The Basic Conditions of Employment Act (BCEA) states 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. Until recently 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 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.
However, all of this has changed in recent times, as follows:.
It is important to look at the case of Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others [LAC] JA78/10)
The facts of the case:
- Kiviets Kroon dismissed an employee for staying away from work. She had a medical certificate from a Traditional Healer. It said she had ‘premonitions of ancestors’.
- The CCMA and the Labour Court said the dismissal was not justified. They said 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 off 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.
So, based on this employer 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
- From 1st May 2015 traditional health practitioners must register with the Council.
- This allows Traditional Health Practitioners’ medical certificates to become proof of incapacity.
- After registration with the Traditional Health Practitioners Council of South Africa, the traditional healer must conform to the requirements for payment of sick leave just like any other medical practitioner.
Therefore (please refer to ** below), registered Traditional Healers are now recognised as legal Traditional Health Practitioners as per the Traditional Health Practitioners Act 22 of 2007).
The effect on the employer:
If an employee now gives an employer a medical certificate from a traditional healer, he must be given paid sick leave. It also means, if the certificate justifies the employee’s absence from work, it is valid.
The following medical certificates are valid:
Medical certificates that are valid must now be issued by anyone of the following professionals:
- Medical practitioner (Doctor with MBChB degree) that is registered with the Health Professions Council of South Africa.
- Dentist that is registered with the Health Professions Council of South Africa.
- Psychologist with a master’s degree in research, Counselling or Clinical Psychology that is registered with the Health Professions Council of South Africa.
- Traditional healer or health practitioner that is registered with the Traditional Health Practitioners Council of South Africa.
A medical certificate from an employee who has seen any of the above-mentioned ‘professionals’ has to be accepted by an employer. A medical certificate from any practitioner who is not registered as above, does not have to be accepted by an employer.
Up to now the following checklist has been used to see what should be included on a valid medical certificate – this should now include a Traditional Health Practitioner:
- Doctor’s (or Traditional Health Practitioner’s) name, address and qualifications;
- Patient’s (employee’s) name;
- Employee number (if applicable – especially where the employer sent the employee to the doctor);
- Date and time the patient was examined;
- Whether the certificate is given based on the doctor’s (or Traditional Health Practitioner’s) personal observations or just according to the patient’s say-so (which could still be based on suitable medical grounds);
- Description of the illness in simple words, with the patient’s informed consent. If the patient does not agree, then the doctor (or Traditional Health Practitioner) must simply say it is his opinion the patient is not fit for work (bear in mind that some ailments can be embarrassing);
- How long the patient is booked off for;
- If the patient is completely or only partially unable to do his duties;
- The date the sick note was given;
- A clear indication of the doctor (or Traditional Health Practitioner) who issued the note. He must personally sign or initial the original and print his name next to it in capital letters;
- The doctor (or Traditional Health Practitioner) must delete words on pre-printed stationery that do not apply to the patient; and
- The doctor (or Traditional Health Practitioner) must give the patient a short factual report if he asks for one.
André Naudé Ph.D.
Chief Commercial Officer: Indgro Outsourcing (Pty) Ltd Trading as Indgro Multi Services GroupTM