Much like the nation itself, South Africa’s legal system is diverse. South Africa has a mixed legal system which applies a hybrid of Roman-Dutch law, English common law, customary law, religious law, and statutory law.

As we share and celebrate our recent court victory, viz. M De Wet v Medihelp Medical Scheme, we also share about two different medical practices used in South Africa as part of our cultural heritage. These are allopathic medicine (science-based-medicine) and traditional medicine. As counterparts, these two divergent practices may be thought to be fighting for supremacy within the medical sector and in both the formal and informal settings. But, insofar as both practices have been modernised in their own respective ways, they have also been brought under statutory law by the enactment of, among others, the National Health Act 61 of 2003 and the Traditional Health Practitioners Act 22 of 2007 (“THP Act”), which respectively seek to regulate them. The latter Act also solidified the legal status of traditional medicine in South Africa. The question, which this article seeks to highlight, is: whether traditional medical practitioners work within the same legal parameters as allopathic medical practitioners?

At the outset, it should be remembered that health practitioners are generally required by law to be certified and registered as such before being permitted to practice, as set out in the Health Professions Act 56 of 1974. Further to this registration requirement, there are processes and requirements which must be satisfied to qualify; these includes, but not limited to, a period of study at designated education institutions followed by training and/or the performance of community service. The procedure for one to be a qualified/authorised traditional health practitioner is similar. The THP Act prescribes that the person must undergo a period of “education or training at any accredited training institution.” This may be followed by an initiation process in terms of the rites of the specific tradition (be it Zulu, Tsonga, etc.).

Under specific circumstances, the certification of health practitioners may be revoked by the relevant medical council/body. While allopathic practitioners follow the specifications set out by the Health Professions Council of South Africa (“HPCSA”), traditional practitioners follow those set out by the Traditional Health Practitioners Council of South Africa (“THPCSA”). Both councils were established by Parliament in terms of the aforementioned statutes.

The medical field is ladened with ‘best practice standards’, for example the professional standard of care, ethical standard and educational standards, which are established in order to ensure the health and safety of patients and subsequently to promote mutual trust between the patient and the practitioner. Non-compliance with these standards could be deemed an offence and punishable by a court of law or the health practice councils in terms of the relevant Acts.

In circumstances where a health practitioner is unregistered, uncertified or his or her certification is revoked, medical certificates or reports issued by him or her may be void ab initio (invalid). Therefore, an employer or school (or any other person or body in a position of authority) is not obliged to accept such certificates and reports and can choose not to act in accordance therewith. For the same reason, a reasonable person may be thought to have the duty to be prudent when consulting with a health practitioner by requiring proof of certification. That said, several judgments were made regarding the practice of unregistered persons: for instance, doctor N Monga and doctor K Mudau were found guilty of employing unregistered medical practitioners into their respective practices.[1] The legal implications of this, is that patients are entitled to require proof that the health practitioner is certified by the relevant council, and to further claim recourse where a medical practitioner has misrepresented himself or herself. This entitlement stems from the right to be treated by a named health care provider, as stipulated by the National Patients’ Rights Charter: “everyone has a right to know the person that is providing health care and, therefore, must be attended to by only clearly identified health care providers”.

Although the Acts do not provide a proper definition for medicine, it is interesting to note that the definition of traditional medicine, as defined by The ­World Health Organisation, has a scientific consideration. The WHO’s definition is as follows: the sum total of the knowledge, skill, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.[2]

However, even with this definition in mind and the legal status of traditional medicine and traditional health practitioners, medical aid schemes continue to be sceptical in covering patients relying on traditional medicine. This is due to limited control or regulation over what and how much goes into the medication provided by traditional practitioners (known ingredients includes plant-based and animal-based substances and mineral substances).

[1] HPCSA (2022) Guilty Verdicts 13 Sept 2022, <https://www.hpcsa.co.za/Uploads/Publications/2022/Judgements/Guilty_Verdicts_13_Sept_2022.pdf> accessed 11 October 2022.

[2] World Health Organization (2013) Traditional Medicine Strategy: 2014-2023, Geneva, <http://apps.who.int/iris/bitstream/10665/92455/1/9789241506090_eng.pdf> accessed 11 October 2022.

Written by Martin Mhlarhi

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.