Concourt rules on Struggle song
THE Constitutional Court has ruled that the singing of a Struggle song during a workplace strike may have been offensive, but did not warrant the dismissal of the workers.
The court was dealing with an application for leave to appeal brought by manufacturing company Duncanmec (Pty) Ltd.
The company had dismissed nine employees for singing a Struggle song, with lyrics which loosely translated as: “Climb over the roof and tell them that my mom is rejoicing if I hit a Boer.’’
The company sought leave to appeal a Labour Court ruling, which had agreed with a decision by an arbitrator, in the Metal and Engineering Industries Bargaining Council, who had found that workers should not have been fired for singing the song.
According to the company, the song was directed at “white management” and constituted hate speech.
The employees had been charged with participating in unlawful strike action and singing a racially offensive song in 2013.
They were found guilty on both charges and given final warnings for the first offence and dismissed for the second.
Duncanmec said the conduct of the nine employees was so severe that the management had felt “threatened and offended” and the incident had irreparably eroded the trust relationship between employer and employees.
But the arbitrator ordered the reinstatement of the dismissed workers as the song, while inappropriate and offensive, was different from uttering racist words, and Duncanmec had not shown that the song was prohibited in terms of a workplace rule.
In its judgment handed down yesterday, the Concourt said it was concerned by the “increasing number of complaints of racism at the workplace” that come before the courts.
The court further said that even if the singing of the song had amounted to racism, this would not have automatically resulted in the workers being dismissed.
The court said each perpetrator of racism had to be dealt with firmly but with fairness.
The court therefore dismissed the appeal and found that the arbitrator’s ruling in the matter had been reasonable and should not be interfered with.
“It will be recalled that in determining the fairness of the dismissal the arbitrator was applying a “moral or value judgement to established facts and circumstances.
“A reading of the award shows that the arbitrator considered the competing interests of Duncanmec and the employees,” the court said.
The National Union of Metalworkers of South Africa, which represented the workers in the matter, said the court’s ruling was a victory.
“Struggle songs are a part of who we are and how we express ourselves as the working class majority in South Africa.
“Any limitation on this right is a limitation on the right to freedom of speech.”