The importance of context in identifying racism in the workplace

Abstract

This mini dissertation follows a doctrinal approach that analyses the most relevant South African legislation and case law in the consideration of context and history in terms of racial discrimination. The main purpose of this study is to determine whether the South African courts consider the context and history in which the racial incidents have occurred, in order to determine whether an employee’s dismissal is fair. In order to determine this, the study places emphasis on two recent Constitutional Court judgments. In Duncanmec (Pty) Limited v Gaylard NO and Others and Rustenburg Platinum Mine v SAEWA obo Bester and Others, the Constitutional Court placed particular relevance on the consideration of context and history. These two judgments appear to endorse conflicting views regarding the fairness of the dismissal of employees during discrimination cases. However, through this study it becomes clear that the courts did take history and context into account when deciding whether discrimination occurred at the workplace and the decisions did not contradict each other.