Constitutional Court File picture: Tiro Ramatlhatse

Johannesburg - The Constitutional Court is set to bring finality on whether singing Struggle songs with the lyrics “Kill the boer” is strong grounds for firing black workers for being racist and striking fear in the hearts of their white colleagues.

A group of National Union of Metalworkers of SA (Numsa) members are fighting their employer’s attempts not to reinstate them after they were unfairly fired for singing a Struggle song with lyrics that include “Kill the boer”.

Ekurhuleni-based Duncanmec, a company specialising in manufacturing and designing truck-mounted or towed equipment, claims its management on site was offended and felt threatened by the song.

The allegedly offensive isiZulu Struggle song had lyrics such as “mother gets happy when we kill/hurt/hit the boer” and “my father gets happy when we beat the boers, climb on top of the house and kill them”.

The company is heading to the Constitutional Court, which will hear the matter in May, and is accusing the Metal and Engineering Industries Bargaining Council (MEIBC) arbitrator who handled the case of being “soft on racism” and seeking to justify the singing of the song on the basis of historical context.

Reasons and arguments made in then ANC Youth League leader Julius Malema’s 2010 hate speech trial, which led to him being barred from singing another Struggle song, Dubul’ iBhunu (shoot the boer), also look set to feature prominently in the matter, with Duncanmec saying “there can be no historical justification, in the current age, for singing this kind of song at work”.

“Also, the words used clearly constitute hate speech and are racist remarks,” said the company’s industrial relations manager, Nico van der Westhuizen, in his affidavit.

According to Van der Westhuizen, such songs have no place in employment relationships, and especially not in the context of an unprotected-strike dispute, where it could only serve to further incite violence and further unlawful conduct in an already tense situation.

The eight Numsa members, identified in court as “D Mpahleni and seven others”, embarked on an unprotected strike in April 2013 that the company characterised as “defiant and offensive”.

On Thursday, the official involved in the case at Numsa’s Springs office refused to identify the eight workers fighting to return to their jobs.

They were fired a month after the unprotected strike but took their case of unfair dismissal to the MEIBC.

The MEIBC found that their firing was substantively unfair and reinstated them with three months’ back-pay in May 2014.

Duncanmec then asked the Labour Court to review and set aside the MEIBC’s decision and declare the dismissals substantively fair.

Alternatively, the company wanted the Labour Court to refer the matter back to the MEIBC, but under a new arbitrator.

The union argued that the song was an old Struggle song, which Duncanmec did not dispute, and was sung to signal defiance of authority in the form of the apartheid regime and racialised domination.

Numsa told the Labour Court that its members sang the song as an act of defiance of authority and not as a call to racial violence.

Acting Judge Isaiah Shongwe found there was some finger-pointing, but this was brought about by provocative acts by managers, who were white, of pointing cameras at the striking workers, and not borne out of racial hatred.

“The word ‘hitting’ is not literal but metaphorical, which is substituted by the fact that there was no violence or intimidation and the strike was carried out in a peaceful manner,” Judge Shongwe said.

Due to the fact that racial inequality was still perpetuated in South Africa, the judge found, lowly skilled and lowly paid positions were occupied by black workers and highly skilled and paid positions were held by whites.

He said acts of defiance were likely to be expressed in a racial form drawing on historic Struggle songs against apartheid and white supremacy.

“This court is of the view that it is opportunistic of an employer to then want to use the song’s lyrics in order to address a perceived wrong,” said the judge, adding that it was unfair to dismiss employees for singing a popular Struggle song although it may be offensive and hurtful to some white managers.

He dismissed Duncanmec’s application to review the MEIBC’s decision and its application for leave to appeal.

Duncanmec is critical of Judge Shongwe’s “untenable” reasoning, saying it would allow the practising of racism and hate speech at work provided it was justified by way of proper historical context.

Van der Westhuizen said the eight workers were part of a larger group who took part in the unprotected strike.

“However, based on footage and photographs taken, as well as witnesses, the individual respondents (Mpahleni and seven others) were the only ones who could be positively identified as committing further misconduct in the course of the unprotected strike,” he said.

The Star