In a landmark ruling in favour of workers to sing freedom songs with the word “boer” at work, the Constitutional Court has condemned increasing racism in the workplace.
The Concourt urged that the scourge of racism at work be dealt with firmly.
“The increasing number of complaints of racism at the workplace which come before our courts is a matter of concern,” said Justice Chris Jafta in a unanimous judgment on behalf of his colleagues. They found that using the word “boer” did not constitute racism.
An elated National Union of Metalworkers of SA (Numsa) general secretary Irvin Jim said, had the nine workers lost their case, “it would have been very bad and almost would have been like slave masters determining how the slaves should be protesting and be defiant”.
“We know that racism in this country is still rife and therefore when workers demonstrate and protest, they are allowed to go to the archives to sing revolutionary songs that they identify with, and in particular this song,” he said.
But Freedom Front Plus leader and member of Parliament Dr Pieter Groenewald said the court missed an opportunity by not seeing the use of the word “boer” in the context of another controversial Struggle song “shoot the boer” (Dubul’ ibhunu).
However, in the Struggle years the ANC banned the singing of “kill the boer” as deeply offensive.
After liberation it had even changed the lyrics to: “let’s work with the boers”.
Factory employees dismissed for misconduct after they sang a Struggle song containing “boer” while on a protest, claimed victory when the Concourt ruled in their favour yesterday.
They were dismissed by Duncanmec, a company specialising in manufacturing and designing truck-mounted or towed equipment.
The company said the song was racist and an example of hate speech, and took the matter to the Conscourt after the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court ruled in favour of the fired employees.
Duncanmec claimed its management on site, who were white, were offended and felt threatened by the song. It argued that political protest songs, previously directed at the apartheid regime, had no place in the modern workplace.
Justice Jafta said: “At the outset it is important to note that the word to which Duncanmec objected is not an offensive racist term. It became clear during the hearing that the only word that referred to race was ‘boer’. Depending on the context, this word may mean ‘farmer’ or a ‘white person’. None of these meanings is racially offensive.”
According to the judgment, even Jeanne Gaylard, the arbitrator who heard the dispute after Numsa referred its members’ dismissals to the Metal and Engineering Industries Bargaining Council, found that while the song may be considered inappropriate, it should be distinguished from crude racism.
ANC national executive committee member and eminent heritage specialist Mathole Motshekga said Struggle songs tell the journey travelled to bring about a non-racial, non-sexist South Africa. “Struggle songs must not, shouldn’t be criminalised.”