The National Union of Metalworkers of South Africa (NUMSA) is a respondent in a case at the Constitutional Court, lodged by Duncanmec. In April 2013 the company dismissed our members for misconduct for singing a struggle song during a strike in April. They claimed that the song was racist and an example of hate speech. The lyrics are as follows: “uMama uyajabula mangishayibhunu, …” which roughly translated means “My mother is rejoicing when we hit the boer”
We reject the notion that struggle songs are racist. As NUMSA we defended our members at the CCMA and the Labour Court. They both found that our members had been unfairly dismissed and ordered that they be re-instated. But Duncanmec stubbornly refuses to adhere to these findings. They tried to appeal to the Labour appeals Court but were denied leave to appeal. We defended the matter again at the constitutional court in June this year. On Thursday, 13 September at 10 AM, the Constitutional Court will hand down judgement on whether to uphold the decision of the CCMA and the Labour Court, or it may reverse the decision in favour of Duncanmec.
BACKGROUND
Duncanmec is claiming that the song is an example of hate speech. They are seeking leave to appeal after they were denied leave to appeal by the Labour Court. They argued that our members should have been fired and they want the court to review the decision of the CCMA and to set it aside. However, it is our contention that the arbitrator found that although there was misconduct in singing the song, that misconduct did not result in the destruction of the employment relationship. The arbitrator also found that their dismissal was unfair and ordered their reinstatement. He was not required to determine whether the singing of the song by members amounted to hate speech. The arbitrator was only required to determine whether the employees had committed misconduct‚ and if so‚ whether such misconduct warranted dismissal. Both the CCMA and the Labour Court called for our members to be reinstated.
We are hoping that the Constitutional Court will make the correct finding and support the decisions of the Labour Court and the CCMA. Struggle songs tell the story of our battles with Apartheid and with our modern day oppressor which is Capital. They are an expression of solidarity and are an important part of our culture. Struggle songs are a part of who we are and how we express ourselves as the working class majority in Africa. Any limitation on this right is a limitation on the right to freedom of speech. It is because of the sacrifices made by the working class majority in defeating Apartheid that freedom of expression is a basic right. As NUMSA we are committed to vociferously defending this freedom with all we have.
Aluta continua!
The struggle continues!
Issued by Phakamile Hlubi-Majola
NUMSA National Spokesperson
0833767725
