Traditional Healers and the Validity of Medical Certificates: Navigating Cultural Rights and Statutory Compliance in South African Labour Law

South Africa’s constitutional commitment to multiculturalism finds expression across diverse legal domains, including employment law. One particularly complex issue arises in the context of employee absenteeism based on illness or incapacity certified by traditional health practitioners. The key legal question is whether, and under what conditions, such medical certificates are enforceable under current statutory frameworks.

This article examines the evolving status of traditional health practitioners in South African labour law, focusing on the compatibility of traditional healer-issued certificates with section 23 of the Basic Conditions of Employment Act 75 of 1997 (BCEA). It further evaluates the jurisprudential trajectory towards recognising cultural rights within contractual and regulatory employment relationships.

Statutory Framework: Medical Certification under the BCEA

Section 23 of the BCEA regulates the evidentiary requirements for paid sick leave. Under section 23(2), entitlement to remuneration during absence on grounds of illness is contingent upon the submission of a medical certificate issued and signed by a medical practitioner or a person “certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”

Historically, this provision has been interpreted narrowly, limiting recognition to certificates issued by practitioners registered with the Health Professions Council of South Africa (HPCSA) or the Allied Health Professions Council of South Africa (AHPCSA). Consequently, traditional healers whose methods and training fall outside Western biomedical models have been excluded from this recognition unless and until registered in terms of specific enabling legislation.

Legal Recognition of Traditional Health Practitioners

The Traditional Health Practitioners Act 22 of 2007 (THPA) constitutes the primary legislative instrument governing traditional healers in South Africa. The Act establishes the Traditional Health Practitioners Council of South Africa (THPCSA), tasked with registering and regulating traditional health practitioners, including diviners, herbalists, traditional birth attendants, and traditional surgeons.

While the THPA provides a statutory basis for recognising traditional medicine, the practical implementation of its regulatory framework has been delayed. Key regulations necessary to operationalise the registration and oversight of traditional healers were only released for public comment in 2024 and have yet to be fully promulgated.

In the absence of finalised regulations and active registration under the THPCSA, medical certificates issued by traditional healers, however sincerely made, do not satisfy the statutory requirements of the BCEA. Employers are thus legally entitled to reject such certificates and classify the associated absence as unpaid or unauthorised leave.

Constitutional Dimensions: Cultural Beliefs in the Workplace

The tension between statutory requirements and cultural practices was addressed in Kieviets Kroon Country Estate (Pty) Ltd v Mmoledi and Others 2014 (1) SA 585 (SCA), where an employee was dismissed after being absent from work to participate in traditional healer initiation rituals. The employee had submitted a certificate from a traditional healer indicating she was experiencing ancestral callings.

Although the certificate did not meet the evidentiary threshold for a valid sick note under the BCEA, the court held that the dismissal was substantively unfair. The court recognised the employee’s sincere belief in the ancestral calling and affirmed that such beliefs are constitutionally protected. However, the court distinguished between medical incapacity and cultural obligation, concluding that the case was more accurately characterised as incapacity arising from traditional commitments, not illness in the medical sense.

The Kieviets Kroon judgment underscores a pivotal doctrinal distinction: while traditional healer-issued certificates may lack legal effect for the purposes of paid sick leave, the underlying conduct may still enjoy protection under the right to cultural identity (section 31 of the Constitution), the right to equality (section 9), and the right to fair labour practices (section 23).

Conditions for Enforceable Certification

Once the THPA is fully implemented, medical certificates from traditional health practitioners may become legally valid, provided they meet formal requirements akin to those applied to biomedical professionals. These include:

Registration with the THPCSA;
Legibility and specificity of the diagnosis or basis of incapacity;
Confirmation of personal consultation or examination;
Signature, date, and professional details including registration number.

Absent such formal compliance, an employer is not compelled to recognise the certificate for purposes of remuneration under the BCEA. Nevertheless, a failure to accommodate sincerely held cultural beliefs may expose employers to claims of unfair discrimination or procedurally unfair dismissal under the Labour Relations Act 66 of 1995 (LRA).

Balancing Cultural Pluralism and Regulatory Certainty

In anticipation of the full regulatory implementation of the THPA, employers must adopt a cautious and context-sensitive approach. A strict refusal to accept any traditional healer certificates may be legally justifiable under current labour statutes but may also be challenged on constitutional grounds. The courts have increasingly affirmed the principle that procedural fairness in the workplace requires recognition of the diverse cultural and belief systems of employees.

Best practices would suggest a bifurcated approach:

Legal Verification: Assess whether the practitioner is registered with a statutory body empowered to issue medical certificates.
Cultural Accommodation: Where certification is not legally valid, assess whether the absence can be classified under other forms of authorised leave (e.g., unpaid leave or leave for cultural observance), provided the employee’s conduct is bona fide and consistent with the principle of mutual respect.

Policy Considerations

Employers are advised to proactively update human resources policies to prepare for the eventual legal recognition of traditional healer certificates. This may include:

Incorporating THPCSA-registered practitioners into leave policies once the register becomes operational;
Training managerial staff to distinguish between legally valid medical certificates and constitutionally protected cultural absences;
Establishing clear internal protocols for verifying registration status and certificate legitimacy;
Ensuring that decisions regarding leave and disciplinary action are procedurally fair and culturally sensitive.

Conclusion

The legal status of traditional healer-issued medical certificates is situated at the intersection of labour regulation, public policy, and constitutional protection of cultural rights. While current legislation does not compel employers to recognise such certificates for purposes of paid sick leave unless issued by a registered practitioner, a rigid approach may contravene broader constitutional values.

The jurisprudence indicates a growing judicial willingness to uphold cultural expression in the workplace, even where it does not neatly align with statutory language. As the regulatory framework under the THPA develops, the legal system must continue to balance doctrinal consistency with cultural inclusion. For employers, the challenge lies in navigating this evolving terrain with both legal precision and a spirit of constitutional empathy.