A South African Landmark Judgement on Language and Racism

5 minutes to read
Ana Deumert

In this column Ana Deumert looks at a recent judgement by the Constitutional Court (South Africa) on language and racism. She argues that the judgement is a landmark ruling because the court grappled successfully with the realities of everyday racism.

Language and racism

It all started with a dispute over parking. At Sibanye Rustenburg Platinum Mines (South Africa) employees have specific parking bays allocated to them. On one particular morning Meyer Bester, an employee at the mine, found a 4x4 parked in the space next to his bay. The bay belonged to Solly Tlhomelang, who also worked at the mine.

Bester, it appears, was of the opinion that there was not enough space left to park his equally large vehicle. He raised the issue with the safety officer, to no avail. Eventually Bester interrupted a safety meeting, addressing the officer in charge of parking about the issue, demanding from him to ‘remove that black man’s car (‘verwyder daardie swart man se voertuig’). According to those present at the meeting,  this was said in a loud and aggressive voice. Subsequently, Bester was dismissed for the use of racist language. 

Court cases on language and racism recognize the fact that words can be violent.

Bester lodged a case for unfair dismissal. The first ruling was in favour of Bester, arguing that the utterance ‘- that black man’ - was simply a descriptive phrase. The next ruling went against Bester and upheld the employer’s interpretation that the utterance was racist and offensive. The judgement was overturned in the third instance. Even though the court recognized that racial descriptors contribute to the ‘othering’ of the person referred to, the court ultimately presumed that the utterance was merely an example of descriptive language. 

In the final instance the case went to the Constitutional Court and the original decision by Sibanye Rustenburg Platinum Mines (dismissal of employee for racially offensive language) was upheld in May 2018. The court deemed the utterance to be derogatory and offensive; the dismissal of Meyer Bester was seen as an appropriate action by the employer

Language and violence

The Constitutional Court ruling was based on a firm recognition of the lasting legacies of colonialism and apartheid, creating a ‘racially charged present’ in contemporary South African society. In other words, language use, whether descriptive or otherwise, is never neutral; it carries with it a heritage of oppression, racism and violence.

Court cases on language and racism recognize the fact that words can be violent. This is an insight that goes back to a particular strand within the philosophy of language: speech act theory, an approach to language that focuses on the effects of language, rather than on its ability to describe the world around us. 

The performative nature of language – its ability to cause effects – is rooted in its history, in the circulation and repetition of words and phrases across time

In J.L. Austin’s well-known formulation, people do things with words’: they might make a promise, apologize, conduct a renaming ceremony, or, in this case, wound and injure through the use of racist, sexist or otherwise derogatory language (How to Do Things with Words, 1955/1962). Words are actions and deeds, they are performative and change the world we live in. 

The performative nature of language – its ability to cause effects – is rooted in its history, in the circulation and repetition of words and phrases across time (and also space; that is, circulation is necessarily of a chronotopic nature). The Algerian-French philosopher Jacques Derrida (Limited Inc., 1988) termed this process ‘iterability’: words mean because they have meant before, and, consequently, words also wound because they have wounded before. There is no escape from history, from the meanings we inherit. 

Importantly, Derrida backgrounds intention in his language-philosophical work: language means not because of our intentions, but because it has meant before. Thus, the claim ‘I didn’t mean to hurt, wound or insult you’ might be a true reflection of one’s intentions or beliefs, but it does not take away the wound and hurt one created by using a word that, in the past, has caused pain and injury. (A comprehensive discussion of language and violence, expanding on the points made here, is Daniel Silva’s paper The Circulation of Violence in Discourse, 2014).

Language and intention

A central aspect of the judgement of the Constitutional Court is that the test of whether an utterance should be considered racist or not, lies with the hearer, not the speaker:

“It was also accepted that the test to determine whether the use of the words is racist is objective – whether a reasonable, objective and informed person*on hearing the words, would perceive them to be racist or derogatory.” [My emphasis]

In other words, when it comes to offensive language, it doesn’t matter what we mean’ or ‘intend’, what matters is what we say and how it is heard

The judgement is an impressive testament to a shift in which courts think about language, violence and intentionality. 

In its reasoning, the Constitutional Court moves decisively beyond the previous judgement (by the Labour Appeal Court), which had rejected the dismissal based on the argument that Meyer Bester did not intend his utterance to be racist. Unlike in the judgement of the Constitutional Court, the Labour Court of Appeal based its reasoning on conventional ideas of speaker intentionality (“the intent to demean”), and discounts the ways in which hearers might react to an utterance. 

As Jane Hill (2008, The Everyday Language of White Racism) reminds us: an emphasis on intentionality reflects a ‘personalist ideology’, an ideology which allows us not to be held responsible for the effects of our actions. A personalist ideology shifts responsibility from the action (the words) to the  inner life of the speakers, and what they say their reasons and intentions were. If they say that they didn’t mean to be racist, then this settles the matter. Ultimately, it is a strategy that protects “white virtue and … white privilege by denying the existence of white racism (p. 88). South Africa’s Constitutional Court put an end to the “I didn’t mean to be racist” excuse. 

A landmark ruling

The judgement is thus a landmark ruling. The court grappled successfully with the realities of everyday racism and shows that language can be violent even if it does not use racist slurs. 

What is presumed to be a neutral statement of fact – ‘that black man’ – can have racist and derogatory meaning, depending on the socio-historical context in which the phrase is uttered (and by whom it is uttered and in what manner!). Communicative responsibility is thus not simply about our own intentionality, but includes consideration and awareness about the effects our words have on others. 

Although the Constitutional Court does not cite Austin or Derrida, the judgement reflects the main tenets of their reasoning, emphasizing the importance of attending to history and the hearer, thus decentering the present and the speaker. The judgement is an impressive testament to a shift in the way courts think about language, violence and intentionality. 


*A side note: As a socio-cultural linguist, I have my reservations about the idea of a ‘reasonable, objective and informed person’, a phrasing that seems to ignore the realities of our diverse, and historically sedimented, positionalities. But that is a topic for another column.