South Africa is a diverse community of combined cultures and beliefs. The Constitution of the country accepts all religions and beliefs. Customary law is also accepted to be a part of any civil dispute or marriage arrangement. The recognition of customary laws and beliefs has an influence in the workplace for those who do not understand it – intimidation is not only a physical attribute in the form of violence.
In the recent arbitration proceedings before the National Bargaining Council for the Sugar Manufacturing and Refining Industry in the case of NASARIEU obo Mngomezulu v Tongaat Hulett Sugar Limited, it was confirmed that the use of traditional preparations to intimidate a co-worker constitutes misconduct within the workplace. Tongaat Hulett Sugar Limited had dismissed an employee who was accused of using witchcraft to intimidate a co-worker.
The accused was charged with placing the safety, health or life of the co-worker in danger by placing a muti substance on and near her car with the intention to cause her harm “through the practice and belief in witchcraft”. The employee was accused of breaking the trust relationship between himself and the employer.
The co-worker found a black, gummy substance underneath and on the door handle of her vehicle. She proclaimed the substance to be that of a traditional healer and furthermore believed it was harmful traditional preparations. Camera footage (CCTV) provided the employer with the evidence that the accused employee was the only person in contact with the said vehicle.
The accused denied that this was his actions and that he was in the parking area for other reasons. The National Bargaining Council had to decide if the accused placed this substance on the car and if he did, whether this action constitutes actual misconduct.
The National Bargaining Council found that the only plausible conclusion is that the accused employee had placed the substance at the vehicle. The content of the substance is deemed irrelevant – the focus was on how the co-worker perceived this act. A certified sangoma (South African traditional healer) testified that, based on the description of the gummy substance, she believed it was ‘stap-stap’ and it was intended to cause harm to the co-worker. Sangomas, practitioners of traditional African medicine, fulfil different social and political roles in the community including divination, healing physical, emotional and spiritual illnesses, directing birth or death rituals, finding lost cattle, protecting warriors, counteracting witches and narrating the history, cosmology, and myths of their tradition. The National Bargaining Council considered the right to participate in a cultural life of one’s choice contained in the Constitution.
The National Bargaining Council confirmed that the accused employee’s dismissal was justified. The National Bargaining Council further added that “it is unacceptable in any workplace and will most definitively break down a relationship of trust and cordiality that exists between an employer and an employee and between an employee and his colleagues.”.
It should be made clear that no actual damage was present in this instance, but nonetheless the conduct has led to misconduct with a fair dismissal as result. If an employee truly perceives that he or she is in true danger because of any act of intimidation, this act constitutes misconduct.
ABOUT THE AUTHOR
Darius Zeederberg is a SEESA Labour Legal Advisor. He obtained his BCom Law and LLB Law degrees from the University of Pretoria and completed his practical law school (LEAD) at the same institution. He practiced law as an admitted attorney of South Africa in Pretoria before he joined SEESA. He completed his Compliance Management Certificate at the University of Cape Town in June 2016 and is currently completing his LLM Law degree at the University of Pretoria.