Date published: 13-07-2026

The recent spectacle of witnesses before the Madlanga Commission of Enquiry in South Africa repeatedly producing medical certificates to avoid giving evidence before the Commission has highlighted a problem that employers in Eswatini have faced for many years.

Justice Madlanga’s observation that many of these certificates are “useless” should resonate with every employer, human resources practitioner and disciplinary hearing chairperson. Too often, medical certificates are treated as though they are conclusive proof that an employee cannot participate in disciplinary proceedings or similar hearings. They are not.

In workplaces across Eswatini, it has become increasingly common for employees who are facing disciplinary action to produce medical certificates stating, in the barest of terms, that they are “unfit for work” for a specified period. Frequently, no diagnosis is disclosed, no explanation is provided, and no indication is given as to why the employee is incapable of attending a disciplinary hearing. Yet many employers simply postpone the proceedings, believing that they have no alternative because of medical confidentiality.

That belief is legally misplaced.

There is a fundamental difference between being medically unfit to perform one’s duties and being medically incapable of attending a disciplinary hearing. The two concepts though related are in fact not interchangeable.

An employee may be physically incapable of carrying out the strenuous demands of a particular occupation while remaining perfectly capable of sitting through a disciplinary hearing, consulting with a representative, listening to evidence, and responding to allegations. A construction worker suffering from a back injury may be unable to lift heavy materials but still be capable of attending a hearing. Similarly, a driver recovering from surgery may be unable to operate a vehicle but have no difficulty participating in disciplinary proceedings.

A disciplinary hearing is not work in the conventional sense. It is a legal process in which an employee is required to be present, give instructions, answer allegations and, where necessary, present evidence. A certificate declaring an employee “unfit for work” says little, if anything, about the employee’s ability to participate at a disciplinary hearing.

This distinction has long been recognised by the courts. In Mgobhozi v Naidoo (2006), the South African Labour Appeal Court made it clear that a medical certificate does not automatically entitle an employee to a postponement of disciplinary proceedings.

Unless the contents of the certificate are properly proven by the medical practitioner who issued it, the certificate remains hearsay evidence. Where there are reasonable grounds to question its reliability, an employer is entitled to reject it and require proper proof.

This is an important principle. Medical practitioners, like all professionals, may be required to justify the opinions that they express. An employer is therefore entitled to require the doctor who issued the certificate to testify regarding the examination conducted, the diagnosis reached, the tests performed, the treatment prescribed, and, most importantly, the medical basis upon which the conclusion was reached that the employee was incapable of attending a disciplinary hearing. This does not require them to breach the doctor-patient confidentiality.

It is not sufficient simply to write the words “unfit for work.”

Indeed, the phrase itself is of limited value. As Justice Madlanga observed, it is “useless” because it addresses the wrong question. The relevant enquiry is not whether the employee is capable of performing their ordinary duties but whether they are medically capable of participating in the disciplinary process.

The abuse of medical certificates is not merely theoretical. During my tenure as Chairperson of the Law Society Disciplinary Tribunal, I presided over a matter involving a legal practitioner charged with serious professional misconduct. Week after week, whenever the matter was set down for hearing, a fresh medical certificate would be produced. What made the situation particularly remarkable was that each certificate was issued by a different medical practitioner. The disciplinary process was effectively frustrated through the repeated production of certificates that were never subjected to scrutiny.

Such abuse undermines not only employers’ disciplinary processes but also public confidence in genuine medical certificate

This is not to suggest that medical practitioners routinely issue certificates irresponsibly or that employees who are genuinely ill should be compelled to attend hearings. Quite the contrary. Legitimate illness must always be accommodated, and disciplinary processes should never proceed where an employee is genuinely incapable of participating.

However, fairness operates in both directions. Employers are equally entitled to ensure that disciplinary proceedings are not manipulated through the misuse of medical certificates. Where there is a legitimate reason to doubt a certificate, an employer may require the medical practitioner to substantiate the opinion under oath or insist that the employee undergo an examination by an independent medical practitioner for a second opinion.

Medical certificates serve an essential purpose in protecting employees who are genuinely ill. They should never, however, become a convenient shield behind which disciplinary accountability is indefinitely postponed.

Justice requires compassion for genuine illness, but it also demands that disciplinary proceedings are conducted fairly, efficiently and without abuse. Employers should therefore remember a simple proposition: a medical certificate is evidence, not a verdict. Like any other evidence, it may be accepted, questioned or challenged where the circumstances justify it.

Should you require further elucidation on the subject you may contact the writer.