How are medical certificates to be dealt with in the absence of affidavits from doctors or evidence given by doctors who issued such medical certificates?
_____________________________________
- The nature of a medical certificate is that it is opinion evidence and, therefore, can only be given by an expert and not by a layman (i e the employee who is
the beneficiary of the medical certificate is not permitted to give evidence in this regard). - Of importance when considering the absence of an affidavit from the issuing doctor or the lack of evidence by the issuing doctor is a consideration of the reason why such evidence is not given – in this regard, due consideration must be given to abuse considerations, whether or not the doctor is not prepared to defend the certificate he/she issued and whether or not such doctor is not prepared to spend the time providing expert evidence in respect of the medical certificate issued.
- Obviously, the absence of an affidavit by the issuing medical practitioner, or the absence of evidence, is to the prejudice of the employer, seeing that the employer is deprived of the opportunity of testing the medical certificate by means of its own-appointed practitioner.
- Seeing that a medical certificate, in the absence of an affidavit or evidence given by the issuing medical practitioner, constitutes hearsay evidence, entailing that the Law of Evidence Amendment Act 45 of 1998 is applicable, the presiding officer of the disciplinary investigation (inclusive of the arbitrator at the CCMA, etc) has the discretion, in terms of s3(1)(c) of the said Act, to admit such medical certificate in the absence of an affidavit or such required evidence, or not to consider such medical certificate at all.
- In short, when the medical certificate is challenged, the onus is on the employee to prove that he/she was indisposed, as well as the extent of the incapacity – see, further, Old Mutual Life Assurance v Gumbi 2007 (5) SA 552 (SCA).
- In expanding the above principles, the labour appeal court, in Mghobozi v Naidoo and Others [2006] 3 BLLR 242 (LAC), said the following, at paragraph [28]:
- ‘The absence of affidavits from doctors means that the court is deprived of any elaboration of the widely and vaguely-stated symptoms attributed to the appellant. The nature of the medication and the efficacy thereof is also not explained.’
See, further, NUMSA v Kaefer Energy Projects (2022) 33 SALLR 11 (LC)
