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Supreme Court of Appeal has taken a giant step in recognising the wisdom of our ancestors, and the upliftment of indigenous beliefs, writes Annelie de Wet
Johannesburg - The struggle to throw off the yoke of colonialist prejudice against African traditional healing methods scored a victory in the Supreme Court of Appeal (SCA) when Johanna Mmoledi (46), a sangoma, won a case instituted against her by former employer Kievits Kroon, a country estate outside Pretoria.
Mmoledi was fired for taking a month’s unpaid leave in order to finish her thwasa process – an African spiritual/psychological healing process followed by initiation as a sangoma after the healing has been affirmed.
Kievits Kroon refused orders over a period of six years from the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour and Labour Appeal Court to reinstate Mmoledi.
Last week the SCA ruled in her favour, awarding costs, plus costs for two advocates.
This fascinating, and much discussed case, regarded as a watershed case for South African law reform related to Ubuntu has recently been incorporated as a prescribed case in law studies.
Does Mmoledi’s victory mean that anyone with any ailment can obtain leave with a sick note from a sangoma – as feared by Kievits Kroon?
It is unlikely, because although judgment omitted explicit terminology relating to African traditional healing (ATH) methods, Mmoledi’s ailment does fit in with the pre-existing African knowledge system of ukubizwa (the ancestral call, manifesting as a set of objectively known psychological and physical ailments) and thwasa – the process of psychological and physical healing in the form of training that leads to sangoma initiation.
In other words, Mmoledi did not have a common cold. Her condition was totally culture-specific. Therefore, this judgment does not necessarily have bearing on common illnesses – at least not yet.
The judgment declared the use of traditional healing “as beyond dispute” by quoting the World Health Organisation, which upholds “diverse health practices, approaches, knowledge, spiritual therapies and techniques to maintain well-being, treat, diagnose or prevent illness”.
The oral tradition in African practices was also upheld, defined as “practices relying exclusively on practical experience and observation handed down from generation to generation, whether verbally or in writing”.
Fears of “malpractice” (of employees faking thwasa to obtain leave) were previously eloquently addressed by the Labour Appeal Court: “The possibility of abuse should not divest from the rights of others who practise sincerely. Should the acceptance of a particular cultural practice encourage others to come out in support of that practice, which in the past they were afraid to do, such results should be celebrated and not feared. Accommodating each other is nothing but ubuntu.”
The judgment seems to maintain a narrow, reduced definition of ATH as a “belief system” – in spite of the “health system” quotations from the WHO.
The judgment states: “Courts are concerned only with the sincerity of the adherent’s (Mmoledi) belief. Courts are therefore unable to evaluate the acceptability, logic, consistency or comprehensibility of the belief.”
Such reasoning automatically leads to questions in the public mind such as: if a man sincerely believes that baby rape will cure him of Aids, will he be excused by the court? What if a suicide bomber sets off a bomb in a shopping centre? Or if a scientist tortures animals to prove they don’t have emotions – as was done by the father of western rationality, Descartes? Will they get off because of their “sincere beliefs”?
An analysis of the Mmoledi case does away with the above questions, albeit it in a rather dinosaurian way. One has to remember that this is a labour case, and not a Constitutional Court case (yet).
Mmoledi’s attorney Silas Molebaloa is positive that the door has been opened – but says similar cases are needed to make the point. “What is now clear is that the employer who tears and throws away the sangoma certificate without reading it and showing interest, might be doing that at their own peril. Employers run a serious risk by dismissing employees’ cultural issues summarily without trying to understand their import.”
However, the rigid focus on Mmoledi’s sincere “beliefs” surreptitiously strips ATH of an “objective reality” that is usually a western status symbol reserved only for university courses such as western psychology, medicine and science.
ATH as a “belief system” is also not consistent with expert views of psychiatrists, anthropologists and sangomas who distinguish it as a therapeutic system in which there is a “patient with a diagnosable illness” – rather than a “believer”.
Sangomas refer to themselves as “healers, amagqirha (doctors)” – not as priests of a religion. People they treat are “patients”, not “fellow believers”. This is a significant distinction.
No-one refers to western psychology as a “belief” system, or to its patients as “believers”, in spite of psychology’s adherence to concepts such as the unconscious, or psyche – for which there is no tangible evidence, and which can be equated with the African concept of ancestors.
In line with this, Advocate Wilmien Wicomb from the SA Legal Resources Centre argues that constitutionally the Mmoledi case is “primarily about an employee’s right to health as included in the constitution. Arguments regarding religion and culture are secondary.”
By terming ATH a “belief system”, the inevitable next step is to invoke the classic subjective/objective split – and the adjoining superiority of the western paradigm.
Thus, the SCA judgement reads: “Our courts are familiar with and equipped to deal with disputes arising from conventional medicine, which are governed by objective standards, whereas questions regarding religious doctrine or cultural practice are not.”
Dr Simon Sobo, a Connecticut psychiatrist, comments on evidence based medicine/therapeutic practices: “Scientific investigation is unrivaled as the way to understand clinical phenomena. But the virtues of the scientific format can act as a smokescreen. The language, the prestige, the trappings of science can be so distracting that science’s core value is overshadowed – absolute clarity about what is known and not known.
“Crucial perspectives (such as other cultural paradigms) that don’t fit into its diagnostic system get ignored. Clinical work is not a laboratory. If we limit our decisions to scientifically proven information, we would be incapacitated, since scientifically valid answers oftentimes do not, as yet, exist.”
Isn’t this what is happening in the legal treatment of ATH? African perspectives that don’t fit the British/Roman/Dutch system are ignored and termed outside the jurisdiction of the court.
Yet western psychologists are “objective” enough to appear as expert witnesses. And they are professionals who uphold the reality of unseen forces such as the psyche, or the unconscious – just like sangomas upholding unseen ancestral forces.
Similarly, Judge A Cachalia’s contrasting of Mmoledi’s “belief” – or ATH – with “evidence-based” bio-medicine is unsuitable. Mmoledi’s affliction as expressed in African cultural terms is more comparable with ailments (and therapy) in western psychology/psychiatry – not bio-medicine.
Knowledge of the subjectivity and fluidity of people’s most cherished assumptions – even what is called scientific evidence – removes the basis for intellectual imperialism in a multi-cultural society. Opposing paradigms can refer to the same thing – using different languages.
Which makes the next question inevitable: why is Spirit not included within the jurisdiction of the law? Is it not a failure of imagination?
Let’s take a giant leap towards a more constitutional debate, taking a leaf from Bolivia, a country that has shifted legal and indigenous spiritual paradigms two years ago.
Because the rights of nature have traditionally been overlooked in law – Bolivia in 2011 drew up a new Bill of Rights – assisted amongst others by SA lawyer Cormac Cullinan.
The new bill, influenced by an indigenous spiritual worldview which places the environment at the centre of all life, incorporates the rights of Mother Earth.
It redefines the country’s rich mineral deposits as “blessings”. Humans are considered equal to all other entities.
The concept of Spirit was incorporated in the constitution – in a universal manner, yet in line with indigenous beliefs.
What stops us from honouring the ancestral wisdom of Africa in our constitution – for better health for all?
It is imperative to illustrate common psychological values that are universal in the human experience, and to take up the challenge to address that which has been excluded in the legal system.
Seen from a therapeutic point of view, ancestral practices, through ritual and ceremony, offer a most powerful and healing entrance into the universal human unconscious.
*De Wet is a Pondo- and Swazi-trained sangoma and freelance writer living in Cape Town.
** The views expressed here are not necessarily those of Independent Newspapers.