The Tensions between Ukuthwasa and Labour Laws in South Africa: A Human Rights-Based Approach
Stewart Lee Kugara 
& Melisa Mutsa Chawaremera
Issue: Vol.5 No.16 Issue Article 23 pp.2973-2985
DOI: https://doi.org/10.38159/ehass.202451623 | Published online 20th December, 2024
© 2024 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
This paper appraises the tensions between the cultural practice of ukuthwasa and fundamental human rights in South Africa. This is particularly within the context of modern labour laws and workplace practices. A doctrinal research methodology is employed to analyse the human rights implications of allowing or denying employees the right to engage in the cultural practice of ukuthwasa. This approach enables an analysis and interpretation of relevant legislative provisions, case law and human rights frameworks governing workplace and cultural rights. The study reveals that there are multilayered tensions between the recognition of ukuthwasa and the enforcement of labour laws, which often overlook or conflict with the spiritual and cultural obligations of employees. A critical human rights-based analysis, reveals that the failure to balance cultural rights with workplace obligations can lead to significant human right violations, including unlawful dismissals or infringement of religious and cultural freedoms. This study highlights the need for a more sensitive and inclusive approach to managing cultural practices in corporate environments. Further, this study recommends an approach to addressing cultural rights and fundamental human rights within the workplace environment. Employers should be concientised about the importance of cultural and religious rights, while employees must be aware of their responsibilities within the framework of labour law. Ideally, this will mitigate conflicts or dismissals. This study contributes to the ongoing dialogue on cultural rights and labour law. It also provides insights for employers on managing the delicate balance between cultural practices and legal obligations in the modern workplace.
Keywords: Ukuthwasa, human rights, cultural practice, workplace, Constitution.
Case Law and Legislation
Bhe v Magistrate Khayelitsha 2005(1) SA 580 (CC).
Building Construction & Allied Workers Union of Zondi and Kusile Civil Works Joint Venture (2013) 34 ILJ 2395 (BCA).
Doctors for Life International v Speaker of the National Assembly 2006 (12) BCLR 1399 (CC).
Kievets Kroon Country Estate (Pty) Ltd v Mmoledi and others [2014] 1 All SA 636 (SCA).
MEC for Education, Kwazulu-Natal and Others v. Pillay 2008 (1) SA 474 (CC).
The Basic Conditions of Employment Act 75 of 1997.
The Children’s Act 38 of 2005.
The Constitution of the Republic of South Africa, Act 108 of 1996.
The Traditional Health Practitioners Act 22 of 2007.
Journal Articles, Theses and Online Sources
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TimesLIVE. “Sangoma Initiate Dismissed for Wearing Beads, White Paint at Work,” August 5, 2013. https://www.timeslive.co.za/news/south-africa/2013-08-05-sangoma-initiate-dismissed-for-wearing-beads-white-paint-at-work/.
Venter, Francois. “The Protection of Cultural, Linguistic and Religious Right s: The Framework Provided by the Constitution of the Republic of South Africa, 1996.” SA Publiekreg= SA Public Law 13, no. 2 (1998): 438–59.
Doctor (Advocate) Stewart Lee Kugara is a Y2 National Research Foundation (NRF) rated scholar – Law and Indigenous Knowledge Systems. He is a postdoctoral fellow at the University of Limpopo, former Senior Lecturer (African Studies and School of Law – UNIVEN) and former adjunct lecturer Monash University, South Africa (Now IIE MSA). He is a former Postdoctoral Fellow: University of Limpopo – DSI/NRF Innovation Postdoctoral Fellowship (2021-3) and The Department of Science and Technology (DST) – National Research Foundation (NRF) Centre in Indigenous Knowledge Systems (CIKS) – UNIVEN – 2020. He is an interdisciplinary, intradisciplinary and multidisciplinary author with academic publications straddling the following areas; African indigenous law, intellectual property, traditional leadership, African traditional health and beliefs, knowledge management, African conflicts management, cultural astronomy, human rights, indigenous customary law, poverty and development studies, African philosophy and cultural philosophy, heritage studies and medical anthropology. He possesses excellent experience in customary legal issues (indigenous knowledge systems), research, community engagement and teaching.
Melisa Chawaremera is the Head of Law at the Independent Institute of Education’s IIEMSA campus. She brings a wealth of expertise in legal practice with special focus on Tax Law, Constitutional Law and Administrative Law. As a certified Commercial Forensic Practitioner with the Institute of Commercial Forensic Practitioners, she has made significant contributions to the field, including tax consultancy and pivotal research for a landmark case in a Southern African country in 2014. In 2017, Melisa transitioned from her role as a Forensics Manager with a consulting law firm to fully immerse herself in her passion for legal education. Melisa collaborates with multiple charitable organisations to support children and women in need, aiming to promote social justice. With nearly a decade of experience in academia, she is dedicated to educating future legal professionals. Melisa has academic publications in areas including legal research, aspects of teaching and learning, tax law, corporate law and social justice. She has been a delegate presenting at multiple conferences in South Africa and internationally. Melisa supervises and externally marks LL.M papers for the University of Johannesburg and the Johannesburg Business School, further demonstrating her commitment to legal education and research. She possesses an excellent grasp of aspects of social justice and endeavours to further critical discussions to uphold it through creating a deeper understanding of indigenous knowledge systems. She currently holds an LL.M and an LL. B Degree, both from the University of Johannesburg.
Kugara, Stewart Lee and Melisa Mutsa Chawaremera. “The Tensions between Ukuthwasa and Labour Laws in South Africa: A Human Rights-Based Approach,” E-Journal of Humanities, Arts and Social Sciences 5, no.16 (2024):2973-2985. https://doi.org/10.38159/ehass.202451623
© 2024 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
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