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Duncanmec (Pty) Limited v Gaylard NO and Others (CCT284/17) [2018] ZACC 29

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Duncanmec (Pty) Limited v Gaylard NO and Others (CCT284/17) [2018] ZACC 29

13th September 2018

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[1]  This matter concerns the reasonableness of an award issued by an arbitrator appointed by the Metal and Engineering Industries Bargaining Council (Bargaining Council).  The arbitration related to a dismissal of nine employees of Duncanmec (Pty) Limited (Duncanmec) who were found guilty of misconduct.  These employees were members of the National Union of Metal Workers of South Africa (NUMSA).

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[2]  The dismissed employees were charged and found guilty of racially offensive conduct.  Racism and racially offensive behaviour are antithetical to our constitutional order.  At the heart of this order lies the concept of equality, which is not only entrenched as a right, but also as a value that constitutes the bedrock of the democratic order.

[3]  Racism and discrimination were the hallmarks of the policy of apartheid that was implemented in the previous order.  That policy rested on the false notion and belief that the white race was superior and that the other races were inferior.  Consequently, black people were denied their dignity and other fundamental rights.  The institutionalisation of racism brought intolerable suffering, hurt and humiliation to them.  As observed by this Court in Brink:

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“Our history is of particular relevance to the concept of equality.  The policy of apartheid, in law and in fact, systematically discriminated against black people in all aspects of social life.  Black people were prevented from becoming owners of property or even residing in areas classified as ‘white’, which constituted nearly 90% of the landmass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people.  Instead, separate and inferior facilities were provided.  The deep scars of this appalling programme are still visible in our society.”

 

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