South Africa is extremely rich in culture and tradition and, as a result, a large number of its population turns to traditional healers for personal and healthcare assistance. A situation may therefore arise where such a healer directs a person to stay at home, or away from the workplace, for a certain period of time and thereafter provides a sick note to the person to be submitted to his or her employer as a justification for his or her absence.
The question thus arises as to whether the employer is obliged to accept such a note from a traditional healer.
Besides being regulated by section 22 of the Basic Conditions of Employment Act, No 75 of 1997 (hereinafter BCEA), it is common knowledge and practice that a medical certificate for the purposes of sick leave is required in certain instances in order to avoid unpaid leave. This section, read with section 23, of the said Act provides the following:
(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.
To understand the section, one must determine what constitutes a valid, issued and signed medical certificate. For a medical certificate to be legally valid, as provided by section 23 (1) and (2) of the BCEA, it must meet the following requirements:
– 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 medical certificate must explicitly state that the employee was unable to work or perform his/her employment duties, for the duration of the employee’s absence due to sickness or injury.
Based on the lack of an established professional council as required by section 23 of the BCEA traditional healers are not permitted to issue medical certificates or sick notes as proof of incapacity of an employee for the purposes of sick leave.
The Traditional Health Practitioners act no 22 of 2007 which has not yet been promulgated and which accordingly is not yet in force is intended to protect the interests of members of the public who use the services of traditional health practitioners. It will, inter alia, make it an offence for traditional health practitioners to practice without being registered as such. This will bring a certificate issued by a registered traditional healer within the ambit of the BCEA and employers will have to accept such certificate. However, until such time as the act becomes operational and traditional healers can be registered, employers, as indicated above, will not have to accept a certificate by a traditional healer as a medical certificate.
However, cognizance has to be taken of the judgement in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others  1 All SA 636 (SCA). In this case Ms Mmoledi, who was employed as a chef de partie at Kievits Kroon Country Estate, requested five week’s unpaid leave in order to become a traditional healer. Her request was declined by Kievits for the reason that she worked in a high pressure environment as the estate had three kitchens which can, in total, accommodate up to 610 guests making her attendance imperative. In support of her application for the leave, she submitted two letters. The first letter was from her traditional healer, Mrs Agnes Mamoreroa Masilo, stating as follows:
“This serves to certify that Johanna Mmoledi was seen by me on 13-01-07 and diagnosed to have premonitions 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 was also from Mrs Masilo, which 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 of July 2007 to complete her initiation school final ceremony to become a traditional healer.”
These letters were not accepted on the basis that they were not from a medical doctor. She, however, took time off despite the refusal of the leave. She was consequently summoned to a disciplinary hearing and dismissed.
She referred the matter to the CCMA for unfair dismissal where the arbitrator held that her absence from work was justified. Kievits applied to the Labour Court to have the award reviewed and set aside, but the Labour Court held that the award was within reason, and therefore dismissed the application. They then appealed to the Labour Appeal Court but the Court held that the Labour Court’s conclusions were supported by valid reasons and dismissed the appeal. Kievits then went further by appealing to the Supreme Court of Appeal (SCA). The SCA held that the employer should not have regarded the traditional healer’s letters as “meaningless” simply because they were not issued by a medical practitioner and should have seen the importance of the letters or the matter and attempted to understand what they meant instead of summarily rejecting them. Had the employer done that, then the employer may have been able to accommodate the employee’s request. The appeal was accordingly dismissed with costs.
The solution would thus be for employees and employers to discussion the situation, to consider the reason and merits of the application and to only then take a decision as to the way forward.
By Lerato Mphahlane