Medical certificates from traditional healers

Who may sign Medical Certificates?

According to section 23(2) of the Basic Conditions of Employment Act 75 of 1997:

“…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.”

A medical practitioner is described in the said 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);”

The following professionals are considered to be medical practitioners:

All medical practitioners, including dentists, psychologists with a master’s degree in Educational, Counselling or Clinical Pschycology, registered with the Health Professions Council of South Africa are considered to be medical practitioners.

The Basic Conditions of Employment Act 75 of 1997 makes reference to the Allied Health Service Professions Act 63 of 1982. In order to issue medical certificates the practitioners mentioned in this act must be registered with the Allied Health Service Professions Council.

If a medical certificate is issued by the following practitioners an employer must accept it as proof of incapacity in terms of the Basic Conditions of Employment Act:

  • Acupuncturist,
  • Ayurveda practitioner,
  • Chinese medicine practitioner,
  • Chiropractor,
  • Homeopath,
  • Naturopath,
  • Osteopath,
  • Phytotherapist or
  • Unani-Tibb practioner.

Traditional Healer Certificates

Unless employers are bound by a collective agreement to accept such certificates, employers are not obligated to accept certificates from traditional healers. Because of the lack of public participation before the act was promulgated it caused the Traditional Health Practitioner Act of 2004 to be declared unconstitutional in 2006. The 2007 act was approved in 2009 but has not yet been promulgated completely. Traditional healer certificates with practice numbers are simply an indication that the traditional healer registered with the Interim Council established in 2005 (which no longer exists), or with an association.

Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others (875/12) [2013] ZASCA 189

The issue of traditional healer certificates has been a topic of much controversial debate regarding whether an employer should accept the medical certificate of a traditional healer as being a valid medical certificate. Some clarity was provided in Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others (875/12) [2013] ZASCA 189 in which case the question of whether a traditional healer’s certificate can be equivalent to a medical certificate for the purposes of sick leave was answered by the Supreme Court of Appeal (SCA).

Mmoledi, a senior chef at Kievits Kroon Country Estate, requested five weeks unpaid leave from her employer and provided two letters in support of her application of unpaid leave.The first letter had the name and contact details of her traditional healer and stated the following:

“This serves to certify that Johanna Mmoledi was seen by me on 13-01-07 and diagnosed to have perminisions of ancestors. He/she under my treatment from 13-01 to 8th July 2007. He/she will be ready to assume work on 8-07-2007.“

The second letter read as follows:

“Preparation of graduation ceremony of Johanna Maite Mmoledi” and read: “I hereby inform you of the graduation of the abovementioned patient. I am asking you to please give her days from the 4th of June to the 8th July 2007 to complete her initiation school final ceremony to become a traditional healer.”

Mmoledi alleged that she had been seeing visions of her ancestors and as a result thereof she needed the time off in order to be healed by her traditional healer. Her leave application was nonetheless declined by her employer on the basis that the letters from the traditional healer were not from a medical doctor. Mmoledi ignored her employer’s refusal to grant her leave and still took time off from work.

As a result of her conduct she was summoned to a disciplinary hearing which resulted in her dismissal. She felt that she was unfairly dismissed and referred her dismissal to the CCMA.   The arbitrator was of the opinion that her actions was justified because of the circumstances which was beyond her control. The estate wanted to take the award made by the CCMA on review, but the Labour Court found that the award was rational and therefore dismissed the estate’s application. The estate then approached the Labour Appeal Court (LAC) for relief

The estate argued that the commissioner shouldn’t have raised the role of traditional healers to the roll of medical practitioners, due to the fact that traditional healers were not regulated by a professional council. The estate opined that this could open the floodgates to unprofessional and unethical behavior and could possibly turn the work environment into total chaos. The estate was further of the opinion that the commissioner did not properly consider case law where it was held that a certificate issued by a traditional healer could not be regarded as an acceptable certificate.

The LAC dismissed the appeal and held that the commissioner’s decision was supported by valid reasons and that that the reasoning process of the commissioner could not be criticized or attacked. It was held that the commissioner was alert to the issues and had properly applied his mind to the information before him. The LAC further stated that traditional practices and beliefs are recognized by the Constitution and should not be undervalued but rather accommodated. After the LAC dismissed the appeal the estate took the matter to the Supreme Court of Appeal (SCA).

It was pointed out by the SCA that the documents from the traditional healer were important because the employee’s argument at the CCMA was that the certificate should have been interpreted as a sick note equivalent to a medical certificate, while the view of the employer was that the employee’s dependency on the traditional healer’s letters was misguided because it was not a valid letter from a medical practitioner as defined and required by the Basic Conditions of Employment Act.

The SCA noted that the employer attested that if Mmoledi had produced a certificate from a medical practitioner, instead of a traditional healer, they would not have dismissed her. The employer regarded the certificate from the traditional healer as worthless and therefore rejected it as proof of her illness.

The SCA held that the employer may well have accommodated the employee’s request if the employer understood the note to be equivalent to a medical certificate of a Western-trained medical practitioner, or if the employer could have asked the employee to explain the meaning and its importance, instead of immediately rejecting it. The SCA dismissed the appeal with costs.

Traditional Healer Certificates – Valid or Invalid?

In light of the Kiviets Kroon Country Estate-matter employers can no longer completely exclude traditional healer certificates, but should rather consider each matter based on its own merits.

However, traditional healer certificates issued as medical certificates may be reject by employers to grant paid sick leave to employees or to substantiate the employee’s absence from work, as some employers may be of the opinion that traditional healers do not necessarily have the medical knowledge to diagnose and treat regular medical conditions.

According to law employers are not obligated to accept traditional healer certificates to grant paid sick leave or to justify an employees’ absence from work, as the Traditional Health Practitioners Council of South Africa is not yet operative. Traditional healers can therefore not yet register as members.

Employees with this cultural background will justly claim that it is their cultural and spiritual belief to visit these practitioners for health-related illnesses and that it is more economic for them to go to a traditional healer than to seek advice from a Western-trained medical practitioner. It is very important to realize that those who do not endorse or believe in the authenticity of others’ cultural beliefs should not reject these beliefs.  Disregarding a traditional healer as incredible is subjective and our courts may see this as being unfair.

It is advisable that employers should accommodate their employees to ensure fair labour practices in the work environment. Employers need to create their own policies for dealing with these issues such as adapting sick leave policies to accommodate traditional healer certificates fairly.

by

Cindy Horn
lucinda@dyason.co.za