The Applicant is Mr Mngomezulu, a former employee of the Respondent. The Applicant was dismissed for misconduct after he was accused of using witchcraft to intimidate the Respondent’s employee, Ms Nxele (the “Incident”). On the morning of the Incident, Mrs Nxele had parked her car in the company’s parking lot, the exterior of which had been clean at the time. However, upon her return to the car later that day, she found a black “slimy substance” (the “Substance”) smeared on the door handle and the keyhole of the car, and placed under one of the car’s tyres. Mrs Nxele described sensing something sinister about the substance and felt the need to pray as she removed it from the car. After the incident, she consulted with a traditional healer, who believed that the substance was muti, intended to cause harm to Ms Nxele.
The Applicant was accused by the Respondent of intentionally using witchcraft against Mrs Nxele to cause her either spiritual, mental or physical harm. He was charged with placing the safety, health and/or life of Mrs Nxele at risk by knowingly and deliberately placing the above mentioned Substance on the car. As a result thereof, the Applicant had breached the relationship of trust and good faith that existed between himself and the Respondent, rendering the employment relationship untenable. The Applicant was on his final written warning at the time and, subsequent to being found guilty, he was dismissed from the employ of the Respondent.
The Applicant referred the dispute to the National Bargaining Council for the Sugar Manufacturing and Refining Industry for resolution, and ultimately for arbitration. The issue in the said matter pertained to whether the Applicant’s dismissal was substantively fair.
The Commissioner referred to the Supreme Court of Appeal’s judgment in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2014 (1) SA 585 (SCA) (Mmoledi), in which Cachalia JA stated that our Courts and/or Tribunals are not familiar with, or equipped to deal with, disputes arising from medicine, which is governed by doctrinal or cultural practices. The main concern in disputes arising from the use of witchcraft should not revolve around the comprehensibility, logic, consistency and/or acceptability of the belief, but rather, the sincerity of the adherent’s belief, and whether it was invoked for an ulterior purpose. Thus, the grounds advanced to demonstrate that the belief exists should be investigated. The Commissioner further proceeded to consider the Witchcraft Suppression Act 3 of 1957, which declared the use of witchcraft to be an offence, together with Section 30 of the Constitution of the Republic of South Africa, 1993, which recognises inter alia the right to participate in one’s cultural life and necessitates the recognition and endorsement of all aspects of African cultural beliefs, including witchcraft and the belief in supernatural forces.
In line with Mmoledi, the nature of the Substance was of no consequence and, weight was rather to be given to Mrs Nxele’s perception of the Substance and her distressed reaction to it. Furthermore, the Commissioner stated that the act of witchcraft does not have to achieve its purpose to amount to an act of misconduct, the mere use of muti to intimidate, scare or threaten another person is sufficient. The Applicant’s conduct was clearly an attempt to induce psychological fear and panic in Mrs Nxele for herself, her family and her possessions and caused her to experience grief as a result thereof. Thus, the Applicant’s conduct amounted to serious intimidation, breaking down of the relationship of trust and cordiality that exists between the employer and its employee and concurrently between the employee and his colleagues. Consequently, the above mentioned conduct was found to be reprehensible, justifying the summary dismissal as being fair in the circumstances.
This case demonstrates the importance of closing the gap between the Western understanding of South African law and South African Cultural experiences within the Labour Law domain.