Abstract

NKOSI, Thulani  and  MAHLAKO, Neo. Are courts going out of their way to accommodate RACISTS? A critique of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others. Law democr. Dev. [online]. 2020, vol.24, pp.338-363. ISSN 2077-4907.  http://dx.doi.org/10.17159/2077-4907/2020/ldd.v24.14.

The article critically examines the way in which the Constitutional Court dealt with the issue of racism in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others 2017 (1) SA 549 (CC). Invoking general legal principles blended with critical race theory, we show that the apex court erred in finding that an employee who had racially abused his superior by referring to him as a kaffir needed to be compensated for a dismissal that arose from such racial abuse. We show that even with a finding that the dismissal was procedurally unfair, existing legal principles, racial justice and social transformation imperatives negated the court making a finding that compensation was due to the employee. The racism involved was so vile and brazen that a compensation award was not only inappropriate in the circumstances but had the consequence of sending a wrong message to the general public, black people in particular, that the law and the courts are still tolerant of racists and racism. Ordinary black people are likely to read the judgment as the law rewarding racists for being racist. The article calls upon the courts to take racism and the racial oppression of black people seriously by acting firmly against those found guilty of racial abuse.

Keywords : Racism; colour-blindness; workplace racial oppression; racial justice; judicial choice; social transformation; exceptions to procedural fairness.

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