Struggle songs – A OK during strikes!
On 13 September 2018, the Constitutional Court (“the CC”) handed down its unanimous Judgment in Duncanmec (Pty) Limited v Gaylard N.O and Others (CCT284/17)  ZACC 29 (13 September 2018), which is the so-called struggle songs case.
The facts of the case
On 30 April 2013, members of the National Union of Metal Workers of South Africa (“NUMSA”) who were employed by the Appellant (“Duncanmec”) participated in an unprotected strike at their workplace and, during such strike action, sang some struggle songs in isiZulu. The literal translation into English of some the lyrics was: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the Boer...” After refusing to comply with an ultimatum to end the strike and resume work, the employees were charged with: (1) participating in unprotected strike action; and (2) inappropriate behaviour in singing racial songs in an offensive manner.
At the disciplinary hearing, the employees were found guilty of the two charges, and dismissed.
At the arbitration proceedings before the Metal and Engineering Industries Bargaining Council (“the MEIBC”), the Arbitrator held that although the singing of the song was inappropriate, it did not constitute racism, and that the strike was short-lived, peaceful, and the employees’ conduct during the strike was not violent. The Arbitrator, accordingly, disagreed that the trust relationship had been irretrievably broken, and held that the dismissal of the employees was substantively unfair. The Arbitrator then awarded reinstatement, and limited the employees’ compensation to three months’ salary.
On review, the Labour Court (“LC”) dismissed Duncanmec’s challenge against the Arbitrator’s award, and subsequently refused Duncanmec’s application for Leave to Appeal. The Labour Appeal Court (“LAC”) also dismissed Duncanmec’s Petition for Leave to Appeal, and Duncanmec approached the Constitutional Court.
The Constitutional Court
The CC begins its Judgment by reminding us all that racism and racially offensive behaviour are antithetical to South Africa’s Constitutional Order, and that, so far, the Constitution “has had a limited impact in eliminating racism in our country”. The CC confirmed that the Courts are enjoined to play a particularly critical role in the fight against racism, and that the Courts must play that role fairly but firmly so as to ensure the elimination of racism and the promotion of human rights in South Africa.
The CC held that it had Jurisdiction to hear the matter as it clearly raised constitutional issues, and because it was in the interests of Justice to grant Duncanmec Leave to Appeal. On the merits of the case, the issue for determination was: (1) whether the conduct of the employees in singing the struggle song constituted racism; and (2) whether the arbitration award represented a reasonable decision in the sense demanded by Sidumo. Regarding the first issue, the CC approached the matter on the basis that the employees were guilty of racially offensive conduct. Regarding the second issue, the CC found that, from the arbitration award, the singing of the song was distinguished by the Arbitrator from crude racism, particularly having regard to the context in which it was sung. Furthermore, Duncanmec’s disciplinary code did not designate “racially offensive conduct” as a dismissible offence. Accordingly, the Court held that the Arbitrator’s award illustrated rationality in reasoning insofar as the Arbitrator took account of all the above factors and that the award was, therefore, reasonable in the Sidumo sense. Duncanmec’s appeal was, therefore, dismissed.
Whilst a lot can be taken away from this Judgment, the important consideration is the CC’s application of test on review. Litigants are reminded that, no matter how grave the misconduct complained of, where evidence is not led before an Arbitrator / Commissioner that justifies the imposition of the sanction of dismissal, the Courts on review would be slow to interfere with any ensuing arbitration award.