This month we are celebrating the diversity that is our country.
Ke a leboga
Ndi a livhuha
for sharing your culture with your fellow South Africans and contributing to this rainbow nation, showing the world how unison works.
Enjoy Braai Day!
JJR INC. Team
SLAUGHTERING THE COW
– Chazanne Grobler
“The display of religion and culture in public is not a ‘parade of horribles’ but a pageant of diversity which will enrich our schools and in turn our country.”1
South Africa is often described as a rainbow nation, a multi-cultural society with the Constitution protecting the right to participate in and enjoy the cultural life of their choice and the right to freedom of opinion, belief, and religion. The right to participate and enjoy your culture and/or religion can at times come into direct conflict with other rights and freedoms of people. In the matter of Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others2 the thrust of the conflict lies between the right to exercise and participate in your cultural and religious traditions against the protection of animals against cruelty.
The slaughtering of a bull is a ritual which forms part of the Umkhosi Ukweshwama festival of the Zulu nation. According to the tradition no crops may be harvested until they are blessed by the king and his sangomas. At the traditional ceremony Zulu warriors kill a bull barehanded by strangling it to death. In the Smit NO and others case it was stated that the warriors must kill the bull barehanded to test their courage and bravery and represented an opportunity to prove themselves to be worthy of being in the regiment. The tradition is protected by the Constitution, but South Africa also protects animals against cruelty with the legislation Animal Protection Act No 71 of 1962 as well as by subscribing to various international instruments that promote the welfare of animals and prevent any form of cruelty towards it.
The Applicant in the case of Smit NO and others described the killing as being done by a group of approximately forty men using their bare hands who rip the bull’s eyes, genitals and tongue out whilst it is still alive. Thereafter sand or mud is forced down the bull’s throat in an apparent attempt to suffocate it while it is trampled, kicked and beaten to death. Clearly indicative of a cruel and inhumane manner to kill an animal. In stark contrast the Respondents stated that the bull is overpowered to disable it by closing its airways and thereafter its neck is broken in a specific manoeuvre that causes a quick and painless death. No bloodletting of any kind is allowed nor is dismemberment of any kind whatsoever part of the ritual slaying.
In the Smit NO and others case the Honourable Justice Van Der Reyden ordered that the application for an interdict preventing the slaughtering of the cow be dismissed. Before turning to the reason it is important to take cognisance of the fact that whenever different rights clashes the court has the duty to weigh both sides and take into consideration all of the relevant factors. No individual has an absolute right to participate in his or her culture. The right can be limited under specific circumstances as with most rights.
The Honourable Justice Van Der Reyden in the judgment dealt with a very important issue regarding cultural or religious rights – the respect and tolerance of difference. The Applicants instituted action on the basis that the Zulu warriors killed the bulls in a very inhumane manner – a ritual that was not witnessed by the Applicants nor supported by any documentary proof. The judgment voices that we must guard against the preconceived ideas we hold or the misguided information we have regarding various cultures without investigating and learning about the traditions ourselves.
Enjoy braai day, whether you prefer a mielie or some meat, but do remember that Heritage Day is there to celebrate not only your own culture, but to learn from others.
1 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC) at para 107.
2 Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others (10237/2009)  ZAKZPHC 75 (4 December 2009).
BALANCING OF CULTURES IN THE WORK PLACE
– Alicea van der Ryst
Mahatma Ghandi once said: “A nation’s culture resides in the hearts and in the souls of its people”.
Living in a democratic country with a vast diversity of cultures, this statement can carry far more weight than any of us can fathom. A simple act can be perceived through one lens as culture and through another as offensive with the effect that one person may feel oppressed and the other disrespected. In a working environment this is a very sensitive topic and must be dealt with carefully.
What is culture?
Culture is a way of life, it is the ideas, customs, and social behaviour of a particular group or society. Culture, in a nutshell, defines the group or society one belongs to and who we are in essence.
Do we have a right to our own culture?
Culture is regarded as one of the most important rights that a South African has. One’s right to culture is protected by the Bill of Rights, which forms part of the Supreme Law of South Africa, our Constitution. One can therefore conclude that this right may not be infringed upon or be taken lightly without just cause.
The Bill of Rights define one’s right to culture as follows:
30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.
31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
It is evident that this is a very important right for each and every person in South Africa.
The question therefore is, how do we balance everyone’s culture in a work environment? The answer to this lies within in the specific organisation’s ability to incorporate a corporate culture.
