It is important to note that not all South Africans adhere to the practice of western medicine. This aspect becomes particularly difficult if you are an employer within our Republic. The question now arises whether employers should accept certificates from traditional healers and if they should carry the same weight as a medical certificate from a doctor practising western medicine.
In the Kieviets Kroon Country Estate Pty Ltd v Johanna Mmoledi and others, an employer did not accept an employee’s medical certificate from a traditional healer. Here the court found that the religion of traditional healers should be acknowledged and that employers must accommodate such beliefs and not marginalise these employees.
An employee must be unfit to work due to injury or illness to justify sick leave. The Basic Conditions of Employment Act No 75 of 1997 specifies that an employee should submit proof of such incapacity as a medical certificate if the employee is absent from work for more than two consecutive days or more than two occasions within an eight-week cycle.
It is important to remember that an employee can be truly ill or injured and seek the services of a traditional healer. Therefore, one must not question the validity of the employee’s incapacity. However, the question is whether the certificate issued by the traditional healer is valid or not.
Employers should accommodate the diversity of religion, culture and beliefs within the workplace. An employee’s work-life cannot be expected to be kept completely separate from his beliefs. Therefore, it is advisable that an employer create an environment in which an employee can exercise these rights. The South African Constitution recognises this aspect in section 9, the Employment Equity Act 55 of 1998 and Promotion of Equity and Prevention of Unfair Discrimination Act 4 of 2000. The last-mentioned is focused on giving everyone equal rights and ensuring equal enjoyment and protection of the law, regardless of the persons’ beliefs or cultural differences.
A traditional healer is defined as a person who does not have any formal medical training but is considered (by the local community) as being competent to provide health care using animal, plant and mineral substances and certain other techniques. These techniques are based on social, cultural and religious background and the knowledge, attitudes and beliefs that are prevalent in the community regarding physical, mental and social well-being and the causation of the disease and disability.
The South African law never made provisions to recognise traditional healers. On 1 May 2014, a new proclamation came to light giving effect to the provisions of the Traditional Health Practitioners Act 22 of 2007 (hereinafter the THPA). The most important provision was section 4 of the THPA where an interim traditional healer’s council was formed. This had the effect that traditional healers could in fact issue medical certificates to their patients.
In terms of section 7 THPA, a traditional healer that is qualified to diagnose and treat patients can issue a medical certificate to an employee. Therefore, the South African law acknowledges traditional healers and their medical certificates if it complies with the THPA legislation and if the traditional healers are registered.
But now, you might ask yourself the following question: Should a medical certificate from an unregistered traditional healer be accepted? In our opinion, an unregistered traditional healer’s sick note must be deemed a valid and justifiable document supporting an employee’s medical condition. Due to it being non-compliant with the legislative requirements, an employer need not process such absence as paid sick leave, but rather unpaid leave, and should not subject the employee to disciplinary action.
Employers who are members of SEESA labour are encouraged to contact our offices for more information and guidance on this topic. It is crucial to scrutinise each traditional healer’s note and get more advice before taking any further action.
About the Author:
Jani Jordaan started her career SEESA in April 2020 and is currently a Legal Advisor at SEESA’s Pretoria branch. Jani obtained her LLB degree in 2015 and was admitted as an attorney in 2018.
Resources:
- Kieviets Kroon Country Estate Pty Ltd v Johanna Mmoledi and others 2012 11 BLLR 1099 (LC);
- The Basic Conditions of Employment Act No 75 of 1997;
- Constitution of the Republic of South Africa, 1996;
- Employment Equity Act 55 of 1998;
- Promotion of Equity and Prevention of Unfair Discrimination Act;
Traditional Health Practitioners Act 22 of 2007.