Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

Introduction

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers.

Summary of Facts

This is an appeal against the decision of the Labour Appeal Court. The matter was between Mmoledi who as in the employ of Kievits Kroon Country Estate (Pty) Ltd. Between the month of April and May 2007, the employee, Mmoledi, requested to have her shift adjusted to accommodate her application for sick leave. She needed to attend a course as a traditional healer. The application for leave was granted. It is important to note that the course emanated from the visions that she reportedly saw which visions were interpreted as a calling for her to become a traditional healer. 

On 1 June 2007 she approached her supervisor with a similar request. This time around she required a period of 5 weeks to attend the course. This request was made at a time when she had exhausted all her leave days. Her supervisor was willing to accommodate her request albeit for a shorter period of week. Mmoledi insisted that she required more time. To support her request for more time off she brought a note from her trainer which note indicated that she needed more than one week. The documents were left on her supervisor’s desk as the supervisor was not in the office on the day the papers were brought to the company.

The employee subsequently did not return to work within the period expected by her supervisor. The employer proceeded to institute disciplinary proceedings noting that the employee had breached work place rules. A disciplinary authority appointed in terms of the company rules found that the employee was guilty of misconduct and prescribed her dismissal from employment as the appropriate penalty. In dismissing her the authority concluded that her period of absence could not be construed as Sick Leave.

Aggrieved by the decision, the employee appealed to the Commission for Conciliation, Mediation, and Arbitration (CCMA). The decision to dismiss her was set aside on the basis that her absence from work was due to a situation which was beyond her control. The employer was aggrieved by the decision of CCMA and appealed to the Labour Appeal Court were the court concluded that the decision by CCMA was correct.  The Supreme Court of Appeal was thus seized by an appeal by Kievits Kroon Country Estate (Pty) Ltd which emanated from the latter’s dissatisfaction with the conclusion reached by the Labour Appeal Court.

The issue in dispute

The major question was whether the commissioner of CCMA properly applied the principles applicable to an application for unpaid leave for issues unrelated to the contract of employment between the parties.

Further, the question was whether a traditional healer’s certificate could be construed as a medical certificate for purposes of applying for sick leave.

A discussion of applicable labour law principles

The Supreme Court of Appeal noted that the employee genuinely believed that she was ill. This was because of the cultural belief that she was being called by her ancestors to become a traditional healer. The court proceeded to note that such cultural beliefs existed in the South Africa Society and have been recognized by the courts before. It went further to note that such beliefs were constitutionally protected.

It was also highlighted that it was beyond any dispute that people sometimes seek assistance from traditional healers once faced by similar situations. The court recognized that the employee was seeing visions and she made use of traditional healing methods because of her cultural belief. This evidence went on unchallenged.

The court concluded that the commissioner was correct in noting that the employee’s failure to report for duty was reasonable and that beyond her control. In the eyes of the Supreme Court of Appeal, the decision by the CCMA commissioner was correct.

Conclusion

The Supreme Court of Appeal concluded that the Labour Appeal Court was correct to dismiss the appeal.  It then proceeded to also dismiss the appeal with costs.

NB: This summary was submitted to the University of South Africa (UNISA) in partial fulfilment of the requirements for the Degree of Bachelor of Laws (LLB).