The Constitutional Court has dismissed an appeal lodged by a company which fired eight employees for singing a struggle during a protest five years ago.

In 2013, Duncanmec employees embarked on an unprotected strike relating to an overtime dispute. The Germiston based company, which manufactures refuse-handling equipment, proceeded to dismiss eight employees involved, not because of their right to protest, but because of the struggle song which accompanied the action.

Drawn out legal battle for Duncanmec

According to Times Live, the song, which is sung in isiZulu, translates to English as:

“Climb on top of the roof and tell them my mother is rejoicing when we hit the boer.”

The dismissal unleashed a serious of convoluted repercussions. First, the embattled employees approached the Commission for Conciliation‚ Mediation and Arbitration (CCMA), which ruled against Duncanmec.

The company then fired back by approaching the Labour Court in July 2016‚ seeking to have the CCMA decision overturned. After this failed, Duncanmec approached the Labour Appeal Court in October last year. Again, the court dismissed the case.

Making its way to the top of the judicial ladder, Duncanmec sought to have the matter heard by the Constitutional Court of South Africa. The company argued that singing of the struggle song constituted hate speech, hence the justified dismissal.

The word ‘boer’

The Constitutional Court, however, disagreed with Duncanmec’s argument, ruling against the company, which chose to single out the word ‘boer’ as the offensive term.

As part of his final judgement, Justice Chris Jafta said:

“Depending on the context‚ this word may mean ‘farmer’ or ‘white person’. None of these meanings is racially offensive. 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 the judiciary had an important role to play in dismal based on alleged racism, stating:

“There is no principle in our law that requires dismissal to follow automatically in the case of racism. What is required is that arbitrators and courts should deal with racism firmly and yet treat the perpetrator fairly.”

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