South Africa’s Constitutional Court On Thursday, dismissed an appeal by the company that fired eight employees five years ago for singing a struggle song that rejoiced in “hitting the boer”.
Duncanmec‚ a Johannesburg company manufacturing refuse-handling equipment‚ dismissed the employees in 2013 after they embarked on an unprotected strike due to an overtime dispute.
The workers were not dismissed because of the unprotected strike‚ but rather for singing a struggle song in isiZulu‚ which in English translates to “Climb on top of the roof and tell them my mother is rejoicing when we hit the boer”.
Duncanmec’s firing of the employees in 2013 was short-lived; following the dismissals‚ the Commission for Conciliation‚ Mediation and Arbitration (CCMA) set them aside. Efforts by Duncanmec to review the commission’s decision were dismissed — first by the Labour Court in July 2016‚ then by the Labour Appeal Court in October last year. Duncanmec then applied for leave to appeal this ruling. The matter was heard — and dismissed — in May.
JUDGMENT: Arbitrator’s decision to reinstate workers after dismissal for singing struggle song referring to “boers” during strike found to be reasonable. (Duncamec v Gaylard) pic.twitter.com/D7ylIHOy58
— Constitutional Court (@ConCourtSA) September 13, 2018
The fired employees remained out of work as the case wound its way to the top court.
In its argument before the Constitutional Court‚ Duncanmec said singing the song constituted hate speech and racism‚ and that the sanction of dismissal was therefore justified. However, in its judgment‚ the court said the word that Duncanmec objected to was not an offensive racist term.
“Depending on the context‚ this word may mean ‘farmer’ or ‘white person’. None of these meanings is racially offensive‚” said Justice Chris Jafta in his judgment. All other judges concurred. Jafta said Duncanmec also accused the CCMA of going “soft” on racism and argued that dismissal was the only sanction appropriate for such misconduct.
“The argument lacks merit and rests on a mistaken premise. The arbitrator’s award does not say that the employees were guilty of racism. Instead‚ the arbitrator held that the song was inappropriate and could be offensive; hence a distinction was drawn between the singing and the use of racist terms.”
Jafta added that even if the singing had amounted to uttering racist words‚ dismissal would not follow as a matter of course. “There is no principle in our law that requires dismissal to follow automatically in the case of racism‚” he said. “What is required is that arbitrators and courts should deal with racism firmly and yet treat the perpetrator fairly.”