ConCourt hears 'struggle song' case

2018-05-31 19:52
Constitutional Court. (Lerato Sejake, News24)

Constitutional Court. (Lerato Sejake, News24)

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The Constitutional Court on Thursday heard arguments on an application by a company seeking to have its decision to sack nine workers for singing anti-apartheid songs upheld.

Duncanmec, which manufactures and repairs refuse-handling equipment, had previously fired nine workers who embarked on an illegal strike and sung what the company deemed a racially offensive song.

In the country's top court, Duncanmec argued that political protest songs had no place in the modern workplace.

According to court papers, the disputed lyrics are "climb on top of the rooftop and shout that my mother is rejoicing when we hit the boers (whites)".

Known as struggle songs, political anthems were an important part of the liberation fight against South Africa's apartheid government.

They are now often sung during protest action and at social gatherings.

The company said because the song was sung in the face of management in a disrespectful and aggressive way, it ought to be considered as racist conduct or hate speech, warranting dismissal.

But the National Union of Metalworkers of South Africa (Numsa), representing the workers, asserted that case law did not allow for automatic dismissal based on even the most egregious acts of racism.

Numsa refuted any undertones of racism in what the workers did saying that struggle songs were deeply entrenched in the labour struggle.

"It is quite ridiculous that employers find struggle songs racist, it means they are completely ignorant of our history and the conditions of workers," Numsa spokesperson Phakamile Hlubi-Majola said.

"When workers go on strike, they sing struggle songs to comfort and embolden themselves. There is nothing more powerful," she said.

Before reaching the Constitutional Court, the matter had been heard in lower courts where the decision to fire the nine workers was overturned.

The final ruling will be made at a later date, yet to be determined.

The country's arbitration body found that while the song could be offensive and cause hurt, there was a need to differentiate between singing the anti-apartheid song and referring to someone in racist terms.

The company then petitioned the labour court, which ruled that there was no evidence that the song was prohibited workplace rules and could not be seen as misconduct.

The High Court ruled in 2011 against leftwing firebrand Julius Malema for singing a struggle song with the lyrics, "Kill the boer," saying it amounted to hate speech.

Read more on:    numsa  |  courts

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