National Sugar Refining and Allied Industries Union obo Mngomezulu v Tongaat Hulett Sugar Ltd (Darnall) [2016] 11 BALR 1172 (NBCSMRI)

By Martin Labuschagne

Whatever one’s opinion of the so-called Fallist-movement and its rallying call for decoloniality is, it has achieved one lasting success and that was to put the fault lines between the Western understanding of the world and that of the African experience in greater relief.

These fault lines confronted Commissioner Karen Charles of the National Bargaining Council for the Sugar Manufacturing and Refining Industry in the above referenced case. The case revolved around the use of witchcraft by one employee on another.

The salient facts of the matter were the following: Nokukhanya Nxele was the Human Resources Manager for Operations of the respondent. Louis Mngomezulu was a boiler panel operator and a shop steward.

According to Ms Nxele, the relationship between her and Mr Mngomezulu was an acrimonious one, while the latter denied this at the arbitration.

On 24 March 2014, Ms Nxele discovered a slimy substance on the handle of her motor vehicle, which she described as ‘like Vaseline but was black’. Ms Nxele then had ‘an urge in her spirit to pray.’ She also indicated that when she made contact with the substance she ‘had not felt right’. A colleague of hers, a one ‘Patrick’, approached and advised her to wash it off in order to reduce its power. Patrick also pointed to a block of the same substance behind the front wheel of her vehicle.

Although Ms Nxele professed to be a Christian, the suspected muti still caused her distress. Ms Nxele later on consulted a sangoma, who indicated that although she did not see the substance herself, from the description of Ms Nxele she could identify it as muti. The respondent’s attorneys also enlisted the expertise of a sangoma, Gloria Mhkize to confirm that the substance was on a balance of probabilities muti (there was a dispute whether Mr Mngomezulu indeed did put muti on the handle of Ms Nxele’s vehicle, but this is beyond the scope of this article as the purpose of this article is to discuss the law only).

Mr Mngomezulu was charged, as per the charge sheet, with placing the safety, health and or/life of Ms Nxele at risk in that by ‘knowingly and deliberately placed some black, gummy substances on the door and key hole of Ms Nxele’s silver grey BMW, … and in line on the ground.

In doing so, it was his intention through the practice and belief in witchcraft to cause either spiritual, mental or physical harm to her.

As a consequence of your action and in your capacity as a senior shop steward familiar with the rules of conduct in the workplace, you breached the relationship of trust and good faith existing between yourself and the company and made the ongoing employment relationship untenable.’

Mr Mngomezulu was found guilty and dismissed from the employ of the respondent.

It is necessary to reiterate that whether the witchcraft is in reality effective or not, was not to be adjudicated on. One must mention that in fact, the Supreme Court of Appeal in the matter of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2014 (1) SA 585 (SCA) has cautioned courts and by extension, tribunals, not to make pronouncements on spiritual or cultural matters. Cachalia JA stated as follows in para 27:

‘Our courts are familiar with and equipped to deal with disputes arising from conventional medicine, which are governed by objective standards, whereas questions regarding doctrine or cultural practice are not. Courts are therefore unable and not permitted to evaluate acceptability, logic, consistency or comprehensibility of the belief. They are concerned only with the sincerity of the adherent’s belief, and whether it is being invoked for an ulterior purpose. This of necessity involves an investigation of the grounds advanced to demonstrate that the belief exists.’

The issue at hand was the fact that the use of muti intimidated Ms Nxele. As Commissioner Charles stated in paras 301 and 302:

‘The act of witchcraft does not have to achieve its purpose (because only the perpetrator and the Sangoma will know the exact effect he desired) for it to become an act of misconduct. I agree with Lawrence [attorney for the respondent] that the mere use of muti or traditional preparations to intimidate, scare or threaten another person is sufficient.’

Ms Nxele had a sincere belief in the power of witchcraft and it frightened her or at least made her feel very uneasy. This was due to the fact that Ms Nxele came from a cultural background where the belief in witchcraft was part of her cultural heritage. As the commissioner indicated in para 299:

‘In the African context, witchcraft, whether one is Christian or not, is still a strong force to be reckoned with.’

In my view, because the act is one of intimidation, the misconduct of witchcraft does not even require the perpetrator to believe in it. For instance, I may not believe in the power of witchcraft, but I know that X does. In order to intimidate him or her, I purportedly cast a spell on him or her in his or her presence with the view of causing him or her fear or apprehension. This would also constitute misconduct in the form of intimidation.

In the event where the perpetrator believes in witchcraft, but the ‘victim’ does not, the action may still be a misconduct, but not intimidation. It can still be construed as insulting and, therefore, a form of ‘insolence’.

Conversely, in my opinion, false accusations of witchcraft in the workplace should also be viewed in a serious light and ought to attract a sanction of dismissal, should the particular employee be found guilty. This can be compared with false accusations of racism, which have at times been compelling reasons to have an employee dismissed (see SA Chemical Workers Union and Another v NCP Chlorchem (Pty) Ltd and Others (2007) 28 ILJ 1308 (LC)). In South Africa, accusations of witchcraft may not only be an insult, it can be life-threatening as purported witches are sometimes murdered by communities.

Moreover, it can also be a contravention of s 1(a) of the Witchcraft Suppression Act 3 of 1957 as amended, which reads as follows:

‘Any person who –

(a) imputes to any other person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or who names or indicates any other person as a wizard;

…

shall be guilty of an offence … .’

It goes without saying that when false accusations of witchcraft also constitute a crime, they may be cause for a disciplinary hearing against the offending employee.

Martin Labuschagne BA BLC LLB (UP) is the Manager: Disciplinary and Incapacity Enforcement section in the Directorate: Employee Relations and Wellness at the University of South Africa.

This article was first published in De Rebus in 2017 (May) DR 51.