This has been a controversial issue for years, and yet the controversy continues.
In May 2014 and September 2018 proclamations were made giving effect to provisions of the Traditional Health Practitioners Act 22 of 2007 (THPA). One of the more crucial provisions was the establishment of the Traditional Health Practitioners Council. The Purpose of the council was to regulate the practice.
The are many challenges to ensure that all Traditional Practitioners comply with a number of criteria such as education, age, years of training required for the different disciplines etc. Therefore aligning Western and traditional systems was always going to be a great challenge.
Section 23 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) addresses sick leave stating that a certificate must be signed by a Medical Practitioner registered with a Professional Council.
According to the Traditional Healers Association, the council is established but to date, no practitioners are registered yet. This means that until the finalisation of criteria and regulations the council cannot perform its core function just yet.
In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others (2014),3 BLLR 207 (SCA) an employee applied for unpaid leave in order to complete a course as Traditional Healer, her application was denied. Before she left for leave she placed a letter and a sick note from her Traditional Healer that she was ill, for a time period of a month, on her manager’s desk. The manager accommodated her to an extent by allowing her one week but denied her absence for a month as operational requirements could not allow for it. The employee refused the instruction to return after a week and stayed away for the entire duration. She was subsequently dismissed when she returned. Needless to say, she referred the matter to the CCMA.
The CCMA found that her dismissal was unfair and ordered reinstatement without back pay. The employer appealed to the Labour Court and the Supreme Court of appeal who upheld the decision taken by the CCMA and the appeal was dismissed with costs.
It is important to note that the court gave recognition to traditional and cultural beliefs, however, the acceptance of the certificate itself was not in dispute. Cachalia JA held that it is not up to the court to decide the acceptability, logic, consistency or comprehensibility of the belief. Cachalia also held that termination may be justified for extended absence due to an Ill health process, which was not followed in this instance.
Therefore, Traditional Healers certificates are not illegal. Section 23 and 23(2) of the BCEA clearly states that to be paid for sick leave the certificate must be issued by a registered Medical Practitioner. There are currently no traditional healers that are registered with the Traditional Health Practitioners Council.
This means that an employer is not obliged to pay sick leave to an employee that produces a Traditional Healers sick note unless the healer is registered with the Traditional Health Practitioners Council. Payment will be at the discretion of the employer. I would furthermore, strongly advise against disciplinary action. Should the period of incapacity be unreasonably long, then the employer may pursue an ill-health incapacity process. Factors such as the length of the incapacity, importance of the role of the employee in the business, can an employer easily get someone on a short term assignment to fulfil the role of the employee and other relevant factors must be taken into account.
It would be interesting to see how SASSA will deal with an application for a disability grant where a Traditional Healer declares someone permanently incapacitated or whether insurance companies will pay benefits based on a Traditional Healers diagnosis and would it be unconstitutional to exclude Traditional Healers recommendations.
For more information regarding traditional healer certificates, please contact your nearest SEESA office to consult with a Legal Advisor.
About the author:
Khalib Hendricks started his career at SEESA in 2008 is currently a Labour Law and BBBEE Legal Advisor at SEESA’s Newcastle branch. He obtained his LLB degree at the University of the Western Cape in 2009.
Resources
Legislation :
Basic Conditions of Employment Act 75 of 1997
Traditional Health Practitioners Act 22 of 2007
Proclamation 29 2014 gazetted on 2 May 2014
Proclamation 29 2018 gazetted on 28 September 2018
Case Law:
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others (2014) 3 BLLR 207 (SCA)
Articles:
SAMJ Editorial–April 2016, Vol 106, no 4- Unpacking the new proposed regulations for South African Traditional Health Practitioners by RA Street
Werksman–17 February 2014–The Importance of the Recognition of Cultural Beliefs in the Workplace
Labourguide – Workplace Conflict in South Africa–A Case Study of Western Culture v African Culture by Johann Scheepers CCMA Commissioner.
Labourguide – Have employees who wish to use traditional healer certificate for sick leave been thrown a bone? – by Fraan Coetzee,Cliff Dekker Hofmeyr
De Rebus- 1 May 2014- Employment Law update –Traditional healer certificates by Talita Laubscher and Monique Jefferson