Author: Imraan Mahomed - Director: Practice Area Leader Employment/Labour Law & member of the Management Board
Bekker CJ, Mohamed CJ and Zondo JP long observed that "racist conduct requires a very firm and unapologetic response from the courts, particularly the highest courts.
Courts cannot therefore afford to shirk their constitutional obligation or spurn the opportunities they have to contribute meaningfully towards the eradication of racism and its tendencies." (my emphasis)
The decision reviewed in this article is that of Biggar v City of Johannesburg (Emergency Management Services) (2017) 38 ILJ 1806 (LC). This is yet another case, which should make us realise just how fragile our societal cohesion actually is, despite political advancements of the negotiated settlement of 20-odd years ago.
The offensive facts need to be recounted from the Labour Court judgment:
The applicant, Victor Biggar, was employed by the City of Johannesburg: Emergency Management Services as a Fire Fighter Emergency Medical Technician. Biggar was employed in 2000 and was stationed at the Brixton Fire Station. Originally from Durban, he relocated with his wife and three children and they resided in the apartments provided by the City at the Brixton Station.
Biggar was the first black fireman to be appointed at the Station and to stay at the apartments. All other apartments were occupied by his white colleagues. Let us pause on this fact – these “firsts” should have been a celebratory moment for the City and Biggar personally as other firsts such as among many others, the first black president of the Business Chamber, and our first black Chief Justice have been celebrated as moments of pride for us as a nation. But, as the plasters of our society keep peeling off as we have witnessed in the recent past, our rainbow nation may have been an illusion.
The evidence in the Labour Court showed that the Biggar family were subjected to racism as soon as they took occupation of their apartment. The children were not allowed to swim in the communal pool or play soccer and were subjected to various forms of racial abuse by Biggar’s colleagues’ children. His son was called “k*r” and his wife a “bitch”. In fact, the testimony at trial was that the word “k*r” was uttered without thinking at Brixton.
That a fellow South African would be subjected to such crass indignity after 1994 should be an affront to us all.
On 12 June 2012, Biggar resigned.
The complaint before the Labour Court was that of unfair discrimination in the workplace and related to events which spanned 2000 and 2008. The alleged perpetrators of racism were: Messrs Andrew Pretorius, Gerhard Badenhorst and Tony Venter. Venter was stationed, and resided at the Turffontein Fire Station. He is related to Pretorius and Badenhorst.
Biggar's immediate supervisor, was the Brixton Station Commander, Mr T Gqiba. Biggar alleged that Gqiba failed to deal with the racism allegations. In December 2006, the Biggar family was involved in a racial fight with the Pretorius and Badenhorst families. On 2 January 2007, Biggar requested the Executive Head of EMS, Dr Gule to transfer him out of the Brixton Station.
On 5 January 2007 Gqiba convened a meeting with Biggar, Pretorius and Badenhorst. On 10 January another fight ensued. This time between Biggar (including his sons) and Venter/Pretorius outside the residential premises. Biggar went on to stab Venter who sustained serious injuries. Biggar and his sons were subsequently criminally charged. On 9 October 2007, Biggar was charged by the City for the assault. Found guilty on 23 May 2008, Biggar was issued with a final written warning and a recommendation that he be transferred to another Station. Venter and Pretorius were not subjected to a disciplinary hearing for the same incident. The pattern of abuse by some white residents towards the applicant's family and other black residents in the complex (it seems from the judgment that with the passage of time more black employees took up residence at the complex) continued during Gqiba’s tenure.
Biggar testified that he felt belittled and humiliated. Despite complaining to Mr Clark, his supervisor at one time, the harassment continued. At some point, Biggar also sought the intervention of Mr Tembe, the Director of Operations, who did reprimand Biggar's white colleagues and told them to teach their children not to use the word “k*r”. However, nothing changed after that intervention. Instead, the white colleagues launched a petition seeking to have Biggar removed from Brixton.
What is also offensive, and should be an eye opener for anyone who believes that as a nation we have transcended the legacy of apartheid and colonisation is that, Biggar's colleagues’ children - presumably born after 1994 - would even know the vile term: k*r.
At the 2 December 2006 year-end function Biggar’s wife was assaulted by Venter and his sister, who happened to be Badenhorst’s wife. Biggar's spouse fled to the Fire Station as the applicant was on duty at the time. He escorted her back to their apartment. On the way, they were confronted by Venter who directed more racist insults and threats at them. On 3 December, the Biggar family were having a braai when Pretorius drew a gun on his son, his wife intervened and a verbal exchange of insults ensued. Biggar was again called “k*r” and threatened that “vanaand julle is dood” [tonight you die]. These incidents were reported to Gqiba who then instructed the standby supervisor, Mr Malan, to attend to the complaints or call the police. On 5 January 2007, Gqiba called the applicant, Pretorius and Badenhorst to a meeting in order to resolve the dispute. The applicant suggested that the matter be referred to Mr Coby, the next line manager but Gqiba refused.
