South Africa wants to regulate traditional healers – but it's not easy

South African traditional healers play a significant role for people that follow African cultural beliefs. There are more than 200,000 traditional healers across the country.

Until recently, traditional healers have operated relatively freely from government interference, though many work under governing structures such as the Traditional Healers Organisation, which has more than 29,000 members.

In 2014, the Traditional Health Practitioners Act was passed to standardise and regulate the affairs of all traditional healers. Late last year additional regulations were published to give effect to the act. The government has invited public comment on the regulations.

Both the act and the proposed regulations have been criticised by some traditional healers who believe they are unrealistic and unworkable.

Protection for practitioners and users

The act has established an interim council to provide a regulatory framework. This allows for traditional healers to be registered and categorised according to their different healing specialities. These include:

• a diviner (those who have a calling from ancestral spirits);

• a herbalist (someone practising herbalism);

• student (someone training to be a traditional healer);

• traditional birth attendant (a midwife);

• traditional tutor (a traditional healer trainer); and

• traditional surgeon (someone performing cultural operations such as circumsion).

The proposed regulations would require all traditional healers to register before being able to practise. This means all traditional healers will have to apply to the council to be registered. They will also have to pay R200 for a practising certificate.

This will only be issued if the registrar, who is appointed by the health minister after consulting with the council, is satisfied that they meet the requirements. These include:

• being a South African citizen;

• providing character references from people unrelated to the applicant; and

• proof of qualifications.

There are several advantages to registering traditional healers. Aside from the government being able to exercise greater control over the quality of the profession, the public will also be protected from swindlers.

Although legislation is not always the best way to address problems, it might be the only way to provide protection to both the profession and its users.

Regulations need to be realistic

The regulations place several additional responsibilities on traditional healers, which could be costly and time-consuming.

As a start, the proposed regulations will require traditional healers to undergo education or training at an accredited training institution or educational authority. This is to ensure that the profession complies with universally accepted health care norms.

But the practicalities of how, when or where this training will take place remains indeterminate. This will be particularly challenging as there are currently no accredited training institutions.

A prospective trainer will have to register at a cost of R500. They would need to provide a list of their qualifications and details of the course modules, practical skill that would be acquired and duration. But the minimum skills or qualifications are not defined in the regulations.

One of the most bizarre requests is for trainers to produce copies of their teaching or learning materials. This may have serious implications for intellectual property rights. The tutors or training institutions will also need to keep in mind that there are different categories of traditional healers that are recognised in terms of the Act. Each category has different training needs.

For students to be considered, they would need an Adult Basic Education Training certificate level 1. This amounts to basic numeracy and literacy skills. The regulations also propose an age restriction of at least 18 years for student diviners and herbalists. Traditional birth attendants and traditional surgeons would need to be 25 years old before they can be registered to practice.

Diviners, herbalists and traditional birth attendants need to train for a minimum of one year while traditional surgeons need to train for at least five years.

The onus will be on trainers to ensure that their students are registered with the council. At the end of their training, students need to submit a log book to the council, providing details of the observations and procedures they undertook during their training.

Better cover for employees

Employment laws in South Africa require employees absent for more than two consecutive days to provide a valid medical certificate. This certificate must be issued and signed by a medical practitioner, registered with a professional council. If this does not happen, the employer has the right not to pay the employee.

As none of the traditional healers associations in the past were registered with a professional council, employers were not obligated to accept medical certificates from traditional healers.

The introduction of the act means that traditional healers would be registered by a professional council and employers would no longer be able to refuse a valid medical certificate issued by the traditional healer.

Renee Street, Project Manager, South African Medical Research Council and Christa Rautenbach, Professor of Law, North-West University

This article was originally published on The Conversation. Read the original article.

Oscar Pistorius verdict raises the bar for South African judiciary

The South African Supreme Court of Appeal’s unanimous decision to find Oscar Pistorius guilty of murder by overturning a lower court’s verdict of culpable homicide has important implications for the country’s judicial system. Thabo Leshilo from The Conversation Africa put questions to Chantelle Feldhaus and René Koraan about the implications of the judgment.

What is the significance of the verdict?

