Professor Marius van Staden is Associate Professor in the Faculty of Law at the University of Johannesburg. He lectures Labour Law, Jurisprudence, Interpretation of Statutes and Research Methodology.

Malegapuru Makgoba, Eskom board chairman, recently issued a harsh warning to utility employees who falsely accuse their co-workers of racism. According to Makgoba “we must be careful to make frivolous or baseless accusations against people because they are of another race. You can imagine what happens to a man or woman when they are accused of racism. Sometimes you will never recover.”

These remarks were made against the backdrop of claims of racism levelled against Eskom CEO André de Ruyter by former Eskom employee Solly Tshitangano, who was facing 21 charges of misconduct. Tshitangano was sacked by Eskom after an investigation found him guilty of gross misconduct and breach of duties and responsibilities. Makgoba warned that anyone discovered lying about racist charges would be “shown the door”.

Makgoba’s description of a phenomenon known informally as “playing the race card” is not new. The statement is frequently used when falsely accusing someone else of being a racist in order to get an advantage. It is argued that living in a society where racial bias is still common might make one hypersensitive, to the extent of recognising racism even when it isn’t present. It is regarded as a deceitful strategy to obtain favours or sympathies while casting doubt on the character of others.

The Labour Appeal Court has ruled in circumstances where employees claimed racism without evidence (Legal Aid South Africa v Mayisela and Others (2019) 40 ILJ 1526 (LAC)). The court ruled that dismissing such an employee would be fair. As a result, an employee may not make baseless charges of racism without establishing sufficient reasons and following correct procedures to settle such situations. Employees who make unfounded charges of racism and “play the race card”, according to the court, can undermine their employer’s authority and damage peaceful working relationships.

False racism charges are hurtful and disrespectful. It is an affront to a person’s dignity. Only convincing objective data can lead to a compelling and defensible determination of racism, and only in accordance with grievance mechanisms that have been specifically developed for that purpose.

The Labour Court has summarised this idea concisely: “I can hardly conceive of any place or circumstance or country where, if a person is told that he is a racist, it will not be experienced by such person as him or her being insulted and abused” (SA Chemical Workers Union & another v NCP Chlorchem (Pty) Ltd & others (2007) 28 ILJ 1308 (LC)).

In that case, the Labour Court approved the dismissal of an employee after making an insincere apology to a co-worker who he had falsely accused of racism. According to the Labour Court, such behaviour is a grave affront to workplace racial harmony which must be dealt with immediately as it constitutes serious misconduct.

Although it is common knowledge that racism exists in South Africa, we should also be aware that false accusations of racism can be equally damaging to the dignity, character, and status of individuals accused. In a country where the rule of law is celebrated as a bulwark of justice and fairness, accusing people of racism without giving proof and without following correct procedures to address these issues would be as destructive.

Unfounded claims of racism, if allowed unchecked, will further split a society that is still struggling to come to grips with a past dominated by racial inequality.

For a country like ours, which is emerging from a history of racism, false and unsubstantiated accusations of racism could be just as divisive as actual instances of racism. It could ultimately be destructive to the constitutional project. Adopting a zero-tolerance stance to racism is seen as not only fair, but also necessary for progress toward a more egalitarian society.

When baseless charges of racism are made, it may have a severe impact on those who are true victims of racism as their accusations may be taken less seriously by employers. For both employers and employees, racial harmony in the workplace is critical. Racist attitudes and behaviours among employees must be addressed. If such charges are unfounded, employers must respond with the same vigour as real instances of racism.

Many people may consider the Labour Appeal Court decision to be negative. They would claim that it would deter employees from filing complaints about racism. However, this should not be interpreted as implying that employees should never file such claims.

The law requires employers to deal with allegations of racism in the workplace and provides many remedies for employees who file accusations of racism in the workplace. It should only be interpreted to mean that employees should only make such assertions if they can back them up. The statute establishes high proof standards, but the decision does not imply that employees must be successful in their accusations of racism. It simply means that employees should present some evidence to back up their statements. Makgoba’s statement absolutely aligns with this viewpoint.

Employers must be wary of conventional preconceptions about specific groups of people who “play the race card”. Racism reports must be taken seriously and thoroughly examined. Racism (and other forms of discriminatory treatment) are still prevalent in South African workplaces, as evidenced by the abundance of cases of racism in legal reports. In the context of employment, there is little doubt that any workplace behaviour demonstrating racism or discrimination on the basis of race is a material factor in contributing to the dissolution of the employment relationship.

Indeed, unsubstantiated claims of “playing the race card” against an employee could land employers in deep water. Although our courts have not yet had the opportunity to decide such a matter, in the United Kingdom, the Employment Appeal Tribunal ruled that an employer’s insinuation that an employee was “playing the race card” without any evidence to the contrary, amounted to racial discrimination (Royal Bank of Scotland Plc v Morris [2012] 3 WLUK 323). In this case, the employee had said nothing to elicit that remark. As a result, the employer made the allegation based on an assumption or application of a stereotype.

Finally, using the phrase “playing the race card” should be avoided. What is at stake here is the veracity of the claims and their impact on the dignity of employees. Employees should be encouraged to report racist incidents, but they must do so responsibly. Unfounded charges of racism can have a negative impact on a person’s reputation and dignity and should result in disciplinary action.

The allegation levelled against De Ruyter undoubtedly had an impact upon his dignity. It was also a serious threat to racial harmony at Eskom. Nevertheless, it would be unfortunate if Makgoba’s remarks had the unintended consequence of discouraging employees from reporting incidents of racism. DM