Making out a case for luxuriating and celebrating our religious and cultural diversity

2013-10-31 21:35

Introduction

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Twenty years into our constitutional democracy, we've yet to find the right racial,religious and cultural mix to luxuriate and celebrate and in so doing ensure harmony and achieve a united society, or at the very least plant the seeds that would germinate towards that.

A paradigm shift is necessary, suggested a judge sitting in an appeal against a finding of a commissioner that an employer's dismissal of an employee who used a songoma's note to stay away for over a month, so she could complete a course to qualify as a songoma, was substantively unfair.

I am referring to the decision of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others, [2012] ZALAC 22 which is instructive as it speaks to issues such as reasonable accommodation and ubuntu, values that are deeply and indelibly enshrined in our Constitution.

The judgment in this case speaks volumes.

Instead of luxuriating and celebrating our religious and cultural diversity, we are adrift from our constitutional and human rights moorings often crashing upon the rocks of intolerance and prejudice reinforced by stereotypical mindsets which, after you've read the facts of the case I have cited,compels me to make out a case for luxuriating and celebrating our cultural and religious diversity. We must start with tolerance.

I am aware of an article doing its rounds at the behest of very shallow and narrow minded clerics who are punting the dangers of, inter alia, interfaith mixing on the grounds that this would lead to contamination of the essential of faith.I distance myself from this as having no credible basis for support as being the invention of the intellectually and spiritually blind, if not bigoted. They prefer to subsist within the cracks and crevices where the irrational often find proselytes amongst the prejudiced or the ignorantly insecure. That is the way towards genocide. That was how the holocaust and present day apartheid was conceived ,engineered and executed.

Facts

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It is relevant therefore to briefly state the facts in Kievits. An employee , the respondent, wanting to qualify as a songoma applied to her employer,the appellant, for one month's unpaid leave which was dismissed out of hand. Instead she was afforded just a week as she had no sick leave accumulating in her favour.Previously, she had been accommodated by her employer by scheduling her work times to enable her to attend evening classes but when she applied for a full month's unpaid leave, her application was dismissed.

She presented her employer with a note from her songoma justifying her absence over and above the week to her being troubled by her ancestors necessitating her being absent for a month. As this was not a doctor's certificate in terms of section 23 of the Basic Condition of Employment Act, she was duly disciplined and dismissed. The matter was conciliated in the CCMA and thereafter arbitrated whereafter it was held that her dismissal was unfair and an award reinstating her was the outcome. There followed an an application for review to the Labour Court, and thence to the Labour Appeal Court and all three upheld the decision of the arbitrator on the principle that the decision and award was one that a reasonable decision maker would reach.

Understanding why

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It would be disingenuous to punt and promote one set of values underpinning one culture to the exclusion of others especially in a country like South Africa where hitherto regnant Judeo-Christian norms and values had resulted in the exclusion of, for instance African and Indian cultures and values. By legislative fiat women and children of African and Indian men were nothing more than rightless chattels and illegitimate offsprings if they were not married and registered under civil law.

Also disingenuous is the argument that if a "sick" note from a songoma is deemed legitimate then this would lead to abuse and disruption especially in the workplace.

Finally it would be crude,let alone disingenuous to deny that South Africa is characterised by diverse cultures, traditions and beliefs observed and part and parcel of the lives and identity of belonging by people hitherto denied these.

Apart from giving effect to the constitutional imprimatur to fair labour practice as well as to lawful, reasonable and procedurally fair administrative action, one of the major underpinnings in Kievit was the foundational principles of reasonable accommodation and ubuntu extolled by the Constitutional Court which held that only if accommodation would cause more harm than good then it could be rightfully denied.

The intransigence on the part of the employer against an employee with a good work ethic and record was most unfortunate and ill informed as being out of kilter with our nascent constitutional enterprisse.

Those who do not subscribe to the cultural,religious beliefs of others should not trivialise them but rather they should tolerate and accommodate them in the same way that the late Pius Langa, when he was Chief Justice on behalf of a unanimous Constitutional Court spoke to a "pageant of diversity" which had the capacity of enriching our country.

End Note

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Rather than persuading readers of this blog piece,I prefer to regard this as a discussion document aspiring to seek consensus towards a middle path as we travel across the bridge to the promised land for all who live in it.

Saber Ahmed Jazbhay

Follow me @ jazlaw24

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