According to Mr X, in the days leading up to what has become known as the 'Marikana Massacre', striking mineworkers took part in rituals performed by inyangas (traditional healers) genuinely believing that, if they performed the rituals and drank the muti prepared by the inyangas, they would be protected from any harm from police bullets. They also acted on instructions from the inyangas to go and kill those mineworkers who were going to work because they should have joined the strike.
The message that this testimony sends to employers is that they can no longer ignore the role played by cultural beliefs in the lives of a significant percentage of their employees and that policies and procedures need to be developed to manage this.
While the events at Marikana may be regarded as exceptional and unusual, many employers have been faced with the challenge of having to deal with long absences by employees who claim that their absence is necessary in order to follow the dictates of a cultural belief. Guidance in this regard is to be found in the various decisions of the CCMA, the Labour Court, the Labour Appeal Court and, most recently, the Supreme Court of Appeal in the Kievits Kroon case. Kievits Kroon Country Estate (Pty) Limited vs Mmoledi and others [2014] 3 BLLR 207 (SCA).
In this case, the employee, Ms Mmoledi, was dismissed for wilfully absenting herself from work after being refused leave to complete a traditional healer's training course. This was to undergo training as a sangoma as a result of a calling from her ancestors. Before absenting herself, she left two letters. One was written by a traditional healer indicating that she would be absent from work because she was under treatment and the second stated that she was required to be absent from work from 4 June to 8 July 2007 "to complete her initiation school final ceremony to become a traditional healer".
The employer refused to accept that she was ill because she had not submitted a certificate issued by medical practitioner as envisaged by the Basic Conditions of Employment Act 75 of 1997 (BCEA) and did not accept that the training she was to undergo constituted a good reason because the training was unrelated to the employer's business and did would not benefit the employer.
In deciding that the dismissal was unfair, the CCMA commissioner found that the employee had to break the employer's rules in order to save her life. "The employer's instructions and refusal to grant the employee unpaid leave was unreasonable as the consequence thereof would have been to place the life of the employee at risk," said the commissioner.
The Labour Court upheld the commissioner's decision and the employer's appeals to the Labour Appeal Court and the Supreme Court of Appeal were dismissed.
The salient points to emerge from the judgments are as follows:
The Supreme Court of Appeal found that absence from work without authority - even if contrary to an employer's express instruction, is excusable if the absence was justified and reasonable. All the commissioner had done was to establish whether the employee's refusal to obey the instruction to resume work after a week was justifiable.
While the employee had not presented expert evidence on her condition, it was beyond dispute that her beliefs are part of the culture of about 80% of the country's population, and many resort to traditional healers for their physical, spiritual and emotional wellbeing. The employee's evidence that she believed she would suffer some serious misfortune if she did not undergo the training had gone unchallenged.
Had management not considered the traditional healer's certificate 'meaningless' and rejected it as proof that the employee was ill, the employee's condition could have been discussed with her, and some alternative to accommodate her could possibly have been devised.
The employer's right to terminate an employee's services after an unreasonable period of absence did not apply in this case
