An Unusual Finding

The following article is reproduced from Talking Point, a publication issued by Walkers Attorneys in Cape Town, with their kind permission.

Sangoma training and work ethic

by Amien Hoosain

Kiewits Kroon Country Estate v Johanna Mmoledi, a judgment of the Supreme Court of Appeal on 29 November 2013, concerned a clash of cultures in the workplace.

The employee informed the employer that she had been seeing visions of her ancestors, accordingly had a calling to become a traditional healer; and requested certain indulgences to attend training. The employer was accommodating. Soon thereafter, the employee requested five weeks unpaid leave to attend a traditional healer course. However, the employee had already used up almost all her annual leave, sick leave, and compassionate leave, and her absence would adversely affect the employer’s business. The employer offered one week. The employee rejected the offer, and submitted a note from her traditional healer stating that the employee had been under her care for a long time, had been diagnosed by her as having ‘perminisions of ancestors’, and must attend the five week course. Thereafter, the employee absconded to attend the course without the employer’s permission. In due course, following a fair procedure, the employee was dismissed.

The employee initiated CCMA proceedings. At the CCMA, her traditional healer testified that serious consequences (including death) would befall someone who ignored the calling. The CCMA held that, as the employee’s sincerely held cultural belief compelled her to attend the course, her absence from work was justified, and her dismissal was substantively unfair. The Labour and Labour Appeal Courts upheld the decision.

So did the SCA. It held that:

  • a court is not permitted to evaluate the acceptability, logic, consistency, or comprehensibility of a sincerely held cultural belief; and
  • the employer ought to have regarded the traditional healer’s note as equivalent to a conventional medical doctor’s sick note.

There are unfortunate aspects to this matter. The word of the SCA is ‘gospel’ going forward. However, the SCA finding is based on insufficient evidence. The only actual oral evidence in the matter was heard in the CCMA, where the parties had no legal representation, and evidence was not properly presented or tested. Also, there was no expert evidence as to the anticipated economic impact of the judgment, or possible unintended consequences.

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