Analysis: Enough with the ‘racist’ hysteria over ‘hit the boer’
Cases involving alleged racism need to be examined on their own, very particular merits
When the Constitutional Court delivered its so-called “hit the boer” ruling last week, it was in no way focused on pronouncing on whether using that phrase was racist or not.
But you wouldn’t think so from the news headlines that followed the highest court’s unanimous decision on whether reinstating nine workers – who had been fired for racism after singing a struggle song with the phrase “hit the boer” – was reasonable.
The workers at Germiston-based manufacturing company Duncanmec were dismissed after they went on an unprotected strike on April 30 2013, and were filmed singing a Zulu struggle song that contained the words: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer.”
The Constitutional Court was asked to determine whether Bargaining Council arbitrator Jeanne Gaylard was correct to find that those workers should not have been fired for singing that struggle song.
In her May 2014 ruling, Gaylard found that although the singing of the song was “inappropriate”, she did not conclude that it constituted racism.
“While I regard the singing of the song translated to ‘stand on top of the rooftop and shout that my mother is rejoicing if we hit the boers’ as inappropriate, particularly within the context of a workplace, I am of the view that a differentiation between singing this song and referring to someone with a racist term needs to be drawn. This is since this song is a struggle song and there is a history to it. While this is the case the song can be offensive and cause hurt to those who hear it.”
She further noted that video footage showed that the employees’ conduct was “peaceful” and their protest short-lived.
“Thus when the evidence is considered holistically, I am of the view that the company did not discharge the onus and prove that the sanction of dismissal was appropriate in the circumstances. I accordingly find the applicants’ dismissal substantively unfair.”
Duncanmec tried but failed to challenge Gaylard’s decision in both the Labour Court and the Labour Appeal Court. It was then left for the Constitutional Court to decide whether her determination of the case had been reasonable.
In its appeal, Duncanmec had argued that the singing of the “hit the boer” song constituted “hate speech and racism” and justified dismissal. It further contended that Gaylard “applied her own sense of fairness in determining whether the dismissal was substantively unfair”.
In a unanimous ruling written by Justice Chris Jafta, the Constitutional Court noted that even Duncanmec had conceded that the term “boer” was not itself innately racist – but stressed that the context in which it had been used had made it racist.
While Gaylard found that the struggle song lyrics were “inappropriate” but not racist, Jafta said he was “willing to approach the matter on the footing that the employees were guilty of a racially offensive conduct”.
In other words, the court accepted that, in the circumstances of this case, using the phrase “hit the boer” amounted to racially offensive conduct. What the court’s justices were ultimately concerned with, however, was whether reinstating the workers fired for signing the song was reasonable.
They found that it was, stressing that “even if the singing had amounted to uttering racist words, dismissal of the employees could not follow as a matter of course”.
“There is no principle in our law that requires dismissal to follow automatically in the case of racism. What is required is that arbitrators and courts should deal with racism firmly and yet treat the perpetrator fairly.”
This judgment in no way endorsed the singing of the phrase “hit the boer”; nor did it seek to set absolute rules about what does or does not constitute racist language.
Instead, it has stressed that cases involving alleged racism need to be examined on their own, very particular merits.
This ruling is already being used to generate hysteria with false claims that the Constitutional Court has legitimised the phrase “hit the boer”. The court did no such thing.
What this ruling does show us, yet again, is how the courts are increasingly being asked to solve SA’s ongoing struggles with racism. A simple dispute that could seemingly have been easily settled took four years and multiple rulings to resolve.
That – and the fact that the Constitutional Court has itself noted an increase in such cases – is far more disturbing than a misrepresented discussion on struggle song lyrics.