On 10 January 2007, Biggar was off sick when he was alerted to an altercation between Venter and his son. When he then saw Venter, Pretorius, Badenhorst coming in his direction he armed himself with a kitchen knife. Venter assaulted the applicant with a sjambok. In self-defence, Biggar stabbed Venter.
Biggar was later charged with fighting with colleagues and of bringing the reputation of his employer into disrepute. Again, surprisingly, his colleagues were never charged. Biggar also referred in evidence to another 2005 incident when Pretorius and another white colleague, were involved in a fight but no disciplinary action was taken against them. Biggar was found guilty of assault and issued with a warning in March 2008.
In February 2008, shortly before the enquiry began, Biggar referred a complaint to the Human Rights Commission about the abusive treatment he and his family suffered at the hands of his colleagues. Nothing transpired. On 6 March 2008, the applicant referred a dispute to the South African Local Government Bargaining Council. He complained of unfair discrimination arising from the racist harassment by his fellow employees, which the employer had failed to eliminate.
During cross-examination at trial, Biggar was adamant that he reported the racial harassment incidents to his superiors although not in the form of a formal grievance. He testified he had also reported the matter to the Human Rights Commission and the media. He denied he was a racist and a "troublemaker". Terminology reminiscent of a bygone era is used under cross-examination.
The applicant’s witnesses confirmed that racism was rife at Brixton. Mr Manyobe, who had resigned in 2008, confirmed that blacks were subjected to racial harassment at Brixton. He reported the fighting incidents to Gule as Gqiba failed to attend to the complaints. "Whites were controlling Brixton", Manyobe testified. Mr Matobako, the respondent’s Divisional Chief, joined the respondent in 1991. He was elected as a shop steward in 1993, a position he held until 2008. He testified that "blacks were not welcome at Brixton" and were called “k*rs”. This was consistent with Biggar’s testimony. According to Matobako, management delayed addressing the employee complaints in order to frustrate them.
In the face of this evidence, and the serious allegations, it would have been expected that the City of Johannesburg would rebut. Instead, it closed its case without leading any evidence. The City contended that Pretorius and Venter were not called as witnesses as they had “moved on with their lives” and it did not want to upset the prevailing racial harmony at the Brixton Station.
On the facts, Nkutha-Nkontwana AJ (as she was at the time) correctly concluded that the respondent was aware of the racism at Brixton but failed to take the steps necessary to eliminate it, as is its obligation under the Employment Equity Act, 1998.
In the seminal judgment of the Constitutional Court, South African Revenue Service v CCMA and Others (2017) 1 BLLR 8 (CC), (a case led by Hogan Lovells’ partners Lavery Modise and Jean Ewang), the Chief Justice, writing for a unanimous bench, said the following on racism: "[7] Calling an African a ‘k*r’ thirteen years deep into our constitutional democracy, as happened here, does in itself make a compelling case for all of us to begin to engage in an earnest and ongoing dialogue in pursuit of strategies for a lasting solution to the bane of our peaceful co-existence that racism has continued to be. The duty to eradicate racism and its tendencies has become all the more apparent, essential and urgent now. For this reason, nothing that threatens to take us back to our racist past should be glossed over, accommodated or excused. An outrage to racism should not be condescendingly branded as irrational or emotional. This is so not only because the word k*r is “an inescapably racial slur which is disparaging, derogatory and contemptuous”, but also because African people have over the years been addressed as k*rs. This seems to suggest that very little attitudinal or mind-set change has taken place since the dawn of our democracy.
[8] South Africans of all races have the shared responsibility to find ways to end racial hatred and its outstandingly bad outward manifestations. After all racism was the very foundation and essence of the apartheid system. But this would have to be approached with maturity and great wisdom, obviously without playing down the horrendous nature of the slur. For, the most counter-productive approach to its highly sensitive, emotive and hurtful effects would be an equally emotional and retaliatory reaction. But why is it that racism is still so openly practised by some despite its obviously unconstitutional and illegal character? How can racism persist notwithstanding so much profession of support for or commitment to the values enshrined in our progressive Constitution and so many active pro-Constitution non-governmental organisations?
[10] Another factor that could undermine the possibility to address racism squarely would be a tendency to shift attention from racism to technicalities, even where unmitigated racism is unavoidably central to the dispute or engagement. The tendency is, according to my experience, to begin by unreservedly acknowledging the gravity and repugnance of racism which is immediately followed by a de-emphasis and over-technicalisation of its effect in the particular setting. At times a firm response attracts a patronising caution against being emotional and an authoritative appeal for rationality or thoughtfulness that is made out to be sorely missing.
