Case law update on cultural rights - Pdf

Subsequent to previous articles by Johanette Rheeder dealing with Operational Requirements v Cultural Rights and Sangoma’s, the Labour Court case of Kievits Kroon Country Estate (Pty) Ltd v CCMA & others (LC), the Supreme Court of Appeal has had the final word on the matter as published in the recent reported decision Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others1 . The matter involved a chef de partie who received a vision from her ancestors calling her to attend a course on traditional healing. The employee had exhausted her sick leave and approached her employer for unpaid leave. In terms of the operational requirements of the business, the employer could only afford to grant the employee one week’s unpaid leave. After one week, the employee was contacted by the employer and requested to return to work. The employee stated that she could not return and remained absent. Upon her return, the employee was charged for misconduct as a result of absenteeism and disregard of a direct instruction from her employer. At the disciplinary hearing the employee presented a sick note from the traditional healer and stated her defence that she verily believed that failure to obey her ancestor’s request would result in her or her family’s severe illness or even death. The employer rejected the sick note and the explanation and dismissed the employee. The employee successfully challenged her dismissal in the CCMA and was found to have been unfairly dismissed. The Labour Court upheld the CCMA’s decision on review. The employer challenged the correctness of the decision of the Commissioner and contended the panellist committed a gross irregularity by misconceiving the true nature of the enquiry and asking incorrectly whether the respondent was justified in failing to report for duty. In this regard the SCA considered the Popcru2 decision, wherein employees were dismissed for refusal to cut off their dreadlocks and violating the dress code of the employer. In Popcru the employees contended that they were justified in refusing the instruction from their employers as the dreadlocks were part of a Xhosa cultural ritual in their passage to become traditional healers and it was their belief to obey their Ancestors. In considering the case the court held: