When Faith and the BCEA Collide: The Traditional Healer Dimension Testing SA Labour Law
- John Botha
- Aug 6
- 6 min read
The incapacity tribunal into Judge Lepono Lekale
Judge Lepono Lekale is, by every ophthalmological measure, permanently and legally blind. His doctors call it "end stage." There is no dispute about the biomedical facts.
And yet Lekale believes he will see again. Not because his doctors have changed their minds, but because his traditional healers have told him so — and warned him that stepping down, or accepting medical boarding, would anger his ancestors.
That collision — between hard clinical evidence and deeply held cultural belief — sits at the centre of his ongoing incapacity tribunal. It also exposes a gap in South African labour law that has been quietly widening for years: what happens when an employee's healer says one thing, and their doctor says another?
The short answer: a traditional healer's note doesn't currently count for paid sick leave
Here's the part that matters most for employers and employees alike: under the Basic Conditions of Employment Act (BCEA), a certificate from a traditional healer would generally not qualify as valid proof of incapacity for paid sick leave — including, on the facts as currently understood, in Lekale's own case.
Section 23 of the BCEA is specific: A valid medical certificate must come from 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." Traditional healers aren't yet covered by that wording in practice, because the statutory council meant to register and professionalise them — under the Traditional Health Practitioners Act (THPA) — is still not fully operational. Until that registration system is up and running and recognised for BCEA purposes, a traditional healer's note remains legally vulnerable. Employers are entitled to reject it as proof of incapacity for paid leave, even while treating the employee fairly in every other respect.
That doesn't mean traditional healer evidence is irrelevant. It just means it doesn't unlock a legal entitlement to paid sick leave on its own.
A law still catching up with a healing tradition
South Africa has long recognised, at a constitutional and cultural level, that traditional healers — diviners, herbalists, traditional birth attendants — are central to how millions of people understand health and identity. The THPA was meant to formalise that recognition by creating a statutory council, registration requirements and professional standards, much like the Health Professions Council of South Africa (HPCSA) does for doctors.
But the rollout stalled. For years, the council meant to register traditional healers remained more concept than institution, and the detailed regulations needed to make registration meaningful never arrived. The result: traditional healers are recognised socially and constitutionally, but not — yet — recognised as certifying "practitioners" for BCEA purposes.
New draft regulations are finally moving to close that gap, setting out registration requirements and practice standards for traditional healers. Once genuinely in force, healers who register with the new council should be able to issue certificates with the same legal weight as a doctor's note. Until then, the gap persists — and it's employees, not employers, who bear the practical cost of the delay.
What the BCEA actually requires
Employees are entitled to paid sick leave — broadly, the equivalent of six weeks' worth of working days over a three-year cycle (with a slower accrual rate in the first six months of a job). But that entitlement to paid leave depends on the employee producing adequate proof, and employers can lawfully demand a medical certificate once someone has been off for more than two consecutive days or absent more than twice in an eight-week window.
The HPCSA, for its part, holds registered doctors to strict ethical standards: certificates must follow real clinical assessment, be honest, and avoid unnecessary private detail. A doctor who signs off on incapacity without examining a patient risks disciplinary action. Traditional healers currently sit outside this regulatory net entirely — not because their diagnoses lack meaning to patients, but because no equivalent statutory ethics regime yet applies to them.
None of this means employers should reflexively bin every traditional healer's note. The law sets a floor, not a ceiling: many employers already choose, as policy, to treat THP certificates as supporting evidence for short absences or unpaid leave, as a form of cultural accommodation — they're just not obliged to pay for it.
The case that changed the conversation: Kievits Kroon
The leading authority here isn't really about pay — it's about fairness. In Kievits Kroon Country Estate v Mmoledi, an employee was dismissed after taking unauthorised leave to attend training prescribed by a traditional healer, who'd diagnosed her with a "calling" to become a healer herself. Her employer treated the absence as misconduct and fired her.
The Labour Appeal Court disagreed — and reinstated her. The court didn't pretend the traditional healer's note met BCEA certification standards; it didn't. But it insisted that sincerely held cultural and religious beliefs can't simply be dismissed as fabrication or laziness. An employer confronted with that kind of absence has to engage with the context, not just apply a rigid box-ticking test.
The upshot: a traditional healer's note won't get you paid sick leave under the BCEA but ignoring it entirely — treating it as if it doesn't exist — can itself be legally risky for an employer.
Back to Lekale: where biomedical fact meets contested prognosis
Lekale's situation goes further than a few days' absence. It's a full incapacity question: can he still do the job at all, and for how much longer can a decision be deferred?
Labour law is fairly clear that employers (or, in this case, the judicial body assessing him) aren't required to accept a traditional healer's prognosis over overwhelming, registered medical evidence. Where doctors say the condition is permanent, decision-makers are entitled to rely on that. But the process still matters enormously. Fair practice generally requires:
Independent, documented medical assessment of diagnosis, prognosis and functional limits;
A genuine opportunity for the employee to raise their own beliefs and evidence, traditional or otherwise;
Honest consideration of accommodation — lighter duties, flexible arrangements, redeployment — before any move toward dismissal or removal.
If the medical evidence is clear that someone can't perform the essential functions of the role, and no reasonable accommodation exists, the law doesn't require the process to be held hostage indefinitely by a competing spiritual prognosis. The test throughout is reasonableness — would a reasonable decision-maker, weighing operational needs, medical fact and the person's beliefs, have acted this way?
Why this also matters as a discrimination question
There's a sharper edge here too. The Constitution and the Employment Equity Act both protect against unfair discrimination on grounds of religion, culture and belief. An employer that happily accepts every GP's sick note but categorically sneers at every traditional healer's note — without ever checking registration status or considering softer options like unpaid leave — is exposed to a real discrimination claim, particularly where that blanket policy disproportionately affects employees from cultures where traditional healing is central to health and identity.
Equally, where a disability is medically established, the EEA's reasonable accommodation duty kicks in regardless of how the underlying condition is discussed culturally. Refusing to accommodate — while also being dismissive of someone's cultural framework for understanding their own illness — compounds the legal risk considerably.
The practical takeaway
For employers and HR practitioners watching how the Lekale matter unfolds, the lessons are already fairly settled law, even before the tribunal concludes:
A traditional healer's certificate, on its own, does not currently trigger paid BCEA sick leave. Section 23 requires certification from someone registered with a statutory professional council — and traditional healers aren't there yet.
That doesn't mean the note is worthless. It can matter enormously to a fairness enquiry, per Kievits Kroon, and dismissing it out of hand can itself be discriminatory or procedurally unfair.
Incapacity decisions should rest on independent medical evidence, not competing prognoses — but must genuinely engage with the employee's beliefs and explore accommodation before any final step is taken.
Watch the regulations. Once the Traditional Health Practitioners Council is fully operational and registration takes effect, traditional healers' certificates are expected to carry the same legal weight as a doctor's note — changing this analysis substantially.
Until then, South African workplaces remain caught between two systems of legitimacy: one built on statutory registration and clinical evidence, the other on cultural and spiritual authority that the law recognises — but, for now, doesn't yet fully pay for.
This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.
© 2026 Global Business Solutions (GBS). All rights reserved.
View our upcoming events: Upcoming Events and Qualifications, like EE Code of Good Practice Pop-up, B-BBEE Session 7: Empowering Youth & Elevating Women, CLAUDE for Employment Relations (Session Options: Aug., Sept. OR Oct.), B-BBEE Bootcamp, Disciplinary Enquiry & Arbitration Master Class, and Occupational Skills Programme: Skills Development Facilitation Practitioner (SDF).
*All workshops are offered as customised in-house training that can be presented virtually or on-site.
Comments