SANGOMA SICK NOTES INVALID
Traditional Health Practitioners Act is rejected by Constitutional Court.
The highly debated and publicised “Traditional Health Practitioners Act 35 of 2004” (the THP Act) was declared unconstitutional and thus invalid in the recent Constitutional Court judgment of Doctors for Life International v Speaker of the National Assembly & Others (Case CCT 12/05).
The THP Act was but one of the statutes whose validity was challenged by Doctors for Life International (DFL). DFL argued that Parliament failed to fulfil its constitutional obligation to facilitate public involvement when it passed four Bills, all of which related to health issues. These Bills are: the Sterilisation Amendment Bill; the Traditional Health Practitioners Bill; the Choice on Termination of Pregnancy Amendment Bill; and the Dental Technicians Amendment Bill.
However, DFL’s complaint was confined to the process followed by the National Council of Provinces (NCOP).
The Traditional Health Practitioners Act in particular was passed into law on 7 February 2005. The Act was “intended to bring about new dispensation of regulating traditional health practitioners”. From the outset, the Bill to the THP Act sparked great public interest, in particular from the view of employers and employees alike.
The Act provided for the establishment of Interim Traditional Health Practitioners Council with which traditional healers would be able to register themselves.
Once registered with this recognised body, traditional healers would be able to issue legitimate sick notes to employees, which would, in turn, comply with the requirements of section 23(2) of the Basic Conditions of Employment Act 75 of 1997. It was this issue which caused the most concern amongst employers, with fears raised that this could lead to further abuses of sick leave and higher levels of absenteeism.
In noting that there had been tremendous public interest in the THP Act, and the socio-economic relevance of the passing of this Act to South Africa’s transformation, the Constitutional Court was of the opinion that public participation in the passing of this legislation was imperative to the validity of the Act. The constitution places a duty on Parliament to ensure that there is public participation, to some degree, in the law making process.
The Court pointed out that, “the very purpose in facilitating public participation in legislative and other processes is to ensure that the public participates in the law making process consistent with our democracy.”
In creating law, the goal that our legislature is to strive towards is public participation – as to legislate otherwise would only be in contradiction of principles, which underlie our democracy - being amongst others transparency and accountability.
In satisfying this duty of public participation in the law making process all that is required of the legislature is that they act reasonably in the affording of opportunity for public comment and involvement.
In the law making process however, the Court found that there had been insufficient or unreasonable levels of public participation at provincial level – especially when viewed in light of the underlying rationale of the Act, the injustices that it sought to correct and the widespread implications of its provisions once enacted.
The importance of public participation in the THP Act was further impressed by the “decision of the National Council of Provinces that public hearings would be held in provinces and the view of most provincial legislatives that public hearings were required”.
As six of the nine provinces did not hold public hearings nor were written submissions invited, the Court held that the duty of the National Council of Provinces to facilitate public involvement with regard to the enactment of the Act in the Bill format had not been fulfilled sufficiently. As a result, the conduct of the National Council of Provinces was deemed inconsistent with the constitution and therefore invalid. This order invalidating the statutes has been suspended for a period of 18 months to enable Parliament to re-enact these statutes in a manner that is consistent with the constitution.
The effect of this judgment is that in order for the THP Act to be seen as valid, it is imperative that the public participation process is seen as reasonably complying in relation to the importance, and the impact the enactment of the Act will have. This will have to occur before the THP Act will be legitimately passed into law.
In the employment field in particular, this means a further delay in the establishment of the Interim Traditional Health Practitioners Council, which would afford traditional healers the opportunity of issuing legitimate sick notes for purposes of sick leave.
Ndumiso Voyi is an Associate of specialist law firm, Leppan Beech Inc. (www.leppanbeech.co.za)..