COMMERCIAL STEVEDORING AGRICULTURAL ALLIED WORKERS UNION obo QOMOYI v CCMA AND OTHERS [2026] ZALAC 15

Date of Judgment & Seat of Court: 8 April 2026; Labour Appeal Court of South Africa, Cape Town

Name of Judge(s): Nkutha-Nkontwana JA, Tokota AJA, Moshoana AJA

Summary of Factual Matrix: 

Mr Vuyani Qomoyi was employed by Namaqua Wines (Pty) Ltd as a general worker from 27 August 2019 and became a shopsteward of CSAAWU. On 3 August 2021, during a heated debate over the dismissal of a fellow employee, Mr Qomoyi, in a pitched voice, referred to his supervisor, Mr Meyer (a white person), as a "white racist" who "fires black people". Mr Qomoyi was charged with and dismissed for "Displaying Racist behaviour". The arbitrator found the dismissal both substantively and procedurally fair. The Labour Court dismissed the review application. The union appealed to the Labour Appeal Court.

Summary of Findings:

"[24] Given the history of this country, matters involving allegations of racism require careful consideration. They are not an open and shut cases simply because words like racist are uttered. They are not necessarily easy matters to navigate through. In this matter, it is true that Mr Qomoyi uttered the words white racist and directed them to Mr Meyer. The key question that required careful consideration was whether calling Mr Meyer a white racist is in of itself a racist behaviour. Put differently, does the name calling make Mr Qomoyi a racist himself? Although racial slurs are inappropriate conduct and can be hurtful and upsetting, it does not axiomatically follow that the utterer of the slurs is necessarily a racist or displays racist behaviour. The Constitutional Court in Bester provided the following useful guideline in matters of this nature, it said: '[38] ... the use of the words "swart man" per se, is not racist and that the context within which the words were used would dictate whether they were used in a racist or derogatory manner. 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. This is in accordance with the test for whether a statement is defamatory, as enunciated in Sindani: "The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in a context of the article as a whole. In applying this test, it must be accepted that the reasonable reader will not take account only of what words expressly say but also what they imply.'"

"[29] It must follow that had Mr Qomoyi not witnessed what Mr Meyer called him to witness – dismissal of a black employee – he would not have, unexpectedly, called Mr Meyer a white racist. In truth, it is not far-fetched to surmise that by calling Mr Qomoyi to witness what he ultimately witnessed, Mr Meyer was provoking Mr Qomoyi. Actually, given his testimony at arbitration as to why he called Mr Qomoyi, he was being grandiloquent to Mr Qomoyi-to see how I (ek) treat your people (black employees). If Mr Qomoyi aimed at displaying racist behaviour, he could have used the words against Mr Meyer, when he first called him. It is clear on the correct facts of this matter that Mr Qomoyi was angered by what he witnessed few minutes later after being summoned to the HR Office. On the correct facts, no reasonable, objective, and informed person would have perceived Mr Qomoyi to be displaying racist behaviour towards Mr Meyer. A reasonable, objective, and informed person, would have perceived Mr Qomoyi as a person expressing his opinion about Mr Meyer on the strength of what he had just observed."

"[34] ... calling Mr Meyer a racist was based on the true fact that a black employee – undoubtedly a member of the previously disadvantaged group- was dismissed without Mr Qomoyi, as an elected shopsteward, representing him before being so dismissed. Therefore, his utterance constitutes a fair comment and cannot be classified as displaying a racist behaviour."

As such, the Court held that the commissioner and Labour Court failed to apply the objective test for racist utterances as approved by the Constitutional Court in Rustenburg Platinum Mine v SAEWA obo Bester. The utterance "white racist", viewed in its proper context (a heated response to witnessing what Mr Qomoyi perceived as unfair dismissal of a black employee), constituted an expression of anger and fair comment, not racist conduct. The Court further held that the disciplinary code did not prescribe dismissal for the offence, rendering the sanction disproportionate.

Order:

"1. The appeal is upheld. 

2. The entire order of the Labour Court is set aside and is replaced with the following order: 2.1 The dismissal of Mr Vuyani Qomoyi is substantively unfair. 

2.2 Namaqua Wines (Pty) Ltd is ordered to reinstate Mr Vuyani Qomoyi retrospective from the date of his dismissal. 3. There is no order as to costs."