By Nicci Whitear, LLM, Senior lecturer, UKZN; CCMA Commissioner and consultant attorney at Austen Smith attorneys, PMB

[Johannesburg, South Africa, 17 February 2017]   Witchcraft is an extremely emotive term, and it is a significant issue in South African society generally, and in the South African workplace specifically. While there is no single, precise definition of the word ‘witchcraft’, in the South African context the word ‘witchcraft’ is used to describe evil and/or criminal practices associated with ritual killings and misfortune in general, and it forms an inherent part of the belief systems of many South Africans, whether they identify as Christian or not.

In communities where these beliefs hold sway, witchcraft is an inescapable fact of life, and individuals and families take conscious steps, often with the assistance of sangomas, or traditional healers, to escape becoming targets of those who are believed to be able to use supernatural forces to cause them harm and misfortune. For most South Africans, witchcraft is not regarded as a fringe religion or superstition, but is considered a real threat and provides an explanation for otherwise inexplicable misfortune, illness, or even death. There is a belief that witches can harm others through the use of evil or so-called black magic, or through the use of medicines. Witches can also provide ordinary people with the means to bewitch others by, for example, the placement of a certain preparation where they will eat or touch it.

In terms of a western world view, influenced by so-called enlightened thinking, the idea of the supernatural and witchcraft must be rejected as unempirical. However, South African society is not informed solely by the western model. Indeed, there is even a piece of legislation known as the ‘Witchcraft Suppression Act 3 of 1957’ on the books (although there is a view that much of this Act is unconstitutional and overbroad). In 2014, President Zuma was reported to have told a rural community that he used to practice witchcraft there, bewitching ‘boers during apartheid.’

In the workplace, witchcraft may manifest when employees seek to use it to intimidate either their employer or their fellow employees.

In a reported case, an employee placed a black, slimy, gummy paste-like substance on his HR officer’s car door handles and in the key hole, on the driver’s side. She had to use a serviette to wipe the paste off her hands when she opened her car door. She testified that the moment she touched the substance she did not feel right and believed that the substance was muti. Later she described the substance to her sangoma who told her that he also believed it to be muti not made for good. She testified that although she herself did not believe in muti, she knew that it did exist. She said that when one is African one knows what muti is. The sangoma, or traditional healer, said that from the description of the substance, and from the spirit within her, she knew that it was ‘stap-stap’, a type of muti designed to result in harm being caused to the HR officer in the form of a stroke or some other illness or misfortune. She testified that the reason harm had not befallen the HR officer was because she was a god-fearing person and had prayed when she had touched the substance.

The employee was charged with placing the safety, health and/or life of the HR officer at risk by placing some black gummy substance on the door and keyhole of her car and that in doing so it was his intention, through the practice and belief in witchcraft, to cause either spiritual, mental or physical harm to her; and that in doing so he had breached the relationship of trust and good faith with the employer and made the continued employment relationship intolerable. The employee was found guilty and dismissed. He challenged his dismissal at the bargaining council, where Commissioner Charles upheld the dismissal as having been fair.

The commissioner found that the act of witchcraft did not have to have achieved its purpose to be classified as misconduct. It was sufficient that the muti had been deliberately placed on the HR officer’s car to intimidate, scare and threaten her. The commissioner said that it was an attempt by the employee to use their shared cultural heritage to psychologically exploit and cause fear and panic within the HR officer. This sort of intimidation is regarded as serious misconduct and cannot be tolerated in the workplace. The commissioner thus concluded that it was sufficient to break the trust relationship between the employer and the employee. Thus the employee’s dismissal was found to have been fair.
A variety of pertinent topics will be discussed at the 30th anniversary of the Annual Labour Law Conference (ALLC), taking place at Emperors Palace in Kempton Park from 2-3 August 2017. With the theme of “Past Lessons, Future Challenges: 30 years on” this year’s ALLC is jointly organised by the Institute for Development and Labour Law at the University of Cape Town, the Centre for Applied Legal Studies at the University of the Witwatersrand and the University of KwaZulu-Natal. It is facilitated by The Conference Company which succeeded long-time conference coordinator LexisNexis South Africa. The gathering is the largest of its kind in Southern Africa attracting some 800 professionals from around the country annually. For bookings or more information on the 30th Annual Labour Law Conference, visit www.annuallabourlawconference.co.za

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About the Author
Nicci Whitear-Nel (BA LLB) is a Senior Lecturer at the University of KwaZulu-Natal’s School of Law.  She practiced as an attorney before joining the university. She maintains links with the legal profession, and believes this is beneficial to her and to her students as it feeds both her research and teaching functions. She has written four books and is also qualified as a Commissioner of the Commission for Conciliation, Mediation and Arbitration. She is also presently a consultant at Austen Smith attorneys in Pietermaritzburg.