Racism in the workplace: A view from the jurisprudence of courts in the past decade

• Jurisdiction: South Africa
• Author: Bongani Khumalo
• Published date: 20 August 2019
• Citation: (2018) 30 SA Merc LJ 377
• Pages: 377-394
• Date: 20 August 2019

Articles

RACISM IN THE WORKPLACE: A VIEW

FROM THE JURISPRUDENCE OF COURTS IN

THE PAST DECADE

BONGANI KHUMALO*

Lecturer, Department of Mercantile Law, University of South Africa

Abstract

South Africa is an intensely wounded society with more than 343

years of racist colonial and apartheid rule that has negatively

affected society and workplace relations. This article highlights and

exposes the continued prevalence of racism in the South African

workplace. The constitutional and legislative framework,

specif‌ically, provisions from the Employment Equity Act 55 of 1998

and the Promotion of Equality and Prevention of Unfair

Discrimination Act 4 of 2000, which are pertinent to this issue, are

brief‌ly discussed. The article presents a ref‌lective glance at case law

from 2007 to 2017 where the courts had to grapple with the issue of

workplace racism. A picture emerges from this holistic view of the

courts’ approach that there is no place for racists in South African

society, and that employers should adopt a f‌irm stance when

dealing with cases involving racism. This article argues in favour of

adopting an unconventional approach that advocates mechanisms

to deal with workplace racism remedially and punitively which is

proportional to its social and legal unpleasantness. Such an

approach would encourage an open conversation about the issue of

race in the workplace and would contribute towards rooting out

racism.

I INTRODUCTION

Racism is an odious and searing ordeal that persists in South African

society. Recent experience has shown that it has not been relegated to

* LLB LLM (Unisa). I should like to thank Prof I Tshoose for his insight and comments on

this article. I should also like to thank the anonymous referees for their invaluable input

towards improving this article.

377

(2018) 30 SA Merc LJ 377

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our past;

1

racism remains common across all sectors, including in the

workplace, sparking controversy in both the media and the courts.

2

By

its nature, racism seeks to reinforce the perception of the superiority of

one race over another.

3

In most workplaces, racism has been institu-

tionalised.

4

According to Spears,

5

institutionalised racism is, in its most

profound instances, covert, resulting from acts of indifference, omis-

sion, and refusal to challenge the status quo. Spears indicates that an

individual need not willfully do something which directly oppresses

another person. Simply going about ‘business as usual’ without attempt-

ing to change procedures and structures, may render one an accomplice

to structural racism, since ‘business as usual’ has been systematised to

maintain black persons and minorities in a state of oppression.

6

This is

unfortunately one of the legacies of colonial and apartheid rule.

Individual racism, on the other hand, has to do with individual racist

assumptions and beliefs. It is informed by conscious or unconscious

personal prejudice.

7

This type of racism may be both covert or overt.

1

Dlamini, ‘Racism in the workplace’ (2015) 57 South African Journal of Social and

Economic Policy 43. The South African Human Rights Commission (the SAHRC) acknowl-

edges that although South Africa has made strides in terms of achieving a racially diverse

workforce and representative employment demographics, the country is still struggling to

move from its divisive past. About sixteen per cent of complaints dealt with by the SAHRC in

the 2015–2016 f‌inancial year had to do with the alleged violation of the right to equality, and

the majority of these were about racism. The SAHRC noted with concern the high levels of

racially derogatory language and racial slurs (words such as ‘kaff‌ir’, ‘monkey’, ‘baboon’,

‘coolie’, etc) used in the workplace. See the South African Human Right Commission Report

on the National Hearing on Unfair Discrimination in the Workplace 8 March– 25April

2016 34–35. Steenkamp J observes in Dagane v SSSBC & others (JR2219/14) (2018) ZALCJHB

114 para 45 that recently there has been a plethora of cases on this unfortunate scourge of our

society.

2

Dlamini, (2015) 57 South African Journal of Social and Economic Policy 43 at 43.

3

See Garson, ‘Smuts and the idea of race’ (2007) 57/1 South African Historical Journal 153

at 153–178.

4

Bezuidenhout, ‘Post-colonial workplace regimes in the engineering industry in South

Africa, Swaziland and Zimbabwe’ Development Research Centre and LSE, Working paper No

53 at 20 and 21, available at http://citeseerx.ist.psu.edu/viewdoc/download?doi=

10.1.1.621.969&rep=rep1&type=pdf, accessed on 11 April 2018. See also Gumede, ‘Institu-

tional racism is still alive and kicking in the workplace’ Mail and Guardian 26 January 2018,

available at https://mg.co.za/article/2018–01–26–00-institutional-racism-is-still-alive-and-

kicking-in-the-workplace, accessed on 11 April 2018; De Vos, ‘Structural racism: the invisible

evil’ Daily Maverick 27 November 2013, available at https://www.dailymaverick.co.za/

opinionista/2013–11–27-structural-racism-the-invisible-evil/#.Wu8D7qSFOUk, accessed on

11 April 2018.

5

Spears, ‘Institutionalized racism and the education of Blacks’ (1978) 9/2 Anthropology &

Education Quarterly 127 at 129–30.

6

Spears, (1978) 9/2 Anthropology & Education Quarterly 127 at 129–30.

7

Calgary, Anti-racism Education ‘Forms of racism’, available at http://www.ucalgary.ca/

cared/formsofracism, accessed on 11 April 2018. See also Scott, ‘A discussion of individual,

institutional, and cultural racism with implications for HRD’ (paper presented at the

International Research Conference in the Americas of the Academy of Human Resource

(2018) 30 SA MERC LJ

378

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