Singing "hit the boer" while striking is not racially offensive, says court. Picture: REUTERS
Singing "hit the boer" while striking is not racially offensive, says court. Picture: REUTERS

The Constitutional Court has ruled that nine employees who were dismissed from Duncanmec for singing a struggle song that referred to “hitting the boer” should be reinstated as it was not racially offensive.

The apex court handed down its judgment in an appeal application brought by the company against the employees on Thursday, saying the use of the word “boer” was “not racist or racially offensive”, though the use of the word during a strike was inappropriate.

“But even if the singing had amounted to uttering racist words, dismissal of the employees could not follow as a matter of course. 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,” read the unanimous judgment delivered by judge Chris Jafta.

The nine workers belonging to the National Union of Metalworkers of SA (Numsa) were issued with final written warnings for embarking on an illegal strike in 2013 and later dismissed for misconduct after singing the song, uMama uyajabula mangishaya ibhunu, which means “my mother rejoices when I beat the boer”.

The case was initially heard by the Metal and Engineering Industries Bargaining Council, which dismissed the employer’s argument, ordering that the workers be reinstated.

In upholding the decision of the council, the Constitutional Court said the decision of the arbitrator was reasonable.

“Duncanmec also accused the arbitrator of having gone soft on racism and argued that dismissal was the only sanction appropriate for such misconduct. 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,” read the judgment.

Duncanmec elevated the matter to the Labour Court, which also ruled in favour of the dismissed workers.

On Thursday, Numsa said it rejected the notion that struggle songs were racist, adding that workplaces were “extremely racist and untransformed”, forcing workers to sing the songs as they continued to fight for justice and equality.