ANALYSIS: Come on, racists, at least try to show remorse
Just like Vicki Momberg, in the 'swart man' case Meyer Bester failed to take responsibility for what he said, and the hurt it may have caused
South Africa’s highest court has ruled that a white man who called a colleague a “swart man” was justifiably dismissed, primarily because he lied about saying those words and then showed no remorse for his conduct.
This ruling is likely to be used as a basis for alarmist arguments that political correctness has gone too far. But that interpretation completely misconstrues what is again a powerful warning to those guilty of racist conduct to own up, take responsibility and genuinely apologise – or face the consequences.
It also makes a powerful statement about how South Africa’s apartheid past, and the social dynamics it gave birth to, must be a factor when considering whether conduct is racist or not.
The ruling follows the effective two-year sentence imposed on real estate agent Vicki Momberg, who was caught on camera using the k-word 48 times.Just like in the Momberg case, the behaviour of former Rustenburg Platinum Mine senior training manager Meyer Bester – and his lack of remorse for his proven racist conduct – was key to Justice Leona Theron’s judgment, which was unanimously supported by the full court.
While the discussion around this case seems to have centred on whether the phrase “swart man” can be justifiably found to be racist, it’s important to note that Bester denied using those words during an April 2013 altercation over parking.
Bester had taken issue with how a large 4x4 had been allowed to park in the parking bay adjacent to his own, making it difficult for him to reverse. He repeatedly raised the matter with the mine’s chief safety officer, Ben Sedumedi, with no success.
Then, on April 24 2013, the mine claimed Bester “stormed into the meeting while it was in progress, pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must ‘verwyder daardie swart man se voertuig’ (remove that black man’s car) otherwise he, Mr Bester, would take the matter up with management”.
Claimed he was framed
During a subsequent disciplinary inquiry, Bester denied the evidence of four witnesses who said they’d heard him use these words. He made a statement in which he claimed it was in fact Sedumedi who used these words, and suggested he was being “framed”:
“Mr Sedumedi then started going on and on about me who does not want to park next to a ‘swart man’. I then said to Mr Sedumedi he must not try and make this issue of the parking area a racial issue.“When I realised what Mr Sedumedi was trying to achieve and in which direction he wanted to force this issue, I just turned around and left. The next thing I have heard is that I have been charged and that I will be suspended.
“I have not shouted at anybody in Mr Ben Sedumedi's office, neither had I pointed fingers at anyone or in any direction. I did not make any comments using the words ‘swart man’.”
Bester later testified: “I also know that in this era that we are working now and at this time, it would be devastating for your career to go into an office, start shouting and pointing fingers and shouting the words ‘swart man’ in front of 100 people. Even in front of one person. You just do not do it, and therefore I say Mr Sedumedi is sucking this out of his thumb ... that this incident has ever [taken] place.”
He was asked whether someone who uttered the phrase “jy moet daardie swart man se kar langs my wegvat” should be dismissed. “Yes,” he responded.
Following his dismissal for his use of the words “swart man” and for insubordination, Bester went to the Commission for Conciliation, Mediation and Arbitration, which found that the words “swart man”, which Bester had denied even saying, were “racially innocuous”.A series of court cases ensued and the matter ended up in the Constitutional Court where Justice Theron criticised the CCMA and Labour Appeal Court for finding that the phrase “swart man” was presumed to be “neutral”.
“The Labour Appeal Court’s starting point that phrases are presumptively neutral fails to recognise the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present.
“This approach holds the danger that the dominant, racist view of the past – of what is neutral, normal and acceptable – might be used as the starting point in the objective enquiry without recognising that the root of this view skews such enquiry.”
Theron added: “The Labour Appeal Court, as well as the commissioner, failed to approach the dispute in an impartial manner, taking into account the totality of circumstances.
“It was unreasonable for the commissioner, within this context, to find that using ‘swart man’ was racially innocuous.”
'Absolute lack of remorse'
Essentially, Theron suggests that the CCMA and the Labour Appeal Court also failed to acknowledge South Africa’s apartheid past, and its impact on the country’s current reality, in assessing whether Bester’s words were racist.
Crucial to her reasoning in finding that Bester’s dismissal was justified was his own response to the charges against him.
“Mr Bester has demonstrated an absolute lack of remorse for his actions and persisted with a defence of a complete denial. He did not acknowledge that his conduct was racist and inappropriate. He made no attempt to apologise,” she said.Theron pointed out that the Constitutional Court had previously stated that how an employee took responsibility for their racist conduct – by apologising, admitting wrongdoing and demonstrating a willingness to reform and educate themselves – was a key factor in determining whether they should be fired.
“Mr Bester failed to demonstrate a willingness to change. Instead, he resorted to a vicious attack on the witnesses who testified on behalf of the applicant during the disciplinary hearing.”
This attack had been noted by the chairperson of Bester’s disciplinary inquiry, who also criticised him for swearing and behaving in a manner that was “insolent, disrespectful, rude, offensive and disruptive”.“As chairperson I was astounded by the viciousness of the attacks by Mr Bester during the hearing. The behaviour carried out with intense violence, and an apparent desire to inflict aggressive language, cruel and malicious acts against a fellow employee and employees in a threatening manner during the hearing, was irresponsible.”
At the end of the inquiry, which found him guilty, Bester continued to insist he had been “framed”.
As Theron stated: “Even at this late stage, there was no recognition that he had behaved badly during the hearing and more so, that he had once again insulted his colleagues. An acknowledgement of wrongdoing by Mr Bester would have gone a long way in evidencing the possibility of rehabilitation, including an assurance to the applicant that similar misconduct would not be repeated in the future.“Mr Bester has not learnt to conduct himself in a manner that respects the dignity of his black co-workers. By his actions he has shown that he has not made a break with the apartheid past and embraced the new democratic order where the principles of equality, justice and non-racialism reign supreme.”
Just like Momberg, who sniggered at the witnesses against her and refused to fully recognise the hurt she had caused by using the k-word, Bester had failed to take responsibility for what he had said, and the hurt it may have caused.
These rulings are not overly harsh attacks on unwitting or emotionally overwhelmed people who said racist things without a full grasp of what they were doing.
They are warnings to unrepentant racists who refuse to admit what they have done, or genuinely apologise. Bester and Momberg are victims of their own conduct and attitudes, not the legal system.