THE NATIONAL Union of Metalworkers of South Africa (NUMSA) says last Thursday’s Constitutional Court ruling reinstating nine employees who were dismissed for singing struggle songs is a victory for all workers in the country.
The nine were fired by manufacturing firm Duncanmec in 2013 for singing a song which loosely translates to ‘My mother rejoices when I beat a Boer.’ The company lost the case against the dismissals at the Commission for Conciliation, Mediation and Arbitration, the Labour Court and now in the Apex Court.
NUMSA general secretary Irvin Jim said the nine employees were expected back at work as early as Friday. He added: ‘They will be very happy. They will hear this and they must go back to work as soon as possible.’
While the Constitutional Court agreed that the song sang by the employees was inappropriate, it said the word ‘Boer’ is neither racist nor racially offensive. In 2013 Duncanmec employees participated in an unprotected strike between April 30th and May 2nd with some of the employees refusing to work.
Nine employees were filmed dancing and singing a well-known struggle song with lyrics that translate to ‘climb on the rooftop and shout that my mother is rejoicing when we hit the Boers’.
The employees were found guilty of participating in an unlawful strike and singing a racially offensive song. They were given a final warning for the first offence and dismissed for the second. Duncanmec considered the conduct of the nine employees to have been so severe that it had irreparably eroded the trust relationship between it as employer and the employees.
The Arbitrator ordered the reinstatement of the dismissed workers because she found the employment relationship had not broken down irretrievably. The reasoning was that the employees had shown remorse and that while the song could be offensive and cause hurt, there was a need to differentiate between singing the song and referring to someone in racist language.
The Labour Court had concluded that the reinstatement of the nine employees was a decision that a reasonable arbitrator could have made. The strike was not violent and was short-lived. The court held that Duncanmec had not indicated clearly that the song was prohibited in terms of a workplace rule and that the song was part of the history and struggle for workers’ rights.
The singing of the song could not then be seen as misconduct in the true sense.
A NUMSA statement last Thursday said: ‘The National Union of Metalworkers of South Africa (NUMSA) welcomes the victory at the Constitutional Court today. The court found against an abusive company called Duncanmec which unfairly dismissed nine of our members for singing a struggle song during a strike in April 2013.
‘The song was “uMama uyajabula mangishaya ibhunu”, which means my mother rejoices when I beat the Boer. Duncanmec gave the nine workers a final written warning for embarking on an illegal strike, and, dismissed them for misconduct for singing a “racist’’ song.
‘This matter was heard by an arbitrator of the Metals and Engineering Bargaining Council (MEIBC) and he found in favour of our members and ordered their immediate reinstatement. ‘However, Duncanmec was not satisfied. They appealed and lost at the Labour Court, and their attempt to appeal at the Labour Appeals Court was denied because there was no prospect for success.
‘They then took this case to the Constitutional Court where they were again defeated.
‘We welcome the decision of the Constitutional Court. They confirmed that the struggle song was not racist and that it was not hate speech.
‘It upheld the decision of the Arbitrator at the Bargaining Council for our members to be immediately re-instated, and for them to receive their back pay from when they were unfairly dismissed in April 2013.
‘Furthermore, we reject the notion that struggle songs are racist. The workplace in South Africa is extremely racist and untransformed. ‘The working class continues to sing these songs today because it is not free and they are still fighting for justice and equality in the workplace which was promised to them, during the battle against the racist Apartheid system.’
NUMSA General Secretary, Comrade Irvin Jim says the trade union is celebrating: This victory belongs to all workers. ‘It would have been bad if the Constitutional Court had found in favour of Duncanmec. ‘It would be like the slave masters determining how the slaves should protest.
‘When workers demonstrate they should be allowed to sing revolutionary songs which they identify with, because racism has not yet been defeated in the workplace.’ Jim added: ‘Workers must appreciate that united you stand, divided you fall. And trade unions must continue to be the voice of workers. They must stand for that.’
Jim said that Duncanmec punished workers for exercising their constitutional rights.
‘It looks like it has received the worst kind of embarrassment,’ he commented. He said the working class will continue singing struggle songs until the country’s workplace is transformed.
Jim noted: ‘It says a lot about the long road that we must still travel this country to democratise the workplace to deal with issues of transformation.’ While NUMSA was present during Thursday’s judgment, the manufacturing company was not in court.
In a separate development, Tshwane Mayor Solly Msimanga has ordered an investigation into the safety requirements of all of the city’s buildings. The probe comes just over ten days after three firefighters died at the Bank of Lisbon building in the Johannesburg CBD while trying to extinguish a blaze.
The government has admitted that it was aware that the building did not comply with safety requirements. The City of Tshwane’s Samkelo Mgobozi says a plan will now be drafted to indicate how and when the investigation will be conducted. Mgobozi said: ‘Part of that will be looking at whether or not a particular building meets the necessary requirements to be able to fight fire and make evacuations.’
A Johannesburg firefighter who was one the first people at the scene of last Wednesday 5th September’s deadly fire in the city centre has described how he tried in vain to save three of his colleagues. Mduduzi Ndlovu and Khathutshelo Muedi died on the 23rd floor of the Bank of Lisbon building when were got trapped by the raging flames. Their colleague, Simphiwe Moropana, fell to his death.
Last Wednesday, throngs of people, including colleagues in the emergency field, joined their bereaved families as they bid them farewell in a memorial service held at Ellis Park Arena. Themba Tshemese stood with his hands behind his back, one wrapped in a bandage, a painful reminder of what he was confronted with a week ago.
He showed his injuries while explaining how he tried to pull his colleagues from the blaze.
He told reporters: ‘We tried. As you see, can my hands are recovering from the burns, but I’m okay because I’m the fireman.’ Like many others, Tshemese was not on duty but he rose to the challenge.
When he heard about the massive blaze he had to go help his colleagues.
But Tshemese could never have imagined that the events of 5th September would unfold the way they did losing his three friends all at once under tragic circumstances.