SA legal system yet to be tested on dealing with false racism accusations

This has the potential to hinder efforts towards addressing racial tensions in the workplace.

Race and racism are such sensitive issues and the consequences of being labelled a racist can be far-reaching. As such, a perpetrator can face dismissal by their employer, whether the racist conduct was committed in the workplace or even outside of it, face criminal charges and action can be taken in the equality courts. But what happens in the instance of being falsely accused of racsim? Werkmans Attorneys director Bradley Workman-Davies says the problem of being accused of racism, when the allegation is untrue, is increasingly going to be tested by South Africa’s legal system.

“In the context of the workplace, there have been a growing number of instances in which employers have had to deal with false allegations of racism. They have had to consider what to do with an employee who has made this allegation, either maliciously, or even carelessly, against a colleague," says Workman-Davies. “But playing the race card, colloquially speaking, is now increasingly being recognised as material misconduct on the part of an employee and has been recognised even by the Labour Appeal Court as justifying dismissal of the employee who made the unfounded allegation.”

Workman-Davies believes that employers should recognise that any allegations of racist conduct must be carefully investigated, with the due interests of the accused as well as the person making the allegation taken into account. And if anyone is found to have acted improperly in the matter – whether it be the person who actually acted in a racist manner, of the person who made the allegation maliciously to smear the other’s reputation, or where no reasonable grounds to found the allegation exist – must bear the consequences. 

Herald Live recently reported, for instance, that AfriForum plans to prosecute a man who “falsely” accused on their members of using the k-word against him. According to the civil rights group, Sello Mojela accused André Fourie of racism after a disagreement in 2018 that occurred while the two worked for a plastic supply company.

Mojela apparently said during the employer’s grievance procedure that Fourie called him a “baboon” and apparently changed his version of events when he opened a criminal case with the police to say the man had used the k-word instead.

In response, Fourie opened a crimen injuria case against Mojela after being fired because he believes his reputation suffered “irreparable damage” as a result of Mojela’s “false accusations.”

AfriForum’s deputy CEO, Ernst Roets, is reported as saying it was unacceptable for people who make false claims of racism to be allowed to get away with it, while it has far-reaching and negative consequences for those who are implicated.

“The National Prosecuting Authority’s (NPA) reluctance to prosecute in Fourie’s case is not only an obstruction of justice but also a threat to social cohesion in the country, because false accusations of this nature can fuel racial tension in the country,” Roets reportedly said in the article, which does not include a response from the NPA.