The Constitutional Court cannot be used to erase the escalating ethnic and racial tensions in the country, an expert says, after the highest court in the land ruled against a company which fired nine employees in 2013 for singing a struggle song it deemed racist during a protest.
Construction company Duncanmec approached the Constitutional Court after its decision to fire the workers was overturned by the Metal and Engineering Industries Bargaining Council, a ruling later upheld by the Labour Court.
In a unanimous judgment by a full bench, the ConCourt yesterday dismissed the company’s appeal, stating among other things that the use of the word “boer” on its own was not racist or racially offensive, but that it was “inappropriate” in the context in which the employees used it in the song.
Sociologist Lucienne van der Walt said the debate on whether certain struggle songs can be ruled as racist was often conducted outside of the socioeconomic inequities in the country, meaning bodies such as the courts were not enough to address the reasons behind the songs being sung in the first place.
“Speech codes are not the answer here. Bad behaviour needs to be limited, but those limits need to be very, very limited. We need to be able to understand these things in context.
“Speech codes are not going to solve the problem. What we need are major reforms and reconstruction of how our society works. People tend to vote for political demagogues because they are desperate. Over the past 29 years, people are literally getting poorer,” Van der Walt said.
The song which the employees were filmed singing during the strike translates to “climb on the rooftop and shout that my mother is rejoicing when we hit the boers”.
Minority rights group AfriForum has made several calls for such songs to be banned.
CEO Kallie Kriel said SA’s courts presented a double standard when dealing with racism, favouring those who accused white people of racism. “If I am going to sing ‘hurt the black man’ I will be fired and I would agree with that person who fires me because I should not do that. Unfortunately there is a double standard.”
Duncanmec could not be reached for comment.