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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)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?