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Be mindful that even ordinary words can be
racist and derogatory

Jeanette Monahadi
June 2018

“I recently gave birth to a baby boy. I want to breastfeed my son, but being
back at work is making it very difficult for me to breastfeed as our breaks are
quite short. May I ask my employer for more time during the day to breastfeed,
or is that not allowed?”
In the recent judgment by our Constitutional Court, the court was called on to
decide whether one employee’s reference to another as “swart man” was racist
and derogatory. In making its determination, the sentiments of the late former
President Nelson Mandela were echoed who said that “the new moral and
political challenge that our young democracy should grapple with decisively is
de-racialising the South African society”.
Labour The brief facts of this judgment involved a Mr Bester who disrupted a meeting
and aggressively demanded that the chief safety officer remove the black
man’s vehicle from his parking bay failing which he would take the matter up
with management. He was subsequently suspended from work, charged for
making racial remarks towards a fellow employee and dismissed as a result.
Mr Bester challenged the fairness of his dismissal at the CCMA which ruled in
his favour and the matter went through the Labour Court all the way up to the
Constitutional Court.
Important to note is that the Constitutional Court held that the context in which
the words were used were important in determining whether they were racist
or derogatory. Accordingly, the test to determine whether words were intended
to be racist or not is an objective test that requires a positive answer to the
question whether a reasonably informed person of ordinary intelligence would
perceive the words as racist or belittling. The Court said that the impact of the
legacy left by apartheid and the racial segregation that has left our society with
a racially charged present was the context in which Mr Bester’s conduct had to
be considered. Based on this, the court found that Mr Bester was fairly dismissed
and that his conduct was racist and derogatory.
Not only is this judgment important in that it explains how even ordinary words
can be discriminatory or racist based on context and intent, but it sets out the
test to be applied to determine this. From an employer perspective, it must also
be understood that an employer must protect employees from any form of racial
conduct or discrimination in the workplace and employers should be sensitive
to how ordinary words are used and should sensitize its employees thereto.

If one considers the continuing efforts of Government to curb racial
discrimination and intolerance through for example the recent gazetting of the

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