South Africa has a diverse cultural landscape layered with traditions which can often extend into the labour sphere. A frequently debated and ambiguous topic is the question of Traditional Healers and their role in providing medical certificates to employees who seek traditional medical assistance rather than conventional medical treatment.
This nuanced topic sparks confusion and disputes as it delves into the intersection of traditional healing practices and their recognition within the formal framework of labour and healthcare systems.
The main question facing employers is whether medical certificates issued by traditional healers are acceptable and lawful. One must assess the conflict between beliefs, tradition, and legislation and the importance of traditional healers in our communities.
Legal Framework: What constitutes an acceptable and valid medical certificate?
In terms of the Basic Conditions of Employment Act 75 of 1997, as amended (“the BCEA”), a medical practitioner means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974.
In terms of section 23 of the BCEA, the following requirements must be met for a medical certificate to be acceptable and valid:
- The medical certificate must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients; and
- The medical practitioner or other certified person must be registered with a professional council established by an Act of Parliament.
Legal Framework: When can a traditional healer issue an acceptable medical certificate?
Section 23 of the BCEA and section 1 of the Traditional Health Practitioners Act 22 of 2007 have established that traditional healers fall within the category of a person certified to diagnose and treat patients; traditional healers must register with the Traditional Health Practitioners Council (THPC). Registration with the said council will render medical certificates issued by traditional healers acceptable.
After registration, the traditional healer must meet the requirements for payment of sick leave, as in the case of any other medical practitioner. Employers must note that since the THPC was established, a traditional healer must have a registration number and/or present proof of same for sick leave to be paid out to the employee.
Should traditional healers’ medical certificates be accepted in the workplace?
When deliberating whether traditional healers’ medical certificates are acceptable and valid, employers were advised by the Labour Appeal Court to note that the Constitution recognises traditional beliefs and practices; therefore, employers should also accept these beliefs.
Caselaw:
In Kievits Kroon Country Estate (Pty) Ltd v CCMA & others [2011] 3 BLLR 241 (LC), an employee was beset by visions and consulted a traditional healer. The traditional healer told her she had to appease her ancestors by becoming a traditional healer herself. She approached her employer and requested a month’s unpaid leave to complete her traditional healer training, but the employer was only prepared to give her one week.
The employee decided to attend the month-long training course despite the employer’s express refusal. Before she left, she handed in a traditional healer’s certificate, or sick note, stating that she suffered from “premonitions [sic] of ancestors”, which the employer refused to accept as valid.
According to the commissioner ab initio, the ultimate question that needed deciding was whether the employee’s absence from work was justifiable. The commissioner found that the employee had breached the employer’s rule but also found that she was justified in doing so. The employee was faced with a difficult choice: she either had to heed the call of her ancestors and face possible dismissal or obey the employer’s rules and face the wrath of her ancestors.
She opted for the former. This was found to be reasonable as the “calling” of her ancestors was beyond the employee’s control, and ignoring it potentially endangered her life. The Labour Court was satisfied that the award made by the commissioner ab initio was one that a reasonable decision-maker would have made and declined to guess the commissioner’s findings second. Therefore the employer’s application for review was dismissed, and the employee was reinstated with back pay.
It must be mentioned that the commissioner ab initio treated the matter not as an instance of sick leave but as one of absence without leave. As such, although the issue of the validity of the traditional healer’s sick not was not expressly decided, the outcome of the matter seemed to validate the underlying diagnosis.
Conclusion:
The above highlights the conflict between belief and law, which creates uncertainty regarding the appropriate action to be taken by employers. However, having regard to the relevant case law and legislation, the following options are available to employers:
Employers must focus on the legal aspects of what is required for a medical certificate issued by a traditional healer to be valid. If any of the requirements are unmet, employers can reject medical certificates issued by traditional healers and implement unpaid leave for the days the employee was absent.
Employers need to consider each case on its own merits while ensuring that employees’ rights are protected and that they are treated fairly and reasonably. When in doubt, always contact Invictus.
