The history of South Africa continues to lurk in the shadows at our courts and daily the Equality Court and Labour Courts are faced with what seems to be a dilemma: the allegation of “playing the racial card.” This should not be the case: We are reckoned to have one of the best Constitutions in the world, founded on three significant values that have been unashamedly elaborated on by our courts.
The biggest question is why are there so many claims in our courts. Are we anywhere closer to achieving a better South Africa?
To my mind, the answer is no, although there is positive development in our courts. The Labour Appeal Court in a recent case found that unfounded allegations and/or false accusations are demeaning, insulting and an attack on dignity. An objective test is applied to determine whether accusations and allegations are unfounded or untrue. As a result, a plaintiff can no longer base their case on his or her subjective feelings and they will need to bring proof that allows the court to draw a justifiable inference. Will this also require the reasonable person standard? I do not see how.
The court held further that false accusations have a more negative effect if the victim is from a disadvantaged background, as he or she “probably has suffered personally the pernicious effects of institutional and systematic racism.”
This point of departure is also mirrored by the decisions in the CCMA where it was recently ruled that “the use of pejorative words indicated some degree of racial intolerance” (in the context of that matter). This was held to be especially relevant when the complaint is by an employee towards an employer or holder of a position of authority.
This progressive approach of the courts is challenged by the increasing reference to a complaint, whether false or true, as stemming from “playing the race card.” The use of words in law is important and our courts should avoid promoting negative connotations. It is true that a person is “playing a race card” when they are unfoundedly or falsely accusing another of racism, but we should not ignore the fact that this ‘defence’ is also used by persons with racist opinions to cover their undignified behaviour and dehumanising actions.
The most important lesson in our recent cases with respect to racist remarks is that people are sensitive to how they are referred to, addressed and whom by use of words they are associated with. So what is the solution? It is simple: mind your words and respect others because it might cost you your job.
