Author: Prof Rochelle le Roux
Director of the Institute of Development and Labour Law; Professor in the Faculty of Law, University of Cape Town (UCT)
Most employers and employees have a broad understanding that the fairness of a dismissal rests on both a substantive and a procedural leg.
On the one hand, substantive unfairness, in broad strokes, suggests that an employee who should not have been dismissed, had been dismissed.
The legislature had chosen to express substantive fairness with reference to the employee’s misconduct or incapacity and the operational requirements of the employer. A dismissal for the latter reason is often referred to as retrenchment.
On the other hand, procedural unfairness implies that the employee had not been given an opportunity to be heard by the employer before the dismissal was affected. There is at least one practical reason for distinguishing between procedural and substantive fairness: when a dismissal is unfair only because the employer did not follow a fair procedure, the competent remedy is generally only payment of compensation and not reinstatement as would be the case when the dismissal is either substantively, or both substantively and procedurally, unfair.
Female genital mutilation (FGM) is one of the cultural practises embedded amongst the Venda community of north-east of South Africa. Eight weeks or less after childbirth, Venda women undergo a traditional ceremony called muthuso. Muthuso is a process of cutting the vaginal flesh of the mother by a traditional healer. The flesh is mixed with black powder and oil and applied on the child’s head to prevent goni. Goni has been described as a swelling on the back of a child’s head. The Venda people believe that goni can only be cured using the vaginal flesh of the child’s mother. Women who experienced FGM stated that they bleed excessively after the ceremony. Moreover, the women stated that there is no postnatal care in Venda. Consequently, the women use traditional medicine and sometimes this leads to death because of substandard treatment.