create a defence that has not been articulated by the parties; and the decision is the first time the Constitutional Court has grappled with less overt, subtler forms of racism in the workplace.

'The decision establishes the test for determining whether seemingly neutral statements are nevertheless derogatory or racist when viewed against the totality of circumstances and taking heed of apartheid’s legacy of institutionally entrenched racism. The case also emphasises the importance of an employee being able to demonstrate introspection and a willingness to acknowledge any wrongdoing in order to justify rehabilitating the employee back into the employer’s trust and employ.'

Full analysis in the Cape Times (subscription needed)

Modikwa Mining Personnel Services v CCMA and Others

Rustenburg Platinum Mine v SAEWA obo Bester and Others