In the workplace the general question arise whether or not an employer is obliged to accept a medical certificate issued by a traditional healer. Before answering this question it must first be established what constitutes a valid medical certificate: Section 23 of the Basic Conditions of Employment Act (BCEA) deals with proof of incapacity and states:
“23. (1) An employer is not required to pay an employee in terms of section 22 if the
employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”
The above act clearly indicates that a medical certificate must be issued and signed by a medical practitioner who is registered with a professional council established by an Act of Parliament.
From this section of the BCEA Act it is further clear that there are two requirements in order for a medical certificate to be a valid medical certificate:
- It must state that the employee was unable to perform his or her normal duties as a result of illness (or an injury) and must be based on the professional opinion of the medical practitioner.
- The certificate must be issued by a medical practitioner. A medical practitioner is described in the definitions of the Act as: “a person entitled to practice 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 the above mentioned Act the following professionals are considered to be medical practitioners:
- Medical practitioners (doctor with MBCHB degree) that are registered with the Health Professions Council of South Africa.
- Dentists that are registered with the Health Professions Council of South Africa.
- Psychologists with a Masters Degree in Educational, Counselling or Clinical Psychology that are registered with the Health Professions Council of South Africa.
Employers must accept medical certificates from such practitioners as proof of incapacity in terms of the Basic Conditions of Employment Act. If an employee does not provide his employer with the above mentioned medical certificate, the employee will not receive remuneration for his absence and this might further lead to disciplinary steps being taken against the employee.
In the past, traditional healers were not registered with a professional council, which meant that employers did not have to accept certificates from traditional healers unless they were bound by a previous collective agreement to accept such certificates.
Selected traditional health practitioners in KwaZulu-Natal allow for the licensing of traditional healers. This is in terms of the KwaZulu Act on the Code of Zulu Law 16 of 1985.
The previous situation has however changed in recent times and a major reason for this is the case of Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others [LAC] JA78/10): In this matter an employee was dismissed for being absent from work. She had a medical certificate from a traditional healer, indicating that she had premonitions of ancestors. The employer dismissed the employee for being absent from work without having a valid medical certificate. The CCMA and the Labour Court said the dismissal was not justified as she had a justifiable reason for not being at work. Kiviets Kroon took the case on appeal to the Labour Appeal Court (LAC). The LAC said the Constitution recognises traditional beliefs and practices, so employers should also accept these beliefs too. In this case, the employee did not undergo ‘medical treatment’. She was absent from work for cultural, traditional belief or ancestral consultation. The employee’s case was about her cultural and traditional beliefs. She said she was in consultation with a traditional healer. This was to help her with training that would qualify her to be a Sangoma, because she had a calling from her ancestors.
Based on the above case law, a precedent was set that employers can no longer refuse to accept a traditional healer’s certificate when it comes to the granting of sick leave, or even to justify absence from work. Furthermore, on 30 April 2014 the President signed the Traditional Health Practitioners Act, which entails that from 1 May 2015 traditional health practitioners should register with a Council established by Parliament.
This effectively established the Interim Traditional Health Practitioners Council of South Africa. The Council is now bestowed with all the powers in respect of disciplinary inquiries and investigations defined in the Act. This Act allows practitioners currently engaging in traditional health practice to register with the Council. The Proclamation therefore allows medical certificates of traditional health practitioners’ to become proof of incapacity in terms of Section 23(2) of the Basic Conditions of Employment Act of 1997.
After traditional healers are registered with the Traditional Health Practitioners Council of South Africa, such traditional healers conform to the requirements for payment of sick leave as any other person who is certified to diagnose and treat patients and who is registered with a professional Council established by an Act of Parliament.
Therefore, registered traditional healers will be recognised as legal traditional health practitioners under the Traditional Health Practitioners Act of 2007 (Act. 22 of 2007) and if an employee now gives an employer a medical certificate issued to him by a registered traditional healer, he has to be given paid sick leave. It also indicates that if the certificate justifies the employee’s absence from work, it is valid.
In the comments below, share with us your story regarding medical certificates in the workplace.
ABOUT THE AUTHOR:
Chris van Straaten obtained his Bachelor of Laws degree from The North West University Potchefstroom in 2013 and was admitted as an attorney in 2016. Chris joined SEESA Labour as a legal advisor in February 2016.