NUMSA DEFENDS THE RIGHT TO SING STRUGGLE SONGS!
01 June 2018
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 fired our members for misconduct for singing a struggle song during an unprotected strike in April 2013.
They claimed that the sonq was racist and an example of hate speech. The lyrics are as follows: “Ngizokhwela phezukwendlu kalinda. uMama uyajabula mangishayibhunu, uMama uyajabulua mangishayi bhunu…” which roughly translated means “Climb on top of the roof and tell them that 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. On Thursday the matter was heard by the Constitutional Court and it will make a final determination on whether to uphold the just decision of the CCMA and the Labour Court, or it may reverse the decision in favour of Duncanmec.
SUMMARY OF ARGUMENTS
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 African working class majority. Any limitation on this right would be 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. Judgement in the case is reserved. We will advise when the decision will be handed down.
The struggle continues!
Statement issued by Phakamile Hlubi-Majola, NUMSA National Spokesperson (Acting), 1 June 2017