[11] That in my view is a nuanced way of insensitively insinuating that targets of racism lack understanding and that they tend to overreact. That mitigating approach would create a comfort zone for racism practitioners or apologists and is the most effective enabling environment or fertile ground for racism and its tendencies… That somewhat exculpatory or sympathetic attitude would, in my view, ensure that racism or any gross injustice similarly handled, becomes openly normalised again. Those who should help to eradicate racism or gross injustice could, with that approach, become its unintending, unconscious or indifferent helpers.
[12] The Constitution is the conscience of the nation. And the courts are its guardians or custodians. On their shoulders rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised. To this end, when there is litigation about racial supremacy-related issues, it behoves our courts to embrace that judgement call as dispassionately as the judicial affirmation or oath of office enjoins them to and unflinchingly bring an impartial mind to bear on those issues,…." (my emphasis) In Biggar, Nkutha-Nkontwana AJ found that the respondent trivialised the use of derogative words like “k*r” and “bitch” by its white employees and their families and expected Biggar to just move on with his life. Although not all the racial incidents were work related and primarily involved the families of the fire-fighters, they took place at the respondent’s premises and in turn contaminated the work environment in a manner that compromised safety and job performance. These matters directly impacted the workplace.
The Magistrate of the Newlands Regional Court, who presided over the attempted murder trial against Biggar commented starkly after acquitting Biggar: “Before I stand down, I am shocked ... I am a tax payer in this city. My taxes are used to pay your salaries. You live in accommodation provided by my tax money. Is this the way municipal officials public officials act? It is shocking. You are a disgrace if this is the thing that goes on, you are a disgrace to your profession. The fire department in this city has long history and a long tradition. It is one of the first fire departments in the world. This sort of thing destroys the reputation. It smudges the good work done by others. You do not have a right to behave in such a manner on the Council property. All three of you the accused and the witnesses…you should really look into your heads and then see how to remedy the situation.
I just want to ask one thing. If this is the way you behave when you are not in uniform, how are you going to behave when your life is in danger and you have to rely on your colleague? Who is going to save Mr Biggar's life if he is trapped in a burning room? Will Mr Pretorius risk his life on the basis of this evidence? I do not think so and vice versa. It is an untenable situation. You cannot work like this. You have to solve this thing and have to do it amicably…”
(my emphasis) The City had a legal duty to prevent discriminatory practices in the workplace. The evidence revealed that even though Gqiba took some steps to deal with the applicant’s complaint, the City persistently denied that there was racial harassment at Brixton and failed to investigate properly the serious allegations and concerns Biggar raised.
An indictment against the City of Johannesburg is the Labour Court finding that it did not deal with the allegations of racial harassment in a decisive manner that would have reflected a clear intention on its part to eliminate discrimination in the workplace. What is most disconcerting is that this is the City of Johannesburg - the largest metropolitan local Council post-democracy - led at the time by anti-apartheid activists of the yesteryear.
Section 50(2)(a) of the EEA, grants the Labour Court wide powers to may make “any appropriate order that is just and equitable in the circumstances, including…payment of compensation by the employer to that employee”. Bigger was granted 12-months compensation for unfair discrimination and, rightfully, also awarded his legal costs. In my view, the Labour Court should have also directed the City to take steps to prevent unfair discrimination in future, as it is empowered to do under ss2(c). This would also have been in line with authority of higher courts.
The unanimous bench in SARS calls for active citizenry to protect our aspirations for a non-racial society and asks: "Are we perhaps too soft on racism and the use of the word k*r in particular? Should it not be of great concern that k*r is the embodiment of racial supremacy and hatred all wrapped up in one? My observation is that very serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response. Even in those rare instances where some revulsion is expressed in the public domain, it is but momentary and soon fizzles out".
The rainbow nation cannot be the dream of an iconic generation of anti-apartheid freedom fighters – it must remain a real societal aspiration for a better South Africa for “black” and “white” alike, with a recognition of the injustices of the past and its effects on modern society. The attitude by the City that Pretorius and Venter had “moved on with their lives” is a failure to understand the legacy of racist apartheid in its current workplace.
The recent re-opening of the inquest into the untimely death of anti-apartheid activist Ahmed Timol at the instance of his family must, if nothing else, bear testimony to the reality of our contemporary society – people cannot simply "move on with their lives."
The impact of apartheid is real and requires firm handling across all avenues of society. There cannot, and never will be an apology for the expectation of a transformed society, as expressed in our Constitution.
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