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Article 19/2025

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?

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  • 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)

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?