Corporate culture is regarded as the equaliser between varying poles in a work environment. It is a very important culture to cultivate in a working environment in order to protect one’s business as well as one’s employees in the long run against a disarray of ways of conducting oneself in strife with the company policy.
This type of culture is unique to a business and applies to employees universally without infringing upon their personal right to culture. When there is a clear culture within a business everyone reforms thereto without feeling oppressed and a possible hick-up between employees will be dealt with on a level playing field.
Should an employee not adapt to the corporate culture of a specific business the employer has the option of dismissal for incompatibility at its disposal. Incompatibility arises when employees are unable to work harmoniously with their colleagues, or are unable to adapt to the corporate culture of the workplace.
The rationale for this dismissal lies within the fact that an employer has a right to expect its employees to adapt to norms and standards set by the employer, and to conduct themselves accordingly. Incompatibility is in essence an irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work with others. When the continued presence of the employee concerned causes disharmony in the workplace the employer is entitled to address the problem, and, if it does not improve, to remove the cause of the discord by dismissing the employee.
Culture is synonymous with that which one believes in and stand for. As South Africans we are privileged to have our cultures regarded as an important part of who we are. In a society where there are numerous different cultures it is of vital importance for companies to adapt, and incorporate a corporate culture in order to respect and protect each individual’s personal culture. This will create uniformity that everyone understands. This will ensure that no oppressive behaviour will be entertained in one’s workplace.
As Edgar Schein correctly pointed out; “The only thing of real importance that leaders do is to create and manage culture”.
I DIDN’T GET THE JOB BECAUSE I AM A WOMAN
– Ané Kotzé
“I didn’t get the job because I am a woman”
“I was not promoted because of my race”
“Our company only appoints married men in the marketing department”
In a country trying to reconcile previously disadvantaged groups and individuals, the occasional emerging of discriminatory remarks is not surprising. Luckily the legislation has been amended and implemented to such an extent that South Africa is currently one of the leading countries with a world class legal system to sort out disputes of this nature.
Section 6 of the Employment Equity Act 55 of 1998 (“EEA”) prohibits unfair discrimination by stating that “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture language and birth.” The EEA goes further by stating that it is not unfair discrimination to implement affirmative action measures consistent with the EEA, or to “distinguish, exclude or prefer any person on the basis of an inherent requirement of a job”.
South African labour law legislation read together with the EEA however creates a platform for the prevention of unfair discrimination in the workplace. The question is however, how do you go about to report and resolve an alleged unfair discrimination dispute?
There is a fine line between an unfair labour practice dispute as defined in Section 186(2) of the Labour Relations Act, 66 of 1995, as amended (“LRA”) and an unfair discrimination dispute, as set out herein above. In instances where an employee feels aggrieved due to non-promotion, he / she is usually torn between whether to refer the matter to an external forum as an unfair labour practice dispute or an unfair discrimination dispute. The reality is that non-promotion is usually due to the employee not fulfilling all the inherent requirements of the position. In instances where it is clear that the position may be fulfilled by all genders, but specifically excludes males of a Caucasian ethnicity, questions can arise as to whether this may be regarded as unfair discrimination.
If the non-promotion falls within the ambit of “unfair discrimination” as defined in the EEA, the dispute should be dealt with as an unfair discrimination dispute. In cases where the non-promotion is due to a procedural error or alleged oversight by the employer, the dispute should be dealt with as an unfair labour practice dispute.
In terms of the LRA, unfair labour practice disputes can be adjudicated by the Commission for Conciliation Mediation and Arbitration (“CCMA”) and accredited Bargaining Councils by referring the dispute within 90 (ninety) days of the incident.
Section 10 of the EEA indicates that an unfair discrimination matter should be referred to the Commission for Conciliation Mediation and Arbitration (“CCMA”) within 6 (six) months of the incident for a conciliation process. Should the parties fail to resolve the dispute at conciliation, the Commissioner could either issue a Certificate of Outcome, stating that the matter should be referred to the Labour Court, or the parties can agree that the matter be arbitrated under the auspices of the CCMA.
It is therefore clear that it is of utmost importance to clearly distinguish whether a dispute is in fact an unfair labour practice dispute or an unfair discrimination dispute. The distinction between the two disputes will determine which Act is applicable to the dispute at hand as well as the jurisdiction of the external forums in this regard.
It is advisable that you seek legal advice from a firm or an individual specialising in labour law, or the CCMA prior to referring a dispute if you are uncertain what the nature of the dispute is.
Know the difference, so that you can protect your rights.
This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.