This article was written by Benazir Cassim, a candidate attorney at Norton Rose Fulbright South Africa
Section 23 of the Basic Conditions of Employment Act (BCEA) addresses the proof required by an employer when an employee stays away from work due to incapacity arising from illness or injury. The employer may ask the employee to present a medical certificate where that employee was absent from work for two consecutive days or twice in an eight-week period. The medical certificate must be issued and signed by a medical practitioner or another person who is certified to diagnose and treat patients. That person must also be registered with a professional council that is established by an act of parliament.
An estimated 80% of South Africans are believed to use traditional medicine for their primary healthcare needs. Until recently, traditional healers were excluded from being able to issue medical certificates, or “sick notes”.
The Traditional Health Practitioners Act 22 of 2007 (THPA) seems to have changed that position. The purpose of the THPA is to establish the Interim Traditional Health Practitioners Council of South Africa (The Council), which aims to regulate traditional health practitioners, their qualifications and behaviour through a legislative framework. Certain substantive sections of the THPA came into operation on 1 May 2014.
Medical certificates issued by traditional practitioners were not accepted as sufficient proof of incapacity under the BCEA, as they were not registered with an official regulatory body. However, since section 21 of the THPA, which requires that traditional health practitioners be registered with The Council before they may practise came into operation, the requirements of the BCEA are now fulfilled. Traditional health practitioners who are registered with the Council will fall under the definition of a person who is certified to diagnose and treat patients and is registered with a professional council established by an act of parliament.
The Council was only inaugurated in February 2013, so little work has been done in the area of regulating traditional health practitioners, and their legitimacy to issue medical certificates. However, guidance can be taken from a 2014 Supreme Court of Appeal decision, where an employee submitted a letter from her traditional healer as proof of illness, which her employer rejected. The court held that, had the employer understood the letter to be equivalent to a medical certificate, or tried to understand its importance by asking the employee to explain it, he may have accommodated her request for leave. The court looked to strike a balance between the rights of the employer to have its employee at its service against the employee’s right to practise her cultural and traditional beliefs.