One woman's kiwi lunch is another's witchcraft
June 11, 2006
By Wiseman Khuzwayo
Johannesburg - Just as cultural diversity was starting to be accepted as a norm in the workplace, witchcraft is set to become a headache for labour law practitioners.
The legal principle requiring that similar cases must be decided alike simply does not apply here because there are no precedents.
A case involving Chwayitha Ngcobo could end up in the highest court of the land, seeking counsel on a practice that many of our compatriots are only prepared to speak of in hushed tones.
Ngcobo, an accounts clerk at Island View Storage in Durban, was fired by her employer last month after a disciplinary hearing for allegedly practising witchcraft.
A legally crafted charge sheet says Ngcobo opened her handbag, took out a parcel and then rubbed the contents in her hands and blew them three times in the direction of her supervisor, Premila Govender. Govender construed her behaviour as a deliberate attempt to intimidate her or assault her through witchcraft, and had the effect of irreparably damaging their relationship. Ngcobo was charged with intimidation, assault and gross insolence.
Ngcobo, who admits there was no love lost between her and Govender, said it was merely a kiwi fruit she was planning to eat for lunch that turned her into an umthakathi. Govender had mistaken the fruit for something else.
Alan Gibb of HR Synergy, who presided over the hearing, agreed with Govender and found Ngcobo guilty on all three charges.
Ngcobo is now taking her case to the Commission for Conciliation, Mediation and Arbitration.
She said as a practising Christian she did not believe in witchcraft nor in ancestors and found the charge an affront to her faith.
All the experts Business Report consulted could not help but laugh at first at this extraordinary tale.
Pierre Marais, the managing director of the Labour Law Group, said: "I have not had any experience of something like that. There is no case law either on it."
Marais said the only instance remotely resembling Ngcobo's case he could recall was an incident when the unionised workforce of a company complained that a co-worker stank unbearably because of an ointment she rubbed on her body. In the end, her employment had to be terminated on the grounds of incapacity.
Tony Healy, the managing director at industrial relations consultancy Tony Healy & Associates, said practising witchcraft could be a workplace offence, not because it was cultural practice but because it could become a threat. The demeanour or conduct and not the aspect of the belief should be central to the charge.
"Any conduct that interferes with a co-worker's ability to perform her duties is unacceptable. If the witchcraft does this, then it becomes an offence," said Healy.
He added that the person practising witchcraft could appeal under the constitution subject to the limitation clauses.
Anastasia Vatalidis, a Werksmans director who specialises in labour law, said she had never come across a case like Ngcobo's.
"You have to ask whether or not a threat has been made with the intention of causing harm. The act is in the mind.
"There does not have to be any result. It is like theft, where it is irrelevant whether or not it took place as long as the intention was there," Vatalidis said.
"One expects employees to behave in a particular manner and not to bring issues like politics and religion into the work environment."
|
|
