Author: Imraan Mahomed
Since the Supreme Court of Appeal decision of November 2013 in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others this question is regularly asked by employers. The answer at this point is no, as certificates issued by traditional healers are not currently compliant with the Basic Conditions of Employment Act, 1997 (BCEA). The simple reason is because traditional healers do not have a fully established professional council (at present), this being the requirement in terms of section 23 of the BCEA. Section 23(2) of the BCEA requires that a medical certificate must be signed by a medical practitioner registered with a professional council recognised by statute, in order for an employee to qualify for paid sick leave.
Section 4 of the Traditional Health Practitioners Act, 2007 (THPA) establishes an Interim Traditional Health Practitioners Council of South Africa (Council). A proclamation was issued for the establishment of the Council in May 2014. The final effect of the Council would be that traditional healers would be able to issue sick notes in accordance with section 23 of the BCEA.
However, for now and until such time as the Minister of Health has promulgated further regulations in terms of section 47 of the THPA after consultation with the Council in order to create a regulatory framework necessary to oversee the practices of traditional healers such as their qualifications, registrations, age, conduct (which will then bring traditional healer certificates in line with the requirements of the BCEA), employers are not obliged to accept a medical certificate issued by a traditional healer.
It is worthwhile noting the following facts which were accepted by the SCA in Kievits Kroon:
1. The World Health Organisation (WHO) observes that up to 80 percent of South Africans meet their physical, spiritual and emotional well-being needs through the use of traditional medicine, which include: “Diverse health practices, approaches, knowledge and beliefs incorporating plant, animal and/or mineral based medicines, spiritual therapies, manual techniques and exercises applied singularly or in combination to maintain well-being, as well as to treat, diagnose or prevent illness.”
2. The WHO Centre for Health Development defines “African Traditional Medicine” as: “The sum total of all knowledge and practices, whether explicable or not, used in diagnosis, prevention and elimination of physical, mental or societal imbalance, and relying exclusively practical experience and observation handed down from generation to generation, whether verbally or in writing.”
3. In contrast to the approach of conventional medicine which uses “material causation” to understand and treat illness, traditional medicine generally looks towards the “spiritual” origin, which includes communication with the ancestors, for this purpose. Their methods of diagnosis and treatment are completely different and understandably their respective adherents would each be sceptical if not completely dismissive of the other.
Bear in mind that in Kievits Kroon, the employee’s case was not that she was sick or ill in the conventional sense. Her case was that, based on her cultural and or traditional belief she was in a “condition” and upon consultation with those that she believed to be in a position to assist, being a traditional healer, she was informed that she must undergo some sessions that would qualify her to become a sangoma as she had a calling from her ancestors. The problem started when the employee required a full month to conclude her sangoma sessions. It is only then that when it was found that she did not have sufficient leave days to take for a full month to comply with her request and when she found a week of absence offered to accommodate her to be insufficient, that the issue of illness and medical proof came to the fore. The employer took the view that she could only be accommodated if she produced a “medical certificate” as proof of her “medical condition”. The employee, in an attempt to comply with the requirements, obtained a certificate from the person who was in charge of treating her “condition”. The employee was, however, not seeking any remuneration for the period when she would be away from work due to ill health.
The employer's argument in the Labour Appeal Court that section 23 of the BCEA in express terms opted for standards in line with Western standards as opposed to African culture was correctly rejected by the LAC as entirely misplaced.
I conclude with the words of Justice Tlaletsi in the LAC, which to me must ring loud in our young democracy:
"It would be disingenuous of anybody to deny that our society is characterised by a diversity of cultures, traditions and beliefs. That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The Constitution of the country itself recognises these rights and practices. It must be recognised that some of these cultural beliefs and practices are strongly held by those who subscribe in them and regard them as part of their lives. Those who do not subscribe to the others’ cultural beliefs should not trivialise them by, for example equating them to a karate course. What is required is reasonable accommodation of each other to ensure harmony and to achieve a united society. A good example of accommodation was demonstrated by W when the [employee] first approached him about his challenge. W correctly involved other staff members and they all found a common ground to accommodate the employee. The fact that the employer's attorney does not believe in the authenticity of the culture and that no credible and expert evidence was presented to prove that the employee was ill is, in my view, subjective and irrelevant. A paradigm shift is necessary and one must appreciate the kind of society we live in. Accommodating one another is nothing else but ‘botho’ or ‘Ubuntu’ which is part of our heritage as a society."
The Minister of Heath must get the Council fully functional as soon as possible so that employees who use the services of traditional healers are able to claim their benefits in terms of section 23 of the BCEA.
Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com