The Supreme Court of Appeal’s decision is important for three reasons. First it shows that South Africa has a strong legal system. Checks and balances are intact. Second, the verdict provides a clear interpretation of dolus eventualis as well as how it should be applied. Third, it reaffirms the importance of circumstantial evidence.

How does the replacement of the verdict reflect on the trial judge?

It has to be borne in mind that the trial was conducted in the glare of international media attention. The fact that the trial was covered by live television was unprecedented in a South African court. This must have added to the inherent pressures on the trial judge.

In his final remarks, Appeal Court Judge Eric Leach congratulated the trial Judge Thokozile Masipa on the way she conducted the trial. He emphasised that even though the Appeal Court found that certain mistakes were made, its decision should in no way be seen to cast doubt on her competence and ability. He also credited her patience and dignity.

Judge Leach commented on the tragedy of the case:

This case involves a human tragedy of Shakespearean proportions: a young man overcomes huge physical disabilities to reach Olympian heights as an athlete; in doing so he becomes an international celebrity; he meets a young woman of great natural beauty and a successful model; romance blossoms; and then, ironically on Valentine’s Day, all is destroyed when he takes her life. The issue before this court is whether in doing so he committed the crime of murder, the intentional killing of a human being, or the lesser offence of culpable homicide, the negligent killing of another.

What happens to Pistorius now?

Sentencing was not argued in the Supreme Court of Appeal. It has been referred back the High Court which still has to set a date for a hearing. In the meantime Pistorius will continue to be kept under correctional supervision. This is in effect house arrest. The just less than a year he spent in prison will be taken into consideration when a new sentence is passed down.

What possible sentence does he face?

In 1998 South Africa enacted legislation prescribing minimum sentences for certain serious offences, including murder. The purpose of the law was to reduce rising crime rates as well as to iron out disparities in sentencing for violent crimes.

The minimum sentence for a first offence of murder is 15 years’ imprisonment. This is the shortest sentence Pistorius can expect unless he can prove that there are “substantial and compelling circumstances” for a lesser sentence. But the court will need to be convinced that:

• his particular circumstances render the minimum prescribed sentence unjust; and

• it would be disproportionate to the crime, the accused’s personal circumstances and the needs of society.

But the court is unlikely to deviate from the minimum prescribed sentence lightly. Whatever sentence Pistorius gets, he will, at the very least, serve two-thirds of it.

Is this the end?

This is probably the end for Pistorius’ case. The only court left for him to appeal to is the Constitutional Court. But to lodge an appeal there he would need to argue a case based on a constitutional right. Say, for example, that his right to a fair trial had been compromised.

What are the implications for the law in South Africa?

This verdict highlights the importance of appeal processes and that different judges can reach different conclusions. It also cast fresh light on the meaning and application of dolus eventualis. As the Appeal Court explained, dolus eventualis is a form of intent which is present when

… a person foresees the possibility of harm ensuing but reconciles him/herself with that possibility and continues with the said action.

In this case the court found that Pistorius must have foreseen, when firing the shot, that whoever was behind the toilet door might die, but reconciled himself with that possibility and thus gambled with that person’s life.

The court also emphasised that the identity of the person behind the door was irrelevant.

Pistorius' defence of putative private defence was not sustained. Putative private defence is when someone genuinely believes that his life is in danger when in actual fact it is not. In this case the accused genuinely but erroneously believed that his life was in danger when he fired the shots.

The fact that the accused, armed with a heavy calibre firearm, did not take the elementary precaution of firing a warning shot was taken as prima facie proof that he did not genuinely believe he was acting lawfully.

The court concluded that Pistorius did not have a rational or genuine fear that his life was in danger at the time of the shooting since he did not know who was behind the door or whether the person constituted a threat to him.

Another important issue the Appeal Court emphasised was that crucial circumstantial evidence was not taken into account by the trial court. It found that the trial court failed to take into account the evidence of the forensic expert on the position of the bullet holes in the cubicle and the position of the injuries on the deceased. The type of ammunition that the accused used was also not taken into account.

This circumstantial evidence is crucial to a decision on whether the accused, at the time he fired the fatal shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his actions.

Chantelle Feldhaus, Lecturer in the Faculty of Law, North-West University and René Koraan, Lecturer: Criminal Law, North-West University

This article was originally published on The Conversation. Read the original article.