What is the status of a traditional healer’s medical certificate produced by an employee claiming sick leave?
Proof of illness is dealt with in section 23 of the Basic Conditions of Employment Act. An employer is not required to pay an employee who has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and who, on request by the employer, does not produce a medical certificate stating that he or she was unable to work on account of sickness or injury.
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.
It is clear that section 23(2) excludes traditional healers until such time as their practices are regulated through a statutory professional council.
The Traditional Health Practitioners Act of 2004 was assented to on February 7 2005, and certain sections of the Act came into effect for the purpose of establishing an interim health practitioners’ council, the purpose of which is to provide for a regulatory framework for traditional healthcare.
Regrettably, the Act was declared invalid on August 17 2006 by the Constitutional Court on the basis that the National Council of Provinces did not hold the required public hearings. The order of the Constitutional Court declaring the Act invalid was suspended for a period of 18 months until February 16 this year to enable Parliament to enact the statute afresh in accordance with the provisions of the Constitution.
The consequence of this was that the Traditional Health Practitioners Act 2007 was assented to on January 7 last year. The Act has yet to be proclaimed and until then has no legal effect.
Until this legislation comes into force, a traditional healer cannot claim to be registered in terms of an Act of Parliament.
The practical approach that could adopted on this issue is to advise employees in writing that while it is their right to obtain treatment from traditional healers in the event of illness and/or injury, medical certificates from traditional healers will not be accepted until the traditional health law comes into force and the company is satisfied that the traditional healer is registered under the Act.
In view of the deadline set by the Constitutional Court, the legislation may be in force from February 16, but it will take some time after that to put the registrations in place.