Global employment briefing: South Africa, June 2017

• South Africa

• Employment law

01-06-2017

Summary dismissal and witchcraft in the workplace

The commissioner in the recent case of National Sugar refining and Allied industries Union obo Mngomezulu v Tongaat Hulette Sugar Ltd [2016] 11 BALR 11 BALR 1172 (NBCSMRI) was faced with determining whether or not placing a black slimy substance on the handle and tyre of a colleague’s car amounted to an act of witchcraft intended to cause harm and, if so, whether or not this was a dismissible offence.

Following a strained relationship between Mr Mngomezulu (a shop steward) and the Human Resources Manager of Operations, Ms Nxele, Mr Mngomezulu placed a black slimy substance on the handle and tire of Ms Nxele’s car. In providing her evidence before the commissioner, Ms Nxele testified that, despite being a Christian, when she discovered the substance she “had an urge in her spirit to pray” because she believed the substance to be “muti”. Muti is a form of traditional medicine used for the purposes of healing or causing harm.

While there was a dispute about the nature of the substance which necessitated the introduction of expert evidence by two Sangomas (traditional healer or diviner), the commissioner ruled that the nature of the substance is inconsequential. What is of consequence is what Ms Nxele perceived it to be and her reaction to it. It was further held that the act of witchcraft does not have to achieve its purpose for it to become an act of misconduct and that the mere use of muti or traditional preparations to intimidate, scare or threaten another person is sufficient. To this end, the commissioner accepted that the conduct of Mr Mngomezulu caused Ms Nxele grief and that the placement of the substance was an attempt to psychologically exploit Ms Nxele and create fear and panic in her for herself, her family and her possessions. Accordingly, the commissioner held that Mr Mngomezulu’s conduct amounts to serious intimidation which cannot be tolerated in the workplace and justified a sanction of summary dismissal. This is because Mr Mngomezulu’s conduct irreparably harmed the trust relationship between himself and a colleague with who he works intimately and, consequently, negatively affected the trust relationship between himself and his employer.

While witchcraft may be viewed with scepticism from a Western perspective, its existence is widely believed by many persons in South Africa and it is practised within South Africa and Africa. In the circumstances, employers must be aware of the religious (and other) practices of their employees, the effect that such practices may have on working relationships within the workplace and how best to manage such practices. Witchcraft may constitute gross misconduct relating to intimidation and even insolence in cases where the “victim” does not necessarily believe in witchcraft and employees could be disciplined when participating in such practices at the workplace. Conversely, false accusations of witchcraft in the workplace ought to attract disciplinary action and can be likened to, for example, false accusations